United States District Court, S.D. Mississippi, Western Division
ORDER
MICHAEL T. PARKER UNITED STATES MAGISTRATE JUDGE.
THIS
MATTER is before the Court on Defendants' Motion to
Compel [15]. On March 8, 2018, Defendants served their first
set of interrogatories and first set of requests for
production of documents upon Plaintiff. See Notices
[9] [10]. On May 17, 2018, Defendants filed a Motion to
Compel [11], asserting that Plaintiff had failed to provide
any responses to their discovery requests. That same day, the
Court denied the Motion [11] without prejudice because the
parties did not schedule and complete a telephonic conference
as required by the Case Management Order [8]. See
Order [13].
On May
18, 2018, the Court conducted a telephonic conference with
the parties, during which it was established that Plaintiff
had not responded to Defendants' discovery requests and
that the deadline for doing so had long since expired.
Accordingly, the Court ordered Plaintiff to provide responses
to Defendants' discovery requests on or before May 29,
2018. See Order [14]. The Court declined to impose
cost, fees, or other sanctions against Plaintiff at that
time, but warned Plaintiff that it may do so if she failed to
comply with the Order [14].
On May
31, 2018, Defendants filed the instant Motion to Compel [15],
asserting that Plaintiff failed to provide responses to their
discovery requests as ordered by the Court. In their Motion
[15], Defendants request that the Court order Plaintiff to
provided discovery responses and impose sanctions against
Plaintiff. The Court set an expedited briefing schedule for
the Motion [15], directing Plaintiff to file a response on or
before June 5, 2018. Plaintiff did not file a response to the
Motion [15].
Plaintiff
has failed to comply with the Court's Order [14]. Thus,
the Court will grant Defendants' Motion [15] to the
extent they request an order compelling Plaintiff to provide
responses to their discovery responses. Defendants also
request that the Court impose sanctions, “up to and
including dismissal.” See Brief [16]. This
Court has broad discretion to exercise its various
sanctioning powers. Topalian v. Ehrman, 3 F.3d 931,
934 (5th Cir. 1993); Shipes v. Trinity Indus., 987
F.2d 311, 323 (5th Cir. 1993) (“The imposition of
sanctions is a matter of discretion for the district
court.”). Federal Rule of Civil Procedure 37(b) allows
for sanctions when a party fails to obey a discovery order.
The sanction may include directing that facts be taken as
established, prohibiting the party from supporting or
opposing claims or defenses, striking pleadings, staying the
proceedings until the order is obeyed, dismissing the action,
rendering default judgment, or finding the party in contempt
of court. Fed.R.Civ.P. 37(b)(2)(A). In lieu of, or in
addition to the aforementioned sanctions, “the court
must order the disobedient party, the attorney advising the
party, or both 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)(C).
Generally
speaking, courts should punish parties no more harshly than
is necessary to vindicate the injury inflicted by the
particular misbehavior at issue. Carroll v. Jaques
Admiralty Law Firm, P.C., 110 F.3d 290, 294 (5th Cir.
1997). “Rule 37 sanctions must be applied diligently
both to penalize those whose conduct may be deemed to warrant
such a sanction, and to deter those who might be tempted to
such conduct in the absence of such a deterrent.”
Roadway Express, Inc v. Piper, 447 U.S. 752, 763-64
(1980).
Plaintiff
failed to respond to the Motion to Compel [15] as directed by
the Court, and the Court finds no substantial justification
for Plaintiff's failure to cooperate in discovery or obey
the Court's Order [14] or other circumstances which would
make an award of fees and expenses unjust. Thus, Defendants
should be awarded their attorney's fees and expenses
incurred in connection with participating in the telephonic
conference on May 18, 2018, and filing the instant Motion
[15].
However,
as acknowledged by Defendants, “dismissal is a harsh
sanction.” See Brief [16]. The Court finds
that Plaintiff should be afforded a final opportunity to
comply with the Court's orders and that a lesser sanction
should be imposed. Plaintiff is warned that her failure to
timely comply with this order may result in additional
sanctions, including dismissal of this action.
IT IS,
THEREFORE, ORDERED that:
1. Defendants' Motion to Compel [15] is GRANTED in part
and DENIED in part.
2. On or before June 11, 2018, Plaintiff shall provide
complete responses to Defendants' first set of
interrogatories and first set of requests for production of
documents without objection.
3. On or before June 15, 2018, Defendants' counsel shall
file an affidavit and itemization of fees and expenses
incurred in connection with participating in the telephonic
conference on May 18, 2018, and filing the Motion to Compel
[15].
4. On or before June 20, 2018, Plaintiff shall file her
response, if any, to the itemization ...