KATHLEEN A. JAUDZEMIS, Magistrate Judge.
This matter is before me pursuant to 28 U.S.C. § 636 and the referral of Judge Shanahan on the following matters:
#63 Defendant's Statement of and Request for Fees and Expenses incurred in attempting to depose the plaintiff on February 23, 1999, and Affidavit of Robert F. Rossiter, Jr. (#64)
#66 Defendant's motion for sanctions pursuant to Rules 37(b) and 41(b) of the Federal Rules of Civil Procedure, and defendant's accompanying "Brief in Support of Sanction of Dismissal"
The court has not received a response in opposition to either motion and takes judicial notice of the entire court file in this case. See Robinson v. Leapley, 26 F.3d 826 (8th Cir. 1994); Fed.R.Evid. 201.
For the reasons explained below, I shall grant defendant's request for fees and expenses (#63), order that plaintiff's in forma pauperis status be revoked, impose both monetary and non-monetary discovery sanctions against plaintiff pursuant to Rule 37, and recommend that this case be dismissed pursuant to 28 U.S.C. § 1915 and Rules 37(b) and 41(b) of the Federal Rules of Civil Procedure.
BACKGROUND
This is an action under Title VII of the Civil Rights act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII"), and the Americans With Disabilities Act of 1990, 42 U.S.C. § 12112 ("ADA"). The complaint alleges that plaintiff was wrongfully terminated without being afforded a reasonable accommodation for his disability ( 4) and that plaintiff was passed over for a training program that would have led to a promotion on account of his disability ( 5).
Plaintiff, proceeding without the assistance of counsel, was given leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 (#3). Plaintiff served defendant by certified mail on July 11, 1997, at the government's expense. Since then, plaintiff has persistently engaged in an abusive course of conduct which has unfairly prejudiced the defendant and has seriously delayed the resolution of this case.
1. Rule 26(f) Planning Report/Form 35
After defendant entered an appearance, Magistrate Judge Thalken sent the parties a letter (#8) informing them of their duty to meet and confer pursuant to Fed.R.Civ.P. 26(f). Reflecting the practice in this district, the letter requested plaintiff to schedule the Rule 26(f) meeting and directed the parties to report to the court in the form generally prescribed by Official Form 35 within 30 days. Plaintiff did not initiate the meeting and did not respond to defense counsel's attempts to meet and confer pursuant to Rule 26(f). Accordingly, Judge Thalken ordered plaintiff to show cause why sanctions should not be imposed upon him in accordance with Fed.R.Civ.P. 16(f) and 37(g).
In response to Judge Thalken's show cause order, plaintiff filed a motion for appointment of counsel (deficient in that it contained no certificate of service) and motion for continuance. The motion for appointment of counsel was denied without prejudice and plaintiff was given leave to file and serve a proper motion describing specifically what good faith attempts he had made to obtain his own attorney. Plaintiff eventually filed a response to the show cause order (see #18). Magistrate Thalken declined to appoint counsel to represent plaintiff and ordered plaintiff to deliver his Rule 26(f) report to the court by January 30, 1998 or show cause why sanctions should not be imposed upon him in accordance with Fed.R.Civ.P. 16(f) and 37(g).
Plaintiff did not timely submit a Rule 26(f) report but instead appeared in chambers and orally moved for an extension of time. He was given until March 2, 1998 to meet with defense counsel and submit his Rule 26(f) report (#20). Instead, plaintiff appeared in chambers on March 3, 1998 to have a Rule 26(f) conference with Judge Thalken, informing Judge Thalken's law clerk that he would not contact defense counsel. Plaintiff orally requested that a telephone conference be held.
On March 6, 1998, in Judge Thalken's absence, I held a telephone conference with plaintiff and defense counsel about the Rule 26(f) report. Based on the information given by the parties during the telephone conference, the court was finally able to enter a case progression order (#21) on March 10, 1998.
2. Attempts to Conduct Discovery a. Rule 26(a) Initial Disclosures
The progression order provided that Rule 26(a)(1) initial disclosures were due by April 10, 1998. Defendant timely served its initial disclosures. Plaintiff, however, filed a motion for continuance and, over defendant's objection, was given until April 27 to serve his Rule 26(a)(1) disclosures. The Rule 26(a)(1) disclosures received by defendant on April 28 (see #29), were deficient in that they failed to identify any documents and did not set forth plaintiff's damage calculations.
