McDaniel v. Busby et al

Filing 34

ORDER denying as moot 29 Defendants' Motion to Compel; granting 32 Defendants' Motion to Dismiss. Mr. McDaniel's claims are DISMISSED without prejudice. Signed by Magistrate Judge Beth Deere on 9/21/2011. (jct)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
JONESBORO DIVISION
CALVIN RAY McDANIEL
V.

PLAINTIFF

CASE NO. 3:09CV00169-BD

DICK BUSBY, et al.

DEFENDANTS
ORDER

Now pending is a motion to compel discovery and a motion to dismiss filed by
Defendants Busby, Boyd, Bonner, Mobley, and Peterson. (Docket entries #29 and #32)
Both motions are based upon Mr. McDaniel’s failure to participate in this lawsuit. Mr.
McDaniel has not responded to either motion, and the time do so has passed.
In the motion to compel, Defendants explain that they sent Mr. McDaniel their first
set of discovery requests in October, 2009. He never responded. After the Court
appointed George Michael DeLoache to represent Mr. McDaniel, Defendants sent
another copy of the discovery requests to Mr. DeLoache. The Defendants still received
no response. After Mr. DeLoache withdrew his representation, the Court appointed
Danny Glover to represent Mr. McDaniel. (#25) The Defendants provided copies of
their discovery requests to Mr. Glover. To date, the Defendants have not received any
response. It appears that Mr. Glover has been unable to locate Mr. McDaniel and,
therefore, has been unable to provide responses to the discovery requests. (#29-3 at p.1)
In their motion to dismiss, Defendants explain that in August 2011, they scheduled
Mr. McDaniel’s deposition. Although Mr. Glover testified that he had received the notice

of deposition and mailed it to Mr. McDaniel’s last-known address, Mr. McDaniel did not
appear for the deposition. Mr. Glover also explained that he had attempted to mail
several other letters to Mr. McDaniel and had attempted to contact Mr. McDaniel by
telephone multiple times, but received no response. Based on Mr. McDaniel’s failure to
participate in this lawsuit, which he initiated, Defendants now ask that Mr. McDaniel’s
claims against them be dismissed.
Federal Rule of Civil Procedure 37(d)(3) provides that a Court may dismiss an
action if a party fails to attend his own deposition or fails to respond to requests for
inspection. Here, Mr. McDaniel neither attended his deposition nor responded to
discovery requests that were initially served nearly two years ago. Based on his apparent
lack of interest in this lawsuit, it would be a waste of judicial resources to allow this
action to continue.
The motion to dismiss (#32) is GRANTED. Mr. McDaniel’s claims are
DISMISSED without prejudice. The motion to compel (#29) is DENIED as moot.
IT IS SO ORDERED this 21st day of September, 2011.

___________________________________________
UNITED STATES MAGISTRATE JUDGE

2