Craig v. Mid-Continent Concrete Company, Inc.

Filing 63

OPINION AND ORDER by Judge John E Dowdell ; dismissing/terminating case (terminates case) ; granting 40 Motion to Dismiss; accepting 62 Report and Recommendation (Re: 2 Complaint ) (Documents Terminated: 32 MOTION to Compel ) (SAS, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE NOTHERN DISTRICT OF OKLAHOMA
ANDRE CRAIG,
Plaintiff,
v.
MID-CONTINENT CONCRETE
COMPANY, INC.
Defendant.

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Case No. 14-CV-173-JED-PJC

OPINION AND ORDER
Before the Court is the Report and Recommendation (Doc. 62) of United States
Magistrate Judge Paul J. Cleary. Judge Cleary recommends that the Court grant the defendant’s
Motion to Dismiss (Doc. 40).
A district court must determine de novo any part of a Report and Recommendation “that
has been properly objected to,” and “may accept, reject, or modify the recommended disposition;
receive further evidence; or return the matter to the magistrate judge with instructions.” Fed. R.
Civ. P. 72(b)(3). The time for filing objections to Judge Cleary’s R&R has expired, and no
objections were filed.
The Court has conducted a de novo review of the record and the issues presented. In his
Report and Recommendation, Judge Cleary accurately summarized the record and properly
considered the propriety of a sanction of dismissal in light of the factors identified in Ehrenhaus
v. Reynolds, 965 F.2d 916, 921 (10th Cir. 1992). To this date, plaintiff has failed to provide
responses to discovery requests that were due almost a year ago. He terminated his first attorney,
who was then permitted to withdraw. Plaintiff then represented himself for over four months. A
second attorney then entered an appearance, but subsequently moved to withdraw, stating that

plaintiff had failed to stay in contact.

The second attorney also represented that, despite

numerous attempts by counsel, plaintiff had never provided documents for purposes of providing
long-overdue responses to outstanding discovery requests. The second attorney was permitted to
withdraw.
Plaintiff violated a Court order directing him to respond to a motion to compel, and he
has failed to cooperate in discovery or show cause why he should not be sanctioned for that
failure. As a result of the plaintiff’s failure to cooperate in discovery, the discovery cutoff was
extended, and the case, which was set to be tried in March 2016, was ultimately stayed and the
trial and all scheduling deadlines were stricken. Judge Cleary warned plaintiff – twice – that his
lawsuit may be dismissed if he continued to fail to cooperate in discovery. (See Doc. 36, 57).
Notwithstanding the foregoing and the passage of almost a year, plaintiff has still not
provided discovery responses or produced documents. The Court agrees with Judge Cleary that
dismissal with prejudice is appropriate under Fed. R. Civ. P. 37(b)(2) and the factors set forth in
Ehrenhaus, 965 F.2d at 921.
IT IS THEREFORE ORDERED that the Report and Recommendation (Doc. 62) is
hereby accepted. This action is dismissed with prejudice. A separate judgment will be entered
forthwith.
SO ORDERED this 2nd day of March, 2016.