Defendant moved for sanctions pursuant to Rule 16, 37 and 41 (#25), citing plaintiff's failure to follow the court's scheduling orders, refusing to meet pursuant to Rule 26(f), serving deficient Rule 26(a) disclosures, refusing to clarify his Rule 26(a) disclosures, and refusing to confer with counsel about discovery disputes. This motion was granted in part (#31). Although Judge Thalken concluded that the sanction of dismissal would be too harsh at that time, plaintiff was warned that he was not excused from complying with court orders and that
no further extension of any deadlines under the court's orders or rules of the court will be allowed without a showing of good cause setting forth specific reasons why an extension is needed. Any further delays that are not for good cause or any failure to comply with court orders or rules may subject the plaintiff to sanctions, up to and including dismissal of this action, under Rules 16, 37, and 41.
Filing #31.
b. Motions to Compel Discovery
On May 5, 1998, defendant served interrogatories to be answered by plaintiff by June 8, 1998. As of July 8, 1998, defendant had received no responses to the interrogatories and filed a motion to compel (#30), informing the court that plaintiff did not return counsel's telephone calls or attempt to confer with defense counsel about answering the interrogatories. Plaintiff did not respond to the motion to compel, which was granted on July 30, 1998 (#32). Judge Thalken found that plaintiff had waived his objections to the interrogatories, see Fed.R.Civ.P. 33, and ordered plaintiff to fully respond to the interrogatories by August 19, 1998. Plaintiff was also ordered to show cause why sanctions should not be imposed upon him pursuant to Rule 37(a)(4)(A).
In response to plaintiff's showing of cause, Judge Thalken held a scheduling conference on September 3, 1998 (see #39). Plaintiff's oral motion for appointment of counsel was denied. As of that date, plaintiff had not responded to defendant's interrogatories and was warned "for a second and final time that he must adhere to the deadlines in this matter and any further delay may result in a recommendation of dismissal." (#41).
Despite Judge Thalken's explicit warnings, plaintiff provided only cursory (and largely illegible) answers to the interrogatories, prompting defendant to file another motion to compel and request for sanctions (#43). Plaintiff did not respond to defendant's motion. Judge Thalken granted the motion to compel and gave plaintiff until November 10, 1998 to answer the interrogatories without objection, warning plaintiff that failure to so respond would result in a recommendation for dismissal. Plaintiff was given until November 10, 1998 to show cause in writing why sanctions should not be imposed on him pursuant to Rule 37(a)(4)(A).
Plaintiff did not provide a written showing of cause. On November 18, 1998, Judge Thalken entered an order awarding defendant its reasonable costs and attorney's fees incurred in bringing the motion to compel. Plaintiff did not respond to defense counsel's offer for resolution of costs and attorney's fees. Defendant was awarded attorney's fees of $832.50, to be made as part of any judgment in this matter. (#53).
Due to plaintiff's failure to provide discovery, the court granted defendant's motion to extend the progression order deadlines. An amended progression order was entered on December 9, 1998, providing that depositions were to be completed by March 31, 1999.
c. The Settlement Conference
Meanwhile, at the parties' request, Judge Thalken scheduled a settlement conference for February 9, 1999. At plaintiff's request, the settlement conference was rescheduled for February 22, 1999. Plaintiff retained an attorney, Eric Whitner, to represent him at the settlement conference. (#59, 6:5-15). Judge Thalken recalled that Mr. Whitner had appeared in this matter solely to represent plaintiff during the settlement conference. (#59, 12:12-15). No settlement agreement was reached.
d. Defendant's Attempts to Depose Plaintiff
On February 8, 1999, defendant sent by certified mail a notice to take plaintiff's deposition on February 23, 1999 in the offices of defense counsel. On February 22, however, the parties had a telephone conference with Judge Thalken during which plaintiff revealed that he had not picked up his mail until February 19. Based on his failure to read his own mail, plaintiff complained that he could not attend a deposition on February 23 because he did not have time to hire an attorney. Judge Thalken recalled that he informed plaintiff and defense counsel that the deposition would take place as scheduled because the notice had been timely sent and it was plaintiff's choice to avoid reading his mail until February 19. (#59, 7:15-9:5).
