Opinion
CIVIL ACTION NO. 3:99-CV-2243-P.
April 24, 2002
MEMORANDUM OPINION AND ORDER
Now before the Court are:
1. Plaintiffs First Motion for Continuance of Existing Deadlines and the Trial of the Matter, filed December 27, 2001;
2. Defendant Ikon's Renewed Motion to Dismiss for Continued Failure to Prosecute, with Supporting Memorandum and appendix, filed January 7, 2002;
3. Defendant Ikon's Supplemental Brief in Opposition to Plaintiffs Motion for Continuance of Existing Deadlines and Trial of the Matter, filed January 11, 2002;
4. Plaintiffs Motion for Voluntary Dismissal under F.R.P.C. Rule 41(a)(2), filed January 16, 2002; and
5. Defendant Ikon's Brief in Opposition to Plaintiffs Motion for Voluntary Dismissal, filed February 5, 2002.
After considering the parties' arguments and briefings, and the applicable law, the Court concludes Petitioner's Motion for Voluntary Dismissal should be DENIED and Defendant's Motion to Dismiss should be GRANTED. Further, the Court concludes Plaintiffs Motion for Continuance should be DENIED as MOOT.
I. Facts
In October of 1999, Plaintiff sued Defendant for (1) Title VII retaliation, (2) FMLA retaliation, (3) intentional infliction of emotional distress, (4) negligent hiring, retention and supervision and (5) breach of contract relating to alleged sales commissions. Def.'s Br. in Opp'n to Pl.'s Mot. for Voluntary Dismissal at 2. In January of 2000, Defendant began to submit various discovery requests to Plaintiff along with a request for a date for Plaintiffs deposition. See Order dated 4/19/01 at p. 2. Plaintiff failed to respond by the February 28, 2000 deadline and in response, Defendant agreed to grant Plaintiff a 30-day extension. Id. at 2-3. Again, Plaintiff passed the 30-day extension deadline and continued to fail to submit any discovery responses to Defendant. Id. at 3.
In May of 2000, Plaintiffs counsel informed Defendant that Plaintiff was incarcerated in Collin County Jail on drug charges. Id. at 3. According to Defendant, Plaintiff continued to promise she would respond to discovery requests and documents, but yet nothing was produced. Id. Upon Plaintiffs request, a three month toll was ordered on October 3, 2000, with the express condition that Plaintiff answer Defendant's outstanding discovery requests by October 31, 2000. Id. at 4. However, Plaintiff did not provide the promised discovery requests by the specified date and thereby ignored the Court's Order. Id.
Plaintiffs counsel argues that her epilepsy diagnosis in November of 1999 inhibited her practice, specifically from November 1999 to April 2000. Id. In February of 2001, the Court granted Plaintiffs counsel a one week extension due to her complications with epilepsy; however, even by March 13, 2001, Defendant had still not yet received any discovery materials. Id. at 4-5.
Finally, on April 19, 2001, the lawsuit was dismissed with prejudice because of Plaintiffs failure to prosecute, complete failure to respond to discovery requests, and for violation of the Court's October 3, 2000 Order. Id. at 5. In dismissing this lawsuit, the Court noted that Plaintiffs counsel received countless extensions to respond to discovery requests and as of then, neither documents nor responses had been submitted to Defendant. Id. at 2.
Thereafter, nineteen months after the original requests were served and four months after the suit had been dismissed, Plaintiff submitted the discovery requests to Defendant on August 13, 2001. Def.'s Renewed Mot. to Dismiss for Continued Failure to Prosecute at 4. On August 30, 2001, the Court granted Plaintiffs Motion for New Trial and reinstated the action. Id. at 5. In October of 2001, the Court issued a scheduling order marking January of 2002 as the end of discovery and June 3, 2002 for the trial docket. Id. at 6. Defendant's counsel arranged for Plaintiffs deposition on December 14, 2001. Id. at 6.
In late November 2001, Plaintiffs counsel notified Defendant that her husband would substitute as counsel of record for Plaintiff and that Plaintiff was missing. Id. at 7. Two days before the scheduled deposition, Plaintiffs new counsel informed Defendant that Plaintiff was still missing and that they would need to postpone the deposition to an uncertain date in a few weeks. Id. Defendant's counsel set the new deposition for December 28th and asked Plaintiff to contact them if there was a conflict. Id. at 9. Late in the afternoon on the day before this deposition, Plaintiffs counsel faxed Plaintiffs First Motion for Continuance of Existing Deadlines and the Trial of the Matter, along with Plaintiffs Motion for Protective Order to Defendant. Id. at 10. Since Plaintiff did not attempt to obtain a protective order from the Court prior to the deposition, Defendant arrived the next morning ready to take Plaintiffs deposition; however, Plaintiff did not show. Id.
Plaintiffs counsel served their First Request for Production and First Set of Interrogatories on December 8, 2001. Id. 11. On January 3, 2002, at the end of the day, Plaintiffs counsel faxed Defendant six deposition notices for January 7th, which was the last day of the discovery period. Defendant argued these requests were all untimely within the time schedule to complete discovery and thus filed an Emergency Motion to Quash and for Protective Order on January 4, 2002. Id.
