Opinion
CIVIL ACTION No. 01-2178-CM
January 16, 2004
MEMORANDUM AND ORDER
Plaintiff brings this cause of action against defendant alleging discrimination in violation of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e-1 et seq., the Kansas Act Against Discrimination (KAAD), Kan. Stat. Ann. § 44-1001 et seq., and 42 U.S.C. § 1981 and 1983. This matter comes before the court on defendant's Motion for Dismissal Pursuant to Federal Rule of Civil Procedure 37 and Pursuant to the Court's Inherent Authority (Doc. 83).
I. Case History
This case has had a lengthy and somewhat tortuous history, marked by an ongoing pattern of delay and repeated failures on the part of plaintiff and his attorney to comply with this court's orders. The court sets forth in detail the procedural background of this case, whereupon it becomes apparent that plaintiff's repeated failure to meet this court's deadlines and to cooperate in discovery has placed this case in a posture at the close of discovery where the case is incapable of proceeding either to pretrial conference or to trial. Most recently, plaintiff has failed to appear for two properly scheduled depositions, and plaintiff has failed to serve discovery in accordance with this court's order granting the defendant's previously filed motion to compel. Plaintiff's failures in this case constitute sufficient cause for dismissal with prejudice.
A. Plaintiff's Failure to Timely Effectuate Service and to Name Appropriate Party
Plaintiff initiated this action by filing his original complaint on April 12, 2001. The only defendant named within this complaint was the Board of Public Utilities (BPU). At the time of filing, plaintiff did not request any summons, and none was issued. Following the expiration of the 120-day time limit for service of the complaint and summons dictated by Fed.R.Civ.P. 4(m), Magistrate Judge James P. O'Hara issued an order to show cause, directing plaintiff to show cause in writing why service of the summons and complaint was not made upon the defendant within 120 days from the filing of the complaint. This order further directed plaintiff to show cause in writing why the present action should not be dismissed in its entirety for lack of prosecution.
On September 27, 2001, plaintiff filed his response to the court's order to show cause. Within this response, plaintiff explained that the only attempt that he made to effectuate service was a written correspondence to the attorney who represented the BPU in an arbitration hearing relating to the plaintiff's employment, requesting such attorney to waive service of process and accept service on behalf of the BPU. Plaintiff indicated that he received no response to this correspondence. Plaintiff's counsel further explained that by this letter of April 12, 2001, "I attempted to effectuate service upon this defendant, however, due to the press of other business I neglected to follow up by having defendant formally served after there was not a response to my request for waiver of service." Plaintiff's counsel additionally stated, "I would request that the Court excuse my neglect of this matter, and grant plaintiff an additional period of time in which to have Defendant formally served with his complaint."
On October 29, 2001, Magistrate Judge O'Hara entered the court's order relating to plaintiff's attempted demonstration of cause for failure to effectuate service. Within this order, Magistrate Judge O'Hara stated:
"The Court finds plaintiff has failed to demonstrate good cause for the failure to effectuate service within the 120-period prescribed by Rule 4(m). However, given the circumstances in this case, the Court will exercise its discretion and extend plaintiff's time to effectuate service of process to November 26, 2001."
B. Dismissal and Reinstatement of Plaintiff's Suit
On December 19, 2001, defendant BPU filed a motion to dismiss, arguing that, pursuant to state statute, the BPU is not a named party that may sue or be sued under Kansas law. On February 21, 2002, this court issued another show cause order due to the plaintiff's failure to respond to defendant's Motion to Dismiss within the time prescribed by D. Kan. Rule 7.1. Specifically, the court ordered plaintiff to show cause, in writing, on or before March 4, 2002, why defendant's motion to dismiss should not be granted. The court further ordered plaintiff to file a response by March 4, 2002. The court warned that if plaintiff failed to timely show cause and file a response, the court would grant defendant's motion to dismiss as an uncontested motion.
