Case: 13-30070 Document: 00512484703 Page: 1 Date Filed: 12/30/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 13-30070 c/w Nos. 13-31010 & 13-31019 December 30, 2013
Summary Calendar
Lyle W. Cayce
Clerk
NAOMI SANDRES,
Plaintiff–Appellant,
v.
STATE OF LOUISIANA DIVISION OF ADMINISTRATION, OFFICE OF
RISK MANAGEMENT,
Defendant–Appellee.
Appeals from the United States District Court
for the Middle District of Louisiana
USDC Nos. 3:07-CV-375; 3:08-CV-145; 3:08-CV-524; 3:08-CV-563
Before WIENER, OWEN, and HAYNES, Circuit Judges.
PER CURIAM:*
Plaintiff–Appellant Naomi Sandres appeals the district court’s dismissal
with prejudice of her claims against the Louisiana Division of Administration,
Office of Risk Management (ORM) pursuant to Federal Rule of Civil Procedure
37. We affirm.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 13-30070 Document: 00512484703 Page: 2 Date Filed: 12/30/2013
No. 13-30070 c/w 13-31010 & 13-31019
I
Between 2007 and 2008, Sandres, acting pro se, filed four lawsuits
against ORM alleging racial discrimination, age discrimination, and
retaliation. 1 On August 4, 2008, ORM gave notice to Sandres that it had
scheduled her deposition for one of the cases on August 20. Sandres moved to
quash the deposition, which the magistrate judge denied. Nonetheless,
Sandres failed to appear for the deposition. ORM thereafter moved to dismiss
Sandres’s action pursuant to Federal Rule of Civil Procedure 37. The
magistrate judge denied the motion, reasoning that the record did not clearly
demonstrate that Sandres had been warned that her action could be dismissed
if she failed to appear at the deposition.
Shortly after the magistrate judge’s denial, ORM sent Sandres a letter
stating the need to schedule her deposition for one of the other suits she had
filed against the defendant and listing eight possible dates and times. Sandres
agreed to participate in the deposition on a different date than those listed.
However, she would not agree on a location where the deposition would be
conducted. Sandres subsequently informed ORM that she could not be deposed
on the selected date and would need to reschedule for the following year. The
district court thereafter granted ORM’s motion to compel the deposition and
cautioned Sandres that she would be sanctioned if she refused to be deposed
within thirty days. Sandres then participated in the deposition for that case.
In September 2011, the district court consolidated the four actions
Sandres had filed against ORM, finding that they presented “common
1These are not the first lawsuits Sandres has filed against the State of Louisiana. It
appears that, since 2001, she has filed at least eight lawsuits against the State alleging
various causes of action. None of these lawsuits has resulted in a favorable outcome for
Sandres, and this court has previously sanctioned Sandres for filing multiple frivolous
appeals. See Sandres v. State Office of Gen. Counsel, 202 F. App’x 809, 810 (5th Cir. 2006).
2
Case: 13-30070 Document: 00512484703 Page: 3 Date Filed: 12/30/2013
No. 13-30070 c/w 13-31010 & 13-31019
questions of law and fact arising out of plaintiff’s previous employment with
defendant.” Sandres appealed the consolidation order, even though this court
had previously admonished her that we generally do not have jurisdiction over
non-final orders and that continued attempts to appeal such orders would
result in sanctions. 2 This court dismissed that appeal but did not impose
sanctions.
Nine months after it had consolidated the cases, the magistrate judge
informed the parties that it would hold a conference call on June 12 in order to
“enter a scheduling order for the completion of discovery on the plaintiffs’ [sic]
remaining claims.” During the ensuing conference, in which Sandres failed to
participate without explanation, the magistrate judge determined that
“[s]ubstantial discovery ha[d] been done, and what remain[ed was] primarily
taking the plaintiff’s deposition.” Accordingly, the magistrate judge ordered
that all remaining discovery be completed by September 14, 2012. ORM
thereafter gave Sandres twelve different dates in the month of June during
which it could complete the deposition. Sandres responded that she was not
available during any of those twelve dates and that her earliest available time
was the week of August 13. ORM then scheduled the deposition for August 14
at 9:30 am. Sandres subsequently sent ORM a letter stating that she could not
attend the deposition on August 14 because of “finances and transportation
problems” and requested that the deposition be rescheduled to August 27 or
August 31. ORM agreed to conduct the deposition on August 27. Sandres then
cancelled the deposition once again, claiming that she did not have the funds
to attend her deposition.