The February 23 "deposition" was held on the record in Judge Thalken's courtroom. The transcript of the attempted deposition has been filed at #59. Although plaintiff appeared for the deposition, he immediately refused to be sworn in and refused to have his deposition taken without an attorney present. Chuck Henson, co-counsel for the defendant, traveled from Denver to Omaha to attend the deposition. When Mr. Henson attempted to give plaintiff a copy of his entry of appearance for delivery to plaintiff's attorney, plaintiff refused to accept the document and left it on the courtroom floor. (#59, 19:11-20).
Judge Thalken was summoned to the courtroom and advised plaintiff that, since this was a civil case, plaintiff was required to cooperate in the deposition even if he did not have an attorney. (#59, 3:6-4:15). Plaintiff complained that he would have hired an attorney for the deposition but did not have time to do so. During oral argument, plaintiff made many abusive remarks about defense counsel, complained that defense counsel persuaded Mr. Whitner not to represent him after the settlement conference, asked for a continuance, and told the court that he would "get on the phone today," and could hire an attorney "within the next couple days." (#59, 14:18-25).
Ultimately, defense counsel agreed to a two-week continuance (#59, 16:4-7). At plaintiff's request, the deposition was rescheduled. Plaintiff was explicitly ordered to appear, with or without counsel, in Judge Thalken's courtroom to be deposed at 9:00 a.m. on March 16, 1999, the date requested by the plaintiff. (#59, 16:19-17:24). Judge Thalken then indicated that he would entertain defendant's application for costs incurred for rescheduling the deposition.
The transcript of the ill-fated March 16 deposition has been filed at #65. Defendant's local counsel attended the deposition, accompanied by Mr. Henson, who had again traveled from Denver to Omaha. When plaintiff failed to appear in Judge Thalken's courtroom at the appointed hour, the proceeding reconvened in chambers and Judge Thalken initiated a telephone conference with plaintiff. Plaintiff told the court that he had a 10 a.m. appointment which would take him about an hour and a half. Judge Thalken verbally ordered plaintiff to appear in the courtroom at noon for his deposition. Plaintiff then complained that nobody telephoned him to remind him of the deposition and that he did not receive anything in the mail about appearing for a deposition. Plaintiff remarked that he did not care whether Mr. Henson caught his flight back to Denver.
Judge Thalken ordered plaintiff to appear at noon for his deposition and warned plaintiff that he would recommend dismissal if plaintiff failed to appear. Plaintiff then said, "Why I — I think you ought to be dismissed myself." Interpreting this remark as a request for recusal, Judge Thalken recused himself that morning and the matter was reassigned to me for all pretrial management.
Defense counsel appeared at noon to take plaintiff's deposition. Plaintiff appeared, without counsel, and complained about the case being reassigned. Plaintiff was reminded that Judge Thalken had recused himself at plaintiff's request and was cautioned that I would recommend dismissal if plaintiff did not go forward with his deposition. Plaintiff was advised at length that the Federal Rules required him to cooperate in the deposition and was advised that I was available to him for questions, should those arise in the course of his deposition. Finally, I advised plaintiff that I was not his lawyer, was not the defendant's lawyer, and did not intend to operate as counsel for either side.
Plaintiff was left in the courtroom to be deposed by defense counsel. He first denied any recollection of Judge Thalken's telling him to appear for a deposition at 9:00 on March 16, and complained that defense counsel had a copy of the transcript of the February 23 proceeding but he did not. Plaintiff stated repeatedly that he was concerned about "his rights" and warned counsel that he would only answer questions about U S West and his lawsuit and would not answer any questions regarding anything he considered private or personal. Plaintiff was finally sworn in.
Plaintiff testified that he was born on 10-27-51 and was presently employed at the Douglas County Health Department as a lead inspector. He had worked there for two years and earned approximately $11.45 per hour. He described his job duties, which included testing homes and facilities for high lead levels using an XRF machine, which is not heavy and weighs less than 25 pounds. On a normal day, he would come in, schedule inspections, answer telephone calls, and perform inspections. His job did not require him to climb ladders. His starting wage at Douglas County was $9 per hour.