On March 4, 2002, plaintiff filed a response to defendant's motion to dismiss. However, plaintiff failed to file a response or to otherwise respond to the court's order to show cause why plaintiff failed to timely file his response to defendant's motion to dismiss. On August 7, 2002, this court entered an order dismissing plaintiff's claims. Within this order, the court noted that plaintiff's response filed on March 4, 2002, failed to respond to the court's order to show cause and therefore failed to demonstrate good cause or excusable neglect for filing his response out of time. Accordingly, the court considered defendant's motion to dismiss as uncontested and dismissed plaintiff's claims on the merits.
On August 30, 2002, plaintiff filed a motion for reconsideration, requesting this court to reinstate plaintiff's case. The basis of plaintiff's request for reconsideration was that plaintiff previously had sought leave to amend his complaint to name the proper party defendant, the Unified Government of Wyandotte County/Kansas City, Kansas (Unified Government). On October 16, 2002, this court entered an order reinstating plaintiff's case as to only the Unified Government. However, despite the filing of plaintiff's amended complaint on December 12, 2001, naming the Unified Government, plaintiff had never achieved service of process upon the Unified Government. Accordingly, the court noted in its October 16, 2002 order that plaintiff had failed to serve process upon defendant Unified Government, and that plaintiff had failed to achieve service of process within the 120 days required by Fed.R.Civ.P. 4(m). The Court therefore entered yet another order directing plaintiff to show cause in writing, on or before October 30, 2002, why service of summons and complaint upon the Unified Government was not made within 120 days from the filing of the amended complaint. The court further stated that, if plaintiff failed to so show cause, plaintiff's case would be dismissed in its entirety.
On October 30, 2002, plaintiff filed his response to the court's order to show cause. In this response, plaintiff's counsel ultimately admitted that he had no excuse for failing to serve the Unified Government within the time prescribed by Rule 4(m). On November 5, 2002, this court entered an order, again finding that plaintiff had failed to demonstrate cause for his failure to timely effectuate service. The court however exercised its discretion and granted plaintiff an extension of time to effectuate service of process upon the Unified Government.
C. Failure to Respond to Written Discovery
On August 21, 2003, defendant propounded to plaintiff its first set of written interrogatories and its first requests for production of documents. Plaintiff's response date to this written discovery, allowing three days for service by mail, fell on September 23, 2003. On October 2, 2003, defense counsel drafted a correspondence to plaintiff's counsel due to plaintiff's failure to serve its responses to the defendant's written discovery by the September 23, 2003 due date. This correspondence from defense counsel demanded responses to the written discovery within a one-week period of time and indicated that, if plaintiff failed to timely provide such responses, the matter would be taken up with the court through a motion to compel.
On October 7, 2003, plaintiff's counsel and defense counsel had a telephone conversation, which was memorialized through a subsequent correspondence of October 8, 2003. During this October 7, 2003 telephone conversation, plaintiff's counsel indicated that he would provide responses to such written discovery within the next day or two following that conversation. However, plaintiff failed to provide the responses to the written discovery as promised within two days following the October 7, 2003 telephone conversation. As a result, defense counsel drafted a letter dated October 13, 2003, again demanding that responses to such written discovery be provided by October 15, 2003.
On October 16, 2003, plaintiff's counsel did provide some documentation that plaintiff reported to be responses to defendant's written discovery. Due to the wholly insufficient nature of plaintiff's responses to defendant's written discovery, defense counsel drafted a correspondence dated November 3, 2003, extensively detailing the multiple deficiencies within plaintiff's responses to written discovery. Specifically, this correspondence detailed plaintiff's deficiencies as to each and every interrogatory and each and every request for production, demanded a full and complete response by November 10, 2003, and warned that it would be compelled to file a motion to compel should plaintiff take no action in response.
On November 17, 2003, defendant filed its motion to compel after having received no response to its correspondence of November 3, 2003. On December 16, 2003, Magistrate Judge O'Hara sustained defendant's motion to compel and additionally ordered plaintiff to pay defendant's attorneys' fees and costs associated with the preparation of the motion. Within this order, Judge O'Hara noted that plaintiff's attempted responses to defendant's written discovery were "woefully incomplete" and ordered plaintiff to provide complete responses by December 31, 2003. The court also noted that the deadline for discovery in this case was December 31, 2003.
