Arevalo v. Wells Fargo Bank, N.A.

Filing 18

ORDER GRANTING IN PART AND DENYING IN PART 17 Motion to Dismiss; Plaintiff is Ordered to pay Defendant's Reasonable expenses for travel, and attorney's fees due to not appearing for his deposition. Plaintiff shall have until January 10, 2015 to pay such expenses. Plaitiff is also Ordered to supplement his discovery responses no later than January 10, 2015. Discovery Deadline is extended to 1/30/2015, and Pretrial Motions Deadline is extended to 2/23/2015, Pretrial, Trial, etc. are VACATED, and will be re-set at a later dat by the ourt. Signed by Judge Xavier Rodriguez. (wg)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

ADAM A. AREVALO,

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Plaintiff,
VS.
WELLS FARGO BANK, N.A.,
Defendant.

Civil Action No. SA-13-CA-1148-XR

ORDER
On this date, the Court considered Defendant Wells Fargo Bank’s Motion to Dismiss (docket
no. 17). No response has been filed, and the time for doing so has expired. The motion is
GRANTED IN PART and DENIED IN PART.
Background
Wells Fargo moves for an involuntary dismissal with prejudice for failure to prosecute
pursuant to Rule 41(b). Federal Rule of Civil Procedure 41(b) provides that “[i]f the plaintiff fails
to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the
action or any claim against it.” FED. R. CIV. P. 41(b). The Court’s authority to dismiss a case for
failure to prosecute is based on the Court’s inherent authority to manage and administer its own
affairs to ensure the orderly and expeditious disposition of cases. Link v. Wabash R.R. Co., 370 U.S.
626, 630-31 (1962).
A dismissal with prejudice is a dismissal on the merits and is an extreme sanction that
deprives the litigant of an opportunity to litigate his claim. Coleman v. Sweetin, 745 F.3d 756, 766
(5th Cir. 2014). Consequently, dismissal with prejudice is appropriate only when (1) there is a clear
record of delay or contumacious conduct by the plaintiff and (2) the court determines that lesser
sanctions would not serve the interests of justice by prompting diligent prosecution, or where lesser
sanctions have been employed but proved to be futile. Id. Additionally, at least one of three
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aggravating factors must be present. Those factors are: (1) delay caused by the plaintiff personally;
(2) actual prejudice to the defendant; or (3) delay caused by intentional conduct. Id. at 766 n.9. The
presence of one aggravating factor, along with a record of delay or contumacious conduct and
consideration of lesser sanctions, will support a dismissal with prejudice. Price v. McGlathery, 792
F.2d 472 (5th Cir. 1985). “The district court’s consideration of lesser sanctions should appear in the
record for review of the court’s exercise of its discretion.” Sturgeon v. Airborne Freight Corp., 778
F.2d 1154, 1159 (5th Cir. 1985).
Wells Fargo also moves for dismissal pursuant to Rule 37(d)(3) based on Plaintiff’s failure
to appear for deposition. Rule 37(d)(3) provides that sanctions including “any of the orders listed
in Rule 37(b)(2)(A)(i)-(vi),” which includes dismissing the action in whole or in part, may be
awarded for a party’s failure to attend his own deposition after being served with proper notice.
Further, “[i]nstead of or in addition to these sanctions, the court must require the party failing to act,
the attorney advising that party, or both to pay the reasonable expenses, including attorney’s fees,
caused by the failure, unless the failure was substantially justified or other circumstances make an
award of expenses unjust.” Rule 37(b)(2)(A)(v) expressly contemplates dismissal, and the district
court’s discretion thereunder is broad. Moore v. CITGO Ref’g & Chem. Co., 735 F.3d 309, 316 (5th
Cir. 2013) (citing Bluitt v. Arco Chem., 777 F.2d 188, 191 (5th Cir. 1985)). However, as with a
dismissal under Rule 41(b), several factors must be present before a district court may dismiss a case
with prejudice as a sanction for violating a discovery order: (1) “the refusal to comply results from
willfulness or bad faith and is accompanied by a clear record of delay or contumacious conduct;” (2)
the violation of the discovery order must be attributable to the client instead of the attorney, (3) the
violating party’s misconduct “must substantially prejudice the opposing party;” and (4) a less drastic
sanction would not substantially achieve the desired deterrent effect. Doe v. Am. Airlines, 283 F.
App’x 289, 291 (5th Cir. 2008) (per curiam).
In the alternative, Defendant asks the Court to amend the Scheduling Order so that Plaintiff
may be deposed and Defendant may have an opportunity to move for summary judgment.