ORM then moved to dismiss Sandres’s claims pursuant to Rule 37. The
magistrate judge denied the motion. Although the judge held that “[n]either
2 Sandres v. State Office of Gen. Counsel, 137 F. App’x 676, 676 (5th Cir. 2005).
3
Case: 13-30070 Document: 00512484703 Page: 4 Date Filed: 12/30/2013
No. 13-30070 c/w 13-31010 & 13-31019
the plaintiff’s failure to appear for her deposition noticed on August 27, 2012,
nor her opposition to [ORM’s] motion, was substantially justified,” he found
that dismissal was “not warranted at this time.” Instead, the magistrate judge
awarded ORM “its reasonable expenses of $500.00” and gave Sandres “one
final opportunity to appear for a deposition.” The judge specifically
admonished Sandres in bold text that “Plaintiff’s failure to appear for this
deposition may—and likely will—result in dismissal of her remaining
claims.” The district court also cautioned Sandres “to comply with the orders
of the magistrate judge relative to appearing for her deposition . . . or these
consolidated matters will be dismissed.”
ORM thereafter noticed Sandres’s deposition for November 7, 2012.
Sandres received that notice on October 27, 2012, but failed to attend yet again.
Nonetheless, on October 31, she appealed a separate order of the district court.
That order affirmed the magistrate judge’s denials of Sandres’s motions to
compel the production of certain information and documents and to extend the
time for discovery. Before this court addressed Sandres’s appeal of that order,
the district court, on ORM’s motion, dismissed all of Sandres’s remaining
claims against ORM pursuant to Rule 37. The district court recognized that it
generally could not “alter the status of the case as it rests before the Court of
Appeals.” Nonetheless, it reasoned that it had jurisdiction to rule on the Rule
37 motion because the issues it presented were unrelated to the issues on
appeal then before this court.
On March 6, 2013, we dismissed Sandres’s appeal of the district court’s
unrelated discovery order on jurisdictional grounds. We noted that “Sandres
has a history of filing frivolous litigation in this court” and that we “cannot
tolerate such abuse of the judicial system.” Accordingly, we admonished her
that the continued filing of frivolous appeals “will result in sanctions, including
4
Case: 13-30070 Document: 00512484703 Page: 5 Date Filed: 12/30/2013
No. 13-30070 c/w 13-31010 & 13-31019
possibly monetary sanctions and restrictions on filing in this court and the
district courts in this circuit.”
Now before this court is Sandres’s appeal of the district court’s dismissal
of her claims pursuant to Rule 37.
II
Before reaching the merits of Sandres’s appeal, we must determine
whether the district court had jurisdiction to rule on ORM’s motion to dismiss. 3
We review such jurisdictional questions de novo. 4
In general, “‘[t]he filing of a notice of appeal is an event of jurisdictional
significance—it confers jurisdiction on the court of appeals and divests the
district court of its control over those aspects of the case involved in the
appeal.’” 5 However, “the district court may still proceed with matters not
involved in the appeal,” even if consideration of those matters results in the
disposition of the case. 6 We have held that an issue before the district court is
“only an ‘aspect[] of the case involved in the appeal’ if the appeal and the claims
before the district court address the same legal question.” 7
3 See Giannokos v. M/V Bravo Trader, 762 F.2d 1295, 1297 (5th Cir. 1985) (“United
States District Courts and Courts of Appeals have the responsibility to consider the question
of subject matter jurisdiction sua sponte if it is not raised by the parties and to dismiss any
action if such jurisdiction is lacking.”); see also FED. R. CIV. P. 12(h)(3) (“If the court
determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the
action.”)
4 Wagner v. United States, 545 F.3d 298, 300 (5th Cir. 2008).
5 Alaska Elec. Pension Fund v. Flowserve Corp., 572 F.3d 221, 233 (5th Cir. 2009)
(quoting Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982)).
6 Id. (internal quotation marks omitted); see also Clower v. Wells Fargo Bank, N.A.,
381 F. App’x 450, 452 (5th Cir. 2010) (“We do not doubt that the district court had authority
to proceed with matters not involved in the appeal and therefore to dismiss the complaint . .
. .”) (internal quotation marks omitted).
7 Weingarten Realty Investors v. Miller, 661 F.3d 904, 909 (5th Cir. 2011) (quoting
Griggs, 459 U.S. at 58).