On January 5, 2004, five days after the deadline set in the court's December 16, 2003 order (and five days after the close of discovery), plaintiff filed a motion for an extension of time to comply with the order. Plaintiff asked the court to allow him until January 7, 2004, to serve complete responses to defendant's discovery requests. In support of the motion, plaintiff indicated that plaintiff's counsel was currently involved in several other litigation matters, but did not identify the precise nature of any conflict that had impeded his ability to comply with the court's order.
On January 9, 2004, Magistrate Judge O'Hara denied plaintiff's motion for an extension of time. The court noted as a preliminary matter that plaintiff's motion was filed out of time because the motion was filed after the expiration of the specified time. D. Kan. Rule 6.1(a). The court went on, finding that, even if plaintiff's motion had been timely filed, plaintiff had not demonstrated good cause for extending the deadline. Finally, the court noted that plaintiff's motion sought an extension of the deadline up to and including January 7, 2004, that the date had passed, and that plaintiff had not filed a certificate of service with the court to indicate that he complied with his proposed deadline. The court referenced a letter plaintiff served upon defendant on January 7, 2004, which was apparently accompanied by the signed verification page from plaintiff's original interrogatory responses (produced as ordered by the court), as well as various tax, employment, medical, and educational authorizations. In the January 7, 2004 letter, plaintiff's counsel stated that he had been unable to contact plaintiff to secure the additional information compelled by the court's order. The court stated that, what it found troubling about the letter was that it appeared that plaintiff and plaintiff's counsel completely disregarded the order of the court. The court quoted from the letter, wherein plaintiff's counsel stated that he:
was hopeful that the supplementation made in response to [defendant's] Motion to Compel would have been sufficient. It reflects all of the information I have in my possession that is responsive to your request. I specifically went over your letter regarding prior deficiencies with [plaintiff] personally, and the subsequent answers we provided were his best recollection.
Magistrate Judge O'Hara ultimately concluded that, even if the court were to grant plaintiff's motion for an extension of time, "it would have little effect, as plaintiff's January 7, 2004 supplement to his discovery responses would not have come close to complying with the substantive requirements of the court's December 16, 2003 order."
Discovery in this case is now closed, and plaintiff has wholly failed to provide defendant with even the most basic and necessary discovery responses.
D. Plaintiff's Failure to Observe Deadlines
In addition to the foregoing, plaintiff has missed several deadlines expressly set by this court. First, on July 23, 2003, Magistrate Judge O'Hara issued an order to show cause due to plaintiff's counsel's failure to file a report of parties' planning meeting. Plaintiff filed his response to the court's order to show cause on July 29, 2003. Within this response, plaintiff's counsel requested the court to excuse his failure to file the report of parties' planning meeting due to plaintiff's counsel's "scheduling difficulties and inefficiencies." Within the court's scheduling order, Magistrate Judge O'Hara ruled upon the order to show cause, stating that, while sanctions should not be imposed, "the parties and counsel, particularly Mr. Netterville, are admonished that the court will expect and enforce full compliance with all applicable rules and procedures in this case from this date forward."
Plaintiff also has still failed to serve his supplemental Rule 26 disclosures as required by Paragraph 2(i) of the court's scheduling order. Specifically, Paragraph 2(i) of the scheduling order directs that the parties supplement disclosures under Fed.R.Civ.P. 26(e) 40 days before the deadline for the completion of all discovery. As discovery concluded on December 31, 2003, the 40th day preceding this date was November 21, 2003. As of the close of discovery, December 31, 2003, plaintiff had still failed to serve such supplemental disclosures.
E. Plaintiff's Failure to Appear for Properly Noticed Deposition
Plaintiff's deposition has been noticed on three separate occasions. Two of these depositions went forward, and plaintiff failed to appear for both.
