124 F.R.D. 79 (D.Del. 1987), C. A. 83-185 LON, Hicks v. Feeney

Docket NºCiv. A. 83-185 LON.
Citation124 F.R.D. 79
Opinion JudgeLONGOBARDI, District Judge.
Party NameRoy HICKS, Plaintiff, v. Robert C. FEENEY, Defendant.
AttorneyJoseph M. Bernstein, Wilmington, Del., for plaintiff. Marcia Rees, State Dept. of Justice, Wilmington, Del., for defendant.
Case DateJuly 14, 1987
CourtUnited States District Courts, 3th Circuit, District of Delaware

Page 79

124 F.R.D. 79 (D.Del. 1987)

Roy HICKS, Plaintiff,

v.

Robert C. FEENEY, Defendant.

Civ. A. No. 83-185 LON.

United States District Court, D. Delaware.

July 14, 1987

Former patient, who was committed to state hospital, brought § 1983 action against director of state hospital for alleged deprivation of procedural due process when he was involuntarily confined. The District Court, 596 F.Supp. 1504, granted summary judgment for director, and patient appealed. The Court of Appeals, James Hunter, III, Circuit Judge, 770 F.2d 375, vacated and remanded. On remand, the District Court, Longobardi, J., held that plaintiff's repeated failure to appear at deposition warrant dismissal.

Motion to dismiss granted.

Affirmed, 3d Cir., 850 F.2d 152.

Page 80

Joseph M. Bernstein, Wilmington, Del., for plaintiff.

Marcia Rees, State Dept. of Justice, Wilmington, Del., for defendant.

OPINION

LONGOBARDI, District Judge.

Plaintiff brought this civil rights action under 42 U.S.C. § 1983 claiming that his confinement at the Delaware State Hospital deprived him of a liberty interest in violation of the Fourteenth Amendment of the United States Constitution. On November 8, 1984, this Court held that while Plaintiff had been deprived of a liberty interest, that deprivation had not occurred without due process of law. Hicks v. Feeney, 596 F.Supp. 1504 (D.Del.1984). The Court based its decision on the ground that post-deprivation remedies were available to Plaintiff and that under Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), he was, therefore, unable to make out a claim under section 1983. The Court alternatively held that Defendant Feeney was entitled to qualified immunity.

On appeal, the Third Circuit vacated the Order of this Court, holding that the Parratt post-deprivation remedy exception to section 1983 violations did not apply to this case. Hicks v. Feeney, 770 F.2d 375 (3d Cir.1985). The Third Circuit also remanded the action to this Court for reconsideration of Defendant Feeney's immunity claim in light of the Supreme Court's recent decision in Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985).

Upon remand to this Court, Defendant Feeney initiated discovery efforts. Defendant duly noticed the deposition of Plaintiff for January 18, 1986. Docket Item (" D.I." ) 46. Plaintiff appeared at the deposition but, after approximately forty minutes of questioning, refused to answer certain questions concerning Exhibit 1 to his deposition. Deposition Transcript, D.I. 54, at 30. Plaintiff was apparently disturbed by not having been given a copy of the exhibit prior to his deposition. Id. at 29. In order to accommodate Plaintiff's concerns, counsel agreed to recess the deposition for one hour. Id. at 30-31. Plaintiff never returned to the deposition. Id. at 31-32.

On January 30, 1986, Defendant again duly noticed Plaintiff's deposition. D.I. 53. Plaintiff never appeared for the scheduled deposition. D.I. 55.

On February 26, 1986, Defendant moved to compel Plaintiff's deposition. D.I. 55. Before the Court could rule on the motion, Defendant again noticed Plaintiff's deposition. D.I. 58. Once again, Plaintiff failed to appear. D.I. 61.

On July 9, 1986, Plaintiff's attorney informed the Court that he had discussed with Plaintiff the need to comply with discovery requests and the potential sanctions he faced for his failure to cooperate. Letter of Joseph Bernstein, Esquire to The Honorable Joseph J. Longobardi dated July 9, 1986. Mr. Bernstein explained both in his letter and in a telephone conference held on July 11, 1986, that Plaintiff probably would not respond to additional deposition notices due to his embarrassment about the subject matter of this litigation.

On July 16, 1986, citing Plaintiff's steadfast refusal to cooperate with Defendant's proper attempts to gain discovery, the Court ordered Plaintiff to appear for a deposition on July 29, 1986. The Court admonished Plaintiff that if he did not appear at the deposition and cooperate, the Court would impose sanctions under Rule 37 of the Federal Rules of Civil Procedure.

Page 81

In spite of the Court's Order and in spite of its warnings regarding sanctions, Plaintiff failed to appear at the deposition. D.I. 64.

Not surprisingly, Defendant has now moved for sanctions under Rule 37. Defendant seeks dismissal of this action together with an award of attorney's fees and costs. For the reasons discussed below, Defendant's motion is granted.

