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finding that even though the plaintiff was proceeding pro se, she did "so because she terminated her attorney's employment. Since then, she has failed to participate in adjudicating her claims in any substantial manner. This Court finds that Acrea's actions warrant a default judgment against her."
Summary of this case from McLane Foodservice, Inc. v. HawkinsOpinion
CA No. 3:01-CV-1933-R
July 26, 2002
MEMORANDUM OPINION AND ORDER
Now before the Court is Defendant's Motion to Dismiss (filed April 24, 2002). For the reasons herein stated, the Motion is GRANTED.
I. FACTUAL BACKGROUND
On August 29, 2001, Julie Acrea ("Acrea") filed a state court cause of action alleging that her former employer, J.C. Penney, negligently left grease at the top of an escalator, causing Acrea to sustain injuries from a slip and fall accident. Because Federal diversity jurisdiction exists, the state court cause of action was removed to this Court on September 27, 2001. Acrea then discharged her counsel. On December 28, 2001, he filed a motion to withdraw, which was granted by the U.S. Magistrate Judge on January 2, 2002. Acrea remains without counsel. She also remains apparently quite disinterested in pursuing her cause of action.
On February 19, 2002, and on March 6, 2002, Acrea failed to appear for her noticed depositions. She also failed to respond to any of the Court mandated Scheduling Order deadlines, including those requiring depositions and written discovery. Most recently, Acrea failed to participate in the Joint Motion Submission, the basis of this Memorandum Opinion. Acrea has also failed to appear for hearings scheduled by the U.S. Magistrate Judge on March 8, 2002, and again on March 18, 2002. Acrea has not provided the Court with any explanation regarding her failure to appear at Court ordered hearings.
II. ANALYSIS
Rule 37 of the Federal Rules of Civil Procedure addresses the issue of whether sanctions are appropriate for parties who fail to make or cooperate in discovery. In pertinent part, Rule 37(d) provides that:
If a party . . . fails (1) to appear before the officer who is to take the deposition, after being served with a proper notice, or (2) to serve answers or objections to interrogatories submitted under Rule 33, after proper service of the interrogatories, or (3) to serve a written response to a request for inspection submitted under Rule 34, after proper service of the request, the court in which the action is pending on motion may make such orders in regard to the failure as are just, and among others it may take any action authorized under subparagraphs (A), (B), and (C) of subdivision (b)(2) of this rule. Any motion specifying a failure under clause (2) or (3) of this subdivision shall include a certification that the movant has in good faith conferred or attempted to confer with the party failing to answer or respond in an effort to obtain such answer or response without court action. In lieu of any order or in addition thereto, the court shall require the party failing to act or the attorney advising that party or both to pay the reasonable expenses, including attorney's fees, caused by the failure unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.
Defendants present a clear record that Plaintiff has indeed violated Rule 37 in every possible manner. See Br. in Supp. of Def.'s Mot. to Dismiss at 3-4 and App. at A-H. Subdivision (b)(2) of Rule 37 provides for sanctions for a party's failure to respond to discovery and/or appear at a noticed deposition. See FED. R. Civ. P. 37(b)(2). The range of possible sanctions include one which permits this Court to issue "[a]n order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party." FED. R. Civ. P. 37(b)(2)(C).
Although Acrea has proceeded on this action pro se since January 2, 2002, she does so because she terminated her attorney's employment. Since then, she has failed to participate in adjudicating her claims in any substantial manner. This Court finds that Acrea's actions warrant a default judgment against her.
Nevertheless, the Court empathizes with parties who face the weight of federal litigation unrepresented by counsel. This daunting task does not excuse Plaintiffs non-participation in her civil action. However, it does move the Court to deny Defendant's request for attorney's fees because this case presents one of those "circumstances [that] make an award of expenses unjust." FED. R. Civ. P. 37(b).
III. CONCLUSION
For the reasons herein stated, Defendant's Motion to Dismiss is hereby GRANTED.
It is so ORDERED.