Opinion
No. SA-01-CA-139-OG
February 15th, 2002
REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE
Pursuant to the order of referral in the above-styled and numbered cause of action to the undersigned United States Magistrate Judge and consistent with the authority vested in United States Magistrate Judges under the provisions of 28 U.S.C. § 636(b)(1)(B) and rule 1(d) of the Local Rules for the Assignment of Duties to United States Magistrates, effective January 1, 1994, in the Western District of Texas, the following report is submitted for your review and consideration.
Docket no. 2.
I. JURISDICTION
The Court has diversity jurisdiction. 28 U.S.C. §§ 1332, 1446.
II. PROCEDURAL HISTORY
Defendant removed this case on or about February 16, 2001 — approximately one year ago. On or about April 17, 2001, the parties filed their joint proposed scheduling Order and on April 19, 2001, the Court entered that proposed Order as the Order of the Court. The Court adopted the recommendation of the parties and provided that, among other things, the discovery deadline was November 20, 2001 and the dispositive motions deadline was December 17, 2001.
Docket no. 1.
Docket no. 7.
On November 2, 2001, defendant filed its first motion to compel, followed by, on November 6, 2001, defendant's motion for an extension of certain scheduling order deadlines, given the discovery disputes. On November 8, 2001, the Court granted the motion to revise the scheduling Order and extended the discovery deadline to May 20, 2002 and the motions deadline to June 3, 2002. On November 20, 2001, after plaintiffs time to file a response had expired under the Local Rules and plaintiff had not filed a response, the Court granted defendant's first motion to compel as an un-opposed motion.
Docket nos. 12 and 13.
Docket no. 14.
Docket no. 15.
On January 25, 2002, defendant filed its combined motion to dismiss or for discovery sanctions. On February 5, 2002, plaintiff filed a response. On February 6, 2002, the Court entered an Order which, in sum, granted in part and denied in part the motion for sanctions, called upon plaintiff to produce documents and supplement interrogatory responses on or before February 12, 2002, invited supplemental briefing on the question of discovery sanctions, required plaintiff to show cause why his case should not be dismissed for failure to file an ADR report (which was required to have been filed on or before July 16, 2001) and a designation of witnesses, testifying experts (which was required to have been filed on or before August 13, 2001), and held defendant's motion to dismiss in abeyance pending the additional submissions.
Docket no. 16.
Docket no. 17.
Docket no. 18.
On February 12, 2002, defendant filed a supplemental brief in support of its motion to dismiss. On that same day, plaintiff filed a motion for attorney fees; a combined response to the motion to dismiss and advisory about plaintiffs supplementation of discovery, as required by the February 6, 2002 Order; and a designation of witnesses. On February 13, 2002, plaintiff filed a supplemental response to the motion to dismiss.
Docket no. 19.
Docket nos. 20, 21 and 22. A line in plaintiffs response indicates that plaintiff would be agreeable to mediation (docket no. 21 at 2); the Court construes this line as plaintiffs ADR statement in compliance with the original scheduling Order in this case. See also docket no. 23 at 2.
Docket no. 23.
On the same date as the tendering of this report to Clerk's Office for filing, the undersigned has also entered an Order which denies plaintiffs motion for attorney fees and which grants defendant's motion for discovery sanctions. This report addresses defendant's outstanding motion to dismiss, the only motion that remains pending in this case.
III. ISSUE
Whether defendant's motion to dismiss pursuant to FED. R. CIV. P. 37(b) and 41(b) should be granted.
IV. RULE 41(b) and RULE 37(b)
Under Rule 41(b), Fed.R.Civ.P., a defendant may move for dismissal of an action or claim against the defendant if the plaintiff fails to prosecute or otherwise comply with the rules or any order of the court. Furthermore, absent any contrary indication, an order of dismissal under this rule constitutes an adjudication on the merits of the case.
Fed.R.Civ.P. 37(b) provides that if a party fails to permit discovery or obey a court order, the court can dismiss "the action or proceeding or any part thereof."
