The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
________________________________________________________________
SHELDON GREEN, )
)
Plaintiff, )
)
v. ) No. 21-cv-2518-JPM-tmp
)
FEDEX SUPPLY CHAIN, INC., )
)
Defendant. )
________________________________________________________________
ORDER DENYING MOTION FOR RULE 37 SANCTIONS
________________________________________________________________
Before the court is pro se plaintiff Sheldon Green’s motion
titled “Request to Enter Default Judgment for Failure to Produce
Documents.”1 (ECF No. 107.) Although the motion is styled as a
motion for default judgment, it appears that Green is seeking
discovery sanctions pursuant to Federal Rule of Civil Procedure
37.2 Green filed the Motion on September 6, 2022, and defendant
1Pursuant to Administrative Order No. 2013-05, this case has been
referred to the United States magistrate judge for management and
for all pretrial matters for determination or report and
recommendation, as appropriate.
2Although a magistrate judge must generally submit a report and
recommendation on a dispositive motion under 28 U.S.C. § 636, “the
majority of courts to consider the issue have concluded that when
a party brings a motion for discovery sanctions, the sanction
chosen by the magistrate judge, rather than the sanction sought by
the moving party, governs the magistrate judge's authority over
the motion.” Kindred v. Memphis Light, Gas & Water Division, No.
19-cv-2660-TLP-tmp, 2021 WL 6751896, at *2 (W.D. Tenn. Apr. 21,
2021) (quoting Builders Insulation of Tenn., LLC v. S. Energy
Sols., No. 17-cv-2668-TLP-tmp, 2020 WL 265297, at *4-5 (W.D. Tenn.
FedEx Supply Chain, Inc. (“FedEx”) responded on September 12, 2022.
(ECF Nos. 107, 109.) For the reasons set forth below, the motion
is DENIED.
I. BACKGROUND
On July 2, 2021, Green filed a pro se complaint against his
former employer, FedEx. (ECF No. 1.) On August 11, 2021, FedEx
filed a notice of removal in the United States District Court for
the Western District of Tennessee. (Id.) Green filed a pro se
amended complaint on August 13, 2021, which contained allegations
of defamation, libel, unlawful termination, and religious
discrimination. (ECF No. 8.)
On May 15, 2022, FedEx filed a Motion to Dismiss or for
Summary Judgment. (ECF No. 75.) On August 3, 2022, the undersigned
entered a Report and Recommendation, recommending that the motion
be granted and the case be dismissed. (ECF No. 95.) Green filed
objections on August 11, 2022. (ECF No. 99.) Green’s objections
and the entire Report and Recommendation are pending before the
presiding district judge.
Jan. 17, 2020); see, e.g., Catrinar v. Wynnestone Cmtys. Corp.,
No. 14-11872, 2017 WL 4349284, at *1, n.1, (E.D. Mich. Sep. 30,
2017); Thurmond v. City of Southfield, No. 15-13167, 2017 U.S.
Dist. LEXIS 39360, at *2 n.1 (E.D. Mich. May 26, 2017). Since the
undersigned declines to enter default judgment, 28 U.S.C. §
636(b)(1)(A) permits the undersigned to proceed by order rather
than report and recommendation.
On September 6, 2022, Green filed the present motion, which
states in relevant part:
Comes Now, the plaintiff pursuant to 49 CFR § 1114.31
(failure to respond to discovery) files a request to
enter default judgment in favor of the plaintiff because
the defendant has refused to comply with a request for
documents and has give the plaintiff a jump drive absent
of the audio footage of the investigation into Jeff
Calo’s actions.3 Aside from the fact that the defendant
has now made it a habit to provide incomplete disclosures
with documented information in the defendant’s control
absent in their initial disclosures, Misleading
testimonies from staff, and omitted critical information
that indicts the defendant in serious crimes detailed in
the plaintiff’s complaint. Overwhelming amount of
evidence against the defendant and a lack of documents
and reports by the plaintiff in the custody of the
defendant has destroyed their credibility, yet their
testimony is adopted by the Judge as accurate. Plaintiff
has witnessed Jeff Calo in the act of gaining false
testimony from Nyla Blackburn and Nyla has submitted an
admission of guilt on the record clarifying that Jeff
Calo indeed pursued malicious false testimony against
the plaintiff. To a common man the case should’ve been
won by plaintiff[.]
