United States District Court, S.D. Mississippi, Northern Division
DANIEL P. JORDAN, III, District Judge.
This negligence action is before the Court on Defendants' Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 37  and Plaintiff's Motion to Allow the Plaintiff to Supplement his Response to Defendants' Motion to Dismiss . The Court, having considered the memoranda and submissions of the parties, and having discussed the issue with counsel during the pretrial conference, finds that Defendants' motion  should be denied and Plaintiff's motion  should be granted as unopposed.
I. Facts and Procedural History
This case arises from a March 19, 2012 traffic accident in Rankin County, Mississippi. Plaintiff Tommy Lee Morris was a passenger in a car that collided with a tractor-trailer driven by Defendant Michael D. Fox and owned by Defendant Schroer. Morris alleges injury to his left shoulder, but Defendants claim that he failed to disclose the extent of his pre-existing injuries. They therefore filed the instant motion to dismiss Morris's claims, alleging that Morris committed willful discovery violations.
II. Standard of Review
Defendants seek sanctions under Federal Rule of Civil Procedure 37(b)(2)(A) and (c)(1)(C). Under Rule 37(b), "If a party... fails to obey an order to provide or permit discovery... the court where the action is pending may issue further just orders... includ[ing]... dismissing the action in whole or in part." Fed.R.Civ.P. 37(b)(2)(A)(v). Under Rule 37(c), "If a party fails to provide information or identify a witness... the court... may impose other appropriate sanctions, including any of the orders listed in Rule 37(b)(2)(A)(I)-(vi)." Fed.R.Civ.P. 37(c)(1)(C).
"The district court has broad discretion under Rule 37(b) to fashion remedies suited to the misconduct.'" Smith & Fuller, P.A. v. Cooper Tire & Rubber Co., 685 F.3d 486, 488 (5th Cir. 2012) (quoting Pressey v. Patterson, 898 F.2d 1018, 1021 (5th Cir.1990)). But that discretion is limited, as the district court must find four factors before dismissing under Rule 37:
(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.
Moore v. CITGO Refining & Chem. Co., L.P., 735 F.3d 309, 316 (5th Cir. 2013) (quoting Doe v. Am. Airlines, 283 F.Appx. 289, 291 (5th Cir. 2008)). Dismissal with prejudice under Rule 37 is a "draconian' remedy, or a remedy of last resort' only to be applied in extreme circumstances." Batson v. Neal Spelce Assocs., Inc., 765 F.2d 511, 515 (5th Cir. 1985) (citations omitted).
Defendants argue that dismissal is warranted because Morris lied in his responses to interrogatories and in his deposition testimony. Specifically, Defendants claim Morris falsely denied having left-shoulder problems before the subject accident,  pointing to one interrogatory response and three answers to questions posed during his deposition. Defs.' Mot.  at 3-4.
As a preliminary matter, Morris argues that Rule 37(b) does not apply because there is no discovery order which Morris is alleged to have violated, and therefore there can be no dismissal or other sanction. Even if Morris were correct that Rule 37(b) does not apply-and Defendants have not pointed to a specific Court order that Morris violated-the Court may still impose sanctions, including dismissal, under Rule 37(c)(1)(C). And Morris makes no argument that Rule 37(c) is not applicable here.
A. Plaintiff's Discovery Responses
Interrogatory No. 21 asked Morris to "identify and describe... injuries of any nature that you have sustained both before or after the date of the subject accident." Defs.' Mot.  Ex. B. Morris responded: "Plaintiff notes that he has NEVER injured his left shoulder before the subject motor vehicle accident." ...