Ludwig et al v. PHH Mortgage Corporation

Filing 88

RULING AND ORDER: Pursuant to Federal Rules of Civil Procedure 37(d) and 41(b), the above-captioned matter be and is hereby DISMISSED WITH PREJUDICE. Final judgment shall issue separately. Signed by Judge Brian A. Jackson on 9/24/2024. (EDC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
ELAINE LUDWIG, ET AL. CIVIL ACTION
VERSUS
PHH MORTGAGE CORPORATION NO. 22-00349-BAJ-EWD

RULING AND ORDER
On June 5, 2024, the Court entered an Order requiring that Plaintiff Elaine
Ludwig submit to a trial deposition by July 8, 2024, or risk dismissal of her suit. (Doc.
74). The Court entered this Order after Defendant's repeated requests to dismiss the
above-captioned action for Ludwig's flat refusal to be deposed for over one year,
despite eventually being properly noticed. (Docs. 51, 61, 71 at p. 6, 78 at p. 2). The
Court has agreed with Defendant that Ludwig's testimony is essential to her claims,

and that an inability to depose Ludwig has been prejudicial to Defendant's ability to
litigate the matter. {See Docs. 51, 71, 74). On July 5, 2024, Plaintiffs filed a premature
Notice of Appeal, which sought review of the Order requiring Ludwig to submit to a
trial deposition or risk dismissal of her suit, and the Ruling and Order entered
contemporaneously therewith dismissing- Plaintiff William Ray for lack of standing.
(Doc. 77). Plaintiffs' appeal has been dismissed by the U.S. Court of Appeals for the
Fifth Circuit for want of prosecution. (Doc. 86). The July 8, 2024, deadline has passed,
and Plaintiff Elaine Ludwig has continued to refuse to submit to any deposition.
Federal Rule of Civil Procedure 37(d) allows a court, upon request, to sanction
a party that fails to appear for a properly noticed deposition. Sanctions available to

courts include dismissing the action in whole or in part. Fed. R. Civ. P. 37(d)(3).

Additionally, Federal Rule of Civil Procedure 41(b) allows a court to dismiss an action
when a plaintiff fails to comply with a court order. "Dismissal with prejudice is
warranted when lesser sanctions would prove futile and/or where a party continues
in a pattern of delay, in the face of warnings of dismissal." Atkins v. Ferro Corp., No.

CV 03-945-A-M2, 2006 WL 8432342, at *3 (M.D. La. Aug. 14, 2006) (Noland, M.J.),
adopted (Sept. 14, 2006) (Parker, J.). Deliberate, repeated refusals to comply with
discovery orders justifies a dismissal with prejudice. Id. (citing Kabbe v. Rotan M.osle,

Inc., 752 F.2d 1083 (5th Cir. 1985)). Here, the essential role of Ludwig's testimony,
her continued refusal to be deposed, her failure to comply with her discovery
obligations, along with the Court's Ruling and Order requiring she submit to a
deposition, and the entire record before the Court shows that any sanction less than

dismissal with prejudice would prove futile.
Accordingly,

IT IS ORDERED that, pursuant to Federal Rules of Civil Procedure 37(d) and
41(b), the above-captioned matter be and is hereby DISMISSED WITH

PREJUDICE.

Final judgment shall issue separately.
Baton Rouge, Louisiana, this^~l.day of September, 2024

^.
JUDGE BEIAN^. JACKSON
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA