Vance v. Department of Veterans Affairs
Filing
37
ORDER: (1) GRANTING DEFENDANT'S MOTION TO DISMISS (DOC. 34 ); (2) DISMISSING PLAINTIFF'S COMPLAINT WITH PREJUDICE; AND (3) CLOSING THIS CASE. Signed by Magistrate Judge Michael J Newman on 01/29/13. (pb1) Modified on 1/29/2013 (pb1)(Vance).
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
MARVIN VANCE,
Plaintiff,
vs.
:
Case No. 3:11-cv-281
:
Magistrate Judge Michael J. Newman
(Consent Case)
:
SECRETARY, UNITED STATES
DEPARTMENT OF VETERANS
AFFAIRS,
Defendant.
:
:
:
ORDER: (1) GRANTING DEFENDANT’S MOTION TO DISMISS (DOC. 34);
(2) DISMISSING PLAINTIFF’S COMPLAINT WITH PREJUDICE;
AND (3) CLOSING THIS CASE
This is a pro se consent case presently before the Court upon Defendant’s unopposed
motion to dismiss pursuant to Civil Rule 37 for Plaintiff’s failure to make any discovery
disclosures and cooperate in discovery. Doc. 34. This matter is also before the Court, sua
sponte, upon pro se Plaintiff’s non-compliance with the Court’s January 14, 2013 Order
requiring Plaintiff to show cause, on or before January 24, 2013, why Defendant’s motion to
dismiss should not be granted and his complaint dismissed. See doc. 35.
I.
In the motion to dismiss, Defendant argues -- and avers in a supporting affidavit by
counsel -- that Plaintiff, as of December 17, 2012, has neither produced his Rule 26(a) initial
disclosures, nor disclosed his lay witnesses to Defendant.1 See doc. 34; doc. 34-1, ¶¶ 2-3.
Additionally, counsel for Defendant avers that, on November 13, 2012, he conferred with pro se
1
Pursuant to the Scheduling Order, Plaintiff’s Rule 26(a) initial disclosures were due June 29, 2012, and
Plaintiff’s disclosure of lay witnesses were due on July 27, 2012. Doc. 32.
Plaintiff by telephone regarding taking his deposition on December 13, 2012. Doc. 34-1, ¶ 4.
On November 19, 2012, counsel mailed Plaintiff a proper Notice to Take Deposition on
December 13, 2010 at 10:00 a.m. at defense counsel’s office. Id. ¶ 5; doc. 34-1 at PageID 15052. On the scheduled deposition date, defense counsel was prepared, with a court reporter, to
take Plaintiff’s deposition. Id. ¶ 6. When Plaintiff did not appear for the deposition, defense
counsel made several unsuccessful attempts to contact Plaintiff. Id. Defense counsel and the
court reporter nevertheless waited one hour, and Plaintiff never appeared. Id. ¶ 7. Nor did
Plaintiff contact defense counsel that day to explain his failure to appear for the deposition. Id.
Moreover, Defendant argues that the deadline for conducting discovery is December 21, 2012 (a
date which has since passed), see doc. 32, and Plaintiff has completely failed to cooperate in the
discovery process. Doc. 34.
On January 14, 2013, after the deadline for responding to Defendant’s dismissal motion
expired, the Court issued the aforementioned Show Cause Order to Plaintiff. The Show Cause
Order was sent to Plaintiff by regular mail and certified mail at his address listed on the docket
sheet.2 See docs. 35, 36. To date, Plaintiff has not filed anything in response to Defendant’s
motion to dismiss or the Court’s Show Cause Order.
II.
The Court may dismiss an action pursuant to Rule 37(b)(2) when “a party … fails to …
provide or permit discovery,” and under Rule 37(d) for a party’s failure to appear for his or her
deposition after being served with proper notice. Fed. R. Civ. P. 37(b)(2)(A)(v), (d)(1)(A)(i).
See Mooney v. Cent. Motor Lines, Inc., 222 F.2d 569, 571-72 (6th Cir. 1955). Likewise, Rule
41(b) authorizes the Court to dismiss a case if the plaintiff “fails to prosecute or to comply with
2
According to the website of the United States Postal Service, the mailing arrived to the address listed on
the docket sheet on January 15, 2013.
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[the Federal Rules of Civil Procedure] or a court order.” Fed. R. Civ. P. 41(b). See Harmon v.
CSX Transp., Inc., 110 F.3d 364, 366 (6th Cir. 1997). “This measure is available to the district
court as a tool to effect management of its docket and avoidance of unnecessary burdens on the
tax-supported courts and opposing parties.” Knoll v. AT&T, 176 F.3d 359, 363 (6th Cir. 1999)
(internal quotations and citations omitted). The Court, therefore, is given “substantial discretion
in serving these tasks.” Id.
The Court should consider four factors in determining whether to invoke discovery
sanctions, such as dismissal, under Rule 37 or Rule 41:
(1) whether the party’s failure to cooperate in discovery is due to willfulness, bad
faith, or fault; (2) whether the adversary was prejudiced by the dismissed party’s
failure to cooperate in discovery; (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.
Harmon, 110 F.3d at 366-367 (internal citations and quotation marks omitted).
All four of these factors support the dismissal of Plaintiff’s complaint with prejudice.
