Reehten v. Mayberry et al
MEMORANDUM AND ORDER IT IS HEREBY ORDERED that defendants' Motion To Dismiss Under Rule 37(d) For Failure To Cooperate In Discovery (Docket No. 56) is granted. IT IS FURTHER ORDERED that this cause of action is dismissed without prejudice. An appropriate Order of Dismissal shall accompany this Memorandum and Order. Granting 77 Motion to Dismiss Case. Signed by Magistrate Judge Frederick R. Buckles on 11/9/2012. (NCL)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
ROBERT H. REEHTEN,
SHAWN MAYBERRY, et al.,
Case No. 4:10CV2159 FRB
MEMORANDUM AND ORDER
This matter is before the Court upon the Motion To
Dismiss Under Rule 37(d) For Failure To Cooperate In Discovery,
filed by defendants Shawn Mayberry and Sheriff Boyer.
All matters are pending before the undersigned United States
Magistrate Judge, with consent of the parties, pursuant to 28
U.S.C. § 636(c).
Complaint pursuant to 42 U.S.C. § 1983.
Defendants Shawn Mayberry
and Sheriff Boyer (“defendants”) previously moved this Court to
dismiss plaintiff’s claims under Rule 37 of the Federal Rules of
Civil Procedure due to plaintiff’s failure to comply with this
Court’s Case Management Order and to provide initial disclosures.
This Court denied that motion noting that dismissal under Rule 37
should be a “rare judicial act” and that neither the history of the
case nor plaintiff’s conduct at that time supported the imposition
of the harsh remedy of dismissal of plaintiff’s case in whole.
(Docket No. 68).
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dismissal of plaintiff’s claims under Rule 37(d)(1)(A)(i) and (ii).
persistent refusal to cooperate in discovery, and specifically: (1)
previously agreed upon and for which he had been given proper
notice; (2) despite defendants’ good faith efforts to reschedule
the deposition for a date that complied with the Court’s scheduling
order, plaintiff refused to cooperate; (3) plaintiff failed to
respond to written interrogatories and requests for production
submitted in July 2012; and (4) although defendants made good faith
efforts to secure plaintiff’s compliance, and despite the fact that
interrogatories and requests for production, plaintiff provided no
response at all.
Defendants aver that plaintiff’s refusal to
cooperate has prejudiced them inasmuch as they have been deprived
of the ability to conduct discovery.
They also repeatedly aver
that they have made numerous good faith attempts to persuade
plaintiff to cooperate in discovery.
Plaintiff has not responded
to the instant Motion.
foregoing, this Court ordered plaintiff to show cause why his
claims should not be dismissed on account of his failure to respond
to discovery requests,
failure to appear for deposition, and
failure to comply with this Court’s scheduling order.
In that Order, plaintiff was cautioned that failure to comply
including the dismissal of his cause of action. To date, plaintiff
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has filed no response, and the time for doing so has passed.
collectively grant the Court authority and discretion to impose
sanctions for discovery abuses and pretrial order violations.
deposition and failing to serve answers, objections, or written
responses to interrogatories.
Fed.R.Civ.P. 37(d)(1)(A)(i), (ii);
see also Aziz v. Wright, 34 F.3d 587, 589 (8th Cir. 1994).
well established that a plaintiff’s pro se status does not excuse
him from complying with court orders and the Federal Rules of Civil
Procedure, including the requirements of discovery.
City of Granby, 238 F.3d 933, 937 (8th Cir. 2000) (per curiam);
Ackra Direct Marketing Corp. v. Fingerhut Corp., 86 F.3d 852, 856
(8th Cir. 1996); Brown v. Frey, 806 F.2d 801, 804 (8th Cir. 1986).
“[N]o motion to compel is required before dismissal under Rule
Aziz, 34 F.3d at 589.
Sanctions include dismissal of the action in whole or in
Fed.R.Civ.P. 37(b)(2)(A)(v), (d)(3).
A district court has
wide latitude to impose sanctions under Rule 37(d).
See Hazen v.
Pasley, 768 F.2d 226, 229 (8th Cir. 1985); see also Martin, 251
process, dismissal of a lawsuit is a remedy within the inherent
power of the court”); Rodgers v. Curators of the Univ. of Mo., 135
F.3d 1216, 1222 (8th Cir. 1998) (affirming dismissal of action as
discovery sanction after finding that any lesser sanction would
have involved further delay or would have forced opposing party to
try case without completing discovery).
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However, dismissal for
failure to comply with discovery rules is an extreme sanction,
reserved for willful or bad faith default.
Anderson v. Home
Insurance Company, 724 F.2d 82, 84 (8th Cir. 1984).
Circuit has determined that a deliberate default suffices, which
includes failure to respond to discovery requests, and failure to
Where a court gives meaningful notice of what
is expected of pro se litigants, initially imposes less stringent
sanctions when plaintiffs fail to cooperate, and warns them that
“dismissal of their action,” dismissal is proper.
City of Kansas City, 863 F.2d 33, 34 (8th Cir. 1988).
Defendants are entitled to the relief they seek in the
instant motion, which is dismissal of plaintiff’s complaint in
Plaintiff filed his original complaint nearly two years
It is obvious that he is intelligent, and the undersigned is
convinced that he fully understands what he was required to do.
Given plaintiff’s persistent refusal to engage in discovery and his
disregard of this Court’s scheduling orders and the October 12,
2012 Order, it is difficult to construe plaintiff’s conduct as
anything other than willful disregard of a Court order and of his
duty to cooperate in discovery.
Plaintiff’s failure to respond to
defendants’ discovery requests, his failure to appear for his
scheduled deposition, his failure to cooperate with defendants and
reschedule the deposition within the time permitted by this Court’s
scheduling order, and his failure to respond either to the instant
motion or to this Court’s October 12, 2012 order leads the Court to
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conclude that plaintiff is not pursuing this litigation in good
sanctions less stringent than dismissal, and concludes that they
would be ineffective.
For example, plaintiff’s failure to appear
for his deposition, and his refusal to answer interrogatories and
otherwise cooperate in discovery, has deprived defendants of an
opportunity to seek summary judgment.
Therefore, a sanction of
prohibiting plaintiff from introducing any evidence at trial not
previously disclosed to defendants only assumes that a trial is
necessary. Although dismissal of an action is an extreme sanction,
it is warranted in this case.
The undersigned will not, however,
order plaintiff to pay fees or expenses, as this would be unjust
given his in forma pauperis status.
Accordingly, for the foregoing reasons,
IT IS HEREBY ORDERED that defendants’ Motion To Dismiss
Under Rule 37(d) For Failure To Cooperate In Discovery (Docket No.
56) is granted.
IT IS FURTHER ORDERED that this cause of action is
dismissed without prejudice.
An appropriate Order of Dismissal shall accompany this
Memorandum and Order.
Frederick R. Buckles
UNITED STATES MAGISTRATE JUDGE
Dated this 9th day of November, 2012.
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