# Barden v. Murphy-Brown Holdings, LLC

> District Court, E.D. North Carolina · November 29, 2022

URL: https://www.frixlaw.com/law-library/cases/10252374

## Case

- **Court:** District Court, E.D. North Carolina
- **Decided:** November 29, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
No. 7:20-CV-85-D

JEANNIE MAE BARDEN, MONTRINA )
BONEY, JANICE CHASTEN, BETTY )
FRAZELLE, THELMA GLASPER, )
CHRISTINE HIGHSMITH, ALFREDA )
GLASPER HUMPHREY, BEVERLY _ ) >
TOMEKIA JONES, GREGORY MCCOY, JR., )
ANDRENA MCCULLEN, NANCY NEWTON, )
ANNETTE PEARSALL, KATHY PEARSALL, )
LEONARD PEARSALL, LOUISE JONES )
PEARSALL, NORWOOD EARL PEARSALL, ) ORDER
WILLIAM PEARSALL, HERNDON )
WILLIAMS, MARGARET WILLIAMS, )
MAVIS WOMBLE, )
)
Plaintiffs, )
)
v. )
. ) .
MURPHY-BROWN LLC, and )
SMITHFIELD FOODS, INC., .
)
| Defendants. )
On October 27, 2022, defendants Murphy-Brown LLC (“Murphy-Brown”) and Smithfield
Foods, Inc. (“Smithfield”) (collectively, “defendants”) requested the imposition of the case-
terminating sanction of dismissal concerning plaintiffs Annette Pearsall and Kathy Pearsall for
failure to comply with the court’s discovery orders. See [D.E. 76]. Plaintiffs did not respond, and
the time to do so has expired. As explained below, the court grants defendants’ motion and
dismisses with prejudice the claims of plaintiffs Annette Pearsall and Kathy Pearsall.

On September 12, 2022, the court entered two orders. [D.E. 71, 72]. The first order granted
.
defendants’ motion to compel the deposition of plaintiff Annette Pearsall [D.E. 63, 64] and required

that her deposition “be held by no later than September 30, 2022.” [D.E. 71] 2. The second order
granted defendants’ motion to compel entry onto land and property possessed or controlled by
plaintiffs [D.E. 65, 66] and required that all property visits “be completed by no later than October
7, 2022.” [D.E. □□□ □□ Both orders admonished these plaintiffs that a failure to comply “may result
in sanctions, including dismissal of their claims for failure to comply with discovery obligations,
failure to comply with the court’s order, and failure to.prosecute.” [D.E. 71] 2; [D.E. 72] 3.
In the more than two months following entry of these orders, the deposition of plaintiff
‘Annette Pearsall has mot been held, and no “property visit” has been completed. See [D.E. 76, 77].
No request to extend the time for holding plaintiff ‘Annette Pearsall’s deposition or completing the
property visit for plaintiffs has been submitted to the court, and plaintiffs have not attempted to
excuse or justify their failure to comply with the court’s orders. _

IL
“Rule 37(d) of the Federal Rules of Civil Procedure gives the district court wide discretion
to impose sanctions for a party’s failure to comply with its discovery orders.” Mut. Fed. Sav. &
Loan Ass’n v. Richards & Assocs., Inc., 872 F.2d 88, 92 (4th Cir. 1989). Such a sanction includes
“dismissing the action or proceeding in whole or in part.” Fed. R. Civ. P. 37(b)(2)(A)(v).
Plaintiffs Annette Pearsall and Kathy Pearsall failed to comply with the discovery orders
entered in this case. See [D.E. 71, 72, 76,77]. Defendants expressly seek the sanction of dismissal
with prejudice for plaintiffs’ failure to comply with this court’s orders. See [D.E. 76, 77].
In analyzing whether dismissal is an appropriate sanction for failure to comply with a
discovery order, the court considers four factors: “( 1) whether the noncomplying party acted in bad
faith; (2) the amount of prejudice h[er] noncompliance caused hfer] adversary, which necessarily
includes an inquiry into the materiality of the evidence [s]he failed to produce; (3) the need for
, .

deterrence of the particular sort of noncompliance: and (4) the effectiveness of less drastic
sanctions.” Mut. Fed., 872 F.2d at 92.

As for the first factor, the court finds that plaintiffs acted in bad faith. The court specifically
warned plaintiffs that failure to comply with the courts orders could result in sanctions, including
dismissal. More than two months have passed without explanation from either plaintiff concerning
why they failed to comply with the court’s order, and both plaintiffs failed to respond to defendants’
motion. Cf. Joyner v. Eckard Fam. Youth Alts., Inc., No. 4:09-CV-166, 2010 WL. 3743766, *2
(E.D.N.C. Sept. 23, 2010) (unpublished). Therefore, the court finds both plaintiffs acted in bad
faith.!
Second, plaintiffs” noncompliance has prejudiced defendants. Defendants have been seeking
plaintiff Annette Pearsall’s deposition since 2021 [D.E. 64], with no success even with the court’s
involvement. The deposition of plaintiff Annette Pearsall is important to the defense of her claims.
Likewise, defendants have been seeking a property visit since mid-2022. See [DE. 66]. Plaintiffs
have placed their respective properties at issue in this case, and defendants “have shown good cause
to permit entry onto Plaintiffs’ land for inspection and other purposes[.]” [D.E. 72] 2. Plaintiff
Kathy Pearsall’s same-day cancellation of a rescheduled property visit—the second attempt at
completing it—frustrated defendants’ efforts to obtain material discovery about the property and

Plaintiff Annette Pearsall may have been hospitalized in September 2022, and plaintiff
Kathy Pearsall may have had a medical appointment on the rescheduled date for her property visit.
See [D.E. 77-1] 5,.10. However, these two plaintiffs did not submit information to the court to
corroborate any representations made by their counsel to defendants’ counsel. Moreover, the time □
period in which they could have done so has now expired, and nothing in the record provides a basis
on which plaintiffs’ non-compliance may be attributed to any hospitalization or medical
appointment.

□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□ See [DE. 78]. Plaintiffs have prejudiced defendants’
ability to defend against plaintiffs’ claims. Id.
Third, noncompliance with this court’s orders must be deterred. These two plaintiffs have
not appeared to make any attempt to comply with the court’s clear directives, and they have not
offered any reason for their noncompliance. It is unwise to allow plaintiffs to behave in this way.
If not sanctioned, this behavior would set an example for other litigants to ignore this court’s orders.
Moreover, defendants specifically requested dismissal of both plaintiffs from this action in their
motion, and plaintiffs did not respond to that motion.
Fourth, the court employed less drastic sanctions by awarding fees and costs. See [D.E. 71,
72, 78]. These sanctions did not effectively bring about plaintiffs’ compliance. The court finds any
lesser sanction would be ineffective. See Hathcock v. Navistar Int’] Transp. Corp., 53 F.3d 36, 40
(4th Cir. 1995); Joyner, 2010 WL 3743766 at *3. -

The court expressly warned plaintiffs that failure to comply with the two orders could “result
in sanctions, including dismissal of their claims.” [D.E. 71, 72]. This warning suffices as adequate
notice of the possible consequences for failure to comply with the order. See Hathcock, 53 F.3d at ,
40.

In sum, the court GRANTS defendants’ motions for sanction of dismissal [D.E. 76, 77], and
DISMISSES WITH PREJUDICE the claims of plaintiff Annette Pearsall and plaintiff Kathy
Pearsall. Plaintiff Annette Pearsall and plaintiff Kathy Pearsall are no longer parties to this case.
SO ORDERED. This 29 day of November, 2022. .

United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10252374. Public record. Not legal advice.