United States District Court, M.D. Tennessee, Nashville Division
MEMORANDUM AND ORDER
ALETA A. TRAUGER, District Judge.
On October 15, 2014, the Magistrate Judge issued a Report and Recommendation ("R&R") (Docket No. 224), which recommends that both the Motion to Dismiss for Lack of Prosecution (Docket No. 220) filed by Defendant AT&T Services, Inc. ("AT&T") and the Motion to Dismiss (Docket No. 223) filed by Defendant Communications Workers of America ("CWA") be granted and that this action be dismissed with prejudice. Plaintiff Sabrina Holder ("Holder") has filed Objections (Docket No. 240), to which AT&T has filed a Response (Docket No. 241), and CWA has filed a Response (Docket No. 243). For the following reasons, the court will overrule the Objections, accept and adopt the R&R, and grant the Motions to Dismiss.
When a magistrate judge issues a report and recommendation regarding a dispositive pretrial matter, the district court must review de novo any portion of the report and recommendation to which a specific objection is made. Fed.R.Civ.P. 72(b); 28 U.S.C. § 636(b)(1)(C); United States v. Curtis, 237 F.3d 598, 603 (6th Cir. 2001); Massey v. City of Ferndale, 7 F.3d 506, 510 (6th Cir. 1993). Objections must be specific; an objection to the report in general is not sufficient and will result in waiver of further review. See Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995). However, issues are not waived if the magistrate judge fails to warn the party of the potential waiver. See Mattox v. City of Forest Park, 183 F.3d 515, 519-20 (6th Cir. 1999). Upon reviewing the objections, the district court may "accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions." Fed.R.Civ.P. 72(b)(3).
FACTS AND PROCEDURAL BACKGROUND
Holder, who is proceeding pro se, filed this employment discrimination action four years ago. The case has a long and winding history replete with discovery disputes and requests for extensions. Because Holder's underlying factual allegations and legal claims against the defendants are irrelevant to the pending Motions to Dismiss for failure to prosecute, the R&R, and the Objections before the court, the court need not recite them herein. Instead, the court focuses on the procedural history and evidence that are directly relevant to the R&R and Objections - namely, (1) Holder's history concerning her deposition in this matter, (2) the orders of the Magistrate Judge and the court related thereto, and (3) Holder's failure to appear for a third properly noticed deposition.
I. The First Two Deposition Notices and Motions to Dismiss
On February 25, 2013, the defendants noticed Holder's deposition for March 11, 2013. Four days before the date of the deposition, Holder filed an objection, in which she stated that she was "not comfortable" being deposed in the offices of AT&T's counsel and requested to be deposed by written questions. (Docket No. 63.) On April 30, 2013, the Magistrate Judge issued an Order requiring Holder to submit to deposition by oral examination at a time and place convenient to the parties ("April 2013 Order"). (Docket No. 85.) The re-scheduling of Holder's deposition was delayed while the defendants successfully pursued multiple motions to compel document and written discovery from Holder. ( See Docket Nos. 111, 126, 129, 133, 156, 157.) On December 11, 2013, Holder requested that "the courts allow deposition to be taken by telephone or no deposition be taken at all." (Docket No. 139 at p. 3.) The Magistrate Judge denied Holder's request on February 7, 2014. (Docket No. 159 at p. 2.)
AT&T sent Holder a second notice of deposition for May 5, 2014, to be held at a local court reporter's office because Holder had refused to appear at the offices of AT&T's counsel. (Docket Nos. 180 at 3; 182 at ¶ 6; 184 at 1.) On April 30, 2014, Holder informed defendants' counsel that she was not available on May 5, 2014, and she requested to reschedule the deposition to May 7, 2014. ( Id. ) Holder also demanded that the deposition be conducted at the federal courthouse in Nashville, Tennessee. ( Id. ) The defendants agreed and scheduled the deposition for May 7, 2014 at 9:00 a.m. in Room 787 of the federal courthouse. (Docket No. 182, Ex. 1.; Docket No. 184 at 2.) The defendants' counsel appeared at 9:00 a.m. on that date with a court reporter, but Holder did not timely appear. (Docket Nos. 180 at p. 3; 182 at ¶ 7; 184, Ex. 1 at ¶ 4.) Counsel for the defendants could not contact Holder, and Holder did not contact them. ( Id. ) At 9:30 a.m., the defendants noted Holder's non-appearance for the record and departed. (Docket Nos. 180 at p. 3; 184 at 2; 184, Ex. 1 at ¶ 5.) Counsel for AT&T was later contacted by the office of the Clerk of Court at 9:45 a.m. and informed that Holder was present but could not find the conference room. (Docket No. 182 at ¶ 8; 184 at p. 2.) However, counsel for AT&T was unable to contact counsel for CWA (who was returning by car to Atlanta), and the deposition could not be reconvened. ( Id. ; Docket No. 184, Ex. 1 at ¶ 5.)
