United States District Court, D. Kansas
MEMORANDUM AND ORDER AND ORDER TO PLAINTIFF TO SHOW
D. Mitchell U.S. Magistrate Judge
matter comes before the court on defendant Tyson Foods,
Inc.'s (“Tyson”) Motion to Dismiss for
Failure to Cooperate in Discovery (ECF No. 26). For the
reasons discussed below, the court denies Tyson's motion
but orders plaintiff Marion Lamar Hayes to show cause why he
should not be held in contempt of court and/or fined for
failure to comply with the court's discovery orders.
Hayes filed this personal injury lawsuit in the district
court of Finney County, Kansas, on February 1, 2018. Tyson
removed the case to federal court on November 20, 2018, based
on diversity jurisdiction. (See Notice of Removal
(ECF No. 1).) On February 19, 2019, Tyson served Mr. Hayes
with interrogatories and requests for production of
documents. (See Certificate of Service (ECF No.
11).) Mr. Hayes' responses to this discovery were due on
March 21. See Fed. R. Civ. P. 33(b)(2); 34(b)(2)(A).
Mr. Hayes did not serve any objections or responses by that
April 4, the court held a telephone discovery conference at
the request of Tyson's counsel. During the conference,
Mr. Hayes' counsel explained that his client lives out of
state and is an over-the-road truck driver who has difficulty
communicating with his counsel from the road. The parties
agreed that Mr. Hayes would serve his discovery responses by
April 13, and the court ordered during the conference that he
Hayes did not serve his discovery responses by April 13.
Tyson's counsel once again requested a discovery
conference with the court. During that telephone conference
on May 2, Mr. Hayes' counsel noted that Mr. Hayes would
be back in Kansas later that month, and the discovery
responses could be completed then. The court ordered Mr.
Hayes to serve his discovery responses on or before May 23.
(See Order (ECF No. 24).) As of May 29, however, Mr.
Hayes still had not served any discovery responses.
29, Tyson filed the present motion to dismiss this case for
Mr. Hayes' failure to participate in
discovery. Tyson argues that dismissal is appropriate
because Mr. Hayes' failure to serve discovery responses
has compromised its ability to litigate the case and comply
with scheduling order deadlines. Discovery is set to close in
less than a month, on June 30, and Tyson still does not have
Mr. Hayes' discovery responses. Tyson also indicates that
because it did not have adequate information on the care and
treatment plaintiff received for his alleged injury (and
plaintiff failed to disclose any experts in accordance with
his March 31 scheduling order deadline), Tyson could not
identify and disclose experts or request a physical exam by
April 30, as required by the scheduling order. Tyson also
notes that mediation has already been rescheduled from May 21
to June 18 because of Mr. Hayes' failure to provide
discovery responses. Tyson does not believe it can
productively participate in the upcoming June 18 mediation
because Mr. Hayes still has not served discovery responses.
Hayes' opposition to Tyson's motion again reiterates
that Mr. Hayes is an over-the-road trucker and contends that
he has not had the opportunity to return discovery responses
to his counsel from the road. Mr. Hayes states that his
failure to answer discovery is not intentional, but he does
not indicate whether he has any plan whatsoever to respond to
Tyson's discovery requests.
Dismissal as a Sanction
has discretion to “order sanctions if . . . a party,
after being properly served with interrogatories under Rule
33 or a request for inspection under Rule 34, fails to serve
its answers, objections, or written response.”
See Fed. R. Civ. P. 37(d)(1)(A)(ii). In addition, if
a party fails to obey “an order to provide or permit
discovery, ” a court has discretion to “dismiss
the action or proceeding in whole or in part.” See
Id. Rule 37(b)(2)(A)(v). “[D]ismissal or other
final disposition of a party's claim ‘is a severe
sanction reserved for the extreme case, and is only
appropriate where a lesser sanction would not serve the ends
of justice.'” Reed v. Bennett, 312 F.3d
1190, 1195 (10th Cir. 2002). In evaluating whether dismissal
is appropriate, the court must consider “(1) the degree
of actual prejudice to the [other party]; (2) the amount of
interference with the judicial process; . . . (3) the
culpability of the litigant; (4) whether the court warned the
party in advance that dismissal of the action would be a
likely sanction for noncompliance; and (5) the efficacy of
lesser sanctions.” Gripe v. City of Enid,
Okla., 312 F.3d 1184, 1188 (10th Cir. 2002) (alterations
Prejudice to Tyson
Tyson has suffered prejudice in preparing its defense. Mr.
Hayes' discovery responses were due on March 21. He
failed to respond by that deadline, forcing Tyson to seek the
court's intervention. Mr. Hayes then ignored the
subsequent deadlines to serve his discovery responses that
the court set during the April and May discovery conferences,
forcing Tyson to repeatedly seek the court's assistance.
It is now approximately three weeks from the close of
discovery, and Tyson has no discovery responses or document
production from Mr. Hayes. Mr. Hayes' conduct has
substantially prejudiced Tyson's ability to prepare for
trial in the time allowed under the current scheduling order.
Interference with ...