With regard to the first factor, the Court finds Plaintiff has displayed “a reckless disregard for the
effect of his conduct on [these judicial] proceedings.” Wu v. T.W. Wang, Inc., 420 F.3d 641, 643
(6th Cir. 2005) (brackets and internal quotation marks omitted). Since the beginning of this case,
Plaintiff has completely failed to cooperate in the discovery process. See doc. 34. He has not
provided Defendant with even preliminary discovery -- his Rule 26(a)(1) initial disclosures (due
on June 29, 2012). See id. Moreover, he has failed to provide any justification for his failure to
appear at his properly notice deposition. Nor has he filed any response to Defendant’s dismissal
motion or the Court’s Show Cause Order -- alerting him of these issues. Accord Harmon, 110
F.3d at 368-69 (affirming dismissal where plaintiff failed to respond to discovery requests; failed
to comply with a court order; and failed to oppose a motion to dismiss even after the district
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court granted an extension of time to do so); Murray v. Target Dep’t Stores, 56 F. App’x 246,
246-47 (6th Cir. 2003) (affirming dismissal due to plaintiff’s failure to attend her own deposition
and failure to respond to defendant’s motions to dismiss).
The second factor -- prejudice -- similarly supports dismissal of Plaintiff’s case. Defense
counsel has “wasted time, money, and effort in pursuit of cooperation which [Plaintiff] was
legally obligated to provide.” Schafer v. City of Defiance Police Dep’t, 529 F.3d 731, 737 (6th
Cir. 2008) (brackets and quotation marks omitted). For instance, despite having taken the time to
confer with Plaintiff before scheduling the deposition, counsel for Defendant nonetheless waited
for one hour for Plaintiff to appear for his deposition, to no avail. Doc. 34-1 ¶¶ 6-7. Accord
Powell v. Cont’l Cas. Co., No. 1:09-cv-710, 2010 U.S. Dist. LEXIS 139626, at *5, 2010 WL
5576057, at *2 (S.D. Ohio Nov. 16, 2010) (finding defendant was prejudiced by noticing and
attending a deposition for which plaintiff failed to appear).
The third factor further weighs in favor of dismissal. Plaintiff received prior notice that
his case was subject to dismissal. See Schafer, 529 F.3d at 737-38. In the January 14, 2013
Show Cause Order, the Court advised Plaintiff as follows:
On December 17, 2012, Defendant filed a motion to dismiss pro se
Plaintiff’s complaint for lack of prosecution based on: (1) his failure to provide
discovery to Defendant’s counsel --including his Rule 26(a)(1) Initial Disclosures
(due on June 29, 2012), and his Disclosure of Lay Witnesses (due on July 27,
2012); and (2) his failure to appear for his deposition on December 13, 2012. Doc.
34. Plaintiff’s deadline to file a memorandum in opposition to the motion was
January 10, 2013. None was filed, and the dismissal motion thus remains
unopposed. Accordingly, Plaintiff is ORDERED to show cause, not later than
January 24, 2013, why the motion should not be granted and his complaint
dismissed, and ADVISE the Court of an appropriate lesser sanction to impose -one less drastic than dismissal of his case. See Schafer v. City of Defiance Police
Dep’t, 529 F.3d 731, 736-38 (6th Cir. 2008).
To be clear, Plaintiff is ADVISED that sanctions may be imposed,
including the dismissal of his case, if he does not comply with this Order.
Doc. 35 at PageID 153. Accord Rogers v. City of Warren, 302 F. App’x 371, 378 (6th Cir. 2008)
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(finding a show cause order sufficiently notified plaintiff that his case was subject to dismissal).
Finally, taking the fourth factor into account, the Court finds there are no lesser sanctions
to impose on Plaintiff -- for his failure to cooperate in the discovery process -- other than
dismissal. In the Show Cause Order, the Court gave Plaintiff an opportunity to suggest alternate
sanctions, and he failed to respond. See doc. 35. Further, given Plaintiff’s deliberate disregard
for the deadlines in the Court’s Scheduling Order; his neglect of his duties to provide Rule 26(a)
initial disclosure and disclose his lay witnesses; his failure to attend his deposition and explain
his absence; and his refusal to respond to Defendant’s motion to dismiss and the Court’s Show
Cause Order, it is difficult to conceive how any sanction other than dismissal would impact
Plaintiff’s conduct. Accord Rogers, 302 F. App’x at 378-79 (recognizing that, in light of
plaintiff’s repeated failures to comply with court orders, dismissal is an appropriate sanction).
III.
To that end, finding that all factors weight in favor of dismissal, the Court hereby
ORDERS as follows:
1.
Defendant’s motion to dismiss (doc. 34) is GRANTED;
2.
Plaintiff’s complaint is DISMISSED WITH PREJUICE for his failure to
comply with the Court’s discovery Orders under Fed. R. Civ. P. 37(b)(2); for his failure to
appear at his deposition under Fed. R. Civ. P. 37(d); and for his failure to prosecute his case
under Fed. R. Civ. P. 41(b); and
3.
This case is CLOSED on the docket of this Court.
IT IS SO ORDERED.
January 29, 2013
s/Michael J. Newman
United States Magistrate Judge
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