IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 98-31401
Summary Calendar
____________________
NELSON ROY JR
Plaintiff - Appellant
v.
ADM GROW MARK; DAVID A BURGBACHER; FREDDIE J BERGERON
Defendants - Appellees
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
No. 98-CV-988-K
_________________________________________________________________
March 22, 2000
Before KING, Chief Judge, and HIGGINBOTHAM and STEWART, Circuit
Judges.
PER CURIAM:*
Plaintiff - Appellant Nelson Roy (“Roy”) appeals the
district court’s dismissal of his employment discrimination case
against Defendants - Appellees ADM Grow Mark, David Burgbacher,
and Freddie Bergeron (“ADM”). Pursuant to its authority under
Rule 37(b)(2)(C) of the Federal Rules of Civil Procedure, the
district court dismissed Roy’s suit with prejudice because he
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
1
failed to comply with the court’s discovery order. Finding that
the district court did not abuse its discretion, we affirm.
I.
On March 30, 1998, Roy filed suit in district court against
ADM, his former employer, alleging that his dismissal from
employment was based upon race discrimination in violation of
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et
seq. With his complaint, Roy also filed an application to
proceed in forma pauperis. His application was denied because
the magistrate judge found that he was able to pay the filing
fee. On April 28, 1998, Roy filed an Application for Appointment
of Attorney Pursuant to 42 U.S.C. § 2000e-5(f)(1). This
application was denied as well, because the magistrate judge
found that “[p]etitioner has not made sufficient effort to obtain
counsel. Further, petitioner was hired by the same people who
terminated him, giving rise to the implication that
discrimination is not present.” Roy’s objection to this ruling
was untimely.
Following this denial, a preliminary conference was held on
July 22, 1998, which Roy failed to attend. ADM filed a Motion to
Dismiss, to which Roy responded with a Motion to Stay
Proceedings. Roy argued that no action should be taken until the
district court ruled on his appeal from the magistrate judge’s
order denying him counsel. ADM argued that Roy was not entitled
to reconsideration of that order because his objection was
untimely. The magistrate judge granted ADM’s Motion to Dismiss as
2
to the individual defendants, Davis Burgbacher and Freddie
Bergeron, but denied it as to the entity, ADM Grow Mark. The
magistrate judge did not rule on Roy’s Motion to Stay.
On September 21, 1998, ADM filed a Notice of Deposition
scheduling Roy’s deposition for October 6 at 10 a.m. ADM mailed
Roy a copy of the notice with a letter advising him that if he
had scheduling conflicts to notify ADM immediately; otherwise,
ADM would expect him to appear as scheduled. Roy failed to
appear for his deposition. ADM’s counsel left a message at Roy’s
home to contact her immediately, for a motion to dismiss might be
filed for his failure to attend. Roy did not return the call.
The following day, however, ADM’s counsel received a letter from
Roy indicating that he was unable to attend the deposition
because he had taken a new job and was working the night shift
seven days a week.
ADM filed a Motion to Compel Plaintiff to Appear for
Deposition and for Sanctions Pursuant to Rule 37(d). Roy
objected, stating this time that he did not know that he had to
attend the deposition because he was under the impression that,
until the court ruled on his Motion to Stay, a stay was
automatically in effect. Further, he claimed that he did not
receive the voice mail from ADM’s counsel because his phone was
broken, that his 7:00 p.m - 5:35 a.m. work schedule made it
unsafe for him to drive to a deposition at 10:00 a.m., that ADM
had failed to state “a proper motive for the deposition,” and
that being deposed in the offices of a law firm was unfair
3
because he was proceeding pro se and feared being taken advantage
of.
ADM also filed a Motion to Extend Time to Supplement Witness
and Exhibit List because the trial date was approaching and it
had still not deposed Roy. Roy objected, stating that “if
Defense Counselor would not have wasted so much time with her
viscouse [sic] and vain attempts to have this case dismissed ...
Defense Counselor could have filed discovery and gained
everything she thought or think [sic] she may need for her
Witness and Exhibit list.” Subsequently, Roy filed his own
Motion to Compel and Motion to Extend Time to Submit Witness
List.
On October 28, 1998, the magistrate judge conducted a
hearing on ADM’s motions. She specifically advised Roy that “the
mere filing of a motion to stay does not operate to halt this
proceeding or to otherwise relieve him of the obligations imposed
by the Federal Rules of Civil Procedure, including the obligation
to appear for a duly-noticed deposition.” Roy argued that ADM
should conduct discovery the same way he was conducting discovery
- through document requests and interrogatories. The magistrate
judge informed Roy that ADM had a right to depose him, and she
granted ADM’s Motion to Compel. She held its Motion for
Sanctions in abeyance, however, pending the conclusion of Roy’s
deposition. ADM’s deadline to supplement its witness and exhibit
list was extended to one week following the conclusion of Roy’s
deposition.
