James H. Shortz v. City of Tuskegee ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
Nov. 9, 2009
No. 09-12249 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 08-00456-CV-W-E
JAMES H. SHORTZ,
Plaintiff-Appellant,
versus
CITY OF TUSKEGEE, AL,
LESTER C. PATRICK,
MICHAEL T. CLEMENTS,
ROBIN COLLINS,
ERMA KENNEDY,
Defendants-Appellees,
TUSKEGEE POLICE DEPARTMENT,
Defendants.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
_________________________
(November 9, 2009)
Before TJOFLAT, WILSON and FAY, Circuit Judges.
PER CURIAM:
James H. Shortz appeals from the district court’s dismissal of his complaint,
pursuant to Fed.R.Civ.P. 37, for failure to comply with the court’s discovery
orders, in his action brought under 29 U.S.C. § 201, et seq; 42 U.S.C. § 1981; and
28 U.S.C. § 1367. For the reasons set forth below, we affirm.
I.
Shortz filed a complaint against the City of Tuskegee, (“the City”); the
Tuskegee Police Department (“TPD”); Tuskegee Police Chief Lester C. Patrick;
Police Captain Michael T. Clements; Police Lieutenant Robin Collins; and Erma
Kennedy, an Administrative Assistant for the City of Tuskegee (collectively, “the
defendants”), alleging violations of the Fair Labor Standards Act, 29 U.S.C. § 201,
et seq and 42 U.S.C. § 1981, and asserting state law claims of fraud and breach of
agreement. Shortz asserted that he began work as a TPD police officer with the
understanding that he would accrue additional benefits after completing a six-
month probationary period. After the expiration of the six-month probationary
period, Shortz was informed “that the six-month probationary period was not the
policy, and that [he] would have to complete a one-year probationary period
instead.” Shortly thereafter, Shortz resigned his position as a police officer. He
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subsequently learned that his position had been filled by a Caucasian male. Shortz
also asserted that he should have been paid overtime for off-duty court appearances
on behalf of the City.
The district court held a scheduling conference on July 23, 2008, at which it
ordered that all discovery be completed by November 10, 2008.
On September 24, 2008, the defendants filed a motion to compel production,
asserting that Shortz’s responses to their interrogatories were unsworn, incomplete,
and evasive, and that Shortz had provided no documents in response to their
request for production of documents. They also filed a motion to compel Shortz to
submit to a deposition, asserting that Shortz informed defense counsel, at 3:40 pm
on the day before his scheduled deposition, that he had a scheduling conflict and
would not be able to appear for the deposition.
On October 9, 2008, the magistrate judge held a hearing on the defendants’
motions to compel. The parties agreed that the defendants would depose Shortz on
October 20, 2008 and Shortz would depose Patrick, Clements, Collins, and
Kennedy on October 21, 2008. Shortz acknowledged that he did not produce any
documents in response to the defendants’ request for production of documents.
The court instructed Shortz to produce his state and federal income tax returns
from 2007 forward; any correspondence that he sent to the City that was relevant to
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his lawsuit; copies of letters he had written to the TPD police chief; and the
document he was relying on to prove constructive discharge. The court informed
Shortz that he was required to make a good faith effort to find any documents that
he may use to support his claims and provide those documents to defense counsel.
It noted that “[i]f something came up later that you should have produced, that
would not be in your favor and may be taken against you, could even cause the
case to be dismissed for some reason.”
With respect to the defendants’ interrogatories, the court instructed Shortz to
provide his employment history for the last 20 years; a list of all compensatory
damages he was claiming; and information regarding prior arrests, criminal
convictions, and prior lawsuits in which he was involved. The court explained to
Shortz that compensatory damages could include back pay, emotional damages,
and mental anguish. It ordered Shortz to deliver to the defendants, by October 18,
2008, the information and documents he had promised to provide.
On October 22, 2008, the defendants filed a “Motion to Compel Production
and For Other Relief,” noting that Shortz had failed to provide responses to their
interrogatories and document requests by the close of business on October 17,
2008. They asserted that Shortz also did not have the court-ordered discovery
responses when he appeared for his October 20, 2008 deposition, and Shortz stated
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during his deposition that he had “been too busy” to comply with the court’s order
to provide the additional responses. They noted that, on October 21, 2008, Shortz
told defense counsel that he still had not prepared his discovery responses.
