Pogue v. International Paper Company

Full title: PAUL POGUE, Plaintiff, v. INTERNATIONAL PAPER COMPANY, Defendant

Court: United States District Court, S.D. Alabama, Northern Division

Date published: Oct 17, 2006

Civil Action 2:05-0596-KD-C (S.D. Ala. Oct. 17, 2006)

Opinion

Civil Action 2:05-0596-KD-C.

October 17, 2006

ORDER

KRISTI DUBOSE, Magistrate Judge

After due and proper consideration of all portions of this file deemed relevant to the issues raised, and there having been no objections filed,¹ the recommendation of the Magistrate Judge made under 28 U.S.C. § 636(b)(1)(B) and dated the 22nd day of August, 2006, (Doc. 34) is ADOPTED as the opinion of this Court.

1 A copy of the Report and Recommendation was served upon plaintiff by regular and certified mail. (Doc. 34). The return receipt for the certified mail was returned to the court on September 29, 2006 and indicated receipt on September 27, 2006. (Doc. 37). Plaintiff has not filed an objection.

In the report and recommendation, United States Magistrate Judge William E. Cassady recommended that the complaint be dismissed with prejudice pursuant to Rules 37(b)(2)(C), 37(d) and 41(b), Federal Rules of Civil Procedure and that plaintiff be required to pay the reasonable attorney's fees and costs in the amount of $1,207.10 caused by his failure to attend a properly noticed deposition. (Doc. 34). Imposition of dismissal with prejudice as a sanction is reserved for circumstances wherein there is a clear record of delay or willful contempt and in which a lesser sanction would not suffice. See Gratton v. Great American Communications, 178 F.3d 1373, 1374-1375 (11^th Cir. 1999) citing Goforth v. Owens, 766 F.2d 1533, 1535 (11th Cir. 1985). Because of plaintiff's failure to attend his own deposition upon notice from opposing counsel and his subsequent failure to comply with an order of this court to attend oral argument on the second motion to compel and for sanctions and to attend the rescheduled deposition to be held following the oral argument, this court agrees that no lesser sanction will suffice. Therefore, for the reasons set forth in the report and recommendation, the undersigned finds dismissal with prejudice and an award of attorney fees and costs to defendant are the appropriate sanctions in this case.

The court ADOPTS the Report and Recommendation filed in this case as the opinion of the court, and hereby ORDERS

1) that the defendant's second motion to compel and for sanctions (Doc. 27) is GRANTED;

2) that plaintiff's complaint is DISMISSED with prejudice; and

3) that plaintiff shall pay to the defendant the reasonable attorney's fees and costs in the amount of $1,207.10 on or before the 17th day of November, 2006, caused by plaintiff's failure to attend his properly noticed deposition.