(ECF No. 107 at PageID 463.)
In their response, FedEx explains that they already produced
the audio recordings that Green seeks:
Because the two audio recordings are over an hour long
each, the files were too large to transmit via email.
Counsel for FedEx saved the first of the audio files to
a flash drive for Plaintiff, and as Plaintiff did not
have a reliable mailing address at the time, on January
20, 2022, counsel for FedEx left the flash drive at the
security desk at FedEx Logistics headquarters, 145 Lt.
3In their response, FedEx argues that 49 CFR § 1114.31, a rule
which governs practice and procedure before the Surface
Transportation Board is inapplicable to this case. (ECF No. 109 at
PageID 467.) The undersigned agrees and reviews this motion under
Rule 37.
George W. Lee Avenue, Memphis, TN 38103. As of February
10, 2022, Plaintiff had not picked up the flash drive,
so counsel for FedEx saved the second audio file to the
same flash drive and returned it to the security desk.
More than two weeks later, during Plaintiff’s
deposition, counsel for FedEx confirmed with Plaintiff
that he had received the flash drive left for him at the
security desk[.]
(ECF No. 109 at PageID 468) (internal citations omitted). FedEx
also attached as an exhibit an excerpt from Green’s deposition
where he confirmed that he had received the flash drive. (ECF No.
109-3 at PageID 474.) FedEx argues that even if there was an issue
with the contents of the flash drive, Green has waited too long to
raise it. (ECF No. 109 at PageID 468-69.) Because discovery in
this case was completed on March 15, 2022, FedEx contends that
this motion is untimely. (Id.)
II. ANALYSIS
Green seeks a default judgment against FedEx as a result of
defendants “refus[ing] to comply with a request for documents” and
“giv[ing] the plaintiff a jump drive absent of the audio footage
of the investigation into Jeff Calo’s actions.” (ECF No. 107 at
PageID 463.) Under Rule 37(b)(2) of the Federal Rules of Civil
Procedure, a district court may sanction parties who fail to obey
discovery orders in a number of ways, including dismissal of the
action or rendering a default judgment against the disobedient
party. Fed. R. Civ. P. 37(b)(2)(A)(v)-(vi). The dismissal of an
action for non-compliance with a discovery order under Rule 37 is
a sanction of “last resort,” one which a court may impose only
when “‘a party's failure to cooperate in discovery is due to
willfulness, bad faith, or fault.’” Peltz v. Moretti, 292 F. App'x
475, 478 (6th Cir. 2008). The same is true for entry of a default
judgment as a discovery sanction under Rule 37. Bank One of
Cleveland, N.A. v. Abbe, 916 F.2d 1067, 1073 (6th Cir. 1990) (“Just
as dismissal of an action for failure to cooperate in discovery is
a sanction of last resort that may be imposed only if the court
concludes that a party's failure to cooperate in discovery is due
to willfulness, bad faith, or fault, so, too, is entry of default
judgment.”) (internal quotation marks and citations omitted).
Here, the undersigned finds that sanctions are not
appropriate. As to the requests for production, Green has not
identified which documents FedEx has allegedly refused to produce.
As to the flash drive, on January 20, 2022, counsel for FedEx left
it at the security desk at FedEx Logistics headquarters. (ECF No.
109 at PageID 468.) Based on Green’s own deposition testimony, it
appears that he picked up the flash drive at some point between
February 10, 2022 and March 1, 2022. (ECF No. 109-3 at PageID 474.)
Discovery closed on March 15, 2022. Until the filing of this
motion, Green had not raised any issues about the flash drive with
defendants or filed a motion to compel. Even if this motion was
construed as a motion to compel, it would be untimely. See FedEx
Corp. v. United States, 08-2423 Ma/P, 2011 WL 2023297, at *4 (W.D.
Tenn. 2011) (“Absent special circumstances, motions to compel
discovery filed after the close of discovery are untimely.”)
(collecting cases). Finding no legal or factual basis to impose
sanctions, the Motion is DENIED.
III. CONCLUSION
Based on the foregoing, Green’s Motion is DENIED.
IT IS SO ORDERED.
s/ Tu M. Pham
TU M. PHAM
Chief United States Magistrate Judge
January 19, 2023
Date