Opinion
Case No. C-1-05-81.
November 17, 2006
REPORT AND RECOMMENDATION and ORDER
This matter is before the Court on Defendant's Motion to Compel Initial Disclosures (Doc. 18), Defendant's Motion to Dismiss (Doc. 19), Plaintiff's Response to Defendant's Motion to Dismiss (Doc. 20), and Defendant's Reply Memorandum in Support of Defendant's Motion to Dismiss (Doc. 21).
BACKGROUND
In February 2005, Plaintiff filed a complaint alleging discrimination on the basis of religion and national origin in violation of Title VII, 42 U.S.C. § 2000e, et seq. (Doc. 2). On March 30, 2006, the parties engaged in a Rule 26(f) conference agreeing to exchange Initial Disclosures by May 30, 2006. (Doc. 15). Defendant mailed Plaintiff its Initial Disclosures on May 30, 2006. (Doc. 18, Affidavit of LaQuita Wilson, ¶ 2(a); Ex. A). To date, Defendant states that it has not received Plaintiff's Initial Disclosures following several requests by Defendant to Plaintiff. (Wilson Aff. at ¶¶ 2(b), (c), (d), (e) and (f), and 3; Exs. B, C, D, E and F). Following unsuccessful attempts at informal resolution of the matter, Defendant filed a Motion to Compel (Doc. 18) on August 31, 2006. Thereafter, on October 11, 2006, Defendant filed a Motion to Dismiss based on Plaintiff's failure to cooperate in discovery. (Doc. 19). Plaintiff, while not responding to Defendant's Motion to Compel, filed a response to Defendant's Motion to Dismiss basically acknowledging that he has not complied with discovery. ( See Doc. 20). Plaintiff's response to Defendant's motion is generally non-responsive with the exception of his statements that 1) he has no information available for an initial disclosure; 2) he did not receive notice of his deposition until after the scheduled date; and 3) he has answered all discovery requests to the best of his ability. (Doc. 20). The remainder of Plaintiff's memorandum contains irrelevant and at times irrational rants and is utterly useless as a response to Defendant's motion.
Defendant claims that Plaintiff has failed to provide initial disclosures and seeks an order of the Court compelling Plaintiff to provide said disclosures. Plaintiff, for his part, claims he has no information available to disclose. Pursuant to Federal Rule 26(a), a party must provide to other parties `the name and, if known, the address and telephone number of each individual likely to have discoverable information that the disclosing party may use to support its claims" as well as "a copy of, or description by category and location of, all documents . . . that are in the party's possession, custody or control that may be used to support its claims." Fed.R.Civ.P. 26(a)(1)(A), (B). Thus, any witness or document, which Plaintiff intends to use as evidence at trial or on a motion to support his claims, must be disclosed to Defendant as an initial matter.
Defendant also contends that Plaintiff failed to provide adequate responses to Defendant's discovery requests. For this reason, Defendant seeks an order of dismissal pursuant to Fed.R.Civ.P. 41. Plaintiff argues that he answered to the best of his ability and that counsel cannot "dictate to Plaintiff how to answer their frivolous questions." (Doc. 20 at p. 1). While Defendant's counsel cannot dictate such to Plaintiff, the Court is well within its authority to do so, especially when it appears that Plaintiff's responses are entirely non-responsive. Upon review of the Interrogatory questions at issue, the Court finds said questions pertinent and not at all "frivolous" as Plaintiff erroneously believes them to be.
Defendant's Interrogatory #4 asks Plaintiff for information relating to any litigation or legal proceedings in which Plaintiff has been a witness or party and to charges or grievances he has filed. (Doc. 19, Wilson Aff. at ¶ 8; Ex. G). In response, Plaintiff stated "not applicable." (Id.). Interrogatory # 5 asks Plaintiff to identify all crimes for which he has been arrested or convicted of in the past 10 years. (Wilson Aff. at ¶ 8; Ex. G). In response, Plaintiff stated, "I am not a criminal. Thank God!" (Id.). Interrogatory #'s 10 and 12 requested information regarding Plaintiff's employment and attempts to seek employment. (Id.). In response to both questions, Plaintiff responded, "n/a." (Id.). Interrogatory questions 10 and 12 are directly related to evidence of Plaintiff's attempts at the mitigation of damages and are entirely appropriate discovery requests. . With respect to Document Requests 7, 14, and 15, instead of either producing the requested documents, denying the existence of such documents, or stating an objection to the requests and the basis therefor, Plaintiff provides non-responsive rhetorical questions and irrelevant anecdotes. Therefore, the Court finds Plaintiff's responses wholly non-responsive and orders Plaintiff to respond appropriately to Defendant's discovery requests. Furthermore, Plaintiff's responses to Defendant's Interrogatories are unsigned. Pursuant to Federal Rule of Civil Procedure 33(b)(1) and (2), the interrogatories must be signed, under oath, by the person making them. Therefore, if Plaintiff is the individual answering the interrogatory questions, he must provide Defendant with a signed verification of such.