The questions then focused on plaintiff's responses to defendant's interrogatories. See #65, Ex. 1 2. Plaintiff indicated that he participated in a five-day course with Associated General Contractors to learn to be a general contractor. He was involved in a scaffolding accident during the course while the class was putting an addition onto a building. He indicated that he was hired by Douglas County on August 28, 1996. When questioned about certain information he had omitted from his responses to the interrogatories, plaintiff complained that he had been pressured by the court to answer the interrogatories and called local counsel an "asshole."
Turning to the subject of plaintiff's employment with U S West, plaintiff stated that he started work there as a cable splicer in January or February of 1996 or 1997. He then said he could not remember when he started working for U S West. He worked for Union Pacific Railroad from 1979 through 1988 and did "asbestos work" between 1988 and 1994 for "a lot of companies," including HEW, Airtight and his own company, RG Associates. He also worked for Erwin Trucking Company at some point. He did asbestos removal work as a sole proprietorship some time between 1990 and 1994. He was unable to expand upon the educational background he gave in response to Interrogatory No. 3 and explained that he completed the answers to interrogatories "in a rush."
Plaintiff abruptly asked what time it was. It was 1:02 p.m. Plaintiff said he was there on his lunch hour and had to go back to work. I was called to settle this particular dispute and, at 1:07 p.m., went on the record with plaintiff and defense counsel. (See #65 at p. 45). Plaintiff continued to insist that he had to go back to work.
Plaintiff suggested that the deposition reconvene after work, commenting that Mr. Henson's flight "ain't the only flight that's leaving at 4 o'clock or 4:30." (#65, 49:13-14). Mr. Henson objected to this proposal because this was the second time he had traveled from Denver to Omaha to take plaintiff's deposition. Furthermore, the court would not be available for consultation after regular business hours. Mr. Henson did, however, propose staying over and taking the deposition at 9:00 the following morning. Plaintiff protested, stating that he had appointments set for that day.
Plaintiff told the court that he would go to his office at 8 a.m. on March 17 and would call chambers to "let you know if I'm going to show." (#65, 52:24). I then indicated I would entertain motions from the parties, but plaintiff left the room. Plaintiff suddenly reentered the room. At that point, Mr. Henson moved that costs be assessed against plaintiff and stated that he would appear at 9 a.m. on March 17 to depose the plaintiff. Plaintiff then complained at length that he was being railroaded by the court and that nobody had tried to accommodate his schedule. He refused to continue with the deposition and said he was going back to work.
Plaintiff appeared at 9 a.m. on March 17, but proceeded to do his office work during the deposition. (#65, 59:2-4). He could not remember details about his asbestos removal work, such as his supervisors' names, the names of the companies he worked for, or where the companies were located. He admitted that he had not received a paralegal certificate from the Blackstone School of Law, contrary to his answers to defendant's interrogatories. He admitted that he had listed an attorney's name, James Fenlon, in response to a question about his medical providers, again explaining that he had completed the questions "under five minutes." Rather, Mr. Fenlon represented plaintiff in his earlier workers' compensation claim against U S West.
The record reflects that plaintiff continued to do his paperwork throughout the deposition, complaining that he had been forced to reschedule people to accommodate counsel and the court. (#65, 65:9-14). He could not recall what medications were prescribed to him by his doctors, but told counsel to look in his medical records. He said that he did not apply for Social Security disability benefits based on his alleged disability. He stated that he did not "have a problem working." (74:13).
Plaintiff's workers' compensation claim (#65, Ex. 4) alleged that plaintiff suffered permanent disability and a loss of earning capacity. Plaintiff continued to testify that he did not know whether he claimed in the workers compensation case that he was permanently disabled from working. During his deposition, he testified that he was not disabled from working, but hurt every day and had pain every day in his thumbs and knee. (#65, 83:17-21). He finally concluded that, "Yes, I am permanently disabled from working certain jobs," specifically, working as a brakeman or switchman on a railroad. (#65, 83:25-84:15).
Counsel then attempted to examine plaintiff on the witnesses he listed in his belated initial disclosures. When asked to tell the factual basis for his claim that he was wrongfully terminated from U S West, plaintiff responded, "I'd rather not [go] into that right now," and refused to answer the question. (#65, 88:10-16).
