United States District Court, D. Maryland
THEODORE D. CHUANG, District Judge.
Presently pending and ready for review in this 42 U.S.C. § 1983 civil rights case is Defendants' Motion to Dismiss for Failure to Participate in Discovery, ECF No. 22. The Court has reviewed the Motion and heard oral argument on October 9, 2014. For the reasons outlined below, the motion is GRANTED and the case is DISMISSED with prejudice.
On December 4, 2013, Plaintiff Stanley Iroegbu ("Iroegbu") filed a complaint, through his attorney, against the Town of Riverdale Park and two of its police officers, Patrolman First Class ("PFC") Blanco and Sergeant Slattery. He alleged that, while arresting him on April 14, 2012, the officers unlawfully detained him and used excessive force in violation of 42 U.S.C. § 1983 ("§ 1983"). See Compl., ¶¶ 36-50, ECF No. 1. He also alleged that the Town of Riverdale Park was liable for unlawful detention and excessive force under § 1983 on the theory that the police force had a pattern and practice of such conduct. See id. ¶¶ 51-54. Lastly, he alleged that all Defendants were liable for malicious prosecution in violation of § 1983, a claim he later voluntarily dismissed. See id. ¶¶ 55.61. On January 27, 2014, Iroegbu voluntarily dismissed his claims against the Town of Riverdale Park. Notice, ECF No. 7. On March 6, 2014, the Court (Titus, J.) issued a Scheduling Order setting July 21, 2014 as the date for the close of discovery. ECF No. 13.
On March 10, 2014, Defendants submitted their initial discovery requests. Memo. Support Mot. Dismiss at 2, ECF No. 22-1. On April 23, 2014, Iroegbu's attorney submitted objections and responses. Notice, ECF No. 16. On April 29, 2014, defense counsel, in an email to Iroegbu's attorney, objected to the responses as unexecuted and incomplete. Mot. Dismiss, Ex. A, ECF No. 22-2. In particular, defense counsel noted that although Iroegbu was claiming he was injured as a result of the officers' alleged excessive force, he had failed to provide the requested medical information and records detailing those injuries. Id
Meanwhile, the relationship between Iroegbu and his attorney was beginning to sour. On April 15, 2014, Iroegbu's counsel sent Iroegbu a bill for $3, 647.97, consisting of $3, 000.00 as a retainer for upcoming discovery expenses and $647.97 for expenses already incurred. Mot. Withdraw, Ex. A, ECF No. 18-1. Iroegbu's counsel set a deadline of May 1, 2014 for Iroegbu to pay the retainer, a deadline Iroegbu missed. Id., Mot. Withdraw ¶¶ 14-15, ECF No. 18. On May 12, 2014, Iroegbu discharged his counsel. Mot. Withdraw 21. Accordingly, on May 19, 2014, his counsel filed a Motion to Withdraw as Attorney, ECF No. 18, which the Court granted on June 6, 2014, ECF No. 19. That same day, the Court issued a Letter Order to Iroegbu informing him that the Motion to Withdraw had been granted and strongly recommending that he retain counsel. ECF No. 20.
Since the withdrawal of his counsel, Iroegbu has not engaged in discovery. Memo. Support Mot. Dismiss at 2, ECF No. 22-1. On June 10, 2014, defense counsel forwarded to Iroegbu a copy of the April 29, 2014 letter objecting to the discovery responses and asked lroegbu to address the deficiencies; Iroegbu did not respond. Id. at 4; Ex. C, ECF No. 22-4. On June 23, 2014, defense counsel sent a second letter asking Iroegbu to respond to Defendants' discovery requests; Iroegbu did not respond. Id. at 4; Ex. D, ECF No. 22-5. On July 3, 2014, defense counsel sent a third letter to Iroegbu requesting that Iroegbu "promptly" respond, and informing Irogebu that if he did not respond, defense counsel would "have no choice but to file the appropriate motion with the court." Iroegbu again did not respond. Id. at 4; Ex. E, ECF No. 22-6.
On July 17, 2014, the date set for the close of discovery, Defendants submitted their status report, as required by the Scheduling Order, in which they indicated that discovery had not progressed because Iroegbu had not responded to any of their communications. ECF No. 21. Iroegbu did not file a status report. However, on July 28, 2014, Iroegbu left a voicemail for defense counsel indicating that "he did not know why defense counsel was writing to him, that he did not know anything about the underlying occurrence, and that he did not want to receive any additional communications from [defense counsel]." Memo. Support Mot. Dismiss at 4.
On August 1, 2014, Defendants filed the pending Motion to Dismiss for Failure to Participate in Discovery. ECF No. 22. That same day, the Clerk of the Court mailed Iroegbu a "Rule 12/56" letter informing him that the motion was pending, detailing the proper procedure for him to respond to the motion, explaining that the deadline for his response was 17 days from the date of the letter, and cautioning him that if he "d[id] not file a timely written response, the Court may dismiss the case or enter judgment against you without further notice." ECF No. 23. Iroegbu did not submit a response.
On September 24, 2014, the Court issued a Notice informing the parties that a hearing was scheduled in this case for October 9, 2014 at 10:30 a.m. and cautioning Iroegbu that "his failure to appear at this hearing may result in dismissal of his case." ECF No. 24. Iroegbu did not appear at the hearing. Accordingly, that same day, the Court issued an Order instructing Iroegbu to show cause by October 24, 2014 for his failure to attend the hearing and to participate in discovery and informing him that if he failed to do so, his case would be dismissed with prejudice. ECF No. 27. That deadline has passed and Iroegbu has yet to submit anything to the Court.
Defendants ask the Court to dismiss this case based on Iroegbu's failure to participate in discovery. Specifically, they ask this Court to dismiss this case pursuant either to Federal Rule of Civil Procedure 37(d) (governing discovery) or 41(b) (governing involuntary dismissal in general). As a threshold matter, because Defendants' motion is based on Iroegbu's behavior in discovery, this Court must consider it only under Rule 37, not Rule 41. In Societe Internationale Pour Participations lndustrielles Et Commerciales, S.A. v. Rogers, 357 U.S. 197 (1958), the Supreme Court explained that "whether a court has power to dismiss a complaint because of noncompliance with a production order depends exclusively upon Rule 37, which addresses itself with particularity to the consequences of a failure to make discovery." Id. at 207. There was, the Court continued, "no need to resort" to Rule 41, which "lacks [the] specific references to discovery" present in Rule 37. Id. Societe lnternationale thus instructs courts to rely on the federal rule most tailored to the circumstances under consideration. Accordingly, because the Motion under consideration involves discovery, the Court considers it only pursuant to Rule 37,
Pursuant to Rule 37(d), courts may impose sanctions on a party who fails to respond to interrogatories. See Fed.R.Civ.P. 37(d)(1)(A)(ii). Such sanctions include dismissing the action or proceeding in whole, or in part, or issuing a default judgment. Fed.R.Civ.P. 37(b)(2)(A)(i)-(vi); see Fed.R.Civ.P. 37(d)(3) (indicating that sanctions for violations of subsection (d) may include any of the orders listed in Rule 37(b)(2)(A)(i)-(vi)). When assessing the appropriateness of sanctions under Rule 37(d), the United States Court of Appeals for the Fourth Circuit requires consideration of four factors: "(1) whether the noncomplying party acted in bad faith; (2) the amount of prejudice his noncompliance caused his adversary, which necessarily includes an inquiry into the materiality of the evidence he failed to produce; (3) the need for deterrence of the particular sort of noncompliance; ...