Opinion
3-00-CV-14-R.
February 23, 2001
REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to Paragraph 4 of the District Court's Scheduling Order filed on June 19, 2000, came on to be considered Defendant Andrew M. Tatsch and Charles A. Garcia's Motion for Sanctions filed on January 16, 2001, and the magistrate judge finds and recommends as follows:
Because both the relief sought and the magistrate judge's recommendation, if adopted, are case dispositive as to these Defendants, the magistrate judge files this recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and (C).
In their motion Defendants Tatsch and Garcia seek an order of dismissal of Plaintiff's claims against them in their individual capacities. Their motion is based upon Plaintiff's total disregard of the court's prior order filed on October 16, 2000, which required Plaintiff to serve full and complete answers to their interrogatories and to serve a response to their Rule 34 request and to produce requested documents. Finally, the court ordered Plaintiff to reimburse Defendants' attorneys fees in the amount of $340.00
Rule 37(b)(2)(C) authorizes a court to dismiss a Plaintiff's complaint with prejudice. Because of the severity of this sanction, it is ordinarily an inappropriate remedy unless the conduct at issue is willful or in bad faith and is accompanied by a clear record of delay or contumacious conduct. Coane v. Ferrara Pan Candy Co., 898 F.2d 1030, 1032 (5th Cir. 1990). In light of Plaintiff's conduct in this case this extreme sanction is wholly warranted.
Plaintiff has failed to file a timely response to the present motion. Therefore, the court is not presented with any alleged plausible excuse or explanation for his failure to comply with the court's order filed on October 16, 2000. A hearing was held on these Defendants' prior motion (Discovery Dispute No. 1 filed on September 8, 2000). At the hearing Plaintiff's counsel informed the court that Defendants' discovery papers which were at issue had been forwarded to Plaintiff, but that he had not responded to his counsel's request for information. In addition to Plaintiff s lack of cooperation in response to these Defendants' discovery requests, the record shows that he has been completely uncooperative with all Defendants' efforts to obtain discovery from him.
Another Defendant filed a motion to compel discovery from Plaintiff. See Defendant City of Rowlett's Motion to Compel Answers to Discovery and/or to Compel Plaintiff's Appearance at Deposition (Discovery Dispute No. 2) filed on January 23, 2001. In that motion Defendant City complained of Plaintiff s failure to serve responses to its discovery requests and his failure to appear for his deposition as noticed. This motion was rendered moot by the District Court's order filed on February 12, 2001, granting summary judgment in favor of the City of Rowlett and other Defendants, which was filed after the time for Plaintiff to respond to the motion for summary judgment had expired.
In addition to the Movant Defendants' expenses incurred in preparing, filing and presenting their former motion (Discovery Dispute No. 1) they have incurred additional reasonable attorney's fees in the amount of $340.00 in preparing and filing their present motion.
RECOMMENDATION:
For the foregoing reasons it is recommended that the District Court enter its order dismissing Plaintiff's complaint against Andrew M. Tatsch and Charles A. Garcia with prejudice pursuant to Rule 37(b)(2)(C) and that the court further order Plaintiff to pay to Defendants Tatsch and Garcia the sum of $680.00 for attorney's fees incurred in the present motion and those fees which the court previously ordered Plaintiff to pay to Defendants.
A copy of this recommendation shall be transmitted to counsel for the parties.
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this recommendation. Pursuant to Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten-day period may bar ade novo determination by the district judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.