Plaintiff then announced that he did not intend to stay all day. He acknowledged that there were probably mistakes in his NEOC charge of discrimination because the form was completed by somebody else (although based on information obtained directly from him). (#65, 91:1-4 Ex. 5).
The NEOC charge (#65, Ex. 5) alleged that plaintiff was wrongfully terminated in January 1996 for job abandonment. Plaintiff testified that he was not aware that a certified letter was mailed to him in December 1995, was refused on three occasions, and was returned to the company, because he was in the hospital having surgery on his thumb on December 16, 1995. He was in the hospital a day or two. (#65, 93:6-94:12). Although he testified he was physically present at work at U S West in December 1995, he could not remember which or how many days he was there. Eventually, he recalled that he was doing light duty work until around December 10, when he told his supervisor that he was going to have surgery. He did not return to work after his surgery. (#65, 97:10-12). When questioned further, plaintiff expressed his uncertainty as to the exact dates in question, and then decided that he did not know when he had the surgery on his thumb except that it happened in December 1995. Although he claimed to have been given a "leave of absence" in conjunction with the thumb surgery, he could not remember who gave permission for the leave of absence and did not have any paperwork on that topic.
Plaintiff described paragraph 5 of his complaint, which alleges plaintiff was passed over for a training program that would have led to a promotion because of his disability, as a "misprint." He testified that the complaint was prepared for him by an EEOC attorney based on information received from plaintiff. (#65, 112:4-5). He later testified that he prepared the complaint himself. (#65, 115:2-11). Plaintiff admitted there was no training program that he could remember and did not have knowledge of any facts substantiating this claim. (#65, 107:14-25; 110:20-23). He then testified his current Title VII claim was copied from documents sent to him by the EEOC.
Counsel finally ascertained that one of plaintiff's disability claims was based on his thumb surgery, which occurred in July 1994 or July 1995. (#65, 118:14-119:1). Plaintiff decided that he had surgery on both thumbs in July 1995 and had surgery on his left knee at the same time. (119:18-120:1). He explained that paragraph 5 of the complaint was based on the circumstance that he was a fiber splicer before his thumb injury, but again acknowledged that he had not been passed over for any training program. He then said he thought there was one training program, but could not remember what it was and complained of being forced to attend the deposition unprepared.
After much discussion, plaintiff decided that he became disabled in May 1995 (#65, 127:3-13), when his thumbs became locked. When asked about any other disabilities he might be talking about in his complaint, plaintiff replied, "I don't know. Skin color could be." After stating that he had no other disabilities than his thumbs and left knee, he remembered that he had a bad hip. The hip injury, however, is not at issue in this case. (#65, 126:17-24).
Shortly thereafter, plaintiff announced his intention to leave the deposition and refused to answer any more questions without an attorney present. Plaintiff left the deposition, and I was called to the courtroom at 10:50 a.m. to complete the record and entertain motions from defense counsel (#65, 130:4-131:25). Plaintiff made no attempt to contact the court during his deposition, although the court was available if he chose to do so. The record was closed at 10:57 a.m., March 17, 1999.
LEGAL ANALYSIS 1. Proceedings In Forma Pauperis
The privilege of proceeding as a pauper is not absolute and may be denied to parties with a history of abusive, frivolous or malicious litigation. See In re MacDonald, 489 U.S. 180 (1989). As the record shows, I gave plaintiff leave to proceed in forma pauperis ("IFP") pursuant to 28 U.S.C. § 1915, which provides, in part:
(a)(1) Subject to subsection (b) [pertaining to prisoner litigation], any court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding, civil or criminal, or appeal therein, without prepayment of fees or security therefor, by a person who submits an affidavit that includes a statement of all assets such [person] possesses that the person is unable to pay such fees or give security therefor. Such affidavit shall state the nature of the action, defense or appeal and affiant's belief that the person is entitled to redress.
* * * *
(d) The officers of the court shall issue and serve all process, and perform all duties in such cases. Witnesses shall attend as in other cases, and the same remedies shall be available as are provided for by law in other cases.
(e)(1) The court may request an attorney to represent any person unable to afford counsel.
(2) Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that —
(A) the allegation of poverty is untrue; or
(B) the action or appeal —
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune from such relief.
