Evans v. Nebr Beef

Filing 88

MEMORANDUM AND ORDER - The plaintiff's motion to hold attorney Craig Martin in contempt (Filing No. 85 ) is denied. The plaintiff's affidavit, construed as an objection to the F&R of the magistrate judge (Filing No. 86 ), is overruled. The Findings and Recommendations ("F&R") of the magistrate judge (Filing No. 82 ) are adopted in part, as set forth in this Memorandum and Order. The defendant's motion and supplemental motion to dismiss and/or for sanctions (Filing Nos. 67 and 69 ) are granted. This action is dismissed, without prejudice. A judgment in accordance with this Memorandum and Order will issue this date. Ordered by Judge Joseph F. Bataillon. (Copy mailed to pro se party)(GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
CHARLES EVANS III,
Plaintiff,

8:12CV161

v.
MEMORANDUM AND ORDER
NEBRASKA BEEF, LTD.,
Defendant.

This matter is before the court on the pro se plaintiff’s motion to hold Craig Martin
in contempt, Filing No. 85, and the plaintiff’s affidavit, Filing No. 86, which the court will
construe as both support for the motion for contempt and an objection to the Findings
and Recommendations (“F&R”) of the magistrate judge, Filing No. 82, recommending
that this court grant the defendant’s motion and supplemental motion to dismiss and for
sanctions, Filing Nos. 67 and 69.
In his contempt motion, Evans moves the court to hold attorney Craig Martin in
contempt “for fileing (sic) a frivolous/dilatory, expensive time consuming motion for
sanction or dismissal, knowing even this white racist court can’t dismiss this case on no
BS like thee (sic) 12-10-13 motion filed by Craig Martin.” Filing No. 85, Motion at 1
(Filing No. 85 at ECF p. 1). The court finds the motion is wholly improper and should be
denied.
The plaintiff has also submitted a largely unintelligible affidavit in which he first
states that he has answered and returned the defendant’s first set of interrogatories, but
also states he engaged in “contact negotiations with Lamson & Dugan secretary to
provide affiant with second set of interrogatories.” Filing No. 86, Evans Aff. at 1-2. He

also states he has an interlocutory appeal pending, but, by order dated January 17,
2014, he was directed by the Eighth Circuit Court of Appeals “to either pay the [filing]
fee in the district court or file a motion for leave to proceed in forma pauperis in [the
Eighth Circuit] within 28 days” thereafter and was advised that if he did not “pay the fee
or move for IFP status by February 14, 2014, this appeal will be dismissed for failure to
prosecute without further notice.” See Filing No. 83, Order at 1.
Under Fed. R. Civ. P. 72(b)(2), a district court reviews de novo those portions of
a magistrate judge’s order that are objected to by a party. Grinder v. Gammon, 73 F.3d
793, 792 (8th Cir. 1996). “A judge of the court may accept, reject, or modify, in whole or
in part, the findings or recommendations made by the magistrate judge” or may “receive
further evidence or recommit the matter to the magistrate judge with instructions.” 28
U.S.C. § 636(b)(1).
In the F&R, the magistrate judge found that the plaintiff failed to provide written
discovery, failed to appear at his deposition, and failed to provide any explanation for
his failure to comply with the court’s orders. Filing No. 82, F&R at 4 (Filing No. 82 at
ECF p. 4).

Further, the magistrate judge found that “[i]n addition to a willful or

intentional failure to provide discovery,” the plaintiff’s conduct “is evidence of a
persistent pattern of delay causing prejudice to the defendant.” Id.
On de novo review, the court generally agrees with the magistrate judge’s
assessment. The plaintiff’s ostensible response to the defendant’s discovery requests
simply provides too little, too late. The plaintiff does not address his failure to appear at
his deposition after he was ordered to appear. The record shows that the plaintiff’s
failure to provide discovery, as well as his efforts to delay the proceedings by filing
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improper and inflammatory pleadings, has hampered the defendant’s ability to defend
against the plaintiff’s allegations.
Pro se litigants are not excused from compliance with substantive and procedural
law. Brown v. Frey, 806 F.2d 801, 804 (8th Cir. 1986). Nevertheless, “[d]ismissal with
prejudice is an ‘extreme sanction’ that should only be available for ‘willful disobedience
of a court order or where a litigant exhibits a pattern of intentional delay.’” Siems v. City
of Minneapolis, 560 F.3d 824, 826 (8th Cir. 2009); see also Rodgers v. Curators of the
Univ. of Mo., 135 F.3d 1216, 1222 (8th Cir. 1998) (stating that the “ultimate sanction of
dismissal with prejudice should only be used when lesser sanctions prove futile”).
The record does not show any attempt by the plaintiff to diligently pursue the
action to the best of his ability. The court agrees with the magistrate judge that the
plaintiff’s failure to provide discovery as required by court order is deliberate and that
“the appropriate remedy is to strike the non-compliant party’s pleadings and grant the
defendant’s motions to dismiss.” See Filing No. 82, F&R at 4. The court finds the
plaintiff has engaged in a course of intentional delay and contumacious conduct that
warrants the drastic sanction of dismissal.
In addition, the court finds that the merits of the plaintiff’s claim are dubious at
best. The plaintiff’s assertion that the Cortez case is somehow dispositive of his claims
is without merit. That action involves the settlement of three consolidated class and
collective actions against Nebraska Beef, Inc., for alleged FLSA violations. See Fermin
Cortez v. Nebraska Beef, Inc., Nos. 8:08cv90, 8:08cv99, 8:10cv208, Filing No. 394,
Order Approving Settlement. The plaintiff has apparently opted out of the class. See
Filing No. 15, Order at 1. He has failed to properly prosecute his individual claim.
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The court finds, however, that a dismissal without prejudice is appropriate in this
case. The defendant did not seek a dismissal with prejudice in its motions; it sought
only sanctions “up to and including dismissal.” Filing No. 69. Under the circumstances,
a dismissal without prejudice is appropriate. In light of this finding, the plaintiff will not
be permitted to proceed in forma pauperis on any subsequent claim involving the same
or similar issues. Accordingly,
IT IS ORDERED:
1.

The plaintiff’s motion to hold attorney Craig Martin in contempt (Filing No.

85) is denied.
2.

The plaintiff’s affidavit, construed as an objection to the F&R of the

magistrate judge (Filing No. 86), is overruled.
3.

The Findings and Recommendations (“F&R”) of the magistrate judge (Filing

No. 82) are adopted in part, as set forth in this Memorandum and Order.
4.

The defendant’s motion and supplemental motion to dismiss and/or for

sanctions (Filing Nos. 67 and 69) are granted.
5.

This action is dismissed, without prejudice.

6.

A judgment in accordance with this Memorandum and Order will issue this

date.
DATED this 21st day of February, 2014.
BY THE COURT:
s/ Joseph F. Bataillon
United States District Judge

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