Raymond Setzke v. Steve Whitmill

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 06-1812
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Raymond Setzke, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the Western
* District of Arkansas.
Steve Whitmill, Sheriff, *
Washington County, Arkansas; * [UNPUBLISHED]
Vernon Sizemore; Deputy Coker, *
Washington County K-9 Unit; *
Officer Billy Dunn, Johnson Police *
Department; Unknown Officers of *
the Washington County Sheriff’s *
Department and Johnson Police *
Department; Ray Reynolds, Judge, *
City of Johnson; Jim Boyd, Judge, *
City of Johnson; Daniel Wright, *
Prosecutor, City of Johnson; Officer *
of the Fayetteville Police Department; *
Officer Billy Dunn; Deputy Scott *
Young, Washington County Deputy; *
Deputy Skelton, Washington County *
Deputy; Frank Johnson, Police Chief *
of Fayetteville Police Department; *
Vernon Sizemore, Chief of Police, *
City of Johnson, Arkansas; Grammer, *
Officer at Fayetteville Police Dept. *
K-9 Unit, *
*
Appellees. *
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Submitted: July 20, 2007
Filed: July 20, 2007
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Before WOLLMAN, COLLOTON, and BENTON, Circuit Judges.
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PER CURIAM.
Raymond Setzke appeals the district court’s1 dismissal without prejudice of his
42 U.S.C. § 1983 action after he failed to appear for two scheduled depositions. We
see no abuse of discretion in the district court’s dismissal of the action. See Doe v.
Cassel, 403 F.3d 986, 990 (8th Cir. 2005) (per curiam) (Fed. R. Civ. P. 41(b)
dismissal); Boogaerts v. Bank of Bradley, 961 F.2d 765, 768 (8th Cir. 1992) (per
curiam) (Fed. R. Civ. P. 37 dismissal). Setzke admitted to defense counsel by
telephone that he received notice of the first deposition, the court warned him that
failure to attend the second deposition could result in dismissal, and defendants
produced unrebutted proof that they properly noticed the second deposition. See Aziz
v. Wright, 34 F.3d 587, 588-89 (8th Cir. 1994) (affirming dismissal under Rule 41(b)
for plaintiff’s failure to comply with court order allowing deposition). We also see
no abuse of discretion in the award of reasonable costs to defendants. See Fed. R. Civ.
P. 37(d) (court shall require party failing to attend own deposition to pay “reasonable
expenses, including attorney’s fees, caused by the failure”); Ranger Transp., Inc. v.
Wal-Mart Stores, 903 F.2d 1185, 1188 (8th Cir. 1990) (per curiam) (standard of
review).
Accordingly, we affirm.
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1
The Honorable Jimm Larry Hendren, Chief Judge, United States District Court
for the Western District of Arkansas.
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