(f)(1) Judgment may be rendered for costs at the conclusion of the suit or action as in other proceedings, but the United States shall not be liable for any of the costs thus incurred. If the United States has paid the cost of a stenographic transcript or printed record for the prevailing party, the same shall be taxed in favor of the United States.
* * * *
The court is revisiting the matter of plaintiff's IFP status on its own motion. The decision to grant leave to proceed IFP is a matter of the court's discretion. When an attorney or an unrepresented party submits a pleading, motion, or other paper to a federal court, his signature constitutes a certification that he has read it and formed a belief after reasonable inquiry that it is 1) well grounded in fact, 2) warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and 3) it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. Rule 11, Fed.R.Civ.P. In this case, leave to proceed IFP was based upon plaintiff's declaration of poverty and the causes of action stated in his original complaint. As the court observed in Johnson v. Edlow, ___ F. Supp.2d ___, No. Civ. A 98-466-AM, 1999 WL 149817 at *1 (E.D.Va., March 10, 1999),
Federal courts have a responsibility to assess the nature of the allegations presented in a civil action and determine whether the plaintiff's motive is to harass and vex the defendants or to seek redress for a legitimate claim. . . . A complaint abusive of the judicial process is malicious within the meaning of Section 1915.
See also Carney v. Houston, 33 F.3d 893, 895 (8th Cir. 1994) (if the Court becomes convinced at any time that the complaint is frivolous or malicious, it may revoke in forma pauperis status and dismiss the complaint under 28 U.S.C. § 1915).
In this case, plaintiff has refused to discuss the factual basis for his claim that he was wrongfully terminated from U S West. (#65, 88:10-16). He has admitted there was no training program and did not know of any facts substantiating his claim that he was passed over for a training program that would have led to a promotion because of his disability. (#65, 107:14-25; 110:20-23).
"[A] litigant whose filing fees and court costs are assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from frivolous, malicious, or repetitive lawsuits."Neitzke v. Williams, 490 U.S. 319, 324 (1989). That observation has certainly proven true in this case, where plaintiff has freely wasted the time and money of the court, the defendant, and the tax-paying public.
Because plaintiff has essentially admitted that there is no factual basis for his claims, I find that his complaint is frivolous or malicious within the meaning of 42 U.S.C. § 1915(e)(2)(B)(i), and that his IFP status should be revoked. I shall, therefore, revoke plaintiff's IFP status and hold him responsible for the payment of any court costs incurred by him as of the date of this order. I shall also recommend that plaintiff's complaint be dismissed as frivolous or malicious pursuant to 42 U.S.C. § 1915(e)(2)(B)(i).
2. Rule 37 Sanctions, Including Sanction of Dismissal
Defendant's pending motion for fees and expenses specifically relates to plaintiff's refusal to be deposed, despite being ordered to do so. Rule 37(b) gives the trial court discretion to impose a variety of sanctions, including dismissal, for failure to obey the court's discovery orders. The fact plaintiff is acting pro se in this matter does not entitle him to flout orders of this court, the Federal Rules of Civil Procedure, or the Local Rules of Practice.
When the facts show willfulness and bad faith in the failure to permit discovery, the selection of a proper sanction is entrusted to the sound discretion of the district court.
Avionic Co. v. General Dynamics Corp.,
957 F.2d 555, 558 (8th Cir. 1992) (citing
National Hockey League v. Metropolitan Hockey Club, Inc.,
427 U.S. 639, 643,
96 S.Ct. 2778, 2781,
49 L.Ed.2d 747 (1976) (per curiam)). Of course that discretion is bounded by the requirement of Rule 37(b)(2) that the sanction be "just," and relate to the claim at issue in order to provide discovery.
Id.;
see also Fed.R.Civ.P. 37(b)(2). Entry of default judgment or dismissal as a sanction for failure to permit discovery is "only appropriate where there has been a clear record of delay or contumacious conduct."
Taylor v. City of Ballwin, Mo.,
859 F.2d 1330, 1332 (8th Cir. 1988). Entry of default judgment or dismissal should be a "rare judicial act," but is appropriate as a discovery sanction when a party's failure to comply has been "due to . . . willfulness, bad faith, or any fault of [the party]."