V. ARGUMENTS AND CONCLUSIONS OF LAW
Defendant argues that plaintiffs case should be dismissed with prejudice because plaintiff has failed to comply with the Court's November 20, 2001 Order compelling him to provide requested discovery and has otherwise "participate in good faith in the discovery process." Alternatively, defendant asks the Court to dismiss plaintiffs claim for emotional damages on the ground that the discovery plaintiff has continued to decline to produce concerns medical treatment. Specifically, defendant argues that — notwithstanding the Court's November 20, 2001 Order which granted defendant's first motion to compel and which required plaintiff to serve his answers to defendant's first request for production and first set of interrogatories (pending in November for approximately five months) — plaintiff has not yet supplemented his responses to interrogatory questions 7 and 8 and 11 through 13 to provide fact-based information relating to his claim and plaintiff has not yet served requested documents.In his February 5, 2002 response, plaintiff opposed dismissal or sanctions, indicating that he would supplement his discovery within seven days and, according to the February 12, 2002 which plaintiff was required to file by the February 6, 2002 Order, he has done so. In his February 5, 2002 response plaintiff indicates that his failure to produce the documents was inadvertent and that defendant's did not confer properly before filing the motion since defendant merely called and left a message for plaintiffs counsel, but did not wait for the return call before filing the motion. In his February 12, 2002 combined response and advisory, plaintiff offers a further explanation as to why deadlines in this case were "missing from the calendar of counsel" such that counsel missed the deadlines, namely, that plaintiffs counsel terminated a paralegal "on or about June 7, 2002" and that the deadlines were "inadvertently missed."
Docket no. 17 at 1-2. Plaintiff also alleges defendant "improperly responded to plaintiffs discovery and improperly objected" to plaintiffs discovery such that the Court should find that it is defendant and not plaintiff who has obstructed discovery. Id. at 3. Plaintiff states that he "is preparing a motion to compel regarding defendant's objections to discovery. . . ." Id. Plaintiff concedes in his February 13, 2002 supplemental response that plaintiff has not served any written discovery requests on defendant in this case and that counsel "has confused this case" with a related case. Docket no. 23 at 1. In that related case, United States District Judge H. F. Garcia imposed sanctions of $250.00.Koch v. Acsys, Inc., SA-01-CA-883-HG (docket no. 9).
Docket no. 21 at 2. The Court understands this date to be intended to be June 7, 2001. Plaintiffs counsel indicates that he was without a paralegal for approximately two months and, at some unspecified point, got temporary help, apparently until plaintiffs counsel retained another paralegal. See id.
Id.
The Federal Rules of Civil Procedure are clear as to the requirements for complying with discovery requests and the serious consequences for failing to do so. Pursuant to Fed.R.Civ.P. 26(b), "[p]arties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action. . . ." The discovering party also may move to compel the disclosure of any materials required to be disclosed. In addition, the Court has clear authority under Fed.R.Civ.P. 37(b)(2) to sanction a party for failure to obey a discovery order. One sanction available under Rule 37(b)(2)(C) is dismissal of the action, or any portion of the action. In addition, Fed.R.Civ.P. 41(b) provides the Court with discretion to dismiss plaintiffs lawsuit with or without prejudice for his failure to prosecute his case and/or for failure to comply with Court Orders.
The Court has wide latitude in determining the appropriate sanction for failure to comply with discovery and, especially, for failure to comply with a Court Order. Defendant requests dismissal of plaintiff's action with prejudice. To support such a dismissal under Rule 37(b), the Fifth Circuit requires a finding of bad faith or willful conduct, as well as a finding that other factors exist:
Docket no. 36 at 3.
First, dismissal is authorized only when the failure to comply with the court's order results from willfulness or bad faith, and not the inability to comply. Next, dismissal is proper only in situations where the deterrent value of Rule 37 cannot be substantially achieved by the use of less drastic sanctions. Another consideration is whether the other party's preparation for trial was substantially prejudiced. Finally, dismissal may be inappropriate when neglect is plainly attributable to an attorney rather than a blameless client, or when a party's simple negligence is grounded in confusion or sincere misunderstanding of the court's orders.
