Opinion
CIVIL ACTION NO: 02-1946
November 26, 2003
ORDER AND REASONS
Before the undersigned is the motion of the defendant, University Healthcare System, L.C. ("University Healthcare"), to dismiss the claims of the plaintiff, Heather Turner, with prejudice for failure to comply with the undersigned's order of October 27, 2003, that Ms. Turner appear for her deposition by November 11, 2003. Rec. doc. 39. The parties consented to the trial of this case before a magistrate judge. Rec. doc. 13. For the reasons described below the claims of Ms. Turner against University Healthcare are dismissed with prejudice.
Ms. Turner and two other plaintiffs, Andralla Slayton and Cindy Carr, asserted employment discrimination claims against the Administrators of the Tulane Education Fund ("Tulane") and University Healthcare. Rec. docs. 1 and 6. From the filing of their complaint on June 24, 2002 until counsel appeared for the plaintiffs on March 24, 2003, the plaintiffs were unrepresented.
22. During that time it was necessary to place the matter on the call docket several times. Rec. docs. 4, 5 and 7. The plaintiffs did not oppose Tulane's motion for summary judgment, which it was granted. Rec. doc. 19. A pretrial conference was set for February 19, 2004 and the trial was set for March 18, 2004. Rec. doc. 28. The deadline for the completion of discovery is December 22, 2003. Id.
Notwithstanding the discovery deadline and the impending trial date, Ms. Turner has not complied with her obligation to provide information about her claim. The plaintiffs failed to submit their initial disclosures. Rec. doc. 30. The plaintiffs did not file any opposition to the defendant's motion to compel disclosures, and the plaintiffs were ordered to provide them. Rec. doc. 31. On October 22, 2003, Ms. Turner and the other plaintiffs were ordered to respond to the defendant's written discovery by October 27, 2003. Rec. doc. 36.
On August 13, 2003, the depositions of Ms. Turner and the other plaintiffs were noticed for October 28, 2003. Rec. doc. 39, exhibit A. Ms. Turner failed to appear for her deposition as noticed. Id. She was ordered to make herself available for her deposition by no later than November 11, 2003 or her action would be dismissed for failure to prosecute. Rec. doc. 37. On November 10, 2003, her counsel wrote that he managed to contact Ms. Turner and asked University Healthcare for dates for her deposition. Rec. doc. 39, exhibit C. University Healthcare insisted on the deposition by November 11. Id., exhibit D. Ms. Turner did not seek an extension of the November 11, 2003 deadline and did not appear at the deposition. On November 12, 2003, University Healthcare filed this motion to dismiss Ms. Turner's claims. Id. The motion to dismiss was set for submission on. November 26, 2003 and Ms. Turner was granted until November 24, 2003 to present her opposition. Rec. doc. 38. Ms. Turner has not submitted any opposition and the motion shall be deemed unopposed.
The authority of a federal trial court to dismiss a plaintiff's action because of her failure to prosecute is clear. See Link v. Wabash R. Co., 82 S.Ct. 1386, 1388 (1962). Pursuant to Fed.R. CIV. P. 41(b), a Court may in its discretion dismiss any action based on the failure of the plaintiff to prosecute or comply with any order of the Court. Larson v. Scott, 157 F.3d 1030, 1032 (5th Cir. 1998). Such a dismissal is considered to be an adjudication on the merits. Hughes v. City of Houston, 78 F.3d 983, 994 (5th Cir. 1996). The court's power to dismiss for want of prosecution should be used sparingly, although it may be exercised sua sponte whenever necessary to achieve the orderly and expeditious disposition of cases. See Ramsay v. Bailey, 531 F.2d 706, 707-08 (5th Cir. 1976), cert. denied, 97 S.Ct. 1139 (1977):
In applying the sanction of dismissal, courts have traditionally considered the extent to which the plaintiff, rather than her counsel, is responsible for the delay or failure to comply with the Court's order.Markwell v. County of Bexar, 878 F.2d 899, 902 (5th Cir. 1989). Ms. Turner appeared both pro se and through counsel. While she appeared pro se it was necessary to place the action on the call docket several times and she failed to take any action to oppose Tulane's motion for summary judgment. Since she has been represented, she has failed to participate in discovery and is in violation of the court's orders of October 22 and 27, 2003. Rec. docs. 36 and 37. Ms. Turner is as much responsible for these failures to appear for her deposition as is her counsel.
In Ford v. Sharp, 758 F.2d 1018 (5th Cir. 1985), the Fifth Circuit described aggravating factors to be examined in considering an involuntary dismissal with prejudice. These factors include the extent to which the plaintiff as distinguished from counsel is personally responsible for the delay, the degree of actual prejudice to the defendant, and whether the delay was the result of intentional conduct. The first of these has already been considered. The prejudice to University Healthcare is manifest. It is confronted with a discovery deadline of December 22, 2003 and preparing for trial, but Ms. Turner refuses to participate in discovery. Thus, a dismissal with prejudice is also warranted by Fed.R. CIV. P. 37(b)(2)(C) for the failure of a party to provide and permit discovery.
IT IS ORDERED that University Healthcare's motion to dismiss the claims of Heather Turner with prejudice for failure to comply with the court's order of October 27, 2003 (Rec. doc. 39) is GRANTED and the claims of Heather Turner against University Healthcare are DISMISSED with PREJUDICE.