Nagy v. Portfolio Recovery Associates, LLC

Filing 26

Memorandum Opinion and Order: This matter is before the Court upon Defendant's Motion to Dismiss with Prejudice (Doc. 23 ). The motion is GRANTED. Judge Patricia A. Gaughan on 5/10/13. (LC,S)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

Robert Nagy,
Plaintiff,
Vs.
Portfolio Recovery Associates, LLC,
Defendant.

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CASE NO. 1:12 CV 1686
JUDGE PATRICIA A. GAUGHAN

Memorandum of Opinion and Order

This matter is before the Court upon Defendant’s Motion to Dismiss with Prejudice (Doc.
23). For the following reasons, the motion is GRANTED.
Defendant moves to dismiss this action with prejudice as a result of plaintiff’s failure to
prosecute. Defendant points to the following conduct:
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In January and February of 2013, plaintiff failed to stay in contact with his
attorney. At that time, plaintiff’s responses to defendant’s discovery were
significantly overdue and defendant was unable to schedule plaintiff’s deposition;

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Defendant was forced to file a motion to compel;

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On February 28, 2013, the Court granted the motion to compel and ordered
plaintiff to respond to the outstanding discovery and attend his deposition by
April 1, 2013. The Court indicated that it would dismiss this action if plaintiff
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failed to comply;
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Plaintiff again failed to fully respond to the discovery requests as directed by the
Court. The Court then ordered plaintiff to inform this Court in writing as to why
the case should not be dismissed;

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In response, plaintiff noted that the Court had been “gracious” in extending
deadlines and requested further time in order to complete discovery;

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The Court again amended the scheduling order and required plaintiff to turn over
documents by April 18, 2013 and complete a deposition by April 30, 2013;

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Plaintiff’s counsel made repeated attempts to contact plaintiff in order to schedule
the deposition. Despite numerous attempts, plaintiff’s counsel was unable to
schedule the deposition;

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The Court ordered plaintiff to appear at his counsel’s office for a telephonic status
conference to discuss, among other things, plaintiff’s failure to cooperate with
discovery;

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Plaintiff failed to appear as ordered.

The Sixth Circuit reviews a district court’s dismissal under 41(b) for failure to prosecute
for abuse of discretion. The four relevant factors are:
(1) whether the party’s failure is due to wilfulness, bad faith, or fault; (2) whether the
adversary was prejudiced by the dismissed party’s conduct; (3) whether the dismissed
party was warned that failure to cooperate could lead to dismissal; and (4) whether less
drastic sanctions were imposed or considered before dismissal was ordered.
Kovacic v. Tyco Valves & Controls, 433 Fed. Appx. 376 (6th Cir. Aug. 2, 2011).
Upon review of these factors, the Court finds that a dismissal with prejudice is
appropriate based on plaintiff’s conduct in this case. The Court finds that the conduct of plaintiff
himself demonstrates a wilful failure to appear, participate in discovery, and comply with Court
orders. In addition, defendant was prejudiced by plaintiff’s failures in that defendant was wholly
unable to complete discovery or depose the plaintiff. Moreover, the Court warned plaintiff that
failure to complete his deposition would result in dismissal. Plaintiff continued to defy the
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Court’s orders, yet the Court did not automatically dismiss this action. Rather, the Court ordered
plaintiff to appear by telephone at the status conference in order to discuss these issues. Plaintiff,
however, failed to appear. Accordingly, the Court gave plaintiff express notice that the failure to
complete discovery could result in dismissal and then further allowed plaintiff the opportunity to
appear in order to discuss the failures before imposing dismissal. The Court considered less
drastic alternatives, namely a dismissal without prejudice, but the Court finds that a dismissal
with prejudice is warranted based on plaintiff’s repeated failures to comply with discovery
requests and this Court’s orders. Plaintiff has shown a complete lack of interest in prosecuting
this case, to the detriment of the defendant. Accordingly, the Court finds that a dismissal with
prejudice is warranted.
IT IS SO ORDERED.

/s/ Patricia A. Gaughan
PATRICIA A. GAUGHAN
United States District Judge
Dated: 5/10/13

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