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In Hawkins, the district court dismissed the case pursuant to Rule 41(b) after the pro se plaintiff repeatedly disregarded court orders, despite warnings that it would result in dismissal.
Summary of this case from Parfait v. Hercules Drilling Co.Opinion
No. SA-02-CA-0166-RF
November 12, 2003
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS
BEFORE THE COURT is Defendant's Third Motion to Dismiss (Docket No. 49) filed on October 14, 2003. Defendant seeks to dismiss Plaintiff's claims for failure to comply with Court orders and failure to conduct discovery pursuant to Rules 37(b), 37(d), and 41(b) of the Federal Rules of Civil Procedure. A hearing was held on the matter on November 5, 2003. As explained at the hearing, the Court shall grant Defendant's motion in light of Plaintiff's repeated failure to pursue her own claims and comply with this Court's Orders.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff initiated this cause of action on February 21, 2002, alleging that Defendant AT T discriminated against her on the basis of a disability in violation of 42 U.S.C. § 12101, et seq. ("Americans with Disabilities Act"). Defendant has filed motions to dismiss on three occasions, on the grounds that Plaintiff has failed to pursue her claims by disobeying this Court's Order and by failing to complete discovery. In past instances, this Court found that dismissal was unwarranted because Plaintiff's attempts to comply with discovery requirements appeared sincere, if protracted and problematic for Defendant, given her status as a pro se plaintiff.
See Pl.'s Original Compl. at 1, 3-4 (Feb. 21, 2002).
See D's Motion to Dismiss (Docket No. 21, filed on May 1, 2003); D's Motion to Dismiss (Docket No. 38, filed on Aug. 27, 2003); D's Motion to Dismiss (Docket No. 49, filed on Oct. 14, 2003).
In June 2003, Defendant deposed Plaintiff for approximately six hours over two days. According to Defendant, Plaintiff alleged that eighty-two AT T employees discriminated against her and that nineteen employees harassed her. Defendant requested additional deposition time in order to adequately inquire into the allegations against all of these individuals. Additionally, Defendant complained that Plaintiff's memory has faltered, making discovery difficult and requiring additional time to refresh Plaintiff's recollection before proceeding with questioning. Finally, Defendant submitted that in response to its Requests for Production, Plaintiff supplied over 5000 pages in documents but failed to provide any identification or specify the documents that responded to each of Defendant's requests. Based upon this testimony and evidence supporting it, the Court Ordered Plaintiff to attend additional deposition time as well as to review documents submitted to Defendant and identify with particularity the documents that relate to her claim and to Defendant's Requests for Production.
The Court cautioned Plaintiff that repeated failures to prosecute her claim by impeding discovery and repeated disobedience of Court Order would subject her claims to dismissal.
Plaintiff responded that difficulties with respect to the deposition stem in part from her work and school schedule which rarely permits a week-day appointment and in part from her adherence to prior counsel's recommendation that her deposition not exceed eight hours. Plaintiff offered one of four Saturdays, September 27, 2003, October 4, 2003, October 11, 2003, or October 18, 2003, as a date when she is available to complete document review at the offices of Defendant.
The parties are stuck in the discovery process and have been so for over five months. The parties to this case, originally filed twenty months ago, have never succeeded in completing Plaintiff's own deposition, despite this Court's Order to do so on two occasions. AT T has repeatedly attempted to depose Plaintiff. Most recently and pursuant to this Court's Order, AT T noticed Plaintiff's second deposition for October 13, 2003 at 1:00 pm and continuing on October 16, 2003 at 9:00 am. Plaintiff failed to appear or notify AT T's counsel that she could not attend the deposition. This Court has repeatedly warned Plaintiff that her failure to follow Court Orders and failure to appear at her deposition would result in dismissal of her case. On October 14, 2003, Defendant filed its Third Motion to Dismiss for obstruction of discovery and failure to comply with Court Orders.
D's Third Mot. Dismiss, ex. 5.
Id. at ex. 6; Affidavit of Karen Monsen, para. 9.
Court Order, May 29, 2003 (Docket No. 32); Court Order, Sep. 25, 2003 (Docket No. 43).
FED. R. Civ. P. 37(b)(2), 37(d), 41.
At the hearing on November 5, Defendant stated it still does not know why Plaintiff failed to appear at the October 13 deposition that was both noticed to Plaintiff and ordered by this Court. Plaintiff responded that she never received the notice of deposition. Defendant averred that a signed, certification of receipt demonstrated that Plaintiff did have notice of the October 13 deposition, above and beyond the Court's prior Order. Defendant filed a copy of the proof of receipt with the Court on November 6, 2003. The certified mail receipt bears Plaintiff's signature and demonstrates that Plaintiff received the notice of deposition on October 6, 2003. Therefore, the Court finds that Plaintiff did have notice of the deposition, both by virtue of this Court's Order and by Defendant's notice.
STANDARD OF REVIEW
A defendant may move for involuntary dismissal of a case or claim under Rule 41(b), which states in relevant part: "For failure of the plainitff to prosecute or comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim. . . . Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision . . . operates as an ajudication upon the merits."
Rule 41(b) provides in relevant part: "For failure of the plainitff to prosecute or comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim. . . . Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision . . . operates as an ajudication upon the merits." FED. R. Civ. P. 41(b).