Defendant's motion for sanctions is based on Federal Rule of Civil Procedure 37(b)(2) which permits the imposition of sanctions against a party who fails to obey a court order to provide or permit discovery. As discussed below, the Court concludes that dismissal is warranted under Rule 37(b)(2) in light of Plaintiff's violation of the Court's July 16, 1986, Order. In addition, the Court concludes that dismissal is appropriate under Rule 37(d) which permits the imposition of sanctions against a party who fails to appear for his deposition or otherwise fails to provide discovery. By its terms, Rule 37(d) does not require violation of a Court order before sanctions may be imposed. See Al Barnett & Son, Inc. v. Outboard Marine Corp., 611 F.2d 32, 35 (3d Cir.1979). Thus, given Plaintiff's conduct in this case, dismissal is justified under either Rule 37(b)(2) or Rule 37(d).1

The Court notes at the outset that dismissal is a drastic sanction which " should be reserved for those cases where there is a clear record of delay or contumacious conduct by the plaintiff." Donnelly v. Johns-Manville Sales Corp., 677 F.2d 339, 342 (3d Cir.1982). A motion to dismiss must be approached with extreme caution, for courts must be reluctant to deprive a plaintiff of the opportunity to have his claim adjudicated on the merits. Titus v. Mercedes Benz of North America, 695 F.2d 746, 749 (3d Cir.1982); Donnelly, 677 F.2d at 341. The Courts have not hesitated to invoke the extreme sanction of dismissal, however, where a plaintiff has frustrated the purposes of discovery. In Al Barnett, 611 F.2d 32, for example, the Third Circuit upheld the dismissal of an action against several plaintiffs who failed to answer interrogatories, appear at their scheduled depositions or produce requested documents. While the Court was fully cognizant of the harshness of dismissal, it noted that plaintiffs, having flagrantly ignored their discovery obligations, had brought that sanction upon themselves. Id. at 36. Dismissal, " although severe, is a necessary tool, both to punish in the individual action and to deter future...

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5 practice notes
  • 169 F.R.D. 623 (E.D.Pa. 1996), C. A. 95-1144, Clarke v. Whitney
    • United States
    • Federal Cases United States District Courts 3th Circuit Eastern District of Pennsylvania
    • December 16, 1996
    ...(Lewis, J.) (dismissing case where plaintiff failed to comply with three orders requiring him to produce tax returns); Hicks v. Feeney, 124 F.R.D. 79 (D.Del.1987) (dismissing case against plaintiff who, despite court's threat of Rule 37 sanctions, failed to comply with order requiring him t......
  • U.S. Commodity Futures Trading Commission v. Binary, 060115 NVDC, 2:13-cv-992-MMD-VCF
    • United States
    • Federal Cases United States District Courts 9th Circuit District of Nevada
    • June 1, 2015
    ...just result in the pending discovery disputes." (Doc. #123 at 2:15-16). This argument fails as a matter of law. See Litton Indus., 124 F.R.D. at 79 (no automatic stay); Timber Falling, 959 F.2d at 1480 (disregarding a discovery order risks contempt of court); see also Computer Task Gro......
  • Jamieson v. Klemm, 122520 PAWDC, 1:19-cv-00284
    • United States
    • Federal Cases United States District Courts 3th Circuit
    • December 25, 2020
    ...Jamieson is proceeding pro se, his refusal to testify was solely his decision and his personal responsibility. Hicks v. Feeney, 124 F.R.D. 79, 82 (D. Del. 1987), aff'd, 850 F.2d 152 (3d Cir. 1988). He declined to testify despite knowledge that the Court had entered an......
  • Preston v. Scrap, 092217 PAEDC, C. A. 16-cv-2612
    • United States
    • Federal Cases United States District Courts 3th Circuit Western District of Pennsylvania
    • September 22, 2017
    ...Plaintiff failed to appear for properly noticed depositions, including in violation of a Court Order); Hicks v. Feeney, 124 F.R.D. 79, 82 (D. Del 1987) (finding a history of dilatoriness where Plaintiff failed to appear for three duly noticed depositions). This factor we......
  • Request a trial to view additional results
5 cases
  • 169 F.R.D. 623 (E.D.Pa. 1996), C. A. 95-1144, Clarke v. Whitney
    • United States
    • Federal Cases United States District Courts 3th Circuit Eastern District of Pennsylvania
    • December 16, 1996
    ...(Lewis, J.) (dismissing case where plaintiff failed to comply with three orders requiring him to produce tax returns); Hicks v. Feeney, 124 F.R.D. 79 (D.Del.1987) (dismissing case against plaintiff who, despite court's threat of Rule 37 sanctions, failed to comply with order requiring him t......
  • U.S. Commodity Futures Trading Commission v. Binary, 060115 NVDC, 2:13-cv-992-MMD-VCF
    • United States
    • Federal Cases United States District Courts 9th Circuit District of Nevada
    • June 1, 2015
    ...just result in the pending discovery disputes." (Doc. #123 at 2:15-16). This argument fails as a matter of law. See Litton Indus., 124 F.R.D. at 79 (no automatic stay); Timber Falling, 959 F.2d at 1480 (disregarding a discovery order risks contempt of court); see also Computer Task Gro......
  • Jamieson v. Klemm, 122520 PAWDC, 1:19-cv-00284
    • United States
    • Federal Cases United States District Courts 3th Circuit
    • December 25, 2020
    ...Jamieson is proceeding pro se, his refusal to testify was solely his decision and his personal responsibility. Hicks v. Feeney, 124 F.R.D. 79, 82 (D. Del. 1987), aff'd, 850 F.2d 152 (3d Cir. 1988). He declined to testify despite knowledge that the Court had entered an......
  • Preston v. Scrap, 092217 PAEDC, C. A. 16-cv-2612
    • United States
    • Federal Cases United States District Courts 3th Circuit Western District of Pennsylvania
    • September 22, 2017
    ...Plaintiff failed to appear for properly noticed depositions, including in violation of a Court Order); Hicks v. Feeney, 124 F.R.D. 79, 82 (D. Del 1987) (finding a history of dilatoriness where Plaintiff failed to appear for three duly noticed depositions). This factor we......
  • Request a trial to view additional results