Reehten v. Mayberry et al

Filing 83

MEMORANDUM AND ORDER NUNC PRO TUNC IT IS HEREBY ORDERED, nunc pro tunc, that defendants' Motion To Dismiss Under Rule 37(d) For Failure To Cooperate In Discovery (Docket No. 77) is granted. IT IS FURTHER ORDERED, nunc pro tunc, that this cause of action is dismissed without prejudice. An appropriate Order of Dismissal shall accompany this Memorandum and Order. Signed by Magistrate Judge Frederick R. Buckles on 11/15/2012. (NCL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ROBERT H. REEHTEN,

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Plaintiff,
v.
SHAWN MAYBERRY, et al.,
Defendants.

Case No. 4:10CV2159 FRB

MEMORANDUM AND ORDER NUNC PRO TUNC
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.
77).

(Docket No.

All matters are pending before the undersigned United States

Magistrate Judge, with consent of the parties, pursuant to 28
U.S.C. § 636(c).
On

November

15,

2010,

plaintiff

Complaint pursuant to 42 U.S.C. § 1983.

filed

his

original

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).
In

the

instant

Motion,

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defendants

again

seek

the

dismissal of plaintiff’s claims under Rule 37(d)(1)(A)(i) and (ii).
In

support,

defendants

describe

plaintiff’s

continued

and

persistent refusal to cooperate in discovery, and specifically: (1)
plaintiff

failed

to

appear

for

a

deposition

on

date

he

had

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
plaintiff

assured

defendants

that

he

would

work

on

the

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.
On

October

12,

2012,

after

considering

all

of

the

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.

(Docket No.

78).

In that Order, plaintiff was cautioned that failure to comply

with

that

Order

may

result

in

the

imposition

of

sanctions,

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.
Fed.R.Civ.P.

37(b)(2)(A),

37(d)(1)(A)

and

37(d)(3)

collectively grant the Court authority and discretion to impose
sanctions for discovery abuses and pretrial order violations.
Sanctionable

behavior

includes

failing

to

attend

one’s

own

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).

It is

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.

Lindstedt v.

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
37(d).”

Aziz, 34 F.3d at 589.
Sanctions include dismissal of the action in whole or in

part.

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
F.3d

at

694

(“When

a

litigant’s

conduct

abuses

the

judicial

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).

The Eighth

Circuit has determined that a deliberate default suffices, which
includes failure to respond to discovery requests, and failure to
provide

information

citation omitted).

following

a

court

order.

Id.

(internal

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
their

failure

to

comply

with

a

court

order

would

“dismissal of their action,” dismissal is proper.

result

in

Farnsworth v.

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
whole.
ago.

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
faith.
The

undersigned

has

considered

the

imposition

of

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, nunc pro tunc, that defendants’
Motion To Dismiss Under Rule 37(d) For Failure To Cooperate In
Discovery

(Docket No. 77) is granted.
IT IS FURTHER ORDERED, nunc pro tunc, 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 15th day of November, 2012.

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