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