LAURIE SMITH CAMP, District Judge
This matter is before the Court on the Defendant's Motion to Dismiss (Filing No. 22) for failure of the Plaintiffs to comply with the Court's order of June 24, 2003 (Filing No. 17), granting, in part, the Defendant's Motion to Compel (Filing No. 17). The Plaintiff has responded in opposition to the Motion to Dismiss (Filing No. 23).
The Court's order of June 24, 2003, required the Plaintiffs to respond to the Defendant's outstanding discovery requests before the close of business on July 25, 2003. The Defendant's Interrogatories and Requests for Production were originally served on the Plaintiffs on February 27, 2003. On June 16, the Defendant moved to compel the Plaintiff to abide by this Court's order relative to mandatory, initial disclosures under Fed.R.Civ.P. 26, and to compel responses to the Defendant's written discovery. On June 24, 2003, the Court ordered the Plaintiffs to comply with its order and to respond to the written discovery. In the June 25, 2003, Final Progression Order, the deadline for Plaintiffs' disclosure of expert witnesses under Rule 26(a)(2) was set at August 15, 2003. Attachments to Filing Nos. 22 and 23 indicate that the Plaintiffs served responses to the discovery and supplemented their responses on July 17 and 24, 2003. Despite these supplementary responses, the Defendant notes that the Plaintiffs are deficient in their discovery responses in five respects.
First, the Plaintiffs have not produced income tax returns for Raymond and Wendy Armendariz for 2000, 2001, and 2002, nor any income tax returns for Lil' Bit of Nashville More, Inc., although the returns for all the Plaintiffs were requested for 1997 through 2002. In response, counsel for the Plaintiffs notes that the federal and state income tax returns for "the Plaintiff" are in the process of being completed as a result of an IRS audit and are not currently available. Counsel for the Plaintiffs does not state whether this audit affects the Armendarizes, the corporate Plaintiff, or all three. While some or all of the returns may be subject to amendment as the result of an IRS audit, it is not clear why no returns are available for the corporate Plaintiff and none for 2000, 2001 and 2002 for the individual Plaintiffs.
Second, the Plaintiffs have not produced any depreciation schedules for their entertainment business. In response, counsel for the Plaintiffs states that such documentation is not "currently available," but that the Plaintiffs may supplement their response at a later date under Rule 26(e).
Third, the Plaintiffs have provided no documentation of the $4,925 of expenses allegedly incurred in connection with the bus trip which ended in the collision leading to this litigation. In response, Plaintiffs' counsel states that the Plaintiffs paid cash for such expenses, and kept no records.
Fourth, the Plaintiffs have not produced copies of a number of the contracts related to events generating income, listed in the Plaintiffs' response to the Defendant's Interrogatory 5(b), although copies of such contracts were requested in Request for Production 8. In response, Plaintiffs' counsel states that certain events proceeded without a written contract, or written contracts were "subsequently disposed of," or written contracts have "not yet been located." Again, Plaintiffs' counsel offers to supplement responses pursuant to Rule 26(e) if such contracts are later located by the Plaintiffs.
Fifth, the Plaintiffs' disclosure of expert witness testimony does not include the grounds for each of the opinions to be expressed by each of the alleged experts. In response, Plaintiffs' counsel notes that the Plaintiffs have identified their expert witnesses and set forth the witnesses' opinions. Plaintiffs' counsel contends that the Defendant's counsel should have requested additional information if he wanted to know more, and that Plaintiffs are willing to supplement their responses if necessary.
