United States District Court, M.D. Alabama, Northern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
STEPHEN M. DOYLE UNITED STATES MAGISTRATE JUDGE
the Court is Defendant's Combined Response to Court's
Show Cause Order, Motion to Dismiss and Submission in Support
of Attorneys' Fees. (Doc. 25). By Order dated April 29,
2019, the district judge referred this motion to the
undersigned Magistrate Judge “for consideration and
disposition or recommendation as may be appropriate.”
(Doc. 26). For the reasons stated below, undersigned
recommends that Defendant's Motion to Dismiss be granted
and that Plaintiff's case be dismissed without prejudice.
Dana Salter, is a former employee of the Montgomery
Association of Retarded Citizens (“MARC”). She
filed this action alleging retaliatory termination on June
25, 2018, (Doc. 1) and amended her Complaint to name the
proper party on July 23, 2018. Amd. Compl. (Doc. 7).
Plaintiff failed to timely submit her Rule 26(f) report, and
on October 15, 2018, the Court issued a show cause order
requiring Plaintiff to show why her case should not be
dismissed for lack of prosecution. (Doc. 12). The parties
subsequently submitted a Rule 26(f) report (Doc. 15), and the
show cause order was discharged. (Doc. 16).
date, Plaintiff has not made her initial disclosures or
responded to Defendant's first set of discovery requests.
On January 14, 2019, Defendant filed a Motion to Compel (Doc.
18). In the Motion, Defendant reported that Plaintiff had not
provided any initial disclosures as required by Fed.R.Civ.P.
26(a) and had failed to respond or otherwise object to its
interrogatories and requests for production since they were
served on October 22, 2018. Id. The undersigned
issued a show cause order (Doc. 21) and, in response,
Plaintiff filed a motion (Doc. 22) requesting an extension of
time to respond to Defendant's discovery requests or, in
the alternative, permission to withdraw as attorney of record
for Plaintiff. Id. In the filing, counsel for
Plaintiff claims she has not communicated with Plaintiff
since at least October 22, 2018 and is unable to respond to
Defendant's interrogatories and requests for production.
Id. On February 8, 2019, Defendant filed a Reply
(Doc. 23) to Plaintiff's Response (Doc. 22), which the
undersigned construed as a Motion for Sanctions (Doc. 24).
March 25, 2019, the undersigned granted (Doc. 24)
Defendant's Motion to Compel and gave Plaintiff five days
to provide Defendant with the required discovery.
Id. at 8-9. The undersigned further granted
Defendant's Motion for Sanctions (Doc. 23) and directed
Defendant to submit its calculation of its incurred costs.
Id. On April 8, 2019, Defendant filed its Combined
Response to Court's Show Cause Order, Motion to Dismiss,
and Submission in Support of Attorneys' Fees (Doc. 25),
providing the Court with its fee calculations. The Combined
Motion also seeks dismissal of Plaintiff's case as an
additional discovery sanction under Rule 37 or for failure to
prosecute under Rule 41(b). Id. at 1-2.
moves to dismiss as a discovery sanction pursuant to Rule 37
and pursuant to Rule 41(b) for failure to prosecute. (Doc.
25) at 1-2. Rule 37 authorizes a court to dismiss an action,
in whole or part, as a sanction for failure to obey a
discovery order. Fed.R.Civ.P. 37(b)(2)(A)(v). Generally,
“[v]iolation of a discovery order caused by simple
negligence, misunderstanding, or inability to comply will not
justify a Rule 37 default judgment or dismissal.”
Malautea v. Suzuki Motor Co., Ltd., 987 F.2d 1536,
1542 (11th Cir. 1993). The sanction ordinarily
“requires a willful or bad faith failure to obey a
discovery order, ” and “is appropriate only as a
last resort, when less drastic sanctions would not ensure
compliance with the court's orders.” Id.
41(b) provides for involuntary dismissal on motion for a
plaintiff's failure to prosecute or to comply with the
Federal Rules of Civil Procedure or a court order. Such
dismissal may be with or without prejudice. Fed.R.Civ.P.
41(b); Mingo v. Sugar Cane Growers, 864 F.2d 101,
102 (11th Cir. 1989). The Eleventh Circuit instructs that
“a dismissal with prejudice, whether on motion
or sua sponte, is an extreme sanction that may be
properly imposed only when (1) a party engages in a clear
pattern of delay or willful contempt (contumacious conduct);
and (2) the district court specifically finds that lesser
sanctions would not suffice.” Betty K Agencies,
Ltd. v. M/V MONADA, 432 F.3d 1333, 1337-38 (11th Cir.
2005) (emphasis original) (internal quotes and citations
Plaintiff has engaged in a clear pattern of delay and willful
contempt. Plaintiff filed this case in June 2018. (Doc. 1).
In September 2018, the Court ordered the parties to hold a
Rule 26(f) conference and submit their Rule 26(f) report no
later than October 5, 2018. (Doc. 11). Plaintiff failed to
meet this deadline, and on October 15, 2018, the Court
ordered her to show cause order “why this case should
not be dismissed for lack of prosecution.” (Doc. 12).
Plaintiff responded with a generic filing that did not
explain the delay but promised that the Rule 26 report was
ready for filing. (Doc. 14). Defendant filed the Rule 26(f)
planning report on October 22, 2018, (Doc.15) and, per Rule
26(a)(1)(C), initial disclosures were due fourteen days later
on November 5, 2018. See Fed. R. Civ. P. 26(a)(1)(C)
(“A party must make the initial disclosures at or
within 14 days after the parties' Rule 26(f) conference
unless a different time is set by stipulation or court order.
. . .”).
December 2, 2018, Defendant filed a Motion to Compel (Doc.
18) stating that it had served Plaintiff with interrogatories
and requests for production on October 22, 2018, and that
Plaintiff had not responded despite Defendant's repeated
efforts to contact counsel. Id. The motion also
stated that Plaintiff had still not made her Rule 26(f)
initial disclosures. Id. at ¶ 7. The
undersigned issued a show cause order (Doc. 21), and
Plaintiff responded on January 24, 2019, stating that she had
lost contact with her client. (Doc. 22). She requested a
thirty-day enlargement of time to respond to the outstanding
discovery, or in the alternative to withdraw as counsel.
Id. In this filing, Plaintiff's counsel stated
that she understood she was facing sanctions. Id. at
order dated March 25, 2019, the undersigned granted
Defendant's Motion to Compel (Doc. 18) and ordered
Plaintiff to provide “all required initial disclosures
and responses to Defendant's interrogatories and requests
for production within five days of this
Order.” (Doc. 24). Plaintiff was specifically warned
that “[f]ailure to do so may result in dismissal of
Plaintiff's claim for failure to prosecute.”
Id. To date, Plaintiff has not produced any
discovery or had any further communication with the Court.
Court finds that Plaintiff's failure to make initial
disclosures despite repeated Court orders and the obligations
imposed by Rule 26 constitutes a clear pattern of delay and
willful contempt. In addition, the Court finds that a lesser
sanction than dismissal will not suffice. Plaintiff has
ceased all communication with her counsel and apparently no
longer wishes to pursue this lawsuit. Under these
circumstances, no lesser sanction can reasonably be expected
to compel Plaintiff to comply with her discovery obligations
or abide by the orders of the Court, and dismissal without
prejudice is appropriate. In light of the above
recommendation, and considering that monetary sanctions would
fall upon Plaintiff's attorney for Plaintiff's
failure to prosecute and abide by orders of the Court, the
undersigned finds that monetary sanctions against
Plaintiff's attorney is inappropriate.