Stevens et al v. U.S. Bank National Association et al

Filing 45

MEMORANDUM AND ORDER DIRECTING Plaintiffs to show cause why the complaint should not be dismissed with prejudice and why they should not be ordered to pay reasonable attorneys' fees within 14 days (c/m to Plaintiffs 10/31/16 sat). Signed by Judge Deborah K. Chasanow on 10/31/2016. (sat, Chambers)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND : VALERIE M. STEPHENS, et al. : v. : Civil Action No. DKC 15-1780 : U.S. BANK NATIONAL ASSOCIATION, et al. : MEMORANDUM OPINION AND ORDER Plaintiffs Valerie M. Stevens and Famesha Okoeka (“Plaintiffs”) filed this action in state court on April 6, 2015, against Defendants U.S. Bank National Association (“U.S. Bank”) and USAA Federal Savings Bank (“USAA”) (collectively, the “Defendants”). (ECF No. 7). After removal to the United States District Court for the District of Maryland and resolution of some initial procedural matters, a scheduling order was entered. (ECF No. 32). Shortly thereafter, counsel for Plaintiffs moved to withdraw at their request (ECF No. 34), and Plaintiffs were notified that they were proceeding without counsel (ECF No. 35). The deadlines in the scheduling order were extended for 60 days at their request, and the discovery period expired on September 11, 2016. (ECF No. 37). On June 14, 2016, Defendant USAA filed a motion to compel responses to interrogatories and requests for production of documents as to both Plaintiffs, reciting that neither Plaintiff had responded confer. to the discovery (ECF No. 38). requests or to attempts to Neither Plaintiff filed a response to the motion and, on July 6, it was granted. (ECF No. 39). Plaintiffs were ordered to provide full responses no later than July 22, and they were forewarned that failure to provide discovery could result in dismissal of their complaint and an order to pay Defendant Defendant’s USAA moved for expenses. (Id.). On discovery sanctions, August reciting 16, that Plaintiffs still had not responded to the discovery requests, and additionally depositions. had failed (ECF No. 41). to appear for properly noticed Defendant U.S. Bank filed a similar motion on August 29 (ECF No. 42), and the scheduling order was stayed pending Defendants have resolution certified of these that they motions have, (ECF in No. good 44). faith, conferred or attempted to confer with Plaintiffs in an effort to resolve these issues without court action. 42-1 ¶ 4). (ECF Nos. 41, at 13; Plaintiffs’ responses in opposition were due by September 2 and September 15, but again, Plaintiffs have not responded to either motion. As Defendants note, abandoned this litigation. it appears that Plaintiffs have Plaintiffs have provided no response to Defendant USAA’s discovery requests, and accordingly did not comply with the court’s order granting Defendant USAA’s motion 2 to compel.1 (ECF No. 41 ¶ 15). They have failed to appear at or reschedule their depositions. (ECF Nos. 41 ¶¶ 16-17, 22-24; 41- 6; 42, at 4-5; 42-1 ¶¶ 8, 10). Obviously, this case cannot proceed if Plaintiffs do not participate in discovery. Where a party fails to obey an order to provide discovery or fails to appear for her own deposition, the sanctions available include orders “dismissing part,” in the addition disobedient action to or which, party . . . to proceeding “the pay court the in whole must or order reasonable in the expenses, including attorney’s fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust.” Fed.R.Civ.P. 37(b)(2)(A)(v), (C); id. 37(d)(3); see also Hathcock v. Navistar Int’l Transp. Corp., 53 F.3d dismissal 36, may 40 (4th not be Cir. 1995). imposed except The in drastic the sanction most of compelling circumstances, and is guided by the application of a four factor test: (1) whether the noncomplying party acted in bad faith; (2) the amount of prejudice his noncompliance caused his adversary, which necessarily includes an inquiry into the materiality of the evidence he failed to produce; (3) the need for deterrence of the 1 In addition, Plaintiffs have failed to respond to Defendant U.S. Bank’s interrogatories, requests for production of documents, and requests for admission. (ECF Nos. 42, at 3-4; 42-1 ¶¶ 4-5, 9). 3 particular sort of noncompliance; and (4) the effectiveness of less drastic sanctions. [Wilson v. Volkswagen of Am., Inc., 561 F.2d 494, 503-06 (4th Cir. 1977)]. Such an evaluation will insure that only the most flagrant case, where the party’s noncompliance represents bad faith and callous disregard for the authority of the district court and the Rules, will result in the extreme sanction of dismissal or judgment by default. Id. at 504. In such cases, not only does the noncomplying party jeopardize his or her adversary’s case by such indifference, but to ignore such bold challenges to the district court’s power would encourage other litigants to flirt with similar misconduct. [Nat’l Hockey League v. Metro. Hockey Club Inc., 427 U.S. 639, 643 (1976)]; Wilson, 561 F.2d at 504. Mut. Fed. Sav. & Loan Ass’n v. Richards & Assocs., Inc., 872 F.2d 88, 92 (4th Cir. 1989). Despite the requirements of the Federal Rules of Civil Procedure, a court order, and repeated warnings that they could be subject to sanctions, including dismissal (see ECF Nos. 39; 44), Plaintiffs have not participated in the discovery process. Discovery has now closed, and it appears that Plaintiffs do not intend to participate extreme pursue in degree, this litigation. discovery and such prejudices A the noncompliance complete failure other party must be to to an deterred. Accordingly, it is this 31st day of October, 2016, by the United 4 States District Court for the District of Maryland, show cause ORDERED that: 1. Plaintiffs are directed to why the complaint should not be dismissed with prejudice and why they should not be ordered to pay reasonable attorneys’ fees within fourteen (14) days; 2. Failure to dismissal notice respond of and to this order Plaintiffs’ complaint an providing order will result without in further Defendants an opportunity to file a request for fees; and 3. The clerk will transmit copies of this Memorandum and Show Cause Order to Plaintiffs and to counsel Defendants. /s/ DEBORAH K. CHASANOW United States District Judge 5 for

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