4
Roy was to be deposed at 2:00 p.m. on October 30. He
arrived thirty minutes late and, by 7:00 p.m., his deposition was
not yet completed. The court ordered that the deposition be
reconvened at 10:00 a.m. on November 13. Also on November 13,
the court scheduled hearings on Roy’s Motion to Compel and Motion
to Extend Time to Submit Witness List.
On November 10, Roy filed another Motion to Stay requesting
that all proceedings in this case, including the reconvening of
his deposition, be stayed pending the court’s rulings on various
matters. Specifically, Roy contended inter alia that his
original notice of deposition was improper because it did not
state with specificity the testimony sought to be elicited. On
November 13, before the Motion to Stay was ruled upon, Roy failed
to appear for either the recommencement of his deposition or for
argument of his own motions. A proces verbal was taken before
the court, and the two motions scheduled to be heard were
dismissed for Roy’s failure to appear. Roy eventually arrived at
2:25 p.m., some four-and-a-half hours late, and explained that he
had encountered transportation difficulties.
The magistrate judge entered a Report and Recommendation
recommending that Roy’s case be dismissed with prejudice pursuant
to Rules 37(b)(2)(C) and 41(b).1 The magistrate judge noted
1
The magistrate based the decision to dismiss on both Rule
37(b)(2)(C), which allows the court to dismiss for failure to
comply with a discovery order, and 41(b) which allows the court
to dismiss for failure to prosecute. Finding adequate grounds
for dismissal under Rule 37(b), we need not consider whether
dismissal under Rule 41(b) was appropriate.
5
Roy’s failure to attend the preliminary scheduling conference,
his failure to attend the October 6 deposition, her specific
warning that filing a motion to stay does not allow him to shirk
his obligations under the Federal Rules, his tardiness at the
October 30 deposition, and his failure to attend both the
reconvening of his deposition and the hearing on motions he
himself had filed. She then concluded:
As plaintiff is unrepresented by counsel, these
failures are attributable to him alone. Trial is less
than two months away and the expense and prejudice to
defendant continues. Despite the Court’s
admonishments, plaintiff has failed to present himself
for the completion of his deposition in a timely
fashion. This contumacious conduct cannot be
countenanced.
Roy filed a timely objection to the magistrate judge’s
Report and Recommendation arguing that the notice of deposition
was improper, that allowing a deposition to be taken was an abuse
of discretion, and that the magistrate judge should be removed
because she was biased against him. The district court found
that Roy’s objections were without merit. It adopted the
magistrate judge’s Report and Recommendation, commenting that
“plaintiff has chosen to sue defendants; he cannot now deny
defendants the right to defend themselves.” Roy now appeals.
II.
Under Rule 37(d), a party refusing to attend his own
deposition can be sanctioned under Rule 37(b). Among the
sanctions available to a district court under Rule 37(b) is
dismissal of the action with prejudice. Although our task in
reviewing a sanction imposed under Rule 37(b) is to determine
6
whether the district court abused its discretion in ordering the
sanction, we have noted that a district judge should use the
draconian remedy of dismissal with prejudice only in extreme
circumstances. See Griffin v. Aluminum Co. of America, 564 F.2d
1171, 1172 (5th Cir. 1977). “Deliberate, repeated refusals to
comply with discovery orders have been held to justify the use of
this ultimate sanction.” Bonaventure v. Butler, 593 F.2d 625,
626 (5th Cir. 1979) (dismissal affirmed where plaintiff three
times refused to appear for a deposition); see also Jones v.
Louisiana State Bar Ass’n, 602 F.2d 94 (5th Cir. 1979) (dismissal
where plaintiff deliberately refused two orders to produce
recordings and documents he possessed); Emerick v. Fenick
Industries, Inc., 539 F.2d 1379 (5th Cir. 1976) (default entered
were defendant ignored three orders to produce documents).
In determining whether a district court abused its
discretion, our precedent has addressed a number of
considerations. First, dismissal is authorized only when the
failure to comply with the court’s order is due to willfulness,
bad faith, or any fault of the petitioner. See National Hockey
League v. Metropolitan Hockey Club, 427 U.S. 639, 640 (1976); see
also Batson v. Neal Spelce Assocs., 765 F.2d 511, 514 (5th Cir.