Finally, Defendant contends that Plaintiff's failure to appear for his properly noticed deposition warrants dismissal of his Complaint. Plaintiff argues that he was not consulted prior to the deposition with respect to a mutually convenient date and time and that he did not receive the notice of deposition until three days after the scheduled date of said deposition. While Plaintiff claims to be well versed with respect to depositions, he fails to understand his rights and obligations with respect to such. Pursuant to Federal Rule of Civil Procedure 30(b)(1), "[a] party desiring to take the deposition of any person . . . shall give reasonable notice in writing to every other party to the action." Although the Court encourages parties to work together to find mutually agreeable dates for depositions, there is no formal requirement that one party must consult the other prior to issuing a notice of deposition. Nonetheless, the evidence submitted indicates that Defendant attempted to consult with Plaintiff prior to the scheduling of Plaintiff's deposition but was unsuccessful. ( See Doc. 19, Wilson Aff. at ¶ 10, Ex. J). Plaintiff failed to appear for his deposition. Plaintiff contends that he received notice of the deposition three days after the fact. However, Plaintiff did not contact opposing counsel to reschedule his deposition. On the other hand, it does not appear that Defendant made any effort to contact Plaintiff to reschedule the deposition. For this reason, we find that dismissal is not warranted at this time.
The failure to cooperate in discovery may result in an order from the Court that Plaintiff shall be precluded from supporting or opposing his claims or using "as evidence at trial, at a hearing, or on a motion any witness or information not so disclosed." Fed.R.Civ.P. 37 (b)(2)(B); (c)(1). District courts also have the inherent power to sua sponte dismiss civil actions for want of prosecution to "manage their own affairs so as to achieve the orderly and expeditious disposition of cases." Link v. Wabash R.R., 370 U.S. 626, 630-31 (1962). Failure of a party to respond to an order of the court warrants invocation of the Court's inherent power. See Fed.R.Civ.P. 41(b). The Sixth Circuit has held that dismissal is an appropriate sanction pursuant to Rule 41 of the Federal Rules of Civil Procedure when there is a "clear record of delay or contumacious conduct by the plaintiff." Carter v. City of Memphis, Tennessee, 636 F.2d 159, 161 (6th Cir. 1980) (quoting Silas v. Sears, Roebuck Co., Inc., 586 F.2d 382, 385 (5th Cir. 1978) ; see also Coleman v. American Red Cross, 23 F.3d 1091, 1095 (6th Cir. 1994). As the court in Carter explained, "the key is a failure to prosecute, whether styled as a failure to appear at a pre-trial conference, failure to file a pre-trial statement. . . . or failure to comply with the pre-trial order." 636 F.2d at 161(quoting J.F. Edwards Const. Co. v. Anderson Safeway Guard Rail Corp., 542 F.2d 1318, 1323 (7th Cir. 1976) (per curiam)). We find Plaintiff's conduct thus far, as evidenced by his response to Defendant's motion, to be dilatory as well as bordering on uncivil. Thus, Plaintiff is hereby notified that any further failure to cooperate in the discovery process as ordered herein, without substantial justification, will result in a recommendation to the District Court that his Complaint be dismissed.
IT IS THEREFORE ORDERED THAT
1) Defendant's Motion to Compel Initial Disclosures (Doc. 18) be GRANTED.
2) Plaintiff shall provide complete initial disclosures within fifteen (15) days.
3) Plaintiff shall amend his responses to Interrogatory #'s 4, 5, 10 and 12 to provide full and complete answers to Defendant's Interrogatories, or clearly state the reasons for his inability to answer, WITHIN FIFTEEN (15) DAYS.
4) Plaintiff shall produce documents responsive to Defendant's Request for Production of Documents #'s 7, 14 and 15 WITHIN FIFTEEN (15) DAYS or clearly state the reasons for the non-production thereof.
5) Plaintiff shall clearly set forth any objections to Defendant's Interrogatories or Requests for Production of Documents and the grounds for such objections.
IT IS FURTHER RECOMMENDED THAT:
1) Defendant's Motion to Dismiss (Doc. 19) be DENIED.
SO ORDERED.