Defendants filed two Motions to Dismiss for failure to prosecute. (Docket Nos. 180, 184.) Holder filed responses stating that she was late for the deposition due to "morning traffic/construction" and "parking next to the District Court house." (Docket Nos. 192, 193.) Holder asserted that an Interstate 65 construction project turned a fifteen minute commute into a forty-five minute one. ( Id. ) Holder also produced evidence that she had secured five hours of parking in support of the argument that she had planned to participate in the deposition. ( Id. )
II. The Initial Report and Recommendation
On June 5, 2014, the Magistrate Judge issued a Report and Recommendation that recommended that the court dismiss this action with prejudice for lack of prosecution, on the grounds that Holder had unacceptably delayed discovery and failed to appear for her deposition. (Docket No. 196.) However, because of a delay in electronic docketing and notification, that Report and Recommendation had not been prepared with the benefit of Holder's response to the motions to dismiss. On June 9, 2014, the Magistrate Judge issued a Supplemental Report and Recommendation that took into account Holder's responses. (Docket No. 200.) Citing Holder's poor track record of deposition attendance and lack of involvement in moving her case forward, the Magistrate Judge considered Holder's proffered excuses and rejected them. ( Id. at p. 2-3.) The Magistrate Judge noted that Holder had failed to even mention a problem finding the courthouse conference room in her responses. ( Id. at p. 3 n.1.)
Holder filed Objections to the Supplemental Report and Recommendation (Docket No. 207) and, with permission of the court, filed Amended Objections on July 7, 2014. (Docket No. 210.) The Amended Objections accused the Magistrate Judge of favoritism and also alleged various procedural and discovery misdeeds by the defendants. ( Id., passim. ) Holder contended that she missed her second deposition due to traffic and construction, did not have a cell phone, and could not find the conference room at the courthouse. ( Id. at p. 8.) Holder asked for indulgence as a pro se litigant, sought less drastic sanctions than the Magistrate Judge had recommended, and requested that discovery be extended. ( Id., passim. ) The defendants filed responses to Holder's Amended Objections, in which they argued that Holder's actions on May 7 were not an isolated incident, but, rather, were part of an ongoing pattern of failure to prosecute the instant action. (Docket Nos. 212, 213.) The defendants further contended that they were engaged in meaningful discovery and there was no evidence of favoritism by the Magistrate Judge. ( Id. )
III. The August 24, 2014 Memorandum and Order
On August 24, 2014, the court issued a Memorandum and Order ("August 2014 Order") that declined to adopt the Supplemental Report and Recommendation. (Docket No. 214.) The court found that (1) Holder had offered evidence of a good faith attempt to attend the May 7, 2014 deposition (including a parking receipt) that was foiled by traffic delays, and (2) even if that evidence were not credible, the Magistrate Judge had not sufficiently warned Holder that failure to cooperate on that date would result in the severe sanction of dismissal of her action. ( Id. at p. 2.) The court concluded that, on balance, the best course of action was to deny the defendants' Motions to Dismiss for failure to prosecute and return this action to the purview of the Magistrate Judge for further proceedings. ( Id. at pp. 2-3.) However, the court noted that it "certainly share[d] the Magistrate Judge's frustration with the protracted nature of this case, much of which appear[ed] to be attributable to the plaintiff's stalling tactics." ( Id. at p. 2.) Accordingly, the court explicitly warned Holder as follows: "[T]he ...