Brown El v. Skeen et al

Filing 29

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that Defendant's Motion to Dismiss for Failure to Prosecute [ECF No. 26] is DENIED. Signed by District Judge E. Richard Webber on August 24, 2016. (MCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
KEITH BROWN EL,
Plaintiff(s),
v.
MELVIN SKEEN, et al.,
Defendant(s).

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No. 4:15CV1089 ERW

MEMORANDUM AND ORDER
This matter is before the Court on Defendant’s Motion to Dismiss for Failure to Prosecute
[ECF No. 26].
I.

BACKGROUND
Plaintiff Keith E. Brown El (“Plaintiff”) filed a complaint in this Court on July 13, 2015, and

an amended complaint on January 19, 2016, pursuant to 42 U.S.C. § 1983 alleging Defendants
Melvin Skeen and Terry Russell violated his First Amendment rights under the United States
Constitution. Plaintiff’s claims against Defendant Terry Russell were dismissed. Defendant Melvin
Skeen (“Defendant”) scheduled to take Plaintiff’s deposition on June 21, 2016. Defendant mailed
the notice of deposition to Plaintiff’s address of record. Plaintiff did not appear for the deposition
and did not call defense counsel. A record of non-appearance was made.
II.

DISCUSSION
“A dismissal for failure to prosecute is proper when there has been ‘a clear record of delay or

contumacious conduct by the plaintiff.’” Garland v. Peebles, 1 F.3d 683, 686 (8th Cir. 1993)
(citation omitted). The Court must consider the nature of the conduct prompting the request for
dismissal, the adverse impact of the conduct on Defendants and the administration of justice, and the

availability of less severe options. Id. at 686-87. Disposition on the merits is favored and “the harsh
sanction of dismissal for failure to prosecute is ordinarily limited to cases involving egregious
conduct by particularly dilatory plaintiffs, after less dire alternatives have been tried without
success.” Peterson v. Archstone Communities, LLC, 637 F.3d 416, 418 (D.C. Cir. 2011) (quotations
and citations omitted). There should be evidence of bad faith, deliberate misconduct, or tactical
delay, when dismissing for failure to prosecute. Id.
Here, Defendant moves to dismiss the matter for failure to prosecute because Plaintiff failed
to appear for a deposition. Defense counsel made a record of non-appearance fifteen minutes after
the deposition was to begin. There is no evidence of defense counsel’s attempt to contact Plaintiff or
attempt to reschedule the deposition. Further, Defendant provides no evidence of previous attempts
to delay the case or other bad conduct on the part of Plaintiff.
Failure to appear for a deposition causes disruption to management of the case. Occasionally,
there may be just cause assigned for missing a scheduled deposition. In the absence of such cause,
the failing party must be accountable for the expense caused. Defendants’ counsel is ordered, within
seven days, to file a statement of fees incurred for attending the deposition, and to secure from the
court reporter a statement of fees incurred for attending the deposition. The Court will order Plaintiff
to compensate Defendants and the court reporter for Plaintiff’s failure to appear for the deposition.
Plaintiff did not respond to Defendant’s Motion or the Court’s order to show cause as to why
Defendant’s motion should not be granted. However, Plaintiff’s address changed which the Court
learned on July 22, 2016. Until a record of more egregious conduct has been established, the Court
will not grant Defendant’s Motion to Dismiss for Failure to Prosecute. Plaintiff will be ordered to
appear at a deposition at a time, date, and place of Defendant’s choosing. Failure to appear will
result in sanctions against Defendant and possible dismissal of this matter. The parties shall also
submit amended deadlines for discovery and dispositive motions.

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Accordingly,
IT IS HEREBY ORDERED that Defendant’s Motion to Dismiss for Failure to Prosecute
[ECF No. 26] is DENIED.
So Ordered this 17th day of August, 2016.

E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE

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