On December 3, 2008, the magistrate judge ordered Shortz to show cause,
on or before December 16, 2008, why the defendants’ October 22, 2008 motion to
compel should not be granted. Shortz failed to respond to the court’s order to
show cause and, on December 23, 2008, the court granted the defendants’ motion
to compel, directing Shortz to respond to the defendants’ interrogatories and
requests for production on or before December 29, 2008, and to appear for a
second deposition at a location, date, and time convenient to the defendants. The
court also cautioned Shortz that “failure to respond to discovery or to appear for
deposition as ordered may result in sanctions, including dismissal.”
On January 7, 2009, the defendants filed a response, asserting that they had
not received any discovery from Shortz since the entry of the court’s December 23,
2008 order compelling Shortz to respond to their interrogatories and requests for
production on or before December 29, 2008.
On March 26, 2009, the district court held a status conference. Shortz stated
that he remembered appearing before the magistrate judge on October 9, 2008 and
understood the December 23, 2008 order. He also admitted that he had not
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provided the defendants with documents or sworn answers to their interrogatories.
Shortz explained:
I’ve been injured. And over the last year and a half, I
have been petitioning the courts for some relief. I’ve
filed – I wish I could have brought it in here. I’ve got a
box full of documents that I have filed with courts, this
court and the circuit court of Macon County, trying to
converse with this – with the defendant’s attorney.
Trying to do things within the framework of the system.
But every time I move forward, there is a road block.
There is an impediment. There is things that have been
going on that have restricted my ability to move forward.
I’m just about bankrupt. I don’t have any money. This
thing is just like a high-stakes poker game. We call until
you can’t respond. Then we win. That’s about the size
of what I’ve – that’s what I see is going on. But I’m just
tired. And if you want to dismiss it, fine. I’ll go home
and rest. But I came to this Court expecting to get some
relief.
The court noted that dismissal was one of the penalties for failing to comply with
the court’s discovery orders. It stated:
it’s a drastic remedy, but you have been ordered to do
this. And the second point about this discussion is you
were ordered by a federal judge . . . to do this. You had a
nice long hearing in October. Then there was another
motion and an order in December. You acknowledged
you got it. You read them. You understood them and
you were able to comply with them, and you didn’t
comply with them. That is known as contempt of court
for failure to comply with a lawful, unambiguous order
of a judge.
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The court asked Shortz if he had anything else to say about the matter and Shortz
responded “[n]othing beyond what I appealed to the court for in the beginning
initially, for some relief. That’s all I want, some relief.”
Subsequently, the court dismissed with prejudice Shortz’s lawsuit based on
Shortz’s failure to comply with court orders to provide discovery. The court found
that the magistrate judge’s orders were valid and lawful, and that Shortz was aware
of the court’s orders, understood them, had the ability to comply with them, and
intentionally did not comply with them. It noted that Shortz provided “no
justifiable reason” for his failure to comply with the magistrate judge’s orders and
stated that he would “just go home and rest” if the court dismissed his lawsuit. The
court found that any sanction less than dismissal with prejudice “would not suffice
in that it would prejudice Defendants with further delay and expense and would
hinder the court substantially in the orderly disposition of its cases. Moreover, any
lesser sanction would be ineffective and futile given that [Shortz] purposefully has
disregarded multiple court orders.”
Shortz filed a motion to set aside the order dismissing his case with
prejudice, asserting that his statement that he would “just go home and rest” was
misunderstood and that he was prepared to fully comply with all discovery
requests within seven days of any order setting aside the dismissal order. He also
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asserted that the court failed to make a finding that lesser sanctions would be
insufficient or that the defendants would be prejudiced by lesser sanctions.
The court denied Shortz’s motion to set aside the dismissal order, noting that
Shortz’s
statement that he ‘would just go home and rest’ was
preceded by an inquiry into his multiple failures to follow
the orders of this court and [Shortz’s] flippant response
that the court could dismiss the case. [Shortz’s] assertions
that he is prepared to comply with discovery requests are
overshadowed by his history of willfully, deliberately
and contumaciously disregarding the prior orders of this
court that he respond to discovery. [Shortz] was warned
‘that failure to respond to discovery or to appear for
deposition as ordered may result in sanctions, including
dismissal’ . . . yet he still failed to comply.
