In such a situation, we think that unless the failure of discovery is absolute, or nearly so, Rule 37(b)(2) sanctions are unripe. See Badalamenti, 896 F.2d at 1363; Fox v. Studebaker-Worthington, Inc., 516 F.2d 989, 995 (8th Cir. 1975); 8 Wright Miller, supra, § 2291, at 809-10. More particularly, when a court issues a broad-form discovery order, and the party to whom it is addressed complies with it somewhat less than fully, withholding documents arguably outside the order's scope, the district court cannot dismiss without first entering an order commanding production of the specific materials.

Rule 37(d) applies only where a failure to answer interrogatories amounts to a total failure to respond. See Fox v. Studebaker-Worthington, Inc., 516 F.2d 989, 995 (8th Cir. 1975). It authorizes district courts to "make such orders in regard to the failure as are just," by reference including specifically the sanction provided in Rule 37(b)(2)(C) of dismissal of all or part of an action.

If a response is made, but some questions are not answered or are evasive or incomplete, a motion under rule 37(a) of the Federal Rules of Civil Procedure is the proper remedy. ( Fox v. Studebaker-Worthington, Inc. (8th Cir. 1975) 516 F.2d 989, 995; 8 Wright Miller, Federal Practice and Procedure, supra, § 2291, pp. 809-810; 4A, Moore's Federal Practice, supra, § 37.05, pp. 37.103 to 37.104.) A similar conclusion has been reached by states which have employed the same approach.

The district court has broad discretion in issuing sanctions for discovery abuse and its decision will be upheld absent an abuse of discretion. Anderson v. Home Ins. Co., 724 F.2d 82, 84 (8th Cir. 1983) (citing Fox v. Studebaker-Worthington, Inc., 516 F.2d 989 (8th Cir. 1975)). Our scope of review of the district court's actions is, therefore, very narrow.

"There is a strong policy favoring a trial on the merits and against depriving a party of his day in court." Fox v. Studebaker-Worthington, Inc., 516 F.2d 989, 996 (8th Cir. 1975). Accordingly, "dismissal is a drastic action to be used only when clearly authorized. . . ."

In the present case there was at no time an order entered by the district court requiring the plaintiff to answer the interrogatory. Two recent Eighth Circuit opinions clearly hold that the sanctions of Rule 37(b) are not applicable until there has been an order by the court compelling discovery. Fisher v. Marubeni Cotton Corp., 526 F.2d 1338, 1341 (8th Cir. 1975); Fox v. Studebaker-Worthington, Inc., 516 F.2d 989, 994-95 (8th Cir. 1975). "When the discovery procedure is initially set in motion by the parties themselves without a court order, the party seeking discovery must first obtain an order under Rule 37(a) requiring the recalcitrant party or witness to make the discovery sought; it is only a violation of this order that is punishable under Rule 37(b).

As Judge Van Oosterhout stated, "[t]here is a strong policy favoring a trial on the merits and against depriving a party of his day in court." Fox v. Studebaker-Worthington, Inc., 516 F.2d 989, 996 (8th Cir. 1975). These cases reflect the proper balance between the conflicting policies of the need to prevent delays and the sound public policy of deciding cases on their merits.

(Doc. 80, at 12, quoting Lozano v. City of Hazleton, 241 F.R.D. 252, 255 (M.D. Penn. 2007) (in turn citing Meyers v. Pennyback Woods Home Ownership Ass'n, 559 F.2d 894, 905 (3rd Cir. 1977)). Plaintiff also cites: Soto-Lebron v. Fed. Express Corp., 538 F.3d 45 (1st Cir. 2008), for the proposition that "failure to supplement barred some damages at trial" Fox v. Studebaker-Worthington, Inc., 516 F.2d 989 (8th Cir. 1975), for the proposition that "Rule 37 sanctions only apply where there is a total non-compliance with discovery"; and Sentis Group, Inc. v. Shell Oil Co., 559 F.3d 888 (8th Cir. 2009), for the proposition that the Eighth Circuit Court of Appeals found a district court abused its discretion imposing Rule 37 sanction. Putting aside the fact that none of the first three cases is binding authority on this court, each of these cases is easily distinguishable.

8. Although dismissal is a drastic sanction, still it may be appropriate when the party's non-compliance is due to "wilfulness, fault or bad faith." Fox v. Studebaker-Worthington, Inc., 516 F.2d 989, 993 (8th Cir. 1975); see also Societe Internationale v. Rogers, 357 U.S. 197, 212 (1958); Anderson v. Home Ins. Co., 724 F.2d 82, 84 (8th Cir. 1983) (finding that "a deliberate default suffices"). As the District Court stated inLaBelle v. City of Roseville, No. 04-4160, 2006 WL 314498 at *1 (D. Minn. Feb. 9, 2006) (Magnuson, J.) when plaintiff did not respond to discovery requests, did not respond to motion to compel discovery, and did not respond to motion for dismissal with prejudice:

The sanctioning power is discretionary. Davis v. American Jet Leasing, Inc., 864 F.2d 612, 614 (8th Cir.1988); Alexander, 687 F.2d at 1205-06; seeHazen v. Pasley, 768 F.2d 226, 229 (8th Cir.1985); Fox v. Studebaker-Worthington, Inc., 516 F.2d 989, 993 (8th Cir.1975). Within the Court's grasp is a " spectrum of sanctions," from which the most appropriate may be selected. National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 644, 96 S.Ct. 2778, 2781, 49 L.Ed.2d 747 (1976).