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Prim v. Brennan

United States District Court, S.D. Alabama, Southern Division

November 7, 2017

ANGELIA PRIM, Plaintiff,
v.
MEGAN J. BRENNAN, Postmaster General of the United States Postal Service, Defendant.

          ORDER

          KRISTI K. DuBOSE CHIEF UNITED STATES DISTRICT JUDGE.

         This action is before the Court on review of Defendant Postmaster General Megan J. Brennan's Notice of Plaintiff's Non-Compliance with Court Order and Request for Dismissal and the Supplement (docs. 50, 53), the Report and Assessment of Settlement Possibility (doc. 51), Plaintiff Angelia Prim's motion for extension of time to respond to the United States' Notice and Supplement (doc. 57) and Defendant's response in opposition (doc. 58).

         Upon consideration, and for the reasons set forth herein, Prim's motion for extension of time (doc. 57) is DENIED, the Magistrate Judge's Report and Recommendation as modified by this Court's orders is ADOPTED as the opinion of the Court, the Defendant's motion to dismiss pursuant to Rule 41(b) is GRANTED, and this action is dismissed with prejudice.

         I. Background

         Previously, the Magistrate Judge entered a Report and Recommendation recommending that Defendant United States' motion to dismiss pursuant to Rule 41(b) should be granted and this action dismissed. The Magistrate Judge set forth the procedural background, the orders as to which Plaintiff Prim failed to comply, including the Court's Rule 16(b) Scheduling Order as well as orders directed to specific discovery issues, and Prim's failure to cooperate with the United States in conducting discovery.

         The Magistrate Judge noted that the effect might be dismissal with prejudice because of the statute of limitations, but there were “no effective means available, short of recommending dismissal, to motivate Plaintiff to participate in discovery and move this case forward…” (Doc. 39, n. 6) Although the Magistrate Judge did not specifically find that no lesser sanction would suffice, that finding was implied. Upon concluding that Prim had failed to prosecute her action by failing to comply with the orders of the Court, the Magistrate Judge recommended granting the United States' motion and dismissing the action pursuant to Rule 41(b) of the Federal Rules of Civil Procedure.

         Upon review of the Report and Recommendation, Plaintiff's objections, and the United States' reply (docs. 43, 44, 45), the District Court set the motion to dismiss for hearing. Prim and counsel for the United States were present for the hearing. After hearing from the parties, and questioning Prim under oath, the Court determined that Prim should be allowed another opportunity to participate in discovery and comply with the Court's Orders before imposing any sanction or adopting the Magistrate Judge's Report and Recommendation. The Court then modified the Report and Recommendation as to Plaintiff's failure to disclose certain physicians[1]and held in abeyance the Recommendation to grant the Rule 41(b) motion to dismiss.

         Prim was ordered to provide the Defendant with written answers to Interrogatories Number 4, 9, 10, 11, 12, 13, 15, and 17, on or before September 1, 2017, and to answer in full and to the best of her ability. Prim was also ordered to notify the Defendant, on or before September 1, 2017, as to when she could be deposed.[2] (Doc. 47)

         Prim was warned that if she failed to provide the information requested in the interrogatories, she would not be allowed to use that information at trial or in response to Defendant's dispositive motion. Prim was also warned that failure to comply with the Order fully, answer the interrogatories, and make herself available for deposition would result in adoption of the Magistrate's Judge Report and Recommendation that her action be dismissed pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. She was also warned that dismissal under Rule 41(b) operates as a dismissal with prejudice on the merits. (Doc. 47)

         In the Notice of Non-Compliance and Request for Dismissal (doc. 50, doc. 50-1 through 50-4) (filed September 5, 2017), Defendant states that it received Prim's responses to the interrogatories on September 1, 2017, the deadline. However, the responses were not re-signed under oath or notarized as required in Rule 33 of the Federal Rules of Civil Procedure and the revised responses were not responsive to the interrogatories.[3] Defendant asserts that Prim did not make a good faith effort to comply with the Court's order and fully answer the interrogatories. Defendant also states that Prim did not contact the Defendant as to a deposition date and did not reply to Defendant's email of August 24, 2017, regarding a deposition date and separate email regarding Prim's preference for delivery of her employment file.[4]

         In the Report and Assessment of Settlement Possibility (doc. 51), Defendant states that on September 8, 2017, a week late, and after Defendant had filed the Notice of Non-Compliance and Request for Dismissal on September 5, 2017, Prim notified Defendant that she was only available for deposition on September 14, 2017. However, due to the short notice and pending Request for Dismissal, Defendant was unable to schedule the deposition. Defendant also reported that because of Prim's failure to comply with the Court's order, there was no possibility of settlement.

         As in the Report and Assessment, Defendant states in the Supplement that on Friday September 8, 2017, Prim notified Defendant that she was available for deposition on September 14, 2017. Also, by email on September 7, 2017, Defendant again inquired as to Prim's preference for receipt of her employment file and then received a responsive email on September 15, 2017. (Doc. 53)

         On October 11, 2017, the Court ordered Prim to respond to the Notice and Supplement by October 30, 2017 (doc. 56). Prim did not respond. Instead, she filed a motion for extension of time wherein she requests “more time to reply and or respond” (doc. 57). Defendant filed an objection, wherein she points out that, despite repeated warnings of non-compliance, Prim did not respond as ordered. Defendant also points out that Prim did not set forth in her motion any factual or legal grounds to support her request for additional time and did not explain why additional time was needed (doc. 58).

         II. Statem ...


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