United States District Court, W.D. Louisiana, Monroe Division
NELCINA MOORE ET AL.
SPIRIT COMMERCIAL R R GROUP ET AL.
G. JAMES, JUDGE.
REPORT AND RECOMMENDATION
L. HAYES, UNITED STATES MAGISTRATE.
the undersigned Magistrate Judge, on reference from the
District Court, is an unopposed motion to dismiss for failure to
comply with discovery order [doc #27] filed by Defendants
Spirit Commercial Auto Risk Retention Group, Inc.
(“Spirit”) and Eduard Sirbu.After considering
the motion and the record as a whole, the undersigned
recommends that the motion be granted, and that the case be
March 31, 2017, Defendants served Plaintiffs Nelcina Moore
and Lessel Foster with a First Set of Interrogatories and
Requests for Production. [doc. #24, Exh. A]. On March 22,
2017, Defendants served Plaintiffs with a Second Set of
Interrogatories and Requests for Production. Id.
Exh. B. Defendants scheduled a discovery conference for May
17, 2017, at which time Plaintiffs promised responses by May
26, 2017. Id. at 2; Exh. C. Plaintiffs failed to
respond to Defendants' discovery requests and Defendants
filed a motion to compel [doc #24] on June 12, 2017.
did not respond to the motion to compel. On July 11, 2017,
the court entered an order granting the motion to compel and
directing Plaintiffs to respond to Defendants' discovery
requests within 15 days of the order and to pay
Defendants' attorneys' fees of $500.00.
August 10, 2017, Defendants filed the instant motion to
dismiss. Defendants assert that Plaintiffs have neither paid
Defendants $500.00 nor responded to their discovery requests.
Defendants request entry of an order dismissing this case
pursuant to Rule 37(b)(2)(A)(v). Plaintiffs did not respond
to the motion to dismiss. Plaintiffs have failed to provide
any justification for failing to so respond, and have not
formally sought an extension of time in which to do so.
Rule of Civil Procedure 37(b)(2) provides that when "a
party . . . fails to obey an order to provide or permit
discovery, including an order under Rule 26(f), 35, or 37(a),
the court where the action is pending may issue further just
orders." Such further just orders include an order
"dismissing the action or proceeding in whole or in
part." Fed.R.Civ.P. 37(b)(2)(A)(v). The sanction of
dismissal pursuant to Rule 37 "must be available to the
district court in appropriate cases, not merely to penalize
those whose conduct may be deemed to warrant such a sanction,
but to deter those who might be tempted to such conduct in
the absence of such a deterrent." Nat'l Hockey
League v. Metro. Hockey Club, Inc., 427 U.S. 639, 643
extent that the applicable statute of limitations may bar
plaintiffs from re-filing the instant suit, then dismissal at
this juncture effectively will constitute dismissal
"with prejudice, " - "an extreme sanction that
deprives the litigant of the opportunity to pursue his
claim." Berry v. CIGNA/RSI-CIGNA, 975 F.2d
1188, 1190 (5th Cir. 1992) (internal quotations omitted).
"A district court's dismissal with prejudice is
warranted only where a clear record of delay or contumacious
conduct by the plaintiff exists and a lessor sanction would
not better serve the interests of justice." Millan
v. USAA Gen. Indem. Co., 546 F.3d 321, 326 (5th Cir.
2008) (quoting Gray v. Fid. Acceptance Corp., 634
F.2d 226, 227 (5th Cir. 1981) and Brown v. Thompson,
430 F.2d 1214, 1216 (5th Cir. 1970)) (internal quotations
omitted). Because dismissal is a serious sanction that
implicates due process, see e.g. FDIC v. Conner, 20
F.3d 137G, 1380 (5th Cir. 1994), "‘[t]he
imposition of a sanction without a prior warning is generally
to be avoided.'" Mendoza v. Lynaugh, 989
F.2d 191, 195 (5th Cir. 1993) (quoting Moody v.
Baker, 857 F.2d 256, 258 (5th Cir. 1988)).
the U.S. Court of Appeals for the Fifth Circuit has noted
that, where it has affirmed dismissals with prejudice,
"‘it has generally found at least one of the three
aggravating factors: (1) delay caused by [the] plantiff
himself and not his attorney; (2) actual prejudice to the
defendant; or (3) delay caused by intentional
conduct.'" Millan, 546 F.3d at 326 (quoting
Price v. McGlathery, 792 F.2d 472, 474 (5th Cir.
the circumstances of this case, the undersigned concludes
that Plaintiffs' case should be dismissed. As discussed
above, Plaintiffs have failed to cooperate in discovery,
ignored the court's orders to provide discovery and pay
attorneys' fees, and failed to provide any reasonable
justification for their actions. In so doing, they have
prejudiced Defendants' ability to defend against their
allegations. Since Plaintiffs have previously ignored the
court's order directing payment of attorney fees, it is
unlikely that an alternative monetary sanction would elicit
their participation. Moreover, dismissal may be the least
sanction where, as here, there is every indication that
Plaintiffs no longer wish to pursue their cause of
addition, Plaintiffs' counsel is hereby ORDERED to
provide his clients with a copy of this report and
recommendation forthwith, so plaintiffs will be undisputedly
personally aware of the recommended dismissal of their case
for failure to comply with court order(s).
foregoing reasons, IT IS RECOMMENDED that Defendants'
motion to dismiss be GRANTED and plaintiffs' complaint be
DISMISSED in ...