Opinion
5:02-CV-113-3 (CAR)
October 21, 2002
ORDER DISMISSING PLAINTIFF'S CLAIMS
On July 19, 2002, this Court issued an Order for Plaintiff to show cause why his case should not be dismissed for his failure to participate in preparing the Rules 16 and 26(f) joint discovery order [Tab 13]. No Response has been filed by Plaintiff Accordingly, Plaintiffs Claims are HEREBY DISMISSED with PREJUDICE, pursuant to Rule 37(b)(2)(C) of the Federal Rules of Civil Procedure.
FACTUAL AND PROCEDURAL HISTORY
On April 1, 2002, Plaintiff filed this claim against Defendant United States of America pursuant to 26 U.S.C. § 6330(d)(1)(A) to set aside a determination by the Internal Revenue Service [Tab 1]. Defendant filed an answer [Tab 2] and this Court issued an Order for both parties to produce a joint proposed scheduling and discovery order no later than July 22, 2002.
On June 13, 2002, Defendant filed a Motion for Summary Judgment [Tab 4], and Plaintiff was given until July 8, 2002 to respond. Plaintiff never filed a Response. Thereafter, on July 18, 2002, Defendant filed both a Proposed Scheduling and Discovery Order [Tab 12] and a Notice of Plaintiffs Failure to Participate in Preparing this Order [Tab 11].
Defendant's Notice contends that on June 17, 2002 a draft of a proposed Scheduling and Discovery Order was sent to Plaintiff and that an enclosed letter requested that Plaintiff review the draft and then telephone Defendant to discuss it. However, Plaintiff never contacted Defendant. Thereafter, Defendant telephoned Plaintiff and left messages on his answering machine on July 3rd and again on July 8th Plaintiff did not return Defendant's phone calls. In a final effort to confer with Plaintiff, on July 8th Defendant sent a letter to Plaintiff by Federal Express requesting his cooperation. The letter requested that the Plaintiff contact Defendant by telephone or facsimile by July 15, 2002. Again, Plaintiff failed to respond in any manner. Therefore, on July 18, 2002 Defendant finally filed the proposed joint/scheduling order prepared solely by Defendant. Plaintiff did not respond to either Defendant's filing of the proposed order or its Notice of his failure to comply with this Court's Order to cooperate in its preparation.
As a result, on September 27, 2002, the Court issued a Show Cause Order requiring Plaintiff to show cause why his case should not be dismissed for failure to participate in preparing the Rules 16 and 26 joint discovery order, as directed by this Court [Tab 13]. Plaintiff was given ten days to respond. As of this date, no response has been filed.
DISCUSSION
The district court has broad authority under Rule 37 to control discovery, including dismissal as the most severe sanction. Gratton v. Great American Communications, 178 F.3d 1373, 1374 (11th Cir. 1999). As stated by Rule 37(b)(2)(C), if a party fails to obey an order to provide or permit discovery, including an order entered under Rule 26, the court in which the action is pending may make such orders in regard to the failure as are just, including an order dismissing the action.
Dismissal with prejudice is the most severe Rule 37 sanction and is not favored; however, if "there is a clear record of delay or willful contempt and a finding that lesser sanctions would not suffice," the Court may dismiss the action with prejudice pursuant to either Rule 41(b) or Rule 16(f) of the Federal Rules of Civil Procedure. Goforth v. Owens, 766 F.2d 1533, 1535 (11th Cir. 1985) (internal quotations and citations omitted); see also Phipps v. Blakeney, 8 F.3d 788, 790 (11th Cir. 1993);Bank Atlantic v. Blythe Eastman Paine Webber, Inc. 12 F.3d 1045, 1049 (11th Cir. 1994). In contrast, violation of a discovery order caused by simple negligence, misunderstanding, or inability to comply will not justify a Rule 37 dismissal. Id.
In this case, Plaintiff was ordered to confer, develop a proposed Rules 16(b) and 26(f) scheduling and discovery order, and submit such order to the Court. Thereafter, Defendant asked Plaintiff to confer and participate in preparing a Rules 16 and 26 joint discovery order by various methods and on numerous occasions. Plaintiff made no effort to confer with Defendant. Plaintiff has never contacted Defendant, did not return Defendant's phone calls, and failed to respond to letters Defendant sent by Federal Express.
Plaintiff was also ordered to show cause why his case should not be dismissed with prejudice as a result of his failure to comply. Yet Plaintiff again refused to respond to this Court's Order. Accordingly, the Court finds that Plaintiffs failure to comply is not a result of simple negligence, a misunderstanding, or an inability to comply. Rather, the Court finds that Plaintiffs disregard of this Court's numerous requests amounts to an intentional, willful and bad faith failure to comply with the Court's Orders. Moreover, given Plaintiffs complete failure to respond to Defendant's Motion, scheduling and discovery requests, Notice of non-compliance, and this Court's multiple Orders, the Court finds that any lesser sanction than dismissal would not suffice.
CONCLUSION
Therefore, pursuant to this Court's Order of September 27, 2002 and Rule 37(b)(2)(C) of the Federal Rules of Civil Procedure, Plaintiffs claims are HEREBY DISMISSED with PREJUDICE. In light of the Court's dismissal of Plaintiffs claims, Defendant's Motion for Summary Judgment [Tab 4] is also DISMISSED as MOOT.