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)
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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