Plaintiff's deposition was originally noticed for December 11, 2003. At plaintiff's counsel's request, this December 11 deposition setting was changed to December 12, 2003, and accordingly noticed for this date. On December 12, 2003, just before plaintiff's deposition was to begin, plaintiff's counsel called defense counsel and indicated that plaintiff had called him, said he was ill, and would not be attending his scheduled deposition. Plaintiff's counsel indicated that plaintiff would pay any costs associated with such cancellation. That same day, defense counsel suggested to plaintiff's counsel alternative dates for plaintiff's deposition, including December 30, 2003. Plaintiff's counsel indicated that he would check with his client regarding his availability. On December 15, 2003, defense counsel again spoke with plaintiff's counsel via telephone regarding the scheduling of plaintiff's deposition. At that time, plaintiff's counsel indicated that he and his client would be available on December 30, 2003, for the plaintiff's deposition. Plaintiff's deposition was accordingly noticed for December 30, 2003, for 9:30 a.m., and such notice was appropriately served upon plaintiff's counsel.
On December 30', 2003, at approximately 9:45 a.m., after both plaintiff and plaintiff's counsel failed to appear, defense counsel contacted plaintiff's counsel via telephone. At that time, plaintiff's counsel indicated that he had forgotten about the deposition setting and that he was in Joplin, Missouri at the time. Plaintiff's counsel, however, additionally informed defense counsel that he had informed his client of the scheduling of this deposition and that he knew of no reason why the plaintiff had not appeared for the deposition.
F. Plaintiff's Response to the Instant Motion
Plaintiff (or more accurately plaintiff's counsel) has responded to the instant motion to dismiss. Plaintiff's counsel requests that the court decline to dismiss this action, yet counsel reports that he cannot locate his client, that he "has no idea where Mr. Waddy is," and that he cannot provide the court with any assurances at this time, "as all of [his] calls and letter remain unanswered."
II. Standards
"A district court undoubtedly has discretion to sanction a party for failing to prosecute or defend a case, or for failing to comply with local or federal procedural rules." Reed v. Bennett, 312 F.3d 1190, 1195 (10th Cir. 2002). This discretion includes dismissal for discovery violations. Archibeque v. Atchison, Topeka Santa Fe Ry. Co., 70 F.3d 1172, 1174 (10th Cir. 1995). Because dismissal is a severe sanction, it should be imposed only if a "lesser sanction would not serve the ends of justice." Reed, 312 F.3d at 1195 (quotation omitted). In evaluating whether dismissal is an appropriate sanction, the district court should consider the following factors: (1) the degree of actual prejudice to the opposing party, (2) the degree of interference with the judicial process, (3) the litigant's culpability, (4) whether the litigant was warned in advance that dismissal was a likely sanction, and (5) whether a lesser sanction would be effective. Gripe v. City of Enid, 312 F.3d 1184, 1188 (10th Cir. 2002) (citing Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir. 1992)).
III. Discussion
A. Prejudice to Defendant
The court finds that defendant has incurred substantial prejudice due to plaintiff's failures in this case. Indeed, plaintiff's conduct has effectively prohibited defendant from preparing its case for trial. More importantly, should this case remain on the docket, defendant will continue to suffer prejudice.
Plaintiff's counsel declares that he has provided defendant with all of the information he has in his possession that is responsive to defendant's discovery requests and that his client answered those discovery requests to the best of his recollection. Yet the court has found those responses wholly inadequate. As such, defense counsel is all but precluded from receiving full and complete responses to written discovery, and discovery in this case is now closed.
Additionally, plaintiff has twice failed to appear for his deposition. The court also considers plaintiff's counsel's candid remarks to the court regarding his complete loss of contact with plaintiff. Defendant will be severely prejudiced should this case continue absent the ability to secure deposition testimony from plaintiff.
