Opinion
Civil Action No: 01-3432, Section: "R"(4)
May 16, 2002
ORDER AND REASONS
Before the Court is defendant's motion to dismiss this action with prejudice pursuant to Federal Rule of Civil Procedure 37(b)(2)(C) because of plaintiff's failure to comply with discovery orders. For the following reasons, the Court imposes costs on the plaintiff but denies the motion to dismiss.
I. BACKGROUND
In the fall of 2000, plaintiff enrolled in Dr. Charles Hollingsworth's class at Dillard University. Plaintiff alleges that shortly after the class started, Dr. Hollingsworth began making inappropriate sexual comments to her. Dr. Hollingsworth's comments allegedly increased in intensity and he continued to make similar comments to plaintiff throughout the fall semester and on into the spring semester. After plaintiff confronted Dr. Hollingsworth and he failed to cease making the allegedly inappropriate comments, plaintiff filed a written complaint with Dillard. Plaintiff alleges that Dillard failed to properly discipline Dr. Hollingsworth. Additionally, plaintiff contends that in retaliation for filing her complaint with the university and for refusing to consent to Dr. Hollingsworth's advances, Dr. Hollingsworth gave her failing grades in three courses.
Dillard now moves to dismiss plaintiff's claims against it pursuant to Rule 37(b)(2)(C) for plaintiff's failure to comply with the Court's March 14, 2002 discovery order. Plaintiff opposes the motion.
II. DISCUSSION
Rule 37(b)(2)(C) of the Federal Rules of Civil Procedure authorizes a court to dismiss an action with prejudice when a party fails to obey a discovery order, including an order to submit to an IME pursuant to Rule 35. The Fifth Circuit has noted, however, that dismissal with prejudice is a "draconian remedy," which the district court should impose only as a matter of last resort. See Batson v. Neal Spelce Assocs., Inc., 765 F.2d 511, 515 (5th Cir. 1985). A district court may dismiss a case as a sanction for violating a discovery order only when the following circumstances are present: (1) the refusal to comply results from bad faith or willfulness and is accompanied by delay or contumacious conduct; (2) the violation of the discovery order is attributable to the client instead of the attorney; (3) the violating conduct substantially prejudices the other party; and, (4) a less severe sanction would not achieve the same result. See F.D.I.C. v. Conner, 20 F.3d 1376, 1380 (5th Cir. 1994) ( citing Coane v. Ferrara Pan Candy Co., 898 F.2d 1030, 1032 (5th Cir. 1990)).
After reviewing the facts of this case, the Court declines to impose the ultimate sanction of dismissal with prejudice for plaintiff's failure to timely comply with the Court's March 14, 2002 discovery order. On April 30, 2002, although untimely, plaintiff submitted responses to the discovery order. Although counsel does not explain why the responses were untimely, there is nothing in the record to suggest that plaintiff's failure to timely comply with the Court's discovery order was the result of bad faith or willfulness on her part. Accordingly, the Court denies Dillard's motion to dismiss with prejudice.
The Court nonetheless recognizes that plaintiff's failure to comply with the Court's discovery schedule led defendant to file a motion to compel initial disclosures from plaintiff. The Court orders plaintiff to pay defendant its reasonable attorney's fees that it incurred in filing the February 20, 2002 motion to compel. See FED. R. CIV. P. 37(b)(2).
III. Conclusion
For the foregoing reasons, the Court DENIES Dillard's motion to dismiss the complaint with prejudice. The Court orders plaintiff to pay defendant's reasonable attorney's fees incurred in filing the February 22, 2002 motion to compel. The Court further orders defendant to submit evidence of the expenses incurred in filing the February 22, 2002 motion to compel within seven days of the entrance of this order.