Coleman v. National Community Reinvestment Coalition

UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF COLUMBIA
In re
ELLIOTTE PATRICK COLEMAN,
Debtor.
____________________________
ELLIOTTE PATRICK COLEMAN,
Plaintiff,
v.
NATIONAL COMMUNITY
REINVESTMENT COALITION,
Defendant.
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Case No. 06-00254
(Chapter 13)
Adversary Proceeding No.
07-10023
Not for Publication in
West’s Bankruptcy Reporter
MEMORANDUM DECISION AND ORDER GRANTING MOTION TO DISMISS
The defendant, National Community Reinvestment Coalition
(“NCRC”), has filed a motion to dismiss pursuant to Fed. R. Civ.
P. 37(b) & (d), made applicable to this proceeding by Fed. R.
Bankr. P. 7037, based upon the plaintiff’s continued failure to
comply with his discovery obligations, as well as his refusal to
comply with the court’s May 12, 2009 order granting Defendant’s
Second Motion to Compel and for Sanctions. 	The plaintiff having
failed to respond, and good cause having been shown, the court
The document below is hereby signed.
Signed: April 23, 2010.
_____________________________
S. Martin Teel, Jr.
United States Bankruptcy Judge
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2
will dismiss this adversary proceeding. 	The court will not,
however, award attorney’s fees in favor of NCRC absent a further
motion by NCRC based on grounds other than Rule 37.
I
“‘[U]nder Rule 37, the district court has broad discretion
to impose sanctions for discovery violations[,]’ and to determine
what sanctions to impose.” 	Kister v. District of Columbia, 229
F.R.D. 326, 329 (D.D.C. 2005) (quoting Bonds v. District of
Columbia, 93 F.3d 801, 807 (D.C. Cir. 1996)). 	When deciding on
the appropriate sanction to impose under Rule 37, “[t]he central
requirement is that any sanction must be just . . . .” 	Bonds, 93
F.3d at 808. 	Dismissal pursuant to Rule 37 typically involves a
party who has “engaged in a pattern of disobedience or
noncompliance with court orders . . . so that the court concludes
that no lesser sanction is warranted.” 	S.E.C. v. Hollywood
Trenz, Inc., 202 F.R.D. 3, 7 (D.D.C. 2001), citing 6A Charles
Alan Wright, Arthur R. Miller & Mary Kay Kane, F EDERAL PRACTICE AND
PROCEDURE 2d, § 1531 at 312. 	When considering dismissal as a
sanction, the court is required to “consider whether lesser
sanctions would be more appropriate for the particular
violation.” 	Bonds, 93 F.3d at 808. 	Indeed, “dismissal is a
sanction of last resort to be applied only after less dire
alternatives have been explored without success or would
obviously prove futile.” 	Id.
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1 	On May 12, 2009, the court entered an order granting
NCRC’s second motion to compel and for sanctions (Dkt. No. 86).
The order provided, inter alia, “that the plaintiff Coleman shall
provide full and complete responses to the defendant’s
Interrogatories and Requests for Production of Documents, as
identified in NCRC’s counsel’s letter of April 17, 2008, to
plaintiff, no later than May 25, 2009.” 	According to NCRC’s
unopposed motion to dismiss, the plaintiff has not complied with
this directive.
3
In this adversary proceeding, the plaintiff continues to
disregard his discovery obligations and he has likewise failed to
comply with this court’s order directing compliance. 1 	The court
previously awarded attorney’s fees in favor of NCRC based upon
the plaintiff’s failure to meet his discovery obligations, but
that sanction has been ineffective and has not resulted in
compliance. 	Accordingly, the court deems it appropriate to
dismiss this proceeding pursuant to Rule 37. 	See Rule
37(b)(2)(A)(v), (d), & Fed. R. Bankr. P. 7037.
II
In addition to dismissal of this adversary proceeding, NCRC
asks the court to impose further Rule 37 sanctions on the
plaintiff by awarding NCRC it legal expenses, including
attorney’s fees, for bringing its motion to dismiss.
Rule 37(d)(3) provides that:
Instead of or in addition to [any of the orders listed
in Rule 37(b)(2)(A)(i)-(vi)], the court must require
the party failing to act, the attorney advising that
party, or both to pay the reasonable expenses,
including attorney’s fees, caused by the failure,
unless the failure was substantially justified or other
circumstances make an award of expenses unjust.
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The court previously awarded attorney’s fees in favor of NCRC for
the pursuit of its March 20, 2008, and May 6, 2008 motions to
compel. 	Now, in light of the plaintiff’s continued failure to
meet his discovery obligations, the court is imposing the harsh
sanction of dismissal based upon essentially the same discovery
violations that gave rise to NCRC’s previously filed motions to
compel. 	Although it does not give the plaintiff license to
disregard his discovery obligations, the court also observes that
the plaintiff is a pro se litigant who was, until recently, a
debtor in bankruptcy. 	Under the circumstances, the court finds
that it would be unjust to impose a further Rule 37 sanction on
the plaintiff by awarding NCRC its attorney’s fees for bringing
this motion to dismiss. 	See Elliott v. U.P.S., Inc., 2009 WL
213004 *2 (W.D. Wash. Jan. 28, 2009) (granting the defendant’s
motion to dismiss based upon plaintiff’s discovery violations,
but holding that “it would be unjust to require a pro se
plaintiff to pay fees and costs” under Rule 37(d)(3) in
connection with her discovery violations); Miller v. Sprint
Communications, 1997 WL 910426 *2 (W.D.N.C. Dec. 31, 1997) (not
in the interest of justice to award attorney’s fees under Rule 37
against indigent plaintiff in addition to sanction of dismissal).
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III
It is thus
ORDERED that NCRC’s request for attorney’s fees pursuant to
Rule 37 is DENIED without prejudice to the filing of a motion,
within 21 days after the entry of the judgment, seeking to
recover such fees on some basis other than Rule 37. 	It is
further
ORDERED that NCRC’s motion to dismiss (Dkt. No. 121) is
otherwise GRANTED.
[Signed and dated above.]
Copies to:
All counsel and parties of record; Office of U.S. Trustee.
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