IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 26, 2008
No. 07-10125 Charles R. Fulbruge III
Summary Calendar Clerk
JANE DOE
Plaintiff-Appellant
v.
AMERICAN AIRLINES
Defendant-Appellee
Appeal from the United States District Court for the
Northern District of Texas, Dallas Division
USDC No. 3:03-cv-745
Before KING, DAVIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
In this appeal, Plaintiff-Appellant Jane Doe (“Appellant”) appeals from the
district court’s dismissal of her claims for failure to comply with discovery
orders. For the reasons below, we affirm.
I.
Appellant brought failure to accommodate, hostile work environment, and
retaliation claims against American Airlines, Inc. (“AA”) under Title VII of the
*
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 R. 47.5, the Court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
No. 07-10125
Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq., and Title I of the Americans
with Disabilities Act of 1990, 42 U.S.C. §§ 12101, et seq. During the course of
this case, which was filed on April 11, 2003, both parties were admonished by
the district court for their failure to diligently prosecute and defend. In multiple
scheduling orders, the district court warned that any further failure to comply
with court orders would subject either party to sanctions, including dismissal of
a party’s claims.
AA served discovery requests on Appellant seeking, inter alia, medical
records and information regarding Social Security disability benefits. Appellant
did not produce any Social Security or medical records, nor did she execute
authorizations to allow AA to obtain the documents. AA attempted
unsuccessfully to contact Appellant multiple times regarding the discovery
request, but Appellant was not responsive, so AA subsequently filed an
Expedited Motion to Compel and Supporting Brief. On November 8, 2006, a
magistrate judge issued an order compelling Appellant to, prior to November 20,
2006, provide AA with signed authorizations for her medical and psychological
records. Appellant did not appeal, timely object to, or comply with this order.
AA again attempted to contact Appellant multiple times regarding her failure
to provide the signed authorizations, but Appellant was not responsive. AA then
filed an Expedited Motion for Sanctions and Supporting Brief, requesting that
the district court dismiss Appellant’s claims with prejudice for failing to comply
with the magistrate judge’s November 8, 2006 order.
On December 8, 2006, the magistrate judge, after giving advance notice,
held a telephone conference; Appellant failed to call in for this conference as
directed. On December 11, 2008, the magistrate judge found that in light of the
history of the case, Appellant’s failure to comply with the November 8, 2006
order, Appellant’s failure to appear for the telephone conference, and the fact
that Appellant had been warned many times by the district court and the
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No. 07-10125
magistrate judge that such conduct would subject her to dismissal of her claims,
the magistrate judge recommended dismissal of Appellant’s claims without
prejudice. The district court accepted the magistrate judge’s findings and
conclusions, and, after independently reviewing the record, concluded that
Appellant had engaged in bad faith, contumacious conduct and dismissed her
suit with prejudice. Appellant timely appealed.
II.
A.
We have no jurisdiction to review a magistrate judge’s discovery order
because it is not a final order under 28 U.S.C. § 1291. Alpine View Co. v. Atlas
Copco AB, 205 F.3d 208, 219–20 (5th Cir. 2000) (citations omitted); see also
Glover v. Alabama Bd. of Corr., 660 F.2d 120, 122 (5th Cir. Unit B Oct. 1981)
(“Only a district court can make a magistrate’s decision final, and therefore
appealable.”) (citations omitted). Our review of the underlying discovery order
is deferential: “The trial court’s exercise of discretion regarding discovery orders
will be sustained absent a finding of abuse of that discretion to the prejudice of
a party.” Hastings v. North East Indep. School Dist., 615 F.2d 628, 631 (5th Cir.
1980); see also Baker v. Am. Airlines, Inc., 430 F.3d 750, 753 (5th Cir. 2005)
(reviewing for abuse of discretion a district court’s imposition of sanctions for
failure to comply with a discovery order).
B.
To the extent that Appellant attacks the November 8, 2006 magistrate
discovery order, arguing that she should not have to produce the documents in
question because the documents are irrelevant and privileged, Appellant’s
argument must fail because this Court has no jurisdiction to review the
magistrate judge’s discovery order which Appellant never challenged in the
district court. If the district court does not consider and rule on objections to a
magistrate order, then the order is not final and cannot be appealed to this
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No. 07-10125
Court. Alpine View, 205 F.3d at 219–20. The only question properly before us
on this appeal is whether the district court abused its discretion in dismissing
Appellant’s suit with prejudice.
We have previously deemed dismissal with prejudice to be a “draconian
remedy” and a “remedy of last resort.” FDIC v. Conner, 20 F.3d 1376, 1380 (5th
Cir. 1994) (quoting Batson v. Neal Spelce Assoc., Inc., 765 F.2d 511, 515 (5th Cir.
1985). “[S]anctions should not be used lightly, and should be used as a lethal
weapon only under extreme circumstances.” Id. (quoting EEOC. v. Gen.
Dynamics Corp., 999 F.2d 113, 119 (5th Cir. 1993)). “When lesser sanctions have
proved futile, a district court may properly dismiss a suit with prejudice.”
Hornbuckle v. Arco Oil & Gas Co., 732 F.2d 1233, 1237 (5th Cir. 1984) (footnote
omitted). Thus, several factors must be present before a district court may
dismiss a case with prejudice as a sanction for violating a discovery order: (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. Conner, 20 F.3d at 1380–81 (quoting Coane v. Ferrara Pan
Candy Co., 898 F.2d 1030, 1032 (5th Cir. 1990)); see also Coane, 898 F.2d at 1032
(citing Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744 (5th Cir.
1987)).
Here, Appellant has repeatedly failed to cooperate with the district court
and the magistrate judge with respect to her ordered discovery obligations.
Appellant had been warned multiple times by the district court that any further
failure to comply with court orders would result in possible dismissal of her
claims. The magistrate judge ordered Appellant to sign requested
authorizations by November 20, 2006, and warned Appellant again that failure
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No. 07-10125
to do so would subject her to dismissal of her lawsuit for failure to prosecute.
Not only did Appellant fail to comply with the magistrate judge’s order, in her
briefs to this Court Appellant now indicates that she will continue to refuse to
comply with her discovery obligations.
It is clear that Appellant has demonstrated a pattern of intentional delay
and contumacious conduct, noncompliance with the magistrate judge and the
district court, and a general refusal to cooperate in the discovery process. Since
Appellant is pro se, her actions are hers alone and not attributable to her
counsel. This conduct, additionally, prejudiced AA because it has prevented
timely and appropriate preparation for trial. Finally, a less dramatic sanction
would not achieve the desired deterrent effect because Appellant has indicated
she has no intention of complying with the discovery order in question.
Appellant, warned multiple times that her failure to comply with court orders
could result in dismissal of her claims, continued and continues to refuse to
comply. Thus, the district court did not err in dismissing Appellant’s suit with
prejudice. This “remedy of last resort” was appropriate under these
circumstances.
III.
For the foregoing reasons we affirm the dismissal of Appellant’s claims
with prejudice.1
AFFIRMED.
1
We deny all pending motions.
5