Opinion
Civ. No. 4:99 CV 559 DDN.
February 7, 2000.
Ferne P. Wolf, 314-968-3330 fax, [COR LD NTC], D. Eric Sowers, 314-968-3330 fax, [COR LD NTC], SOWERS LAW OFFICE, 1401 S. Brentwood Boulevard, Suite 575, St. Louis, MO 63144, 314-968-1100, FTS 968-3330, for plaintiff.
Gerald Kretmar, Partner, 314-721-7851 fax, [COR LD NTC], APPLETON AND KRETMAR, 8000 Maryland Avenue, Suite 900, St. Louis, MO 63105, 314-721-8685, FTS 721-7851, for defendants.
MEMORANDUM AND ORDER
This matter is before the Court upon the motion of defendant for dismissal (Doc. No. 24). The parties have consented to the exercise of jurisdiction by the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c).
Plaintiff Dave Shepard, employed by Ford Motor Co. as a supervisor, originally brought this libel action in the St. Louis County Circuit Court. Plaintiff alleged that defendant Willis Courtoise, president of defendant United Automobile Workers Local 325, published a document containing false and defamatory characterizations of plaintiff.
Defendants have moved for dismissal under Federal Rule of Civil Procedure 41(b) for plaintiff's failure to comply with the case management order. Specifically, defendants claim that plaintiff made initial discovery disclosures, pursuant to Federal Rule of Civil Procedure 26(a)(1), almost a month past the deadline, September 24, 1999, in the case management order. Rule 41(b) provides, in relevant part:
(b) Involuntary Dismissal: Effect Thereof. For failure of the plaintiff to prosecute or 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. Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an adjudication upon the merits.
Federal Rule of Civil Procedure 41(b)
The Eighth Circuit has interpreted Rule 41(b) as follows:
The district court has authority to dismiss an action with prejudice for failure to comply with court orders or the Federal Rules of Civil Procedure. Dismissal with prejudice should be used sparingly because it is a drastic sanction. . . . An action should be dismissed with prejudice "only after balancing the policy of giving the plaintiff her day in court against Ethel policies of preventing undue delay, avoiding court congestion, and preserving respect for court procedures."Omaha Indian Tribe v. Tract I — Blackbird Bend Area, 933 F.2d 1462, 1468 (8th Cir.) (quoting Garrison v. International Paper Co., 714 F.2d 757, 760 (8th Cir. 1983)), cert. denied, 502 U.S. 942 (1991). In that case, Judge Urbom for the district of Nebraska sanctioned the Omaha Indian Tribe by dismissing the action with prejudice after repeated violations of court orders. Judge Urbom commented in his order: "The plaintiff's failure to file an acceptable proposed pretrial order . . . is evidence of a systematic pattern of failure to comply with court rules and court orders. . . . Court proceedings have repeatedly been delayed by the plaintiff's failure to sufficiently comply with discovery orders." Id. at 1467 (quoting District Court's Memorandum and Order, filed May 29, 1990).
The Court acknowledges plaintiff's untimely filing of initial disclosures. However, the Court does not conclude that one violation of a time limitation in the case management order, which was relatively quickly rectified, warrants the drastic sanction of dismissal with prejudice. As soon as defendants filed the motion to dismiss, plaintiff filed the initial disclosures. There was little, if any, prejudice to defendants and there were no delays in court proceedings.
For these reasons,
IT IS HEREBY ORDERED that the motion of defendants for dismissal (Doc. No. 24) is denied.
IT IS FURTHER ORDERED that the parties promptly comply with future time limitations and all other court orders.
Signed this 7th day of February, 2000.