United States District Court, E.D. Arkansas, Western Division
OPINION AND ORDER
WEBBER WRIGHT, UNITED STATES DISTRICT JUDGE.
January 31, 2017, Forrest Hodges filed this pro se action
against defendant All Weather Insulations Panel alleging
employment discrimination. By order entered February 7, 2017,
the Court instructed Hodges that he is required to be
familiar and comply with all of the Federal Rules of Civil
Procedure as well as the Local Rules of this Court and that
failure to comply could result in dismissal of this action.
before the Court is a motion of defendant to dismiss for
Hodge's failure to comply with a Court order [doc.#23]
and a motion of defendant for attorney's fees [doc.#25].
Hodges has not responded to defendant's motions and the
time for doing so has passed. For the reasons that follow,
the Court grants both defendant's motion to dismiss and
its motion for attorney's fees.
19, 2017, defendant filed a motion to compel Hodges'
compliance with the Federal Rules of Civil Procedure.
Defendant stated that Hodges, in violation of the signature
requirements established in Fed.R.Civ.P. 26(g)(1), provided
multiple copies of Initial Disclosures that were signed by a
non-attorney who has a similar pending matter before another
Judge in the Eastern District of Arkansas--Bibbs v. All
Weather Insulation Panels, No. 4:17-cv-00046-JLH--and
that also failed to include the proper signature block.
Defendant stated that it made multiple requests to Hodges to
provide Initial Disclosures that were in compliance with the
Federal Rules of Civil Procedure but that Hodges failed to do
so and that Hodges should thus be compelled to provide
Initial Disclosures that comply with the signature
requirements established in Rule 26(g)(1). Hodges did not
respond to defendant's motion to compel.
order entered June 13, 2017, the Court granted
defendant's motion to compel and ordered that within 10
days of the date of entry of the order, Hodges provide
defendant with his Initial Disclosures that comply with the
signature requirements established in Rule 26(g)(1). The
Court informed Hodges that failure to comply with the order
would result in sanctions pursuant to Fed.R.Civ.P. 26(g)(3).
30, 2017, defendant filed a motion to dismiss for Hodges'
failure to comply with a discovery order or, in the
alternative, motion for sanctions. Defendant stated that
Hodges failed to comply with the Court's order to provide
defendant with Initial Disclosures that are in compliance
with Rule 26(g)(1) and that this action should thus be
dismissed under Rule 26(g)(3) and Rule 37(b)(2) of the
Federal Rules of Civil Procedure. Alternatively, defendant
asked that Hodges be sanctioned by awarding it attorney's
fees and costs. Hodges did not respond to defendant's
motion to dismiss or for sanctions.
order entered August 8, 2017, the Court declined to dismiss
this action but did find that because Hodges did not provide
any justification, substantial or otherwise, for his failure
to comply with Rule 26(g)(1) despite being ordered by the
Court to do so, sanctions were appropriate under Rule
26(g)(3). The Court found that as an appropriate sanction,
Hodges must pay defendant its reasonable attorney's fees
and costs incurred for its motion to compel and its motion to
dismiss or for sanctions. In addition, the Court ordered that
within 10 days of the date of entry of the order, Hodges must
provide to defendant his Initial Disclosures that comply with
the signature requirements established in Rule 26(g)(1). The
Court informed Hodges that failure to comply with the order
would likely result in the dismissal of this action pursuant
to Rules 37 and 41 of the Federal Rules of Civil Procedure.
motion to dismiss, defendant states that Hodges has neither
provided any documentation to defendant as ordered by the
Court nor communicated with defendant in any manner and
argues that the Court should thus exercise its power under
Rules 37 and 41 and dismiss this action with prejudice.
Defendant argues that Hodges intentionally and willfully
abused the discovery process as well as failed to heed this
Court's unambiguous warning that his continued failure to
comply with the Federal Rules of Civil Procedure would likely
result in dismissal of this action. Defendant argues that
Hodges' refusal to comply with the Federal Rules of Civil
Procedure has caused it to waste considerable time and money
defending a claim that Hodges has failed to prosecute.
of the Federal Rules of Civil Procedure allows the Court to
consider numerous sanctions, including dismissal of an
action, for failing to comply with an order compelling
discovery. See Fed.R.Civ.P. 37(b)(2)(A)-(C). Rule 41(b) of
the Federal Rules of Civil Procedure also authorizes district
courts to dismiss a case when a plaintiff “fails to
prosecute or to comply with these rules or a court
as a sanction requires (1) an order compelling discovery; (2)
a willful violation of that order; and (3) prejudice to the
other party. Keefer v. Provident Life & Accident Ins.
Co., 238 F.3d 937, 940-41 (8th Cir. 2001). Dismissal
with prejudice is an extreme sanction that should be used
only in cases of willful disobedience of a court order or
where a litigant exhibits a pattern of intentional delay.
Arnold v. ADT Sec. Services, Inc., 627 F.3d 716, 722
(8th Cir. 2010). A plaintiff need not have acted in bad
faith, but the district court must find that the plaintiff
“acted intentionally as opposed to accidentally or
involuntarily.” Id. A district court should
weigh its need to advance its burdened docket against the
consequence of irrevocably extinguishing the litigant's
claim and consider whether a less severe sanction could
remedy the effect of the litigant's transgressions on the
court and the resulting prejudice to the opposing party.
Court has carefully considered the matter and determines that
dismissal of this action with prejudice is warranted. Hodges
has ignored and continues to ignore the requirement to
provide defendant with Initial Disclosures that comply with
the signature requirements established in Rule 26(g)(1)
despite a warning that this action would likely be dismissed
if he failed to do so. He does not dispute the assertions
regarding willful noncompliance contained in defendant's
motion to dismiss. Given this history, it can only be
concluded that Hodges' failure to follow this Court's
orders to provide defendant with Initial Disclosures that are
in compliance with Rule 26(g)(1) is willful. Defendant has
also been prejudiced in that it has been forced to waste time
and money defending a claim that Hodges' has failed to
prosecute. In addition, ...