It noted that its order dismissing the case had stated that any lesser sanction would
not suffice because it would result in prejudice to the defendants.
II.
We review a district court’s dismissal of an action as a discovery sanction
for an abuse of discretion. BankAtlantic v. Blythe Eastman Paine Webber, Inc., 12
F.3d 1045, 1048 (11th Cir. 1994). The Federal Rules of Civil Procedure provide a
district court with authority to impose sanctions, including dismissal, on a party for
failing to comply with a court’s discovery order. Fed.R.Civ. P. 37(b)(2). Rule
37(b)(2)(A) provides, in pertinent part: “If a party . . . fails to obey an order to
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provide or permit discovery . . . the court where the action is pending may issue
further just orders. They may include . . . dismissing the action or proceeding in
whole or in part.” Fed.R.Civ.P. 37(b)(2)(A). “Dismissal with prejudice is the most
severe Rule 37 sanction,” but it “may be appropriate when a plaintiff’s
recalcitrance is due to wilfulness, bad faith or fault.” Phipps v. Blakeney, 8 F.3d
788, 790 (11th Cir. 1993). Dismissal is not an abuse of discretion “[w]hen a party
demonstrates a flagrant disregard for the court and the discovery process.” Aztec
Steel Co. v. Florida Steel Corp., 691 F.2d 480, 481 (11th Cir. 1982). Because
dismissal with prejudice is considered a drastic sanction, a district court may only
implement it as a last resort, when: (1) a party’s failure to comply with a court
order is a result of willfulness or bad faith; and (2) the district court finds that
lesser sanctions would not suffice. Malautea v. Suzuki Motor Co., Ltd., 987 F.2d
1536, 1542 (11th Cir. 1993).
III.
The district court did not abuse its discretion in dismissing with prejudice
Shortz’s claims. The magistrate judge explained to Shortz, at the October 9, 2008
hearing, exactly what documents he had to produce, specifically explaining what
types of compensatory damages he could claim. Furthermore, Shortz was aware of
the consequences of failing to comply with the court’s orders, as the magistrate
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warned Shortz on two occasions that failure to produce the requested discovery
could result in dismissal of his case. At the March 26, 2009 hearing, Shortz stated
that he remembered appearing at the October 9, 2008 hearing, and that he
understood the magistrate’s December 23, 2008 order to produce discovery
documents by December 29, 2008. Although Shortz claims that the magistrate’s
December 23, 2008 order interfered with his enjoyment of the holiday season, he
ignores the fact that he was initially ordered to respond to discovery by October 18,
2008.
It is also noted that Shortz failed to respond to the magistrate judge’s
December 23, 2008 order to show cause as to why the defendants’ motion to
compel should not be granted. He also failed to give a compelling reason for
failing to comply with discovery requests at the March 26th hearing, stating instead
that he had encountered “road block[s]” and “impediment[s]” and lacked money,
and telling the court that he would “go home and rest” if it dismissed his case.
Because Shortz failed to enunciate any compelling reason for failing to comply
with the court’s repeated orders to respond to the defendants’ discovery requests,
the district court correctly found that Shortz’s failure to comply was a result of
willfulness or bad faith. See Malautea, 987 F.2d at 1542. This is further supported
by Shortz’s antagonistic relationship with defense counsel and his demeanor before
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both the magistrate and the district court.
Finally, the district court found that any sanction less than dismissal with
prejudice would not have sufficed. Malautea, 987 F.2d at 1542. In light of
Shortz’s continued failure to comply with the court’s orders and his failure to offer
an explanation for his non-compliance, the district court did not abuse its discretion
in making this finding. Furthermore, the magistrate explained to Shortz, at the
October 9, 2008 hearing, exactly what documents and information he had to
provide to the defendants. Shortz was eventually given until December 29, 2008 to
produce this information. The fact that Shortz failed to produce the requested
information after two-and-a-half months leads to the conclusion that further
sanctions would not have successfully compelled production. Accordingly, we
affirm the district court’s dismissal of Shortz’s lawsuit.
AFFIRMED.
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