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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 19-13507
Non-Argument Calendar
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D.C. Docket No. 1:17-cv-01961-SCJ
NOURADDINE OMAR HAJI,
Plaintiff - Appellant,
versus
NCR CORPORATION,
Defendant - Appellee,
ALAN THOMAS, et al.,
Defendants.
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Appeal from the United States District Court
for the Northern District of Georgia
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(November 24, 2020)
Before MARTIN, BRANCH and MARCUS, Circuit Judges.
PER CURIAM:
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Nouraddine Haji appeals from the district court’s dismissal of his pro se
complaint against his former employer, NCR Corporation, pursuant to Fed. R. Civ.
P. 37 and 41(b). Haji’s complaint alleged that NCR had discriminated against him
and subjected him to a hostile work environment due to his religion, among other
things, in violation of Title VII. On appeal, he argues that the district court abused
its discretion in dismissing his complaint because of his pro se status and because he
did not willfully violate discovery orders. After thorough review, we affirm.
We review the dismissal of an action under Rule 37 or Rule 41 for abuse of
discretion. Gratton v. Great American Communications,
178 F.3d 1373, 1374 (11th
Cir. 1999). “Courts do and should show a leniency to pro se litigants not enjoyed
by those with the benefit of a legal education.” GJR Invs., Inc. v. County of
Escambia, Fla.,
132 F.3d 1359, 1369 (11th Cir.1998), overruled on other grounds by
Ashcroft v. Iqbal,
556 U.S. 662 (2009). However, pro se litigants who ignore
discovery orders are subject to sanctions like any other litigant. Moon v. Newsome,
863 F.2d 835, 837 (11th Cir. 1989). Also, a district court’s judgment will be
affirmed if an appellant fails to challenge each of the court’s independent, alternative
grounds for its ruling. Sapuppo v. Allstate Floridian Ins. Co.,
739 F.3d 678, 680
(11th Cir. 2014).
If a party fails to comply with a district court’s discovery order, the district
court may impose sanctions, including “dismissing the action . . . in whole or in
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part.” Fed. R. Civ. P. 37(b)(2)(A)(v). However, the district court must exercise
caution before imposing dismissal as it is the “most severe Rule 37 sanction.” Phipps
v. Blakeney,
8 F.3d 788, 790 (11th Cir. 1993). Dismissal may be warranted under
Rule 37 when a party’s failure to comply was willful, intentional, or “in flagrant bad
faith.” Nat’l Hockey League v. Metro. Hockey Club, Inc.,
427 U.S. 639, 641, 643
(1976) (quotations omitted). Moreover, under Rule 37, a district court need not state
that it considered lesser sanctions prior to imposing dismissal, although this is “good
practice.” Phipps,
8 F.3d at 791.
In National Hockey, the plaintiff acted in bad faith when, after 17 months, it
failed to substantively answer “crucial interrogatories . . . despite numerous
extensions granted at the eleventh hour and, in many instances, beyond the eleventh
hour.”
427 U.S. at 640. Further, the district court warned the plaintiff numerous
times that dismissal was a potential sanction for failure to comply.
Id. at 640-41.
The Supreme Court held that the district court did not abuse its discretion in
dismissing the action.
Id. at 642-43. The Court noted that there was a “natural
tendency on the part of reviewing courts, properly employing the benefit of
hindsight, to be heavily influenced by the severity of outright dismissal as a
sanction[,]” but the Court stated that sanctions must be available to the district court
“not merely to penalize” but also to deter.
Id.
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A district court also possesses the power to dismiss an action under Fed. R.
Civ. P. 41(b) for the failure to comply with court orders generally. Moon,
863 F.2d
at 837 (affirming a district court’s order of dismissal for failure to obey a discovery
order, noting that the plaintiff’s “conduct and words evidence a refusal to
acknowledge the authority of the magistrate [judge] and indicate no willingness to
comply with court orders”). To dismiss a complaint under Rule 41(b), a district
court must find: (1) a clear record of delay or willful contempt; and (2) that lesser
sanctions would not suffice. Goforth v. Owens,
766 F.2d 1533, 1535 (11th Cir.
1985). A dismissal under Rule 41(b) is a “sanction of last resort” that should only
be used in the most extreme cases.
Id. However, where a litigant has been
forewarned of the possibility of dismissal as a potential sanction, the ultimate
dismissal of his case is generally not an abuse of discretion. Moon,
863 F.2d at 837.
Here, the district court dismissed Haji’s complaint as a sanction under Fed. R.
Civ. P. 37(b) and under Fed. R. Civ. P. 41(b), after Haji failed multiple times to
substantively respond to court-ordered discovery. On appeal, however, it is unclear
whether Haji challenges both independent reasons for the dismissal of his
complaint.1 But even if Haji is challenging both bases, his arguments are without
1
Upon review of his brief, it appears he is only challenging the dismissal of his complaint
under Fed. R. Civ. P. 37 -- he only references cases that involved dismissals under Rule 37 and
only argues that his failure to comply was not willful or flagrant, which are words used to argue
about dismissal under Rule 37. Thus, because Haji has failed to challenge on appeal the other
independent basis supporting his complaint’s dismissal -- Rule 41(b) -- affirmance is appropriate
under Sapuppo.
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merit. For starters, under Rule 37, the district court reasonably found that Haji’s
actions were a willful and flagrant disobedience to its orders. As the record reflects,
Haji failed, on numerous occasions, to comply with the court’s discovery orders.
When NCR moved for sanctions the first two times, the magistrate judge ordered
Haji to pay attorney’s fees and to participate in the discovery process. On both
occasions, the magistrate judge warned Haji that a continued lack of participation in
the discovery process would result in dismissal of his case. Further, the magistrate
judge, on many occasions, extended deadlines and even held a teleconference with
Haji to ensure he had adequate information and time to appropriately engage in
discovery. Thus, on this record, the district court reasonably found that Haji’s
actions were willful and flagrant disobedience to court orders, and it did not abuse
its discretion in dismissing Haji’s complaint with prejudice under Rule 37(b).
Nor did the district court abuse its discretion in dismissing Haji’s complaint
under Rule 41(b) for want of prosecution. As we’ve explained, Haji had been given
multiple opportunities to comply with all discovery orders, but each time, Haji failed
to comply adequately. Because he had been sanctioned twice before, amassing a
debt of over $7,000 in attorney’s fees to NCR, it was not unreasonable for the district
court to determine that dismissal would be the only sanction appropriate in this case.
This is especially true since Haji had been forewarned of the possibility of dismissal
if he continued to not comply. See Moon,
863 F.2d at 837. Accordingly, the district
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court also did not abuse its discretion when it dismissed Haji’s complaint for not
complying with court orders under Rule 41(b), and we affirm.
AFFIRMED.
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