Kendrick Harris v. Unknown Mack ( 2000 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 99-2831
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Kendrick Lee Harris, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri
Unknown Mack, Officer #976 *
* [UNPUBLISHED]
Appellee. *
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Submitted: July 5, 2000
Filed: July 24, 2000
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Before McMILLIAN, RICHARD S. ARNOLD, and MORRIS SHEPPARD
ARNOLD, Circuit Judges.
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PER CURIAM.
Kendrick Lee Harris appeals from the final judgment entered in the District
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Court for the Eastern District of Missouri, dismissing his action with prejudice under
Fed. R. Civ. P. 37(d) for twice failing to appear at his deposition. For reversal, Harris
argues the district court erred in dismissing the action because he provided good cause
for his failure to appear, namely, he had been out of town when defendant requested
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The Honorable Donald J. Stohr, United States District Judge for the Eastern
District of Missouri.
the depositions. For the reasons discussed below, we affirm the judgment of the district
court.
Under Rule 37(d), if a party fails to appear for a deposition after being served
with proper notice, the district court “may make such orders in regard to the failure as
are just,” including an order dismissing the action. See Fed. R. Civ. P. 37(b)(2)(C) and
(d). We review Rule 37 dismissals for abuse of discretion and the district court’s
factual findings for clear error. See Boogaerts v. Bank of Bradley, 961 F.2d 765, 768
(8th Cir. 1992) (per curiam); Avionic Co. v. General Dynamics Corp., 957 F.2d 555,
558 (8th Cir. 1992).
Although dismissal with prejudice is an “extreme sanction,” see Hunt v. City of
Minneapolis, 203 F.3d 524, 527 (8th Cir. 2000), we conclude the district court did not
clearly err in finding that Harris had deliberately failed to attend the two scheduled
depositions and did not abuse its discretion in dismissing the case. The evidence
showed Harris’s counsel received notice of the depositions and appeared at both.
Harris’s counsel mailed correspondence relating to the depositions to Harris, but
received no response. After the date of the noticed depositions, some additional
correspondence counsel mailed to Harris was returned as undelivered, but other
correspondence--which counsel mailed to the address Harris claimed as his correct
address--was not.
Accordingly, we affirm.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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