Comiskey v. JFTJ Corp.,
989 F.2d 1007, 1009 (8th Cir. 1993) (quoting
Societe Internationale v. Rogers,
357 U.S. 197, 212,
78 S.Ct. 1087, 1096,
2 L.Ed.2d 1255 (1958)).
Tyler v. Iowa State Trooper, Badge No. 297,
158 F.R.D. 632, 635 (N.D.Iowa 1994).
Plaintiff's failure to cooperate in good faith in discovery has seriously compromised defendant's ability to defend this action.
The judicial system cannot tolerate litigants who flagrantly refuse to comply with the orders of the court and who refuse to make discovery, for delay and evasion are added burdens on litigation, causing waste of judicial and legal time, are unfair to the litigants and offend the administration of justice.
Savola v. Webster,
644 F.2d 743, 746 (8th Cir. 1981) (quotations and citations omitted).
Magistrate Judge Thalken previously awarded defendant its costs of $832.50 pursuant to Rule 37(a)(4)(A) when plaintiff failed to answer defendant's interrogatories. Plaintiff, ever incorrigible, has now rendered himself vulnerable to a variety of sanctions under Rule 37(b) by refusing to be deposed.
To recap, plaintiff first avoided being deposed by declining to collect and read his mail, including the deposition notice properly served by defense counsel. When he was ordered to appear for deposition on February 23, 1999, plaintiff refused to be sworn in and refused to have his deposition taken without an attorney present. The deposition was rescheduled to 9 a.m. on March 16, 1999, the date requested by plaintiff, upon plaintiff's representation that he was going to hire an attorney. Plaintiff did not hire an attorney and failed to appear for the deposition at 9 a.m. In the resulting telephone conference, Judge Thalken ordered plaintiff to appear at noon. When plaintiff finally arrived for the deposition, he announced that he would not answer any questions regarding anything he considered private or personal. He was "unprepared" to answer many of counsel's questions, had few worthwhile recollections about any topic relevant to this lawsuit, and did his office paperwork during the attempted deposition. His conduct towards opposing counsel was abusive.
When a plaintiff files a lawsuit in federal court, with or without counsel, that plaintiff is bound by the Federal Rules of Civil Procedure. See, e.g., General Order 97-10, 9 (which supersedes Local Rule 3.4(b)): "all litigants proceeding pro se shall be bound by and comply with all local rules of this court, and the Federal Rules of Civil Procedure. . . ."
The record shows that plaintiff has been repeatedly informed and reminded of his obligation under the Federal Rules of Civil Procedure to conduct discovery in good faith. Plaintiff has failed to fully comply with any of the court's discovery orders, including the order to appear for deposition. I find that plaintiff's conduct during his deposition constitutes willfulness and bad faith in the failure to permit discovery and that monetary sanctions should be imposed pursuant to Fed.R.Civ.P. 37(b).
Defendant seeks $810 in attorney's fees and $775.55 in expenses incurred as a result of plaintiff's failure to participate in his deposition on February 23, 1999. (See #63 #64). Counsel spent a total of 4.5 hours, billed at $180 per hour, in conjunction with the February 23 deposition. The court finds that counsel spent a reasonable amount of time in conjunction with this matter, and that $180 per hour is a fair and reasonable charge for professional legal services in Nebraska by lawyers regularly employed to perform like services. The court finds that the costs incurred by Mr. Henson, including air fare, hotel, certified mail service, and cost of the transcript, were reasonable. Plaintiff will be required to reimburse defendant for these fees and expenses.
In addition, because plaintiff has failed to provide unqualified factual information on any relevant topic (including, but not limited to, employers, dates of employment, wage history, date of disability, and type of disability) I shall enter an order pursuant to Rule 37(b)(2)(B) refusing to allow plaintiff to testify in support of his claims.
The severe sanction of dismissal should be imposed pursuant to Rule 37(b)(2)(C) only where failure to comply with a discovery order is due to willfulness, fault, or bad faith. Cross v. General Motors Corp., 721 F.2d 1152, 1155 (8th Cir. 1983), cert. denied, 466 U.S. 980 (8th Cir. 1984). Since the inception of this case, plaintiff's conduct toward defense counsel and the court has been discourteous, inconsiderate and, at times, vulgar. Perhaps plaintiff resisted cooperating in discovery because he knew there was no factual basis for his claims. In any event, plaintiff has willfully refused and failed to provide any meaningful discovery in this case, despite comprehensive instruction from the court. I shall, therefore recommend that this case be dismissed with prejudice pursuant to Fed.R.Civ.P. 37(b)(2)(C).