Analysis
Defendant argues that there is a clear record of delay or contumacious conduct by Plaintiff
Arevalo. A clear record of delay is found when there have been significant periods of total inactivity.
Berry v. Cigna/RSI Cigna, 975 F.2d 1188, 1191 n.5 (5th Cir. 1992); see also Bullard v. Burlington
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N. & Santa Fe. Ry. Co., 368 F. App’x 574, *7 (5th Cir. 2010) (“We have “recognized that ‘delay
which warrants dismissal with prejudice must be longer than just a few months; instead, the delay
must be characterized by significant periods of total inactivity.’”). Contumacious conduct is a
“stubborn resistance to authority.” McNeal v. Papasan, 842 F.2d 787, 792 (5th Cir. 1988).
Wells Fargo points to the following conduct by Arevalo: (1) Arevalo never served Wells
Fargo with initial disclosures as required by Rule 26(a)(1); (2) Arevalo sought repeated extensions
of his deadline to respond to Wells Fargo’s First Set of Interrogatories and First Request for
Production of Documents initially due June 23, 2014 (extended to August 18 with verification not
provided until September 3), and has never supplemented his responses even though a number of his
responses simply stated that he would supplement; (3) after Arevalo’s counsel withdrew, Arevalo
failed to comply with this Court’s order dated September 5 directing him to have new counsel enter
an appearance or inform the Court that he would be proceeding without counsel by September 24;
and (4) Arevalo canceled his November 7, 2014 deposition at the last minute by email, after
Defendant’s counsel had already traveled by air from Houston to San Antonio.
Although the Court finds that Arevalo has engaged in some delay and has demonstrated
contumacious conduct by failing to follow this Court’s September 5 Order and failing to appear for
his deposition, the Court finds that dismissal with prejudice is not justified at this time. Rather,
lesser sanctions may serve the interests of justice and prompt diligent prosecution. “Assessments
of fines, costs, or damages against the plaintiff or his counsel, attorney disciplinary measures,
conditional dismissal, dismissal without prejudice, and explicit warnings are preliminary means or
less severe sanctions that may be used to safeguard a court’s undoubted right to control its docket.”
Rogers v. Kroger Co., 669 F.2d 317, 321-22 (5th Cir. 1982).
Arevalo failed to appear for his deposition and failed to provide adequate notice to Wells
Fargo’s counsel. Wells Fargo’s counsel had already traveled by air to San Antonio for the deposition
and Arevalo offered inadequate justification for missing the deposition. At a minimum, sanctions
pursuant to Rule 37(b)(2)(C) are warranted. Rule 37(b)(2)(C) provides that instead of or in addition
to other sanctions, “the court must order the disobedient party . . . to pay the reasonable expenses,
including attorney’s fees, caused by the failure, unless the failure was substantially justified or other
circumstances make an award of expenses unjust.” Because the failure to appear was not
substantially justified and circumstances do not make such an award unjust, Plaintiff must pay the
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reasonable expenses caused by his failure to attend his deposition, including all costs of travel,
attorney’s fees associated with the travel, and attorney’s fees incurred in relation to the drafting of
the present motion to dismiss. Defendant shall file an affidavit with the Court no later than
December 10, 2014 setting forth these reasonable expenses. Plaintiff shall then have until
January 10, 2015 to pay these expenses in full.
In addition, Plaintiff Arevalo is ORDERED to supplement his discovery responses no later
than January 10, 2015 and to cooperate with Defendant to re-schedule his deposition and to appear
for his deposition.
Plaintiff is warned that failure to comply with this Order by (1) paying the reasonable
expenses as ordered in full by January 10, 2015, (2) supplementing his discovery responses by
January 10, 2015, or (3) cooperating with Defendant to re-schedule his deposition will result
in dismissal of this case with prejudice.
The discovery deadline is extended to January 30, 2015. The deadline to file pretrial motions
is extended to February 23, 2015. The current deadlines for the Joint Pretrial Order and Motions in
Limine, trial, and pretrial conference are VACATED and will be re-set at a later date.
SIGNED this 2nd day of December, 2014.

_________________________________
XAVIER RODRIGUEZ
UNITED STATES DISTRICT JUDGE

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