Opinion
CIVIL ACTION No. 03-2360-KHV
March 4, 2004
ORDER
Robert Scarbro brings suit against Omaha Truck Center, Inc. d/b/a Kansas Truck Center and Freightliner Corporation for breach of contract and violation of the Kansas Consumer Protection Act, K.S.A. § 50-623 et seq., regarding the purchase and repair of a 2001 Freightliner model FLD 13264T over — the — road tractor and sleeper unit. This matter comes before the Court on Defendants' Motion For Dismissal With Prejudice (Doc. #33) filed January 8, 2004. Defendants ask the Court to dismiss plaintiff's entire case as a sanction for failure to cooperate in discovery and comply with court orders. Plaintiff has not responded to defendants' motion. Pursuant to D. Kan. Rule 7.4, if a respondent fails to file a timely response, "the motion will be considered and decided as an uncontested motion, and ordinarily will be granted without further notice."
Plaintiff also sued for negligence, but the Court dismissed that claim on October 14, 2003. See Order (Doc. #18) (sustaining defendants' unopposed motion to dismiss count III).
Plaintiff filed suit in the District Court of Shawnee County, Kansas on June 6, 2003. On July 9, 2003, defendants removed the case to this Court. On September 23, 2003, the Court held a scheduling conference and set the following deadlines:
September 26, 2003 — Rule 26(a)(1) disclosures December 15, 2003 — preliminary witness and exhibit disclosures January 31, 2004 — discovery completed February 18, 2004 — pretrial conference March 5, 2004 — dispositive motions July 6, 2004 — trialSee Scheduling Order (Doc. #15) filed October 3, 2003.
To date, plaintiff has not made Rule 26(a)(1) disclosures or preliminary witness and exhibit disclosures. On October 17, 2003, Freightliner served interrogatories and requests for production on plaintiff. Pursuant to Rules 6(e), 33(b)(3) and 34(b), Fed.R.Civ.P., plaintiff's responses were due November 19, 2003. Plaintiff did not meet this deadline. On November 25, 2003, Freightliner filed a motion to compel which plaintiff did not oppose. On December 16, 2003, Magistrate Judge David J. Waxse granted defendant's motion to compel and ordered plaintiff to comply with the discovery requests on or before December 26, 2003. See Order (Doc. #29). The magistrate also ordered plaintiff to pay $250.00 in sanctions. Plaintiff did not comply with either order.
On this record, sanctions appear to be both necessary and appropriate under Rule 37(b)(2), Fed.R.Civ.P. In considering the imposition of sanctions, the Court must consider on a case — by — case basis whether a party's failure was substantially justified or whether other circumstances make the imposition of sanctions inappropriate. Dismissal of an action with prejudice or its equivalent should be used as "a weapon of last, rather than first, resort." Meade v. Grubbs. 841 F.2d 1512, 1520 n. 6 (10th Cir. 1988). Dismissal is usually appropriate only where a lesser sanction would not serve the interest of justice; it is clearly a severe sanction and it is reserved for extreme circumstances. Courts should dismiss an action for failure to comply with orders only in situations which are the result of willfulness, bad faith or fault, rather than inability to comply. See M.E.N. Co. v. Control Fluidics. Inc., 834 F.2d 869, 872 (10th Cir. 1987) (quoting Nat'l Hockey League v. Metro. Hockey Club. Inc., 427 U.S. 639, 640 (1976)); see also Toma v. City of Weatherford. 846 F.2d 58, 60 (10th Cir. 1988).
Before dismissing an action with prejudice as a discovery sanction, the Court must consider the following factors:
(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 lesser sanctions.Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir. 1992) (internal citations omitted).
As to the first factor, defendants have incurred prejudice by plaintiff's failure to comply with discovery requests and the court orders. Freightliner served its first discovery requests on October 17, 2003 — nearly four months ago — and plaintiff has never responded. In addition, plaintiff has not made Rule 26(a)(1) disclosures or preliminary witness and exhibit disclosures. Without such information, defendants cannot adequately prepare dispositive motions which are due March 5, 2004. A party's ability to prepare a meritorious motion for summaryjudgment, or to adequately prepare for trial, is significantly reduced when it does not receive sufficient responses to discovery requests. FDIC v. Renda, 126 F.R.D70, 73 (D. Kan. 1989). Such delays are therefore prejudicial.
As to the second factor, delay strategies significantly interfere with the judicial process. See Ehrenhaus, 965 F.2d at 921. Plaintiff's failure to comply with discovery orders has made it impossible for this case to proceed with any degree of order or to be resolved in a just, speedy and inexpensive manner.
As to the third factor, plaintiff's counsel has not given any reason for plaintiff's failure to meet his discovery obligations.
As to the fourth factor, the Court has not previously warned plaintiff that dismissal would be a likely sanction for noncompliance. Defendants' motion, however, provides adequate notice of the possible sanction.See McCoy v. Burlington N. Santa Fe R.R. Co., No. 01-2392-JAR, 2002 WL 31427030, at *1 (D. Kan. Oct. 28, 2002). In cases in which plaintiff appears pro se, the Court should assess with special care whether it might appropriately impose sanctions other than dismissal, so that plaintiff does not unknowingly lose his right of access to the courts because of a technical violation. See Ehrenhaus, 965 F.2d at 920 n. 3. In this case, however, plaintiff is represented by counsel and presumably knew the potential consequences of his actions. Id.; see also Merrill v. Cintas Corp., 941 F. Supp. 1040, 1045 (D. Kan. 1996) (error by counsel attributed to client).
As to the fifth factor, lesser sanctions have had no effect. Plaintiff has not paid the monetary sanctions which the Court imposed with respect to the inaction which led to the defendant's motion to compel.
In these circumstances, dismissal is an appropriate sanction.
IT IS THEREFORE ORDERED that Defendants' Motion For Dismissal With Prejudice (Doc. #33) filed January 8, 2004 be and hereby is SUSTAINED. Plaintiff's claims are dismissed with prejudice.
The Clerk is directed to enter judgment in favor of defendants. IT IS FURTHER ORDERED that Defendants' Motion For Summary Judgment And Memorandum In Support (Doc, #32) filed December 23, 2003 be and hereby is OVERRULED as moot.