Prince v. Poulos, 876 F.2d 30, 32 (5th Cir. 1989) (citing Bluitt v. Arco Chemi. Co., 777 F.2d 188, 190-91 (5th Cir. 1985)). See also Smith v. Hertz Equip. Rental, 3:00-C V-2410-D, 2001 U.S. Dist. LEXIS 20466 (N.D.Tex. Dec. 10, 2001) (also citing Bluitt); Voskuil v. Environmental Health Ctr-Dallas, 1999 U.S.Dist.LEXIS 9392 (N.D.Tex. June 11, 1999) (failure to comply with Court Order may be treated as civil contempt).
It is clear from case law that the harsh sanction of dismissal is not favored except in "extreme circumstances."
Marshall v. Segona, 621 F.2d 763, 767-68 (5th Cir. 1980) (citingBonaventure v. Butler, 593 F.2d 625, 626 (5th Cir. 1979)). In Marshall, following a thorough application of the pertinent factors, the Court held that the District Court abused its discretion by dismissing lawsuit by Secretary of Labor against an employer because the plaintiff failed to timely answer interrogatories, stating "dismissal is too harsh a sanction where a number of factors, singly or in combination, are present . . . ."
A related sanction available under Rule 37(b)(2)(B) is the entry of "[a]n order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting that party from introducing designated matters in evidence." In United States v. Garrett, the Fifth Circuit found that the latter sanction was "so severe as to effectuate a dismissal of the charges." Therefore, the Court reviews defendant's alternative request for an Order dismissing plaintiffs claim for intentional infliction of emotional distress in tandem with defendant's request that all of plaintiffs case be dismissed.
238 F.3d 293, 299 (5th Cir. 2000) (district court abused its discretion by striking 25 of the government's witnesses as a sanction for discovery abuse when less severe sanction was available).
The Court cannot conclude that plaintiffs bad faith and willfulness in failing to cooperate with discovery has been established. Although it is true that plaintiff has neglected his discovery obligations in this case and that plaintiffs counsel is responsible for the conduct of his office, given plaintiffs counsel's explanations as to the problems counsel experienced after terminating his paralegal, the Court cannot conclude that the discovery lapses in this case were a willful or intentional disregard of the Court's Order compelling discovery or plaintiffs discovery obligations. Relatedly, the discovery omissions appear relate to the operation of plaintiffs counsel's office and not the intransigence of plaintiff.
Additionally, although defendant has been prejudiced by plaintiffs failure to cooperate with the discovery process, the Court earlier extended the discovery deadline to May 20, 2002 and, in the companion Order, has awarded defendant some costs to defray some of the fees and expenses incurred in connection with its motions.
Finally, the Fifth Circuit has held that in imposing sanctions for discovery abuse, "the district court should impose only that sanction which is the least severe way to effect compliance with the court's discovery orders." The less drastic sanction of costs appears to be able to serve the deterrent value of Rule 37.
Garrett 238 F.3d 293, 298.
In sum, in consideration of the factors identified in the case law with respect to the imposition of Rule 37 and Rule 41 sanctions, the Court recommends that defendant's motion to dismiss plaintiffs case with prejudice or, alternatively, to dismiss plaintiffs intentional infliction of emotional distress claim, be denied. In this case, given that plaintiff supplied the requested information on or before February 12, 2002, an award of costs and fees as a discovery sanction and to compensate defendant for the fees and costs incurred in connection with plaintiffs failure to supply timely discovery appears to be the appropriate response from the Court.
VI. RECOMMENDATION
Based on the foregoing, the Court recommends that defendant's motion to dismiss pursuant to Fed.R.Civ.P. 37(b) and 41(b), as supplemented, be DENIED.
Docket nos. 16 and 19.