Opinion
CIVIL ACTION NO: 02-1946, SECTION: "A" (1)
December 16, 2003
ORDER AND REASONS
Before the undersigned is the motion of the defendant, University Healthcare System, L.C. ("University Healthcare"), to dismiss the claims of the plaintiff, Andralla Slayton and Cindy Carr, with prejudice for failure to comply with the undersigned's order of November 19, 2003. Rec. doc. 45. By December 2, 2003 Ms. Slayton and Ms. Carr were ordered to supplement their discovery responses. Rec. doc. 42. University Healthcare demonstrates that they failed to comply with this order. They also failed to submit any opposition to the motion to dismiss. In the November 19, 2003 order the undersigned stated:
The order was dated November 19, 2003, but the date of entry on the docket was November 21, 2003. Rec. doc 42. The mover refers to it as the order of November 21, 2003. Rec. doc. 45.
On November 26, 2003, the claims of the remaining plaintiff, Heather Turner, were dismissed with prejudice for failure to comply with the court's order of October 27, 2003. Rec. doc. 43.
Although University Healthcare again requests sanctions, the request will be denied. This, however, will be the last opportunity for Ms. Slayton and Ms. Carr to comply with the court's orders. Pursuant to Fed.R.Civ.P. 37(b)(2)(C), if a party fails to obey an order to provide discovery the court may enter an order dismissing the action. If Ms. Slayton and Ms. Carr fail to fully comply with this order, an order will be entered dismissing their claims against University Healthcare.
Rec. doc. 42 at p. 4.
The authority of a federal trial court to dismiss a plaintiffs action because of her failure to prosecute is clear. See Link v. Wabash R. Co., 82 S.Ct. 1386, 1388 (1962). Pursuant to Fed.R.Civ.P. 41(b), a Court may in its discretion dismiss any action based on the failure of the plaintiff to prosecute or comply with any order of the Court. Larson v. Scott, 157 F.3d 1030, 1032 (5th Cir. 1998). Such a dismissal is considered to be an adjudication on the merits. Hughes v. City of Houston, 78 F.3d 983, 994 (5th Cir. 1996). The court's power to dismiss for want of prosecution should be used sparingly, although it may be exercised sua sponte whenever necessary to achieve the orderly and expeditious disposition of cases. See Ramsay v. Bailey, 531 F.2d 706, 707-08 (5th Cir. 1976). cert. denied, 97 S.Ct. 1139 (1977).
In applying the sanction of dismissal, courts have traditionally considered the extent to which the plaintiff, rather than her counsel, is responsible for the delay or failure to comply with the Court's order.Markwell v. County of Bexar, 878 F.2d 899, 902 (5th Cir. 1989). Ms. Slayton and Ms. Can — appeared both pro se and through counsel. While they appeared pro se it was necessary to place the action on the call docket several times and they failed to take any action to oppose the motion of the Administrators of the Tulane Education Fund for summary judgment. Since they have been represented, they are in violation of the court's orders of October 22, October 27 and November 19, 2003. Rec. docs. 36, 37 and 42. Ms. Slayton and Ms. Carr are as much responsible for these violations as their counsel.
In Ford v. Sharp, 758 F.2d 1018 (5th Cir. 1985), the Fifth Circuit described aggravating factors to be examined in considering an involuntary dismissal with prejudice. These factors include the extent to which the plaintiff as distinguished from counsel is personally responsible for the delay, the degree of actual prejudice to the defendant, and whether the delay was the result of intentional conduct. The first of these has already been considered. The prejudice to University Healthcare is manifest. It is confronted with a discovery deadline of December 22, 2003 and preparing for trial, but Ms. Slayton and Ms. Carr refuse to provide essential discovery. Thus, a dismissal with prejudice is also warranted by Fed.R.Civ.P. 37(b)(2)(C) for the failure of a party to provide and permit discovery.
IT IS ORDERED that University Healthcare's motion to dismiss the claims of Andralla Slayton and Cindy Carr with prejudice for failure to comply with the court's order of November 19, 2003 (Rec. doc. 39) is GRANTED and the claims of Andralla Slayton and Cindy Car against University Healthcare are DISMISSED with PREJUDICE.