IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF XXX
SOUTHERN DIVISION
XXX §
Plaintiff, §
§
v. § Civil Action No. XXX
§
FQSR, LLC d/b/a KBP Foods, et. al., §
Defendant. §
PLAINTIFF’S OPPOSITION TO DEFENDANT FQSR, LLC’S MOTION FOR
SANCTIONS UNDER RULE 37(d) FOR PLAINTIFF’S FAILURE TO ATTEND HIS
OWN DEPOSITION
NOW COMES Brian Horsley, Plaintiff, and files this Opposition to Defendant FQSR, LLC’s
Motion for Sanctions Under Rule 37(d) for Plaintiff’s Failure to Attend His Own Deposition
(hereinafter referred to as the “Motion”), and for cause would show this Honorable Court as
follows:
The law is clear that where a plaintiff is unable to comply with discovery order,
constitutional principles prohibit dismissal as a sanction. See Societe Internationale pour
Participations Industrielles et Commerciales, XXX.
A court’s “range of discretion is more narrow” when dismissing a complaint or entering default
judgment as a discovery sanction because this threatens a party’s constitutional right to due
process. XXX; see also Rogers,
357 U.S. at 209-12 (“The provisions of Rule 37 . . . must be read in light of the provisions of the
Fifth Amendment that no person shall be deprived of property without due process of law . . . .”);
Mut. Fed. Sav. & Loan v. Richards & Assocs., 872 F.2d 88, 92 (4th Cir. 1989) (“When the
sanction involved is judgment by default, the district court’s range of discretion is more narrow
because the district court’s desire to enforce its discovery orders is confronted head-on by the
party’s rights to a trial by jury and a fair day in court.”).
In Rogers, a Swiss company sued to recover assets seized by the United States during
World War II. 357 U.S. at 198-99. As part of its defense, the United States sought and received
an order from the district court requiring the Swiss company to produce records from the Swiss
bank. Id. at 200. The Swiss government determined that disclosure of the banking records would
violate Swiss penal and banking laws and confiscated the records from the company. Id.
at 200-01. Despite the Swiss company’s efforts to comply with the court’s discovery order, the
district court dismissed the action. Id. at 202-03.
The Supreme Court reversed the district court’s judgment of dismissal. The Court
emphasized that its precedents established that “there are constitutional limitations upon the
power of the courts, even in aid of their own valid processes, to dismiss an action without
affording a party the opportunity for a hearing on the merits of his cause.” Id. (citing Hovey v.
Elliott, 167 U.S. 409 (1897); Hammond Packing Co. v. Arkansas, 212 U.S. 322 (1909)). The
Court highlighted that “substantial constitutional questions” are raised by “the striking of a
complaint because of a plaintiff’s inability, despite good-faith efforts, to comply with a pretrial
production order.” Id. at 210 (emphasis added). These serious constitutional questions,
coupledwith the Swiss company’s efforts to comply with the court’s order, led the Court to
conclude:
Rule 37 should not be construed to authorize dismissal of this complaint because of petitioner’s
noncompliance with a pretrial production order when it has been established that failure to
comply has been due to inability, and not to willfulness, bad faith, or any fault of petitioner.
Id. at 212 (emphasis added).
This District’s Local Rule 30(A) appears to incorporate this constitutional limitation on the
court’s authority to dismiss an action, as it expressly contemplates a plaintiff’s deposition outside
the jurisdiction upon showing of “special circumstances” as opposed to outright dismissal.
Although Federal Rule of Civil Procedure 37 gives trial courts discretion to impose
sanctions for violating discovery orders, the rule does not permit courts to enter judgment against
a litigant for violating a discovery order “when it has been established that failure to comply has
been due to inability, and not to willfulness, bad faith, or any fault of [the non-complying
party].” Rogers, 357 U. S. at 212 (emphasis added); see also Wilson, 561 F.2d at 503 (Rule 37
discretion must be exercised “discreetly and never ‘when it has been established that failure to
comply has been due to inability, and not to willfulness, bad faith, or any fault of [the
noncomplying
party].’” (quoting Rogers, 357 U. S. at 212).
The sanction of dismissal under Rule 37 is reserved for “that rare case” where a party
exhibits “flagrant bad faith and callous disregard of the party’s obligations under the Rules.”
Wilson, 561 F.3d at 504 (citation and internal quotation marks omitted); see also Choice Hotels
Int’l, Inc. v. Goodwin & Boone, 11 F.3d 469, 472 (4th Cir. 1993) (dismissal appropriate “only in
the extreme cases”) (quoting McCargo v. Hedrick, 545 F.2d 393, 396 (4th Cir. 1976)); Mut.
