United States District Court, M.D. Louisiana
OSCAR VALLE, ET AL.
BEAURAYNE BUILDERS, LLC, ET AL.
RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE
take notice that the attached Magistrate Judge's Report
has been filed with the Clerk of the United States District
accordance with 28 U.S.C. § 636(b)(1), you have fourteen
(14) days after being served with the attached Report to file
written objections to the proposed findings of fact,
conclusions of law and recommendations therein. Failure to
file written objections to the proposed findings,
conclusions, and recommendations within 14 days after being
served will bar you, except upon grounds of plain error, from
attacking on appeal the unobjected-to proposed factual
findings and legal conclusions of the Magistrate Judge which
have been accepted by the District Court.
NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN
OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.
JUDGE'S REPORT AND RECOMMENDATION
the Court is Beaurayne Builders, LLC's
(“Beaurayne”) Motion for Sanctions. (R. Doc. 90).
The deadline for filing an opposition has expired. LR 7(f).
Accordingly, the motion is unopposed.
11, 2019, Beaurayne filed a Motion to Compel seeking an order
compelling the plaintiffs Orbin Antunez
(“Antunez”) and Edwin Mendoza
(“Mendoza”) to respond to Interrogatories and
Requests for Production served on August 22, 2018. (R. Doc.
87). In support of its Motion to Compel, Beaurayne submitted
a Rule 37(a)(1) certificate in which its counsel certified
“that they have in good faith conferred with
plaintiffs' counsel regarding the plaintiffs' failure
to respond to written discovery in an effort to obtain same
without court action. Plaintiffs, however, have still failed
to respond to written discovery.” (R. Doc. 87 at 2). In
its supporting memorandum, Braurayne further submitted that
its “counsel has repeatedly conferred with counsel for
plaintiffs regarding the outstanding discovery responses.
According to counsel for plaintiffs, Antunez and Mendoza have
been unresponsive to his repeated requests to have them
complete their discovery responses, and Antunez and Mendoza
are no longer actively participating in the
litigation.” (R. Doc. 87-1 at 1).
August 7, 2019, after providing Antunez and Mendoza an
opportunity to respond, the Court granted the unopposed
Motion to Compel and ordered Antunez and Mendoza to provide
responses to Beaurayne's Interrogatories and Requests for
Production within 14 days of the date of the Order. (R. Doc.
89). The Court informed Antunez and Mendoza that failure to
comply with the foregoing discovery order would subject them
to sanctions under Rule 37(b)(2), including dismissal of
their claims with prejudice, if any such sanctions were
sought by separate motion.
August 23, 2019, Beaurayne filed the instant Motion for
Sanctions. (R. Doc. 90). Beaurayne now represents that
Antunez and Mendoza failed to provide discovery responses
within the time ordered by the Court. (R. Doc. 90 at 2). As
stated above, Antunez and Mendoza did not file an opposition.
party fails to obey a discovery order, the court may issue a
further just order, including “dismissing the action or
proceeding in whole or in part.” Fed.R.Civ.P.
37(b)(2)(A)(v). The sanction of dismissal for failure to
comply with a court order “should be exercised only in
exceptional circumstances.” In re Liquid Carbonic
Truck Drivers Chem. Poisoning Litig. M.D.L. Docket No.
252, 580 F.2d 819, 822 (5th Cir. 1978). Dismissal with
prejudice may be ordered as a sanction for violating a
discovery order only when the following conditions (known as
the Conner factors) are met: “(1) the refusal
to comply results from willfulness or bad faith and is
accompanied by a clear record of delay or contumacious
conduct; (2) the violation of the discovery order must be
attributable to the client instead of the attorney[;] (3) the
violating party's misconduct must substantially prejudice
the opposing party; and (4) a less drastic sanction would not
substantially achieve the desired deterrent effect.”
Moore v. CITGO Ref. & Chemicals Co., L.P., 735
F.3d 309, 316 (5th Cir. 2013) (internal quotation marks
omitted); see F.D.I.C. v. Conner, 20 F.3d 1376,
1380-81 (5th Cir. 1994). Furthermore, the court “must
order the disobedient party, the attorney advising that
party, or both to pay the reasonable expenses, including
attorney's fees, caused by the failure, unless the
failure was substantially justified or other circumstances
make an award of expenses of unjust.” Fed.R.Civ.P.
and Mendoza have failed to comply with a discovery order and
the violation has substantially prejudiced Beaurayne in
defending this action, as discovery closed on July 31, 2019.
(R. Doc. 73 at 2). It appears that the discovery violation is
attributable to the individual plaintiffs, although
Plaintiffs' counsel have not filed any representations
into the record with regard to Antunez and Mendoza's
non-responsiveness. Given that the record indicates that
Antunez and Mendoza have abandoned their claims in this
action, the Court finds it appropriate to dismiss their
claims brought against Beaurayne.
with prejudice, however, “is a severe sanction that
deprives a litigant of the opportunity to pursue his
claim” and is only appropriate where “lesser
sanctions would not serve the best interests of
justice.” Brown v. Oil States Skagit Smatco,
664 F.3d 71, 77 (5th Cir. 2011). Having considered the
record, including the lack of representations by
Plaintiff's counsel with regard to Antunez and
Mendoza's non-responsiveness, the Court concludes that
dismissal without prejudice would serve the bests interests
of justice. See Marshall v. Louisiana, No. 15-1128,
2017 WL 90655, at *6 (E.D. La. Jan. 10, 2017) (dismissing
claims of non-responding opt-in plaintiffs in collective
action without prejudice). Furthermore the Court concludes
that an award of expenses would be unjust given the dismissal
of these plaintiffs' claims, albeit without prejudice.
on the foregoing, IT IS RECOMMENDED that
Beaurayne's Motion for Sanctions (R. Doc. 90) be
GRANTED IN PART and DENIED IN PART, that the
claims of Orbin Antunez and Edwin Mendoza brought against
Beaurayne Builders, LLC be DISMISSED WITHOUT