United States District Court, D. Maryland
VALERIE M. STEPHENS, et al.
U.S. BANK NATIONAL ASSOCIATION, et al.
MEMORANDUM OPINION AND ORDER
DEBORAH K. CHASANOW United States District Judge.
Valerie M. Stevens and Famesha Okoeka
(“Plaintiffs”) filed this action in state court
on April 6, 2015, against Defendants U.S. Bank National
Association (“U.S. Bank”) and USAA Federal
Savings Bank (“USAA”) (collectively, the
“Defendants”). (ECF No. 7). After removal to the
United States District Court for the District of Maryland and
resolution of some initial procedural matters, a scheduling
order was entered. (ECF No. 32). Shortly thereafter, counsel
for Plaintiffs moved to withdraw at their request (ECF No.
34), and Plaintiffs were notified that they were proceeding
without counsel (ECF No. 35). The deadlines in the scheduling
order were extended for 60 days at their request, and the
discovery period expired on September 11, 2016. (ECF No. 37).
14, 2016, Defendant USAA filed a motion to compel responses
to interrogatories and requests for production of documents
as to both Plaintiffs, reciting that neither Plaintiff had
responded to the discovery requests or to attempts to confer.
(ECF No. 38). Neither Plaintiff filed a response to the
motion and, on July 6, it was granted. (ECF No. 39).
Plaintiffs were ordered to provide full responses no later
than July 22, and they were forewarned that failure to
provide discovery could result in dismissal of their
complaint and an order to pay Defendant's expenses.
(Id.). On August 16, Defendant USAA moved for
discovery sanctions, reciting that Plaintiffs still had not
responded to the discovery requests, and additionally had
failed to appear for properly noticed depositions. (ECF No.
41). Defendant U.S. Bank filed a similar motion on August 29
(ECF No. 42), and the scheduling order was stayed pending
resolution of these motions (ECF No. 44). Defendants have
certified that they have, in good faith, conferred or
attempted to confer with Plaintiffs in an effort to resolve
these issues without court action. (ECF Nos. 41, at 13; 42-1
¶ 4). Plaintiffs' responses in opposition were due
by September 2 and September 15, but again, Plaintiffs have
not responded to either motion.
Defendants note, it appears that Plaintiffs have abandoned
this litigation. Plaintiffs have provided no response to
Defendant USAA's discovery requests, and accordingly did
not comply with the court's order granting Defendant
USAA's motion to compel. (ECF No. 41 ¶ 15). They have
failed to appear at or reschedule their depositions. (ECF
Nos. 41 ¶¶ 16-17, 22-24; 41-6; 42, at 4-5; 42-1
¶¶ 8, 10). Obviously, this case cannot proceed if
Plaintiffs do not participate in discovery. Where a party
fails to obey an order to provide discovery or fails to
appear for her own deposition, the sanctions available
include orders “dismissing the action or proceeding in
whole or in part, ” in addition to which, “the
court must order the disobedient party . . . to pay the
reasonable expenses, including attorney's fees, caused by
the failure, unless the failure was substantially justified
or other circumstances make an award of expenses
unjust.” Fed.R.Civ.P. 37(b)(2)(A)(v), (C); id.
37(d)(3); see also Hathcock v. Navistar Int'l Transp.
Corp., 53 F.3d 36, 40 (4th Cir. 1995). The
drastic sanction of dismissal may not be imposed except in
the most compelling circumstances, and is guided by the
application of a four factor test:
(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;
and (4) the effectiveness of less drastic sanctions.
[Wilson v. Volkswagen of Am., Inc., 561 F.2d 494,
503-06 (4th Cir. 1977)].
Such an evaluation will insure that 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, will result in the extreme sanction of
dismissal or judgment by default. Id. at 504. In
such cases, not only does the noncomplying party jeopardize
his or her adversary's case by such indifference, but to
ignore such bold challenges to the district court's power
would encourage other litigants to flirt with similar
misconduct. [Nat'l Hockey League v. Metro. Hockey
Club Inc., 427 U.S. 639, 643 (1976)]; Wilson,
561 F.2d at 504.
Mut. Fed. Sav. & Loan Ass'n v. Richards &
Assocs., Inc., 872 F.2d 88, 92 (4th Cir.
the requirements of the Federal Rules of Civil Procedure, a
court order, and repeated warnings that they could be subject
to sanctions, including dismissal (see ECF Nos. 39;
44), Plaintiffs have not participated in the discovery
process. Discovery has now closed, and it appears that
Plaintiffs do not intend to pursue this litigation. A
complete failure to participate in discovery prejudices the
other party to an extreme degree, and such noncompliance must
be deterred. Accordingly, it is this 31st day of
October, 2016, by the United States District Court for the
District of Maryland, ORDERED that:
Plaintiffs are directed to show cause why the complaint
should not be dismissed with prejudice and why they should
not be ordered to pay reasonable attorneys' fees within
fourteen (14) days;
Failure to respond to this order will result in dismissal of
Plaintiffs' complaint without further notice and an order
providing Defendants an opportunity to file a request for
clerk will transmit copies of this Memorandum and Show Cause
Order to Plaintiffs and to counsel for Defendants.
 In addition, Plaintiffs have failed to
respond to Defendant U.S. Bank's interrogatories,
requests for production of documents, and requests for
admission. (ECF Nos. 42, at ...