United States District Court, M.D. Louisiana
CHRISTOPHER TROTTER, ET AL.
LAUREN ENGINEERS & CONSTRUCTERS, INC.
RULING AND ORDER
A. JACKSON, CHIEF JUDGE
the Court is the Motion to Recover Fees and Costs (Doc. 19)
and Motion to Dismiss Clams of Plaintiff Earvin Williams for
Failure to Prosecute Under Federal Rule of Civil Procedure
41(b) (Doc. 20) filed by Lauren Engineers & Constructors,
Inc. ("Defendant"). Through its motions, Defendant
seeks (1) dismissal of Earvin Williams's
("Plaintiff) claims for his failure to appear at three
scheduled depositions, and (2) to recover attorneys' fees
and other expenses incurred as a result of Plaintiffs failure
to appear at said depositions. Jurisdiction is proper
pursuant to 28 U.S.C. § 1331.
with nine co-plaintiffs-filed the instant action against
Defendant on December 4, 2015, alleging violations under
Title VII and Louisiana state law related to the allegedly
discriminatory conduct of one of Defendant's employees.
(See Doc. 1). Defendant filed the instant motions
following Plaintiffs failure to appear for three scheduled
depositions on July 7, 2016, September 8, 2016, and September
21, 2016. Thereafter, Plaintiffs attorney filed a
motion to withdraw as counsel of record for Plaintiff, citing
Plaintiffs failure to appear at scheduled depositions despite
prior notice and Plaintiffs apparent "unwillingness to
participate in [his] own case." (See Doc.
On November 1, 2016, the Magistrate Judge granted Plaintiffs
counsel's Motion to Withdraw and ordered Plaintiff to
respond to Defendant's motions on or before November 14,
2016. (Doc. 22). Pursuant to the Magistrate Judge's
Order, the Clerk's Office served the order via certified
mail, return receipt requested, to Plaintiffs address on
file. (See Doc. 22). The Order was returned as unclaimed by
Plaintiff. (See Doc. 23).
January 20, 2017, the Court issued another Order requiring
Plaintiff to respond to Defendant's pending motions on or
before February 10, 2017, and notifying Plaintiff that
failure to respond would "result in the involuntary
dismissal of Plaintiffs claims against Defendant and the
imposition of sanctions in the form of attorney's fees
and costs associated with Plaintiffs failure to appear"
for scheduled depositions. (Doc. 24). The Order was received
by someone present at the listed address on February 7, 2017.
(See Doc. 28). However, Plaintiff has thus far
failed to respond to Defendant's motions pursuant to the
Rule of Civil Procedure 41(b) empowers a district court to
involuntarily dismiss an action, with prejudice, if a
plaintiff "fails to prosecute or to comply with [the
Federal Rules of Civil Procedure] or a court order."
Fed.R.Civ.P. 41(b). Because "dismissal with prejudice is
an extreme sanction that deprives the litigant of the
opportunity to pursue his claim, " however, a dismissal
under Rule 41(b) should be granted only where: "(1)
there is a clear record of delay or contumacious conduct by
the plaintiff, and (2) the district court has expressly
determined that lesser sanctions would not prompt diligent
prosecution, or the record shows that the district court
employed lesser sanctions that proved to be futile."
Berry v. Cigna /RSI-Cigna, 975 F.2d 1188, 1191 (5th
Cir. 1992) (quoting Callip v. Harris County Child Welfare
Dept., 757 F.2d 1513, 1521 (5th Cir. 1985)). Failure to
comply with court orders after being warned that such failure
would result in dismissal has been held to be
"contumacious conduct" warranting dismissal under
Rule 41(b). Dorsey, 84 F.3d at 171-72; Hawkins
v. AT& TCorp., No. SA-02-CA-0166-RF, 2003 WL
22736525 at *3 (W.D. Tx. Nov. 12, 2003). In addition, to
dismiss an action for failure to prosecute, the U.S. Fifth
Circuit Court of Appeals requires the presence of at least
one of three aggravating factors: "(1) delay caused by
[the] plaintiff himself and not his attorney; (2) actual
prejudice to the defendant; or (3) delay caused by
intentional conduct." Berry, 975 F.2d at 1191.
