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Spiegel v. Leavitt

September 14, 2004

STEVEN M. SPIEGEL, PLAINTIFF,
v.
MICHAEL LEAVITT, ADMINISTRATOR, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY DEFENDANT.
STEVEN M. SPIEGEL, PLAINTIFF,
v.
MICHAEL LEAVITT, ADMINISTRATOR, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY DEFENDANT.
STEVEN M. SPIEGEL, PLAINTIFF,
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Deborah A. Robinson United States Magistrate Judge

ORDER

Defendant's Motion to Dismiss as a Sanction for Plaintiff's Additional Violations of the Court's October 23, 2003 Discovery Order and for Plaintiff's Lack of Prosecution (Docket No. 106) is pending for determination.*fn1 Upon consideration of Defendant's motion to dismiss as a discovery sanction and for failure to prosecute; Plaintiff's opposition thereto (Docket No. 109); Defendant's reply (Docket No. 111) and the entire record herein, Defendant's motion will be denied.*fn2

DISCUSSION

The undersigned has previously summarized the protracted course of the litigation in these three consolidated actions, and because the chronology of events relevant to the determination of the instant motion is largely undisputed, that chronology will not be included here. At issue in Defendant's motion is the import of the procedural history: Defendant submits that Plaintiff's conduct warrants dismissal, both as a sanction for Plaintiff's violation of the undersigned's October 23, 2003 order directing the course of further discovery, and for Plaintiff's failure "[to take] reasonable steps to pursue his case[,]" Defendant's Memorandum of Points and Authorities at 1-2; Plaintiff denies the allegations, submits that Defendant has "manufacture[d] controversies" for the purpose of impeding the consideration of the merits of these cases. Plaintiff's Opposition at 1.

1. Conduct of Discovery

Defendant acknowledges that the undersigned has already sanctioned Plaintiff for his failure to comply with orders regarding the conduct of discovery.*fn3 Defendant now seeks dismissal as a sanction for "other willful misconduct[,]" i.e., Plaintiff's failure to comply with the provision of the undersigned's October 23, 2003 order directing him to serve complete responses to Defendant's interrogatories no later than November 7, 2003. Defendant's Memorandum at 1, 8. Defendant acknowledges that Plaintiff served "what purported to be his revised responses" on November 7, but maintains that the further responses "fail to convey any new information." Id. at 8. Defendant submits that he has been prejudiced by the "inadequate" interrogatory responses "by leaving us with insufficient information concerning [P]laintiff's claims" and unable "[to take] discovery of those individuals [P]laintiff may seek to call as witnesses." Id. at 11.

Plaintiff, in his opposition, submits that he "properly responded" to Defendant's interrogatories, and agrees to supplement his responses "when additional information comes available." Plaintiff's Opposition at 19-20.

Rule 37 of the Federal Rules of Civil Procedure provides, in pertinent part, that if a party "fails to obey an order to provide or permit discovery," the court "may make such orders in regard to the failure as are just[,]" including "dismissing the action or proceeding or any part thereof[.]" FED. R. CIV. P. 37(b)(2). "The central requirement of Rule 37 is that 'any sanction must be just,' which requires in cases involving severe sanctions that the district court consider whether lesser sanctions would be more appropriate for the particular violation." Bonds v. District of Columbia, 93 F.3d 801, 808 (D.C.Cir. 1996) (quoting Insurance Corp. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 707 (1982)); see also Shea v. Donohoe Const. Co., Inc., 795 F.2d 1071, 1074 (D.C. Cir. 1986) (citation omitted) ("'[s]ince our system favors the disposition of cases on the merits, dismissal is a sanction of last resort to be applied only after less dire alternatives have been explored without success' or would obviously prove futile."). "In those cases where a court orders a dismissal or enters a default judgment, the disobedient party typically has engaged in a pattern of noncompliance with court orders so that no lesser sanction is warranted." Flynn v. Thibodeaux Masonry, Inc., 311 F. Supp. 2d 30, 36 (D.D.C. 2004) (citing Secs. & Exch. Comm'n v. Hollywood Trenz, Inc., 202 F.R.D. 3, 7 (D.D.C. 2001)).

The undersigned cannot find that Plaintiff "has engaged in a pattern of noncompliance with court orders so that no lesser sanction is warranted." While the course of litigation in these consolidated actions has been marked by disputes regarding the conduct of discovery and other pretrial matters, the overwhelming majority of the requests for the intervention of the Court with respect to discovery and scheduling have been occasioned not by Plaintiff, but by Defendant.*fn4 Moreover, the undersigned finds that the sanction already imposed is the "more appropriate" sanction for Plaintiff's noncompliance with the undersigned's order directing further discovery, and is sufficient to prevent Defendant from suffering undue prejudice.*fn5 Accordingly, Defendant's motion to dismiss as a Rule 37 sanction will be denied.

2. Request for Dismissal Pursuant to FED. R. CIV. P. 41

Defendant suggests that his account of the procedural history of these consolidated actions demonstrates that "[P]laintiff has willfully failed to prosecute his action by failing to participate in good faith in the litigation process[,]" and maintains that dismissal pursuant to Rule 41 of the Federal Rules of Civil Procedural is warranted. Defendant's Memorandum at 11; see id. at 12-33. Again, the chronology is largely undisputed, and only the interpretation of the events is at issue. The parties' contentions mirror those offered with respect to Defendant's request for Rule 37 sanctions: Defendant submits that Plaintiff has "willful[ly] abuse[d]... the legal system[,]" while Plaintiff submits that it is Defendant who has impeded the progress of the litigation. See Plaintiff's Opposition at 24-38.

Rule 41 of the Federal Rules of Civil Procedure provides, in pertinent part, that

[f]or failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against the defendant.

FED. R. CIV. P. 41(b). The Circuit has held that "[a]s a rule,... dismissal is in order only when lesser sanctions would not serve the interests of justice." Bristol Petroleum Corp. v. Harris, 901 F.2d 165, 167 (D.C. Cir. 1990)(citation omitted). Accordingly, "[a] District Court may dismiss under Rule 41(b) 'only after less dire alternatives have been explored without success." Gardner v. United States, 211 F.3d 1305, 1308 (D.C. Cir. 2000) (citing Trakas v. Quality Brands, Inc., 759 F.2d 185, 187 (D.C. Cir. 1985)); see also O-J-R v. Ashcroft, 216 F.R.D. 150, 151 (D.D.C. 2003). The Circuit has held that the considerations relevant to the determination of a Rule 41(b) motion include (1) the effect of a plaintiff's conduct on the court's docket; (2) whether the defendant has been ...


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