Opinion
Case No. 03-4047-RDR.
November 19, 2003
MEMORANDUM AND ORDER
This matter is presently before the court upon defendants' motion to dismiss. The defendants seek dismissal with prejudice based upon plaintiff's "continued and repeated violations of orders of this court and the rules of civil procedure." Having carefully reviewed the arguments of the parties, the court is now prepared to rule.
Plaintiff filed this action pro se on March 12, 2003. The complaint seeks damages for certain alleged defects in a house purchased by plaintiff in May 2001. Defendants J.R. Knudsen and Sandra Knudsen owned and lived in the house prior to the sale to the plaintiff. Defendants Tom Harrison and Homeland Real Estate brokered the real estate transaction. On August 16, 2003, the house was destroyed by fire.
The facts that give rise to the instant motion are not in dispute. On August 18, 2004, the Knudsens filed a motion to compel the production of certain discovery from plaintiff. Harrison and Homeland filed a similar motion on August 25, 2004. The motion filed by Harrison and Homeland sought a variety of materials, including all video recordings of the subject property in the possession of plaintiff. On August 25, 2004, plaintiff did produce two CDs in response to defendants' document request. These CDs contained video of the subject property, but the audio had been deleted by plaintiff. On September 10, 2004, the magistrate judge generally granted defendant Knudsens' motion to compel discovery. The magistrate judge directed plaintiff to produce all the requested discovery by September 17, 2004.
On September 14, 2004, the defendants filed a joint motion to compel. In this motion, the defendants sought to compel the production of various discovery, including again the video recordings with sound. On September 15, 2004, the magistrate judge granted the motion of defendants Tom Harrison and Homeland Real Estate to compel and for sanctions. The magistrate judge compelled plaintiff to "serve complete responses to each of the discovery requests addressed in defendants' motion, and hand-deliver all of the subject documents to defense counsel, by September 22, 2004 at 9:00 a.m." Plaintiff filed a motion for reconsideration of this order on September 16, 2004.
Thereafter, a final pretrial conference was held on September 22, 2004 at 9:00 a.m. At that time plaintiff admitted, and the magistrate judge expressly found, that he had violated the court's order by failing to provide complete discovery responses or hand-delivery of the subject documents by the appointed time. Consequently, the magistrate judge ordered plaintiff to provide the discovery responses and the subject documents to defense counsel by September 27, 2004. The magistrate judge denied plaintiff's motion for reconsideration of the court's order of September 15, 2004. The magistrate judge advised plaintiff that he would recommend dismissal with prejudice to this court if he failed to comply with the latest order. Plaintiff failed to produce the required discovery to the defendants. The defendants now seek dismissal with prejudice.
Rule 37(b)(2)(C) permits the court to dismiss an action when a plaintiff fails to comply with a discovery order. Dismissal with prejudice is regarded as "an extreme sanction." Ehrenhaus v. Reynolds, 965 F.2d 916, 920 (10th Cir. 1992). Before choosing dismissal as a just sanction, a court must consider the following: (1) the degree of actual prejudice to the defendant; (2) the amount of interference with the judicial process; (3) the culpability of the litigant; (4) whether the court warned the party in advance that dismissal of the action would be a likely sanction for noncompliance; and (5) the efficacy of less sanctions. Id. at 921. After carefully examining all of these factors, the court has reluctantly determined that dismissal with prejudice is an appropriate sanction. The court believes that the defendants have been prejudiced by plaintiff's actions in failing to comply with the discovery orders of the magistrate judge. The conduct of plaintiff has caused delay and mounting attorney's fees. The second and third factors also mandate dismissal. Plaintiff has repeatedly interfered with the judicial process. He is entirely culpable for the present state of affairs. The magistrate judge has made every effort to assist the plaintiff in prosecuting this action, but he has been met with recalcitrance and contempt. Plaintiff's transgressions have hindered the court's management of its docket and caused burdens to the defendants. Plaintiff was warned during the pretrial conference that his failure to comply might result in dismissal. Despite this warning, plaintiff made no efforts to comply with the court's orders. The court is not persuaded that any other sanctions will properly remedy the failure of plaintiff to comply with the court's orders. The court recognizes that dismissal is a severe sanction. Nevertheless, plaintiff has repeatedly ignored the court's orders. Plaintiff has abused the discovery process and dismissal is an appropriate sanction. Accordingly, the defendants' motion to dismiss shall be granted.
IT IS THEREFORE ORDERED that defendants' motion to dismiss (Doc. # 141) be hereby granted. This action is hereby dismissed with prejudice as a sanction for noncompliance with court orders.