Freddie Kelly v. SunTrust Bank , 589 F. App'x 146 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-1818
FREDDIE J. KELLY,
Plaintiff - Appellant,
v.
SUNTRUST BANK; EQUIFAX INFORMATION SERVICES, LLC; EXPERIAN;
TRANSUNION,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. John A. Gibney, Jr.,
District Judge. (3:14-cv-00121-JAG)
Submitted: December 18, 2014 Decided: January 6, 2015
Before KING, SHEDD, and HARRIS, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Freddie J. Kelly, Appellant Pro Se. Terry Catherine Frank,
KAUFMAN & CANOLES, PC, Richmond, Virginia; John Willard
Montgomery, Jr., MONTGOMERY & SIMPSON, LLLP, Richmond, Virginia;
Brian J. Olson, KING & SPALDING, LLP, Atlanta, Georgia; Joseph
William Clark, Eric Scott Jacobi, JONES DAY, Washington, D.C.;
Michael R. Ward, MORRIS & MORRIS, Richmond, Virginia, for
Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Freddie J. Kelly appeals the district court’s order
dismissing with prejudice his action against SunTrust Bank and
credit reporting agencies Equifax Information Services LLC,
Experian Information Solutions, and TransUnion LLC. The
district court dismissed Kelly’s action as a sanction under
Federal Rule of Civil Procedure 37 for failure to cooperate in
discovery. Because the district court failed to adequately
explain its decision, we are unable to review its ruling. We
therefore vacate the order and remand for further proceedings
consistent with this opinion.
In March 2014, Kelly initiated this action by filing a
pro se complaint, alleging that Appellees violated the Fair
Credit Reporting Act, 15 U.S.C. § 1681 (2012). Kelly filed an
amended complaint in April 2014. The court established a
discovery deadline of July 29, 2014. Kelly did not make any
initial disclosures, nor did he timely answer Appellees’
interrogatories. Moreover, after receiving five days’ notice
about his scheduled deposition, he failed to attend. On July 29
and July 30, 2014, Appellees filed motions for sanctions against
Kelly pursuant to Rule 37.
On July 31, 2014, after a conference call with all
parties, the court issued a short order granting the motions for
sanctions and dismissing Kelly’s suit with prejudice. The court
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noted that Kelly failed to make initial disclosures, “failed to
answer any interrogatories[,] and missed a scheduled
deposition.”
We review the grant of discovery sanctions under Rule
37 for abuse of discretion. Hoyle v. Freightliner, LLC, 650
F.3d 321, 329 (4th Cir. 2011). Subsections (c)(1)(C) and (d)(3)
of Rule 37 afford the trial court wide discretion to sanction a
party for failing to comply with discovery requests and orders.
Fed. R. Civ. P. 37(c), (d). This discretion is not unfettered,
however, because dismissal is an “extreme sanction” that is
reserved for “only the most flagrant case, where the party’s
noncompliance represents bad faith and callous disregard for the
authority of the district court and the Rules.” Mut. Fed. Sav.
& Loan Ass’n v. Richards & Assocs., Inc., 872 F.2d 88, 92 (4th
Cir. 1989).
This court has established four factors that a
district court must consider before imposing dismissal as a
sanction: (1) whether the noncomplying party acted in bad faith;
(2) the degree of prejudice suffered by other parties as a
result of the failure to comply; (3) the deterrence value of
dismissal for such noncompliance; and (4) the efficacy of a less
drastic sanction. Id. Before dismissing a case with prejudice,
the district court “must find its basis in good reason” and
“should clearly state its reasons so that meaningful review may
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be had on appeal.” Wilson v. Volkswagen of Am., Inc., 561 F.2d
494, 505 (4th Cir. 1977) (footnotes and internal quotation marks
omitted). Our review must “consider the full record” in light
of the district court’s reasons. Id. at 506 (footnote and
internal quotation marks omitted).
In this case, the district court neither specifically
addressed the four Wilson factors nor provided any explanation
for the sanction imposed that reflects consideration of these
factors. The court only noted its consideration of Kelly’s
“overall conduct,” at most implying that Kelly acted in bad
faith, but it did not discuss prejudice, deterrence, or less
drastic sanctions. It is difficult on the record before us to
discern bases for a finding of either bad faith or an absence of
less drastic sanctions. Consequently, we are unable to assess
whether the district court acted within its discretion when it
dismissed Kelly’s suit with prejudice as a sanction under Rule
37(c)(1)(C). ∗
Accordingly, we vacate the dismissal order and remand
for further proceedings. We dispense with oral argument because
the facts and legal contentions are adequately presented in the
∗
We find particularly troubling the lack of notice provided
to Kelly prior to the dismissal of his case, as required by the
district court’s rules. See E.D. Va. Civ. R. 7(K).
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materials before this court and argument would not aid the
decisional process.
VACATED AND REMANDED
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