An Order of Reference was issued on January 4, 2002 to United States Magistrate Judge Paul Stickney regarding (1) Plaintiffs Motion for Protective Order, filed December 27, 2001, and (2) Defendant's Emergency Motion to Quash Deposition Notices and for Protective Order, filed January 4, 2002. See Order dated 1/4/02. Judge Stickney held a hearing on this matter on January 9, 2002 and took said motions under advisement pending resolution by this Court of Defendant's Motion to Dismiss.
II. Analysis
Plaintiff desires to voluntarily dismiss all causes of action asserted in her Original Complaint under F.R.C.P. 41(a)(2) — Voluntary Dismissal by Order of the Court. Pl.'s Mot. for Voluntary Dismissal at 2. Plaintiff would like to pursue her common law claims for breach of contract and for commissions owed to her in a State District Court; therefore, Plaintiff requests the Court to dismiss these claims without prejudice to refiling. Id. at 3. Plaintiff is fully aware that her federal claims may be dismissed with prejudice to refiling. Id.
The power of a "federal trial court to dismiss a plaintiffs action with prejudice because of his failure to prosecute . . . is necessary in order to prevent undue delays in the disposition of pending cases and to avoid congestion in the calendars of the District Courts. Link v. Wabash Railroad Co., 370 U.S. 626, 629-30. This authority is stated in Federal Rule of Civil Procedure 41(b), Involuntary Dismissal:
For failure of the plaintiff to prosecute to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against the defendant.See Fed.R.Civ.P. 41(b). Even if the defendant does not move for dismissal, this "authority of a court to dismiss sua sponte for lack of prosecution has generally been considered an `inherent power,' governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases." Link, 370 U.S. at 630-31.
The Fifth Circuit has noted that dismissing a case with prejudice "is a serious remedy that may be resorted to only in extreme situations. . . ." Graves v. Kaiser Aluminum Chem. Co., 528 F.2d 1360, 1361 (5th Cir. 1976). When deciding this issue the general test is "whether there is a clear record of delay or contumacious conduct by the plaintiff." Connolly v. Papachristid Shipping Ltd., 504 F.2d 917, 920 (5th Cir. 1974) (quoting Durham v. Florida East Coast Railway Co., 385 F.2d 366, 368 (5th Cir. 1967)). The Fifth Circuit has also held that dismissals with prejudice are "reserved for the most egregious of cases, usually cases where the requisite factors of clear delay and ineffective lesser sanctions are bolstered by the presence of at least one of the aggravating factors." Rogers v. Kroger Co., 669 F.2d 317, 320 (5th Cir. 1982). These aggravating factors include: "(1) delay resulting from intentional conduct, (2) delay caused by the plaintiff personally, and (3) delay causing prejudice to the defendant." Boudwin v. Graystone Ins. Co., 756 F.2d 399, 401 (5th Cir. 1985) (citing Morris v. Ocean Systems, Inc., 730 F.2d 248 (5th Cir. 1984)).
In the present case, the Plaintiff's actions clearly display a record of delay or contumacious conduct. From October of 1999 to the time the case was first dismissed in April of 2001, Plaintiff ignored various discovery requests even after receiving multiple extensions, including the scheduling of a deposition, as well as violated a Court Order. Def.'s Br. in Opp'n to Pl.'s Mot. for Voluntary Dismissal at 2. Finally, in August of 2001, when Plaintiff responded to Defendant's request and the case was reinstated, Plaintiff still failed to adhere to the discovery schedule by delaying the deposition requested by Defendant and making untimely discovery requests. Def.'s Renewed Mot. to Dismiss for Continued Failure to Prosecute at 4-5, 10-11. In fact, Plaintiff voluntarily disappeared and Plaintiffs Counsel stated that he was unable to locate her. Def.'s Br. in Opp'n to Pl.'s Mot. for Voluntary Dismissal at 3. Defendant noted that Plaintiffs conduct towards her attorney reveals a Plaintiff wholly uninterested in prosecuting her civil claims, or even cooperating in her own criminal defense and appeal. Id. Since no one knows where Plaintiff is, a deposition has yet to be arranged, and therefore, discovery is in limbo. This is imperative since it is the "responsibility of the moving party to move towards that disposition [on the merits] at a reasonable pace, and to refrain from dilatory and evasive tactics." Morris v. Morgan Stanley Co., 942 F.2d 648, 652 (9th Cir. 1991).
Looking at the aggravating factors, clearly Plaintiff has caused (1) delay resulting from intentional conduct and (2) delay resulting from the plaintiff personally. The combination of Plaintiffs counsel not being prepared to pursue this case for personal and professional reasons, and the fact that Plaintiff is not even present definitely shows the delay as a result of Plaintiff. And in looking at the facts, Defendant appears to have been quite patient by agreeing to multiple extensions and problems with scheduling the deposition, that it is evident delay has also caused prejudice to them. As far as lesser sanctions, the case had already been dismissed once and was reinstated four months later. Even after the case was reinstated Plaintiffs motivation to pursue the matter and continue with discovery did not increase. Therefore, the only appropriate sanction left is to dismiss the case with prejudice.
III. Conclusion
For the foregoing reasons, the Court shall and hereby DENY Plaintiffs Motion for Voluntary Dismissal, and GRANT Defendant's Motion to Dismiss. Further, the Court DENIES as MOOT Plaintiffs Motion for Continuance.
So ordered.