Fed., 872 F.2d at 92 (noting that “the extreme sanction of dismissal or judgment by default”
isreserved for “only the most flagrant case”). This Circuit has found dismissal may be warranted
“when a party deceives a court or abuses the process at a level that is utterly inconsistent with the
orderly administration of justice or undermines the integrity of the process.” United States v.
Shaffer Equip. Co., 11 F.3d 450, 462 (4th Cir. 1993). Even in a case involving fraudulent altering
or spoliation of documentary evidence (the original version of which “eventually came to light”)
– conduct described as “misconduct that was certainly egregious and burdened an already
stretched court with months of needless litigation” – the Court found that the “integrity of the
judicial process was not so greatly frustrated as to warrant the ‘particularly severe sanction’ of
dismissal.” Suntrust Mortgage, Inc., v. United Guaranty Residential Ins. Co., Nos. 11-1956, 11-
2086, 2013 U.S. App. LEXIS 2349, at *29-30 (4th Cir. Feb. 1, 2013); see also Shaffer Equip., 11
F.3d at 463 (in reversing dismissal, finding insufficient consideration given to “broad policies of
deciding cases on merits” when “integrity of the process had not been permanently frustrated”).
This high standard comports with “the sound public policy of deciding cases on their
merits and not depriving parties of their fair day in court.” Choice Hotels, 11 F.3d at 472 (4th
Cir. 1993) (citations and internal quotation marks omitted).
Even where a discovery failure causes prejudice to the movant, dismissal is a sanction of
last resort, not first. A proper sanction is one that is “no more severe . . . than is necessary to
prevent prejudice to the movant.” Wilson, 561 F.2d at 504 (quoting Diaz v. S. Drilling Corp.,
427 F.2d 1118, 1127 (5th Cir. 1970)). Thus, the Fourth Circuit Court of Appeals has reversed
district court decisions to enter judgment as a discovery sanction when less drastic remedies
might have sufficed. Compare Hathcock v. Navistar Int’l Transp. Corp., 53 F.3d 36, 41 (4th Cir.
1995) (finding abuse of discretion in default sanction where “the district court imposed no lesser
sanction as a preliminary deterrent”), and Lolatchy v. Arthur Murray, Inc., 816 F.2d 951, 953
(4th Cir. 1987) (finding abuse of discretion in default sanction where there was nothing in the
record to suggest that less extreme sanctions “would not have promptly cured” defendant’s
discovery deficiencies) with Mut. Fed., 872 F.2d at 93 (default judgment deemed appropriate
sanction when lesser sanctions earlier in the discovery process had little, if any impact on the
defendants).
The cases Defendant cites where dismissal or default was deemed an appropriate sanction
(Def. Br. 20-21) present the opposite circumstances from this case. Unlike this case where
Plaintiffs are willing, but unable to appear, the cases Defendant cites involve parties who were
able to appear but simply unwilling to do so. See Def. Br. 20-21 citing Rowley v. City of North
Myrtle Beach, 356 F. App’x 657 (4th Cir. 2009), aff’g Nos. 4:06-cv-01873-TLW-TER; 4:07-cv-
01636-TLW-TER, 2009 U.S. Dist. LEXIS 74513, at *7 (D.S.C. Aug. 21, 2009) (dismissing
plaintiff’s claims where she failed to produce documents, engaged in frivolous litigation tactics,
failed to appear for depositions on numerous occasions, and provided “no persuasive reasons for
her abject failure to properly prosecute the case”); United States v. Wright, No. 98-70793, 1999
U.S. App. LEXIS 16749 at *9, 11 (4th Cir. 2009) (entering default judgment when defendant
failed to appear multiple times for deposition “[w]ithout explanation” and “provid[ing] no
legitimate excuse”); Robinson v. Morgan, 160 F.R.D. 665, 666 (E.D.N.C. 1995) (finding
plaintiff“engaged in a pattern of delay and obstruction” and refused to answer questions at his
rescheduled deposition). The court in Robinson v. Yellow Freight Sys. found the plaintiff acted
in bad faith when he “willfully failed to appear” at his deposition without giving proper notice to
defendant on multiple occasions, including after the court had directed that the deposition be
held in the plaintiff’s home state, thirteen miles from his home. 132 F.R.D. 424, 427-2.
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