United States District Court, D. Maryland
MEMORANDUM OPINION & ORDER
WILLIAM CONNELLY, Magistrate Judge.
On April 19, 2012 Plaintiff filed a complaint in the Circuit Court for Prince George's County, Maryland, asserting violations of the U.S. Constitution, the Maryland Constitution and tort claims stemming from an alleged assault, battery, false imprisonment and false arrest by Prince George's County Police Department police officers on April 19, 2009. See ECF No. 2. Defendants removed the action to this court on July 11, 2012. See ECF Nos. 1, 5. This court issued a Scheduling Order on November 13, 2013, see ECF No. 30, with discovery closing on March 28, 2014. At the request of the parties, discovery was extended an additional two months or until May 28, 2014. See ECF Nos. 31-32.
On June 3, 2014 counsel for Defendants filed a joint status report. Counsel for Defendants disclosed,
On this week, Defendants will file a motion for sanctions due to the Plaintiff's failure to appear at her deposition properly noticed for May 8, 2014, as well as her failure to supply any written discovery responses. In that motion, Defendant[s] will request dismissal of the Plaintiff's claims as an appropriate sanction. On June 3, 2014 at approximately 11:49 a.m., Plaintiff's counsel represented that he will not oppose the motion for sanctions and requested relief.
ECF No. 33 at 1. Defendants filed their motion for sanctions on June 16, 2014. See ECF No. 35. Plaintiff did not file response.
In the Order of July 25, 2014 this court granted Defendants' motion for sanctions. See ECF No. 38. The Order of June 26, 2014 (ECF No. 37), whereby the court extended the dispositive motions deadline to July 28, 2014, was vacated. ECF No. 38 ¶ 9. The court directed Plaintiff to serve Defendants with her answers to interrogatories and responses to requests for production of documents not later than August 12, 2014. Id. ¶ 7. By August 15, 2014 the court directed Defendants to notify the court whether they have received Plaintiff's discovery responses. "If Plaintiff fails to serve discovery responses as ordered supra, the Court will dismiss this action and direct the Clerk of Court to close the case[.]" Id. ¶ 8.
On August 25, 2014 Defendants filed correspondence about Plaintiff's discovery failure.
I am writing to inform you that Plaintiff has not supplied responses to Defendants' written discovery requests. These requests were initially served upon the Plaintiff on November 14, 2013. In accordance with your Order of July 25, 2014 [ECF #38], Defendants request that this matter now be dismissed.
ECF No. 39 (Letter from Whitted, Esq. to Judge Connelly of 8/25/14). Plaintiff has not responded to this correspondence. The court now considers Defendants' request. No hearing is deemed necessary. See Local Rule 105.6 (D. Md. 2014).
STANDARD OF REVIEW
District courts have the authority to dismiss cases under Federal Rule of Civil Procedure ("Rule") 37(b)(2)(A) when a party fails to comply with a discovery order, as well as under Rules 37(d) and 41(b) as part of the courts' "comprehensive arsenal of Federal Rules and statutes to protect themselves from abuse." Chambers v. NASCO, Inc., 501 U.S. 32, 62 (1991) (Kennedy, J., dissenting). Rule 37(b) provides that the court may "dismiss the action or proceeding in whole or in part" if a party "fails to obey an order to provide or permit discovery[.]" Fed.R.Civ.P. 37(b)(2)(A)(v). Likewise, Rule 37(d) provides that the court may order sanctions, including dismissal, if "a party, after being properly served with interrogatories under Rule 33 or a request for inspection under Rule 34, fails to serve its answers, objections, or written response." Fed.R.Civ.P. 37(d)(1)(A)(ii), (d)(3). Further, Rule 41(b) provides that the court may dismiss an action "[i]f the plaintiff fails to prosecute or to comply with... a court order[.]"
However, "[d]ismissal with prejudice is ordinarily reserved for the most egregious cases." Sadler v. Dimensions Health Corp., 178 F.R.D. 56, 59 (D. Md. 1998) (citing Dove v. Codesco, 569 F.2d 807, 810 (4th Cir. 1978), in which the court stated that dismissal with prejudice under Rule 41(b) was only for "clear record of delay or contumacious conduct by the plaintiff"). Indeed, "only the most flagrant case, where the party's noncompliance represents bad faith and callous disregard for the authority of the district court and the Rules, [should] result in the extreme sanction of dismissal or judgment by default." Mut. Fed. Sav. & Loan Ass'n v. Richards & Assocs., Inc., 872 F.2d 88, 92 (4th Cir. 1989). To that end, before ordering dismissal under Rule 37(b) or (d), the court applies a four factor test: "(1) whether the non-complying party acted in bad faith; (2) the amount of prejudice that noncompliance caused the adversary; (3) the need for deterrence of the particular sort of non-compliance; and (4) whether less drastic sanctions would have been effective.'" Bethesda Softworks LLC v. Interplay Entm't Corp., No. DKC-09-2357, 2011 WL 1559308, at *2 (D. Md. Apr. 25, 2011) (quoting Belk v. Charlotte-Mecklenburg Bd. of Educ., 269 F.3d 305, 348 (4th Cir. 2001)); see Mut. Fed. Sav. & Loan Ass'n, 872 F.2d at 92.
Prior to dismissal under Rule 41(b), the court must consider four similar factors: "(1) the plaintiff's degree of personal responsibility; (2) the amount of prejudice caused the defendant; (3) the presence of a drawn out history of deliberately proceeding in a dilatory fashion; and (4) the effectiveness of sanctions less drastic than dismissal." Hillig v. Comm'r of Internal Revenue, 916 F.2d 171, 174 (4th Cir. 1990). "[T]he Court will combine its analysis of the question whether dismissal is appropriate under Rules 37(d) and 41(b)" because the legal standards for dismissal under both rules are "virtually the same.'" Taylor v. Fresh Fields Markets, Inc., No. Civ. A. 94-0055-C, 1996 WL 403787, at *2 (W.D. Va. June 27, 1996) (quoting Carter v. Univ. of W.Va. Sys., 23 F.3d 400, 1994 WL 192031, at *2 (4th Cir. 1994)); see, e.g., Tabor v. E.J. Patterson, Inc., No. Civ. A. 98-2438, 1999 WL 52144 (E.D. La. Jan. 28, 1999) (analyzing facts under Rules 37(d) and 41(b) together and dismissing without prejudice pro se plaintiff's claims where plaintiff twice failed to appear for his scheduled deposition). The court also considers whether the party facing dismissal or a default judgment is aware of these possible sanctions. See Green v. Chatillon & Sons, 188 F.R.D. 422, 424 (M.D. N.C. 1998) (dismissing case with prejudice and noting that the plaintiff ...