McAfee v. Allstate Property & Casualty Insurance Company

Filing 25

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiff William McAfee shall show cause in writing, by April 16, 2013, why this case should not be dismissed with prejudice for his failure to comply with the Courts Order of March 12, 2013, and his failure to prosecute this case. Defendant Allstate shall file any reply by April 23, 2013. Show Cause Response due by 4/16/2013. Signed by District Judge Charles A. Shaw on 4/9/2013. (KSH)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

WILLIAM MCAFEE,
Plaintiff,
v.
ALLSTATE PROPERTY & CASUALTY
INSURANCE COMPANY,
Defendant.

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No. 4:12-CV-1667 CAS

MEMORANDUM AND ORDER
This matter is before the Court on defendant Allstate Property & Casualty Insurance
Company’s (“Allstate”) Motion for Sanctions. Allstate moves that the Court impose sanctions
against plaintiff including but not limited to striking plaintiff’s pleadings or dismissing this action
with prejudice, and for monetary relief including Allstate’s attorney’s fees and costs. Allstate asserts
that contrary to the Court’s Order of March 12, 2013 granting Allstate’s Motion to Compel, plaintiff
has failed to produce his Rule 26(a)(1) disclosures and discovery responses to Allstate. Plaintiff did
not file a response to the Motion for Sanctions and the time to do so has passed. For the following
reasons, the Court will order plaintiff to show cause why the Court should not grant Allstate’s
motion and impose the sanction of dismissal of this case with prejudice.
Background
Plaintiff filed his petition against Allstate in state court on July 25, 2012. The petition asserts
claims for breach of an insurance policy for failure to pay for a fire loss and damages to property
owned by plaintiff and insured by Allstate, and statutory vexatious refusal to pay under Section
375.420, Mo. Rev. Stat. (2000). Allstate removed the case to this Court on September 14, 2012, on
the basis of diversity of citizenship under 28 U.S.C. § 1332.

The Court issued a Case Management Order (“CMO”) on October 23, 2012. Under the
CMO, the parties were ordered to make all disclosures required by Rule 26(a)(1), Fed. R. Civ. P.,
by November 16, 2012, and to conduct all other discovery at the times and in the manner prescribed
by the Federal Rules of Civil Procedure.
On January 22, 2013, Allstate filed a motion to compel which stated that plaintiff had failed
to provide his Rule 26 disclosures and that the time to do so had passed. The Court denied the
motion to compel without prejudice for failure to comply with Local Rule 3.04(A), because the
motion did not recite that Allstate’s counsel had conferred with plaintiff’s counsel in person or by
telephone, as opposed to through correspondence, in a good faith effort to resolve the dispute.
Allstate refiled its motion to compel on February 12, 2013. The refiled motion again stated
that plaintiff had failed to provide his Rule 26 disclosures, and that Allstate served plaintiff with its
First Interrogatories and Request for Production of Documents on December 5, 2012, but plaintiff
had not provided any responses or objections and the response time had passed. The motion to
compel stated that Allstate’s counsel made three telephone calls to plaintiff’s counsel, Mr. Joseph
K. Robbins, in an effort to resolve the dispute, but that Mr. Robbins had not returned any of
Allstate’s counsel’s calls.

In accordance with the CMO and the undersigned’s Judge’s

Requirements, Allstate noticed the motion for compel for hearing on the Court’s discovery motion
docket of March 12, 2013.
The Court held a hearing on the motion to compel on March 12, 2013. Allstate appeared for
the hearing, but plaintiff’s counsel did not appear despite the hearing having been properly noticed.
After hearing argument from Allstate’s counsel, the Court granted the motion to compel and ordered
plaintiff to provide the following to Allstate by March 19, 2013: (1) plaintiff’s Rule 26(a)(1)
disclosures; (2) plaintiff’s answers to Allstate’s First Interrogatories, without objection; and (3)
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documents responsive to Allstate’s Request for Production of Documents, without objection. See
Order of March 12, 2013 (Doc. 21).1
Allstate’s Motion for Sanctions
Allstate’s motion for sanctions asks the Court to strike plaintiff’s pleadings or dismiss this
action with prejudice, and for monetary relief including Allstate’s attorney’s fees and costs, pursuant
to Rule 37 of the Federal Rules of Civil Procedure. Rule 37 authorizes district courts to impose
sanctions upon parties who fail to comply with discovery orders, but dismissal may be considered
as a sanction only if there is (1) an order compelling discovery, (2) a willful violation of that order,
and (3) prejudice to the other party. Schoffstall v. Henderson, 223 F.3d 818, 823 (8th Cir. 2000).
A dismissal with prejudice is “an extreme sanction,” and “should be used only in cases of willful
disobedience of a court order or where a litigant exhibits a pattern of intentional delay.” Hunt v.
City of Minneapolis, 203 F.3d 524, 527 (8th Cir. 1999). “This does not mean that the district court
must find that the appellant acted in bad faith, but requires ‘only that he acted intentionally as
opposed to accidentally or involuntarily.’” Hunt, 203 F.3d at 527 (quoting Rodgers v. University
of Mo., 135 F.3d 1216, 1219 (8th Cir. 1998)).
Before imposing the sanction of dismissal, “fairness requires a court to consider whether a
lesser sanction is available or appropriate.” Keefer v. Provident Life and Acc. Ins. Co., 238 F.3d
937, 941 (8th Cir. 2000). A district court, however, need not impose the least onerous sanction

