United States District Court, D. North Dakota
ORDER OF DISMISSAL FOR FAILURE TO PROSECUTE
Charles S. Miller, Jr., Magistrate Judge.
initiated the above-entitled action by on August 11, 2015,
claiming to have suffered serious and permanent injuries in
an automobile accident proximately caused by defendant's
negligence. On May 10, 2016, the court held a scheduling
conference with the parties and issued a scheduling order. It
also scheduled a final pretrial conference for May 23, 2017,
and a jury trial for June 6, 2017.
November 10, 2016, Attorney Lindsay Wilz filed a motion for
leave with withdraw as counsel for plaintiff. In an
accompanying memorandum and affidavit (Docket Nos. 19-20),
she advised that she and plaintiff had disagreements about
how the case should be handled, that she was having
difficulty contacting plaintiff, and that she not gotten
plaintiff's full cooperation in responding to discovery
December 13, 2016, the court granted Ms. Wilz's motion
and authorized her to withdraw as plaintiff's counsel.
Plaintiff is presumably proceeding pro se as no
attorney has since entered an appearance on his behalf.
April 19, 2017, the court issued an order in which it: (1)
scheduled a status conference with the parties by telephone
on May 9, 2017, at 11:00 a..m.; and (2) directed that, prior
to the status conference, plaintiff was to provide the court
with a telephone number at which he could be reached.
April 19, 20177, defendant filed a motion to dismiss the
above entitled action with prejudice pursuant to Fed.R.Civ.P.
37. (Docket No. 28). The basis for the motion was that
plaintiff had failed to fully responded to all of the
discovery requests served upon him in August 2016 and had
otherwise been incommunicado. An affidavit of service filed
by defendant evinces that defendant's motion and
supporting documents were delivered to plaintiff's
address on April 24, 2017, at 12:43 p.m. (Docket No. 30).
9, 2017, the court convened a status conference. Notably,
plaintiff did not provide the court with a telephone number
as directed or otherwise update his contact information prior
to the conference. The court called plaintiff at telephone
number provided by Ms. Wilz's office. No one answered.
Court staff left a voice mail message, to which no one has
Rule of Civil Procedure 37(b)(2)(C) authorizes the court to
impose sanctions upon parties who fail to comply with
discovery orders; however, dismissal may be considered as a
sanction only if there is: (1) an order compelling discovery;
(2) a willful violation of that order; and (3) prejudice to
the other party.” Keefer v. Provident Life and Acc.
Ins. Co., 238 F.3d 937, 939 (8th Cir. 2000); Fox v.
Studebaker-Worthington, Inc., 516 F.2d 989, 993 (8th
Cir. 1975) (When imposing such a sanction as drastic as
dismissal, the court's "range of discretion is more
narrow and the losing party's non-compliance must be due
to wilfulness, fault or bad faith."). [B]efore imposing
the sanction of dismissal, fairness requires a court to
consider whether a lesser sanction is available or
appropriate.” Id. “The district court is
not, however, constrained to impose the least onerous
sanction available, but may exercise its discretion to choose
the most appropriate sanction under the circumstances.”
Id.; see also Aziz v. Wright, 34 F.3d 587,
588 (8th Cir. 1994); Tyler v. Iowa State Trooper Badge
No. 297, 158 F.R.D. 632, 636 (N.D. Iowa 1994).
isolation, plaintiff's failure to comply with discovery
requests and otherwise ignore defendant's efforts to
initiate a dialog are arguably insufficient to justify
outright dismissal pursuant to Fed.R.Civ.P. 37. This is not
plaintiff's only failure, however.
apparent from the record that plaintiff failed to cooperate
with and make himself available to his former counsel. He
also failed to comply with this court's directive to
update his contact information. And he failed to make himself
available for the telephone conference on May 9, 2017.
Collectively, these failures paint a portrait of an
individual who has demonstrated little if any initiative and
whose interest in prosecuting this matter has waned.
Civ. P. 41 (b) provides that “[i]f the plaintiff fails
to prosecute or to comply with these rules or a court order,
a defendant may move to dismiss the action or any claim
against it. Unless the dismissal order states otherwise, a
dismissal under this subdivision (b) and any dismissal not
under this rule--except one for lack of jurisdiction,
improper venue, or failure to join a party under Rule
19--operates as an adjudication on the merits.”
Fed.R.Civ.P. 41(b). “Under Fed.R.Civ.P. 41(b), a
district court may, on its own motion, dismiss an action for
the plaintiff's failure to comply with any court order,
and such dismissal operates as an adjudication on the
merits.” American Inmate Paralegal Assoc. v.
Cline, 859 F.2d 59, 61 (8th Cir. 1988) (recognizing that
the “district court's exercise of this power is
within the permissible range of its discretion if there has
been a clear record of delay or contumacious conduct by the
plaintiff”); As the United States Supreme Court
reasoned in Link v. Wabash. R. Co, :
Neither the permissive language of [Rule 41(b)]--which merely
authorizes a motion by the defendant--nor its policy requires
us to conclude that it was the purpose of the Rule to
abrogate the power of courts, acting on their own initiative,
to clear their calendars of cases that have remained dormant
because of the inaction or dilatoriness of the parties
seeking relief. The authority of a court to dismiss sua
sponte for lack of prosecution has generally been considered
an ‘inherent power, ' governed not by rule or
statute but by the ...