[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 07-12214 October 9, 2007
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D.C. Docket No. 06-01715-CV-TWT-1
JOE E. GARY, JR.,
Plaintiff-Appellant,
versus
CAPITAL ONE AUTO FINANCE, INC.,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(October 9, 2007)
Before WILSON, PRYOR and COX, Circuit Judges.
PER CURIAM:
Joe Gary appeals dismissal of his civil action against Capital One Auto
Finance, Inc. The district court dismissed Gary’s action, without prejudice, after
Gary failed to comply with its order compelling discovery. We affirm.
Gary sued Capital One alleging fraud in the collection of a note and
repossession of his vehicle. The court dismissed Gary’s action after Capital One
filed, and the court granted, a second motion compelling Gary to produce
discovery. Gary argues (1) that he satisfied his obligations in responding to
Capital One’s discovery requests and (2) that in some instances he was entitled to
not respond or provide complete responses because Capital One was on a “witch
hunt” by seeking irrelevant information. (Brief for Appellant at 24.) Gary opined
in his deposition that all of Capital One’s discovery requests were “garbage.” (R.4-
47 at 5.)
Capital One maintains Gary’s uncooperativeness, incomplete and evasive
answers, and general refusal to participate in discovery prevented it from
maintaining a defense, forcing it to seek an extension of the discovery deadline.
And, Capital One insists that the district court’s dismissal without prejudice of
Gary’s action was the only effective sanction given Gary’s refusal to participate in
discovery, a refusal based on Gary’s own willfulness, bad faith, or substantial
fault.
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We review discovery sanctions for abuse of discretion. Phipps v. Blakeney,
8 F.3d 788, 790 (11th Cir. 1993). Dismissal of an action is a permissible sanction
for failure to comply with a court’s discovery order. Fed. R. Civ. P. 37. Therefore,
the issue on appeal is whether the district court abused its discretion in sanctioning
Gary under Rule 37 by dismissing his action without prejudice. We find the
district court did not abuse its discretion and affirm.
The record reflects that Gary was uncooperative and at times affirmatively
frustrated the discovery process. For example, Gary testified at his deposition that
he would not look for documents Capital One requested he produce, despite
acknowledging they were in his possession. Gary’s responses to Capital One’s
interrogatories–tendered only after the district court granted Capital One’s first
motion to compel–further exemplifies his failure to constructively participate in
discovery. Gary failed to properly respond to many of the twenty-six
interrogatories proffered by Capital One. While Gary was certainly entitled to
object to any interrogatory that sought irrelevant or privileged information, his
responses and objections were not grounded in any recognizable discovery rule.
In its order granting Capital One’s first motion to compel, the district court
observed that Gary’s initial discovery responses were “evasive and incomplete.”
The court gave Gary an opportunity to comply with its order and only dismissed
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Gary’s action after Capital One filed a second motion to compel. Additionally, the
fact that the court dismissed without prejudice and explicitly permitted Gary to file
again–and pay full filing fees–leads us to conclude that the district court crafted a
permissible sanction. On this record, we cannot say the district court abused its
discretion in dismissing Gary’s action without prejudice.
AFFIRMED.
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