5
Case: 13-30070 Document: 00512484703 Page: 6 Date Filed: 12/30/2013
No. 13-30070 c/w 13-31010 & 13-31019
We agree with the district court that it had jurisdiction to dismiss
Sandres’s claims pursuant to Rule 37. The issue before the district court was
not an aspect of the case involved in the appeal before this court. Sandres’s
appeal concerned whether the district court erred in affirming the magistrate
judge’s orders denying her extended discovery. That question is unrelated to
whether a litigant’s persistent refusal to submit to a deposition merits a
dismissal of her claim. Resolving ORM’s motion did not cause the district court
to resolve the same question that was before this court. Thus, the district court
had jurisdiction over ORM’s motion to dismiss.
III
We next consider the merits of the district court’s dismissal. We review
a district court’s dismissal of an action pursuant to Federal Rule of Procedure
37 for abuse of discretion. 8 “[S]uch discretion will not be disturbed ordinarily
unless there are unusual circumstances showing a clear abuse.” 9 Even if we
would not have ordered dismissal, we must affirm the district court’s order
unless it made a legal error or a clearly erroneous factual finding. 10
Rule 37 provides that “[i]f a party . . . fails to obey an order to provide or
permit discovery . . . the court where the action is pending may issue further
just orders,” including “dismissing the action or proceeding in whole or in
part.” 11 A separate provision of the Rule further states that if “a party . . . fails,
after being served with proper notice, to appear for that person’s deposition,”
the “court where the action is pending may, on motion, order sanctions,”
8 Moore v. CITGO Ref. & Chems. Co., 735 F.3d 309, 316 (5th Cir. 2013).
9Id. at 315 (quoting Kelly v. Syria Shell Petroleum Dev. B.V., 213 F.3d 841, 855 (5th
Cir. 2000)).
10 Id.
11 FED. R. CIV. P. 37(b)(2)(A)(v).
6
Case: 13-30070 Document: 00512484703 Page: 7 Date Filed: 12/30/2013
No. 13-30070 c/w 13-31010 & 13-31019
including dismissing the offender’s action. 12 Under our precedent, several
“Conner factors” must be present before a district court may dismiss an action
under Rule 37:
(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. 13
Sandres does not argue that any of these factors are absent in this case,
and indeed, each is amply present. Over the course of four years, Sandres was
ordered multiple times to attend a deposition and was specifically warned that
a failure to attend would result in a dismissal. Despite these warnings,
Sandres repeatedly failed to attend. Although she occasionally sought to
excuse her prior failures to attend by claiming financial hardship at the last
minute, she did not make such an excuse for her most recent failure.
According to the district court’s findings, Sandres did not offer any explanation
for her failure to attend or suggest to ORM alternative times. The district court
did not clearly err in finding that Sandres’s failure to attend was the result of
intentional conduct.
Moreover, over the course of four years, Sandres has consistently refused
to cooperate with either the district court or ORM. She refused to accept any
of the many dates ORM gave for her deposition and, even when a date was
selected, she refused to agree upon a location. She additionally failed to
participate in an important scheduling conference call without explanation.
12 FED. R. CIV. P. 37(d).
13 Moore, 735 F.3d at 316 (internal quotation marks omitted).
7
Case: 13-30070 Document: 00512484703 Page: 8 Date Filed: 12/30/2013
No. 13-30070 c/w 13-31010 & 13-31019
Nonetheless, she vigorously continued to seek the discovery she desired, filing
a multitude of motions and appeals. Thus, the district court was fully justified
in finding that Sandres acted in bad faith and had a clear record of
contumacious conduct.
As Sandres was proceeding pro se, her refusals to follow the orders of the
district court and the magistrate judge are attributable only to her. In
addition, those refusals have caused substantial prejudice to the defendant.
ORM has faced four lawsuits from Sandres over the past six years and has
been unable to resolve them, in part because Sandres has refused to allow it to
obtain the discovery that it needs. Indeed, the magistrate judge specifically
found in June 2012 that Sandres’s deposition was the primary impediment to
moving forward. Despite multiple efforts by ORM and warnings by the district
court, that impediment remained by November of that year.
Lastly, it is abundantly clear that no other sanction will achieve the
desired deterrent effect. Sandres has repeatedly refused to heed the warnings
of the magistrate judge, the district court, and this court. Moreover, despite
multiple financial sanctions, she has continued to disobey clear orders from the
courts of this circuit. In such circumstances, dismissal was appropriate to
prevent a further needless waste of both this court’s resources and those of
ORM. Accordingly, we AFFIRM the district court’s dismissal.