Fed.R.Civ.P. 37 provides courts with a variety of options in the event that a party fails to comply with discovery requests. If an order compelling discovery has been entered and a party fails to comply with that order, Rule 37(b)(2) gives the court a variety of options for addressing the party's noncompliance, including dismissal of a plaintiff's action. (Rule 37(b)(2)(C)). The court should resort to the sanction of dismissal only "when the `failure to comply has been due to . . . willfulness, bad faith, or any fault of petitioner.'" Edgar v. Slaughter, 548 F.2d 770, 772 (8th Cir. 1977) (quoting Societe Internationale v. Rogers, 357 U.S. 197, 212 (1958)). The court's "discretion is bounded by the requirement of Rule 37(b)(2) that the sanction be `just' and relate to the claim at issue in the order to provide discovery." Avionic Co. v. General Dynamics Corp., 957 F.2d 555, 558 (1992) (citing Shelton v. Am. Motors Corp., 805 F.2d 1323, 1329 (8th Cir. 1986)). In cases of willfulness and bad faith, "the district court need not investigate the propriety of a less extreme sanction." Everyday Learning Corp. v. Larson, 242 F.3d 815, 818 (8th Cir. 2001); Avionic, 957 F.2d at 558. A plaintiff's willful and bad faith noncompliance must, however, be the source of prejudice to the defendant before dismissal of the action is warranted. Hairston v. Alert Safety Light Products, Inc., 307 F.3d 717 (8th Cir. 2002). Before concluding that dismissal is an appropriate sanction, a court should explore lesser sanctions to vindicate the district court's order, act as a deterrent to the plaintiff's future lack of diligence, and alleviate prejudice suffered by the defendant. Id. at 720.
The Court cannot conclude that the Plaintiffs' noncompliance with the order of June 24, 2003, was willful or in bad faith. Instead, it appears that the Plaintiffs operate their business largely on a cash basis, often without written contracts, receipts, or systematic record-keeping, and with little attention to the preparation of tax returns. Such conduct may be a "fault" on the part of the Plaintiffs, but not one which warrants dismissal of the action.
Fed.R.Civ.P. 37(b)(2) permits a court to enter an order "refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting that party from introducing designated matters in evidence." Under the circumstances of this case, the Court finds that an order under Rule 37(b)(2) is appropriate.
At trial, all the Plaintiffs shall be prohibited from introducing any evidence of their annual income or any alleged change in their annual income in support of any claim for damages; all the Plaintiffs shall be prohibited from introducing any evidence of the value of their entertainment business or any alleged change in its value in support of any claim for damages; all the Plaintiffs shall be prohibited from introducing evidence of income allegedly generated by events listed in response to Interrogatory 5(b), except those events for which the Plaintiffs have supplied the Defendant with supporting documentation in response to Request for Production 8. The Plaintiffs may offer oral testimony regarding cash allegedly paid for expenses for the bus trip which ended in the collision that is the subject of this litigation, but are prohibited from introducing any documentary evidence in support of such alleged expenses.
In addition, the Plaintiffs shall not be permitted to call as expert witnesses for trial those persons listed in answer to Interrogatory 1 because the Plaintiffs have failed to disclose the factual basis for the experts' opinions. The grounds for the proposed experts' opinions were requested in Interrogatory No. 1. The Final Progression Order and Rule 26(a)(2)(B) require that each opinion and the basis and reasons for each opinion be memorialized in writing and signed by the proposed expert witness. There is no indication that written reports signed by Plaintiffs' proposed experts were prepared or served upon the Defendant by August 15, 2003. Because the Plaintiffs failed to make timely and adequate disclosures regarding their proposed experts in response to the proper interrogatory and as required by Federal Rule of Civil Procedure 26(a)(2)(B) and (C), and the Final Progression Order of this Court, those proposed experts will not be allowed to testify at trial.
With respect to the Defendant's request for attorney's fees and expenses in connection with the Defendant's Motion to Compel and Motion to Dismiss, the Court denies the request. Although Rule 37 favors such an award when a motion to compel is granted or when an order is issued imposing sanctions for failure to comply with an order compelling discovery, the Court finds that such an award is not warranted under the circumstances of this case. As noted above, the Court cannot conclude that the Plaintiffs' noncompliance with discovery requests or with the order of June 24, 2003, was willful or in bad faith, and the sanctions imposed in the form of limitations on presentation of evidence should serve the purpose of alleviating prejudice to the Defendant.
IT IS ORDERED:
1. The Defendant's Motion to Dismiss (Filing No. 22) is denied.
2. The Plaintiffs are prohibited from introducing designated matters in evidence, pursuant to Fed.R.Civ.Pro. 37(b)(2)(C).