Steve A. Reed v. Fulton County Government

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-11525 MARCH 14, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________

D. C. Docket No. 02-01710-CV-JOF-1

STEVE A. REED,

Plaintiff-Appellant,

versus

FULTON COUNTY GOVERNMENT,

Defendant-Appellee,

VICTOR OKEREKE, et al.,

Defendants.

________________________

Appeal from the United States District Court
for the Northern District of Georgia
_________________________

(March 14, 2006)

Before MARCUS, WILSON and KRAVITCH, Circuit Judges.

PER CURIAM:
Steve Reed filed a pro se complaint under Title VII, 42 U.S.C. § 2000e,

against Fulton County (“the County”) and several individual employees, claiming

that the County had failed to promote him and had terminated him based on his

race and national origin. The district court dismissed the individual defendants,

but permitted the claims against the County to proceed.

After the County filed its answer and the discovery period opened, the

County served Reed notice of its intent to take his deposition, but Reed did not

appear. Over the next few months, Reed repeatedly failed to attend his deposition,

despite several rescheduling attempts and the County’s agreement to hold the

deposition at a site selected by Reed.

The County then filed a motion to compel Reed’s deposition, which the

court granted. The County again rescheduled the deposition. Nevertheless, Reed

did not appear.

The County moved to dismiss the complaint as a sanction under Rule 37(d)

for Reed’s failure to appear for his deposition. Reed responded that he was willing

to sit for the deposition as long as it was conducted at a neutral site, and he filed

several motions requesting that the deposition be taken at a neutral site and that the

court take control of the deposition.

The magistrate judge recommended dismissing the case, finding that Reed

2
exhibited willful contempt for the court’s order when he repeatedly refused to

attend his deposition, and that lesser sanctions would not suffice.

Reed objected to the recommendation, asserting that the magistrate judge

misunderstood the need to arrange a neutral site for the deposition, and that the

notices were not mailed properly, as he never received them.

The district court overruled the objections and granted the motion to dismiss,

noting that the County had expressed its willingness to move locations, but that

Reed did not respond to the invitation. The court further found that Reed could

have requested a protective order if he felt threatened. Finally, the court rejected

Reed’s claim that the notices were not mailed properly, and it noted that Reed had

received the court’s motion to compel.

A district court’s dismissal under Rule 37 and Rule 41 are reviewed for

abuse of discretion. Gratton v. Great American Communications, 178 F.3d 1373,

1374 (11th Cir. 1999); Buchanan v. Bowman, 820 F.2d 359, 361 (11th Cir. 1988).

Fed.R.Civ.P. 37 (b)(2)(C) authorizes a district court to dismiss an action if a

party “fails to obey an order to provide or permit discovery.” Rule 37(d)

authorizes the same if a party fails to appear for properly noticed deposition.

While disfavored, “dismissal [with prejudice under Rule 37] may be

appropriate when plaintiff’s recalcitrance is due to wilfulness, bad faith or fault.”

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Phipps v. Blakeney, 8 F.3d 788, 790 (11th Cir. 1993). There is a “need for a strict

adherence to Rule 37 so as to prevent parties from ‘flouting discovery orders.’”

Citronelle-Mobile Gathering, Inc. v. Watkins, 943 F.2d 1297, 1304 (11th Cir.

1991) (quoting National Hockey League, et al. v. Metropolitan Hockey Club, Inc.,

et al., 427 U.S. 639, 96 S.Ct. 2778, 49 L.Ed.2d 747 (1976)).

Further, under Rule 41(b), a defendant may move for dismissal of an action

for failure of the plaintiff to prosecute or to comply with a court order or the

federal rules. “Dismissal under Rule 41(b) is appropriate where there is a clear

record of ‘willful’ contempt and an implicit or explicit finding that lesser sanctions

would not suffice.” Gratton, 178 F.3d at 1374.

Here, the district court properly dismissed the complaint. Despite numerous

attempts by the County to schedule a deposition, and the court’s order compelling

his attendance, Reed did not appear.1 This behavior demonstrates Reed’s wilful

disregard for the court’s order.

Under Rule 37, the court is not required to assess whether lesser sanctions

would suffice. Fed.R.Civ.P. 37(d). Nevertheless, the district court found that

lesser sanctions would not suffice because Reed had already ignored the court’s

1
Although Reed now proffers an explanation, he did not move for a protective order or
explain his reasoning in a timely manner. Cf. Citronelle-Mobile Gathering, Inc., 943 F.2d at 1304.

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order. Permitting such behavior enables litigants to “flout” the court’s discovery

orders and needlessly delay the case. Therefore, the district court did not abuse its

discretion.

Moreover, Reed’s pro se status does not excuse his noncompliance; pro se

litigants are obligated to obey discovery orders. Morton v. Harris, 628 F.2d 438,

440 (5th Cir. Unit B 1980).2 Accordingly, the district court did not abuse its

discretion, and we AFFIRM the district court.

2
In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc), this court
held that all decisions handed down by the old Fifth Circuit before the close of business on
September 30, 1981, are binding precedent in the Eleventh Circuit.