IV
Despite filing a notice of appeal of the district court’s order dismissing
her case, Sandres has continued to file numerous, frivolous motions before the
district court. In a motion titled “Application for Stay of Judgment Pending
Appeal of Judgment or as an Alternative, a New Trial, also Stay of Ruling and
Order,” for instance, Sandres reiterated the same points that she had made in
her prior motions, e.g. that she was denied the discovery she deserved, without
discussing the standards governing stays or new trials. Similarly, in her
8
Case: 13-30070 Document: 00512484703 Page: 9 Date Filed: 12/30/2013
No. 13-30070 c/w 13-31010 & 13-31019
“Motion for Separation of this Case to Serve Justice and to Proceed with Trial,”
Sandres failed to discuss why the district court’s previous order consolidating
the cases was erroneous. She simply stated that she has a right to a jury trial
and that dismissing her case with prejudice was unjust. The district court
denied these and other motions in two separate orders, in part on the ground
that Sandres’s notice of appeal deprived it of jurisdiction.
Sandres has appealed these two orders. The appeals have been docketed
as case Nos. 13-31010 and 13-31019. Sandres has moved that these appeals
be consolidated with her appeal of the district court’s dismissal of her action,
case No. 13-30070. She has further moved that she be permitted to update her
briefs. ORM does not oppose these motions. As the two orders arise out of the
same set of facts and raise the same issues as her initial appeal, Sandres’s
motions to consolidate are GRANTED. However, since the motions Sandres
filed before the district court were frivolous, we DENY Sandres’s motions to
update her briefs. We conclude that we can adjudicate all three appeals on the
basis of the briefs on file. Because the motions Sandres filed after her notice
of appeal involved the same issues that were already before this court, i.e. the
propriety of the dismissal of Sandres’s action and the consolidation of the cases,
we AFFIRM the district court’s orders holding that it lacked jurisdiction. 14
V
This court has previously warned Sandres that failing to identify errors
in the district court’s reasoning for granting a motion constitutes a failure to
brief the issue for appeal and that such continued failures would be met with
sanctions. 15 In her appeal of this case, Sandres once again fails to note any
errors the district court made in its consideration of ORM’s motion to dismiss.
14 See Weingarten Realty Investors v. Miller, 661 F.3d 904, 909 (5th Cir. 2011).
15 Sandres v. State Office of Gen. Counsel, 202 F. App’x 809, 810 (5th Cir. 2006).
9
Case: 13-30070 Document: 00512484703 Page: 10 Date Filed: 12/30/2013
No. 13-30070 c/w 13-31010 & 13-31019
Her appeal consists mostly of four separate summaries of the procedural
history of this case. Read liberally, the appeal also complains about the
consolidation of these cases and the district court’s denial of her motions for
expanded discovery. These complaints, however, do not address the district
court’s decision to dismiss Sandres’s claims pursuant to Rule 37. Indeed, one
would not even know why the district court dismissed Sandres’s actions based
on reading her brief.
Throughout this litigation, Sandres has proceeded in forma pauperis.
Permitting those with limited resources to litigate without paying fees is vital
to ensure the vindication of rights and the provision of justice. “But,” as the
Supreme Court has noted, “paupers filing pro se petitions are not subject to the
financial considerations—filing fees and attorney’s fees—that deter other
litigants from filing frivolous petitions.” 16 The courts therefore must take it
upon themselves to “issue[] orders intended to curb serious abuses” in order to
avoid the squandering of judicial resources. 17 Such orders have in the past
included prospectively disallowing an individual from proceeding in forma
pauperis. 18 Although we choose not to take such a step today, we caution
Sandres that the continued filing of frivolous appeals and motions will
result in the prospective denial of her ability to proceed in forma
pauperis, at least in actions arising from her previous or prospective
employment by the State of Louisiana.
16 In re McDonald, 489 U.S. 180, 184 (1989).
17 See id.
18See, e.g., Demos v. Storrie, 507 U.S. 290, 290-91 (1993) (directing the Supreme Court
Clerk to “reject all future petitions for certiorari from [sanctioned litigant] in noncriminal
matters unless he pays the docketing fee required by” the Supreme Court’s rules); McDonald,
489 U.S. at 180 (directing the Supreme Court Clerk “not to accept any further petitions from
petitioner for extraordinary writs . . . unless he pays the docketing fee” otherwise required
by the Supreme Court’s rules).
10
Case: 13-30070 Document: 00512484703 Page: 11 Date Filed: 12/30/2013
No. 13-30070 c/w 13-31010 & 13-31019
* * *
Sandres’s motions to consolidate are GRANTED. Sandres’s motions to
update her briefs are DENIED. The district court’s orders are AFFIRMED.
SANCTIONS WARNING ISSUED.
11