Finally, plaintiff's failure to file the mandatory Rule 26(e) disclosure, when combined with plaintiff's failure to respond to written discovery and to be deposed, has left defendant largely in the dark about all aspects of plaintiff's claims, plaintiff's witnesses, plaintiff's exhibits, and all other aspects of plaintiff's case. This case is not one in the early stages of litigation. Rather, the discovery period has ended, and plaintiff's conduct has precluded defendant from being able to prepare in this case. The degree of prejudice to defendant is great.
B. Interference with the Judicial Process
Plaintiff's interference with the judicial process has been significant. Indeed, both the district court as well as Magistrate Judge O'Hara have repeatedly issued orders to show cause due to the plaintiff's repeated failures in this case. Additionally, even when the order to compel discovery was entered against plaintiff, plaintiff still failed to observe the order and provide the discovery as requested by defendant and as directed by the court. Plaintiff has repeatedly missed deadlines and has also failed to appear for his own deposition on two occasions. Plaintiff's interference with the judicial process has left this case at the close of discovery in a posture where the case cannot possibly proceed to even the pretrial conference, much less trial of the action. This factor weighs strongly in favor of dismissal.
C. Plaintiff's Culpability
There is significant evidence within the record that plaintiff has been culpable in this matter. First and foremost, plaintiff has failed to appear at his properly noticed and scheduled deposition on two occasions. On both occasions, plaintiff apparently had personal knowledge of the deposition setting and failed to appear. Second, communications between plaintiff and plaintiff's counsel have apparently been very difficult, and plaintiff's counsel now informs the court that he has lost contact with plaintiff. Moreover, the court notes that, despite multiple requests spanning months in time, plaintiff failed to provide those materials that only plaintiff personally could provide-signed and executed medical, educational and employment authorization, and signed verification pages to accompany plaintiff's responses to written interrogatories. Indeed, these obligations of plaintiff-personally executing authorizations and verifications and personally appearing at his own deposition-are the only acts that must be completed by plaintiff personally and not by his counsel. Plaintiff's conduct evidences a complete abrogation of his responsibilities both to defendant and to the court.
D. Warning
Plaintiff has had repeated warnings via the court's orders that failure to comply with deadlines would result in dismissal of this action. Moreover, Magistrate Judge O'Hara included in the scheduling order an express admonishment directed to plaintiff's counsel regarding the court's expectations of full compliance with all applicable rules and procedures. The court concludes that plaintiff has been sufficiently warned.
E. Efficacy of Lesser Sanction
Plaintiff in this case has been repeatedly warned and admonished. More significantly, the court sanctioned plaintiff on December 16, 2003, by awarding to defendant its costs and attorneys' fees incurred in filing defendant's motion to compel. Then, after being sanctioned, plaintiff still failed to comply with the court's order to compel. As such, the court determines that a lesser sanction would not be effective.
IV. Conclusion
Upon consideration of the factors set forth in Gripe, the court concludes that dismissal of this action with prejudice is warranted. See Dochterman v. Res. Realizations, 56 Fed. Appx. 455, 459-60 (10th Cir. 2003) (holding that sanction of dismissal was warranted when plaintiff had failed to appear for deposition on multiple occasions and following plaintiff's failure to comply with orders of the court, including an order that plaintiff make medical records available to the defendant); Willner v. Univ. of Kan., 848 F.2d 1023, 1030 (10th Cir. 1988) (finding that district court properly dismissed sex discrimination plaintiff's action for failure to provide discovery where plaintiff had over six months to submit supplemental answers to interrogatories as ordered but willfully failed despite threat of dismissal).
Defendant also requests an award of attorneys' fees and sanctions against plaintiff. The court has considered the issue and concludes that the sanction of dismissal alone is enough. The court denies defendant's request for attorney's fees and additional sanctions.
IT IS THEREFORE ORDERED that defendant's Motion for Dismissal Pursuant to Federal Rule of Civil Procedure 37 and Pursuant to the Court's Inherent Authority (Doc. 83) is granted. Defendant's Motion for Judgment on the Pleadings (Doc. 62) is denied as moot. This case is hereby dismissed with prejudice.