Court finds that there is a clear record of delay and
contumacious conduct on the part of Plaintiff, and that
lesser sanctions would not prompt diligent prosecution. On
November 1, 2016, and January 20, 2017, the Court ordered
Plaintiff to address Defendant's motions and warned
Plaintiff that failure to comply with the orders would result
in involuntary dismissal of his claims. (See Docs. 22, 24).
To date, Plaintiff has (1) provided no explanation for his
failure to attend the scheduled depositions, and (2) failed
to comply with the Court's orders to respond to
Defendant's motions. Further, Plaintiffs former
counsel's notice of withdrawal indicates that Plaintiffs
repeated failure to attend scheduled depositions can be
attributed to Plaintiffs own "unwillingness to
participate" in his own case. (See Doc. 21-1).
Plaintiffs noncompliance with this Court's orders,
despite being warned multiple times that such failure would
result in dismissal, demonstrates a complete disregard for
Court orders sufficient to warrant dismissing Plaintiffs
Court further finds that the best interests of justice
require the involuntary dismissal of Plaintiffs claims
against Defendant. Plaintiffs repeated disregard for the
Court merits dismissal of his claims at this point, after
repeated warnings and additional efforts on the part of
Defendant to accommodate him for prosecution of the case.
Accordingly, Defendant's Motion to Dismiss is GRANTED,
and Plaintiffs claims against Defendant are DISMISSED with
prejudice, for Plaintiffs contumacious failure to comply with
this Court's orders.
RECOVERY OF ATTORNEYS' FEES AND OTHER EXPENSES
also requests reasonable expenses and attorneys' fees
under Rule 37(d)(3), which were incurred as a result of
Plaintiffs failure to appear at several scheduled
depositions. Federal Rule of Civil Procedure
("Rule") 37(d) authorizes the imposition of
sanctions in the form of attorney's fees and costs for a
party's failure to attend his own deposition "unless
such failure was substantially justified or other
circumstances make an award of expenses unjust."
Fed.R.Civ.P. 37(d)(3). It is undisputed that Plaintiff did
not attend any of the three scheduled depositions, and that
this failure is covered by Rule 37(d)(3). Therefore, Rule
37(d) applies, and the Court must determine whether
Plaintiffs conduct was substantially justified or whether an
award of expenses would be unjust.
Plaintiff nor Plaintiffs previous counsel have provided a
reasonable explanation for Plaintiffs failure to attend the
depositions. In fact, Plaintiffs former counsel has indicated
that such failure likely stemmed from Plaintiffs lack of
interest in pursuing his claims against Defendant. (See Doc.
Cite). As such, the Court finds that Plaintiffs failure to
attend three previously scheduled depositions constitutes
conduct warranting the imposition of sanctions, and
Defendant's Motion to Recover Fees and Costs (Doc. 19) is
GRANTED to the extent Defendant seeks an award of reasonable
attorneys' fees and expenses resulting from Plaintiffs
failure to attend his deposition.
supports its request for attorney's fees with affidavits
and billing records showing that they incurred a total of $6,
168.00 in attorney's fees for work done in preparation of
Plaintiffs depositions. Generally, work that was
"necessarily performed" by an attorney in
preparation of a deposition and that "remains useful in
connection" with any rescheduled deposition is not
compensable under Rule 37(d)(3). Richardson v. BNSF
Railway Co., 2014 WL 5317866, at *3 (E.D. La. Oct. 16,
2014) (holding that plaintiffs could not recover for time
spent preparing for defendant's cancelled deposition
because that work was "necessarily performed and remains
useful in connection with the rescheduled [deposition],
despite the cancellation"); Hudson v. L&W Supply
Corp., 2009 WL 1941498, at *4 (S.D. Tex. July 2, 2009)
(plaintiff was not entitled to attorney's fees incurred
in preparation of unattended deposition because that work
would be useful if the deposition were re-noticed). However,
courts have awarded attorney's fees incurred for
last-minute preparation and review done just before the
scheduled but unattended deposition. In making this
distinction, courts have recognized that a diligent attorney
would reasonably "review deposition questions and
strategy" for a second time just before any rescheduled