1985). Dismissal is inappropriate when a failure to comply
results from an inability to comply, such as where requested
information is not yet available or no longer exists. See
Marshall v. Segona, 621 F.2d 763, 768 (5th Cir. 1980); Dorsey v.
Academy Moving & Storage, Inc., 423 F.2d 858, 860 (5th Cir.
7
1970). Next, dismissal is proper only in situations where the
deterrent value of Rule 37 cannot be achieved by the use of less
drastic sanctions. See Batson, 765 F.2d at 514. We also
consider whether the other party’s preparation for trial was
substantially prejudiced. See id. Finally, dismissal may be
inappropriate when neglect is attributable to an attorney rather
than a blameless client, or when a party’s simple negligence is
grounded in confusion or sincere misunderstanding of the court’s
orders. See id.; Silas v. Sears, Roebuck & Co., 586 F.2d 382,
385 (5th Cir. 1978).
Roy makes two arguments on appeal. First, he contends that
the dismissal of his suit with prejudice for failure to attend
his deposition was improper because he should not have been
forced to submit to a deposition. Being deposed, Roy claims, is
burdensome, unreasonable, and an abuse of discovery under Rule
26. According to Roy, ADM could obtain the same information
using interrogatories, which would be more convenient for him and
less expensive. ADM chose to depose him, Roy asserts, to take
advantage of the fatigue his work schedule caused and the
difficulties he had been having finding transportation. This
contention is without merit.
Rule 26(b) is designed to encourage district judges to
identify instances of redundant or disproportionate discovery and
to limit the use of various discovery devices accordingly.
Permitting a defendant to depose a plaintiff is hardly the abuse
of discovery that Rule 26(b) contemplates.
8
Next, Roy argues that his failure to attend the preliminary
conference and to complete his deposition was not a product of
willfulness or bad faith; rather, his absences and delays were a
consequence of his ignorance of the law and his transportation
problems. We are mindful of the Supreme Court’s admonition
regarding the natural tendency of reviewing courts, employing
hindsight, to be heavily influenced by the severity of outright
dismissal of an action as a discovery sanction. See National
Hockey League, 427 U.S. at 642. As such, we find no abuse of
discretion in the district court’s refusal to accept Roy’s
proffered explanations.
There is sufficient evidence in the record to conclude that
Roy’s failure to comply with the court’s discovery order was due
to negligence and gross indifference to the rights of ADM, not to
an inability to comply. Furthermore, the evidence suggests that
the imposition of a sanction less drastic than dismissal would
have been futile. Roy did not attend the October 6 deposition
and failed to notify ADM prior to the deposition that he would
not appear. He offered conflicting excuses for his absence.
First, he sent ADM a letter saying he was unable to attend
because of his work schedule. In later documents filed with the
court, Roy claimed not to have known he had to attend. He was
then given ample warning that the court would not tolerate
discovery abuses, and, during the hearing on ADM’s Motion to
Compel and for Sanctions, he was put on notice that his failure
to comply could result in dismissal. The magistrate judge
9
forgave his initial lapses, explained that he was required to
attend duly-noticed depositions, and delayed the imposition of
sanctions to give him the chance to comply with the court’s
discovery order.
Roy failed to comply, citing as his excuse an inability to
find a ride to the bus. He had two weeks, however, to find
transportation to the deposition at the agreed upon time, and he
offered no explanation for why he did not notify the court that
he was having difficulty getting to his deposition. Again,
counsel for ADM had prepared for Roy’s deposition and, together
with the magistrate judge and a court reporter, was left waiting
for Roy’s arrival. Given Roy’s continued resistence to being
deposed and his accusations of ADM’s malice in wanting to depose
him, it was not an abuse of discretion for the district court to
dismiss his suit with prejudice. See Bluitt v. Arco Chem. Co.,
777 F.2d 188, 191 (5th Cir. 1985) (affirming the dismissal of a
case where the district court found that the plaintiff’s failure
to obey discovery orders and heed warnings that dismissal could
occur showed that a sanction less than dismissal would have been
futile).2
III.
2
In addition to evidence of bad faith and the futility of a
lesser sanction, there is also sufficient evidence in the record
to satisfy our other considerations: Roy’s resistence to the
taking of his deposition prejudiced ADM’s ability to mount a
defense against him; his failure to comply with the discovery
order was attributable to him alone; and, having been
specifically advised by the magistrate judge that his attendance
was required, his neglect cannot be said to be grounded in
confusion.
10
For the foregoing reasons, the judgment of the district
court is AFFIRMED.
11