Opinion
Civ. No. 97-971 SECTION "C" (4).
March 9, 2000.
Defendant CSC Credit Services, Inc. ("CSC") has moved this Court to dismiss, or, alternatively, to continue hearing on Plaintiff Peggy Malbrough's Motion to Sever and for Summary Judgment. Defendants Equifax Credit Information Services, Inc. and Equifax, Inc. (collectively "Equifax") have filed a memorandum in support of CSC's motion, adding additional factual support. Ms. Malbrough has filed opposition to CSC's motion.
CSC essentially argues that Ms. Malbrough has not cooperated in attempts to schedule her deposition. (Equifax adds other instances of alleged discovery problems.) CSC asks the Court for dismissal of Ms. Malbrough's action under Federal Rule of Civil Procedure 37(b)(2)(C) as a remedy. A trial court does have discretion to order dismissal as a remedy for failure to comply with discovery orders. See generally National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 96 S.Ct. 2778, 49 L.Ed.2d 747 (1976). However, "dismissal with prejudice [under Rule 37] is a harsh action, to be used only in extreme circumstances, but . . . `[d]eliberate, repeated refusals to comply with discovery orders . . . justify the use of this ultimate sanction.'" Kabbe v. Rotan Mosle, Inc., 752 F.2d 1083, 1084 (5th Cir. 1985) (quoting Bonaventure v. Butler, 593 F.2d 625, 626 (5th Cir. 1979)). The Court does not find that the problems associated with Ms. Malbrough's deposition warrant dismissal at this time.
An unchallenged notice of deposition amounts to a discovery order of the court. See Chagas v. United States, 369 F.2d 643, 644 (5th Cir. 1966). Chagas v. United States, 369 F.2d 643, 644 (5th Cir. 1966).
Nevertheless, the Court does find that CSC is justified in its desire to depose Ms. Malbrough before responding to her pending motion. Ms. Malbrough's deposition testimony may provide facts needed to oppose the motion.
Accordingly, IT IS ORDERED that Defendant CSC Credit Services, Inc.'s Motion to Dismiss, or, alternatively, to Continue Hearing on Plaintiff's Motion to Sever and for Summary Judgment (Rec. Doc. 260) is DENIED IN PART and GRANTED IN PART. IT IS FURTHER ORDERED that Plaintiff Peggy Malbrough's Motion to Sever and for Summary Judgment (Rec. Doc. 247) is hereby CONTINUED from Wednesday, March 29, 2000 to Wednesday April 26, 2000 on the condition that Ms. Malbrough submit to deposition at least two weeks prior to the new hearing date in order to provide defendants with enough time to prepare their opposition. The Court will take the matter under further consideration if Ms. Malbrough does not submit to deposition.
IT IS THEREFORE ALSO ORDERED that the telephone hearing on CSC's motion set for Friday, March 10, 2000 at 9 a.m. is hereby CANCELED.