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The Order of March 12, 2013 also directed Allstate to file a verified statement of its
attorney’s fees and any expenses incurred in making the motion to compel, pursuant to Rule
37(a)(5)(A), Fed. R. Civ. P., by March 19, 2013, and gave plaintiff the opportunity to file any
response to the statement of fees and expenses by March 26, 2013. Allstate complied with the Order
but plaintiff filed no response. By Order of March 29, 2013 (Doc. 24), the Court ordered plaintiff
and his attorney, Joseph K. Robbins, to each pay to Allstate the sum of One Hundred Thirty Dollars
and Fifty Cents ($130.50) by April 12, 2013, as a sanction under Rule 37(a)(5)(A).
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available, but rather the most appropriate under the circumstances. Id.; see also In re Popkin &
Stern, 196 F.3d 933, 938 (8th Cir. 1999) (the “sanction must be proportionate to the litigant’s
transgression.”). Also, when a litigant’s conduct “abuses the judicial process, the remedy of
dismissal is within the inherent powers of the court.” Keefer, 238 F.3d at 941.
In the instant case, an order compelling discovery is in place. See Order of March 12, 2013.
It appears that plaintiff has willfully disregarded the Court’s Order, as he was ordered to provide his
Rule 26(a) disclosures and fully respond to Allstate’s interrogatories and document requests by
March 19, 2013, but has failed to do so. It also appears that Allstate has been prejudiced by
plaintiff’s actions. Allstate has been waiting for plaintiff’s initial disclosures since November 16,
2012, a period of almost five months; and since December 2012 for plaintiff’s responses to its initial
discovery requests. Under the CMO, Allstate must disclose its expert witnesses by May 1, 2013,
and the discovery deadline is August 31, 2013. Allstate cannot establish its defenses and prepare
for trial if it does not receive initial disclosures and discovery responses from the plaintiff.
Plaintiff has the burden to prosecute this action. He has not met his discovery obligations
under the CMO or responded to discovery propounded by Allstate. Filing a lawsuit and then failing
to participate in discovery abuses the judicial process. Therefore, the Court is concerned about
plaintiff’s inaction, and his counsel’s failure to respond to Allstate’s efforts to resolve the discovery
issues without involving the Court, to appear at the hearing on the motion to compel, or to file any
response to Allstate’s motions or statement of attorney’s fees. Plaintiff’s inaction is unreasonably
delaying this proceeding and, at this point, the Court has no basis on which to conclude that
imposition of monetary sanctions or some other lesser sanction will cause plaintiff to comply with
its orders in the future. Under these unusual circumstances, the Court is considering the sanction
of dismissal with prejudice as the only sanction that is appropriate.
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Accordingly,
IT IS HEREBY ORDERED that plaintiff William McAfee shall show cause in writing, by
April 16, 2013, why this case should not be dismissed with prejudice for his failure to comply with
the Court’s Order of March 12, 2013, and his failure to prosecute this case. Defendant Allstate shall
file any reply by April 23, 2013.
Plaintiff is cautioned that if he does not timely file a response to this Order, the Court
will dismiss this matter with prejudice as a sanction under Rule 37 for failure to comply with
the Court’s Order of March 12, 2013, and for failure to prosecute this case.

CHARLES A. SHAW
UNITED STATES DISTRICT JUDGE

Dated this 9th day of April, 2013.

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