3. Dismissal Pursuant to Fed.R.Civ.P. 41(b)
In the alternative, Rule 41(b) provides:
(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.
In Rodgers v. Curators of the Univ. of Missouri, 135 F.3d 1216 (8th Cir. 1998), the Court of Appeals affirmed the dismissal of plaintiff's claims under the ADA and the Rehabilitation Act pursuant to Rule 41(b) because the plaintiff failed to comply with the court's discovery orders, failed to appear at his court-ordered deposition, and violated a court order prohibiting him from firing his fourth set of attorneys. The district court found that the plaintiff's conduct was willful, a finding of fact subject to the "clearly erroneous" standard of review. Id. at 1219.
In exercising its discretion to order dismissal under Rule 41(b), the court must apply a balancing test focusing foremost upon the degree of egregious conduct which prompted the order of dismissal and to a lesser extent upon the adverse impact of such conduct upon both the defendant and the administration of justice in the district court. Id. at 1219. The sanction imposed by the district court must also be proportionate to the litigant's transgression.Id.; see also Aziz v. Wright, 34 F.3d 587 (8th Cir. 1994), cert. denied, 513 U.S. 1090 (1995) (affirming dismissal pursuant to Rule 41(a) as sanction for inmate plaintiff's refusal to be deposed).
The record in this case amply demonstrates that the plaintiff has willfully disobeyed the court's orders and delayed discovery by (1) failing to meet and confer pursuant to Rule 26(f) and provide a written report to the court; (2) failing to timely provide adequate Rule 26(a) disclosures; (3) failing to timely provide complete answers to defendant's interrogatories; (4) refusing to be deposed or appearing "unprepared" for deposition; and (5) disobeying the court's various scheduling orders. Although plaintiff has received numerous warnings and accommodations from the court and from defense counsel, he has continued to engage in disrespectful and defiant conduct. His failure to provide any meaningful discovery has seriously jeopardized U S West's ability to defend the case.
Warnings and lesser sanctions have not worked for Mr. Gould. Applying the Rodgers balancing test to these facts, I find that the sanction of dismissal is proportionate to plaintiff's many transgressions and shall recommend dismissal with prejudice pursuant to Fed.R.Civ.P. 41(b).
ORDER AND RECOMMENDATION
For the reasons explained above,
IT IS ORDERED:
1. Plaintiff's in forma pauperis status is hereby revoked.
2. In addition to the $832.50 fee award previously assessed by Magistrate Judge Thalken, plaintiff shall be held responsible for the payment of any court costs incurred by him as of the date of this order.
3. Pursuant to Rule 37(b)(2)(B), plaintiff is hereby prohibited from testifying in support of his claims.
4. Defendant's "Statement of and Request for Fees and Expenses" (#63) is granted. Plaintiff is hereby ordered to pay to defendant the sum of $1,585.55, representing all reasonable costs and attorney's fees incurred by defendant in preparing for plaintiff's February 23, 1999 deposition. Said amount shall be paid to defendant, through counsel, on or before June 15, 1999 unless the parties certify to the court in writing that they have agreed to other arrangements for payment. Any such certification, stipulation, or agreement shall be filed with the court on or before June 15, 1999.
Pursuant to Local Rule 72.3 any appeal of this order shall be filed with the Clerk of the Court within ten (10) days after being served with a copy of this order. Failure to timely appeal may constitute a waiver of any such objection.
IT IS RECOMMENDED that defendant's motion (#66) be granted and that this action be dismissed with prejudice pursuant to Rules 37(b) and 41(b) of the Federal Rules of Civil Procedure. In the alternative,
IT IS RECOMMENDED that this action be dismissed as frivolous or malicious purusant to 42 U.S.C. § 1915(e).
Pursuant to Local Rule 72.4, any objection to this Report and Recommendation shall be filed with the Clerk of the Court within 10 days after being served with a copy of this Report and Recommendation. Failure to timely object may constitute a waiver of any such objection.
IT IS FURTHER ORDERED that the Clerk shall serve a copy of this Order and Report and Recommendation on plaintiff by certified mail, return receipt requested.