The Fifth Circuit has limited the use and scope of Rule 41(b) to dismiss for lack of prosecution. "Rule 41(b) authorizes a district court to dismiss with prejudice an action for want of prosecution by the plaintiff. In reviewing the district court's decision to dismiss under Rule 41(b), we reverse only if we find an abuse of discretion. This circuit has, however, consistently held that rule 41(b) dismissals with prejudice will be affirmed only upon a showing of a clear record of delay or contumacious conduct by the plaintiff, . . . and where lesser sanctions would not serve the best interest of justice."
Dorsey v. Scott Wetzel Services, Inc., 84 F.3d 170, 171 (5th Cir. 1996) (quoting Salinas v. Sun Oil Co., 819 F.2d 105, 106 (5th Cir. 1987).
The Court notes that involuntary dismissal with prejudice is an extreme course of action and therefore has considered very carefully the entire record, including the Court's many prior warnings to Plaintiff on this point.
Gonzalez v. Firestone Tire Rubber Co., 610 F.2d 241 (5th Cir. 1980).
DISCUSSION
A. Contumacious conduct
Plaintiff repeatedly failed to comply with this Court's Orders, evidencing disregard as well as a lack of dedication to the prosecution of her own claim. The Court has repeatedly identified to Plaintiff in hearings the consequences of her failure to prosecute or failure to comply with the Court's orders regarding discovery. At the May 28 hearing, the Court stated: "Let me tell you what the future probably will be. If Ms. Hawkins does not show for a deposition, the case will be dismissed, period. . . . So, I'm not worried about deterring future conduct, because if there is any future conduct, your case is dismissed, period, and so you're out of court." The record reflects Plaintiff's repeated obstruction, even if not maliciously intended, of the necessary discovery process and her failure to move her own claims forward in compliance with this Court's Orders. The Fifth Circuit has affirmed that such conduct may serve as the basis for a proper dismissal subject to Rule 41(b). Moreover, appeals in which the involuntary dismissal has been reversed typically involved an error of counsel about which the plaintiff was entirely unaware.
Transcript of Hearing on May 28, 2003, p. 9-10.
Anthony v. Marion County General Hospital, 617 F.2d 1164 (5th Cir. 1980); Bonaventure v. Butler, 593 F.2d 625 (5th Cir. 1979) (affirming dismissal pursuant to Rule 37(b) for failure to appear at a second court-ordered scheduled deposition, even in light of Plaintiff's argument that he could not afford to appear); Lopez v. Aransas County Indep. School Dist., 570 F.2d 541 (5th Cir. 1978) (affirming dismissal for failure to prosecute after two failures to proceed with prosecution upon docket call).
See e.g., Gonzalez v. Firestone Tire Rubber Co., 610 F.2d 241 (5th Cir. 1980); Flaska v. Little River Marine Construction Co., 389 F.2d 885 (5th Cir. 1968).
B. Best Interest of Justice
The Court finds that the best interests of justice require the involuntary dismissal of Plaintiffs claims against AT T. "Deliberate, repeated refusals to comply with discovery orders have been held to justify the use of this ultimate sanction." Plaintiff's repeated disregard for the Court and for the civil judicial process merit dismissal of her claims at this point, after repeated warnings and strenuous efforts to accommodate her limited schedule for prosecution of the case.
Bonaventure v. Butler, 593 F.2d 625.
This Court has considered lesser sanctions in response to the delays in discovery and finds them to be inappropriate. Because Plaintiff appears pro se and struggles to work and attend school simultaneously, the Court finds that monetary sanctions against her personally would prove an excessively punitive course. More importantly, the Court has previously denied two motions to dismiss and in so doing has provided Plaintiff with cautions that further failure to comply would result in dismissal.
C. Prejudice to Defendant
Finally, the Court notes that Defendant AT T's case has been and would continue to be prejudiced by Plaintiff's failure to prosecute and failure to provide her own deposition testimony on her discrimination claims. Of course, to the extent that Plaintiff has failed to provide any deposition testimony and continues to refuse to do so, Defendant is actually prejudiced.
Moreover, in the limited deposition testimony she did provide, Plaintiff's memory has faltered. Plaintiff complained that she was denied disability benefits during the year 2000, "on or about January 16, 2000 and continuing." When asked about this allegation, Plaintiff could not respond for lack of memory. Plaintiff alleged during oral argument that as many as eighty-two AT T employees discriminated against her and nineteen harassed her. But, Plaintiff has refused to provide the Court and the Defendant with testimony necessary to support these allegations.
D's Mot. for Dismissal (Docket No. 38), at ex. 9A.
Plaintiff's responses to repeated questions on this issue and time period include: "I couldn't tell you specifically;" "From what I can recall, I possibly would have been out and not paid for being out;" "I don't remember the exact details except that if you're — you have to call in each day that you're out;" "I don't remember;" "I don't recall." Pl's testimony from Deposition on June 23, 2003, pp. 96-116.
CONCLUSION
For the foregoing reasons, the Court finds that Plaintiff has failed to prosecute her claim against Defendant and has failed to follow this Court's Orders on multiple occasions.
It is therefore ORDERED that Defendant's Third Motion to Dismiss claims of Veronica Hawkins is GRANTED. Plaintiff's cause of action is DISMISSED WITH PREJUDICE.