PAUL J. CLEARY, Magistrate Judge.
This matter comes before the Court on Defendants' Motion for Imposition of Sanctions (hereafter, "Defendants' motion") asserting Plaintiffs' refusal to obey certain Orders of this Court or to cooperate in discovery. [Dkt. No. 157]. The specific Orders cited by Defendants are Dkt. Nos. 118, 129 and 130; however, they also complain of other misconduct related to Plaintiffs' depositions. All of these issues were the subject of a hearing on September 9, 2015 ("the September 9 hearing"). Defendants appeared personally through counsel, David M. O'Dens. Pro se Plaintiffs appeared by telephone.
Following the hearing, the Court has reviewed the record evidence, including Exhibits 1-8 to Defendants' motion, the transcripts of and exhibits from Plaintiffs' depositions on June 8, 2015, and other relevant pleadings, and has considered the arguments propounded at the September 9 hearing. After weighing all of this material, the Court finds that for the past 10 months, Plaintiffs have willfully obstructed and refused to cooperate in discovery, all in violation of this Court's discovery orders and the Federal Rules of Civil Procedure. Plaintiffs have refused to properly answer discovery after having been ordered to do so. They have refused to properly verify interrogatory responses "under penalty of perjury", after having been ordered to do so. They have deliberately engaged in a pattern of abusive and childish conduct that has needlessly increased the expense of this litigation and frustrated the truthseeking mission of discovery. Therefore, after careful consideration of the record evidence and the factors set forth in Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir. 1992), and for the reasons detailed below, I
Pro se Plaintiffs Elbert Kirby, Jr. ("Kirby") and Caleb Meadows ("Meadows") filed this action on July 11, 2014, alleging misconduct by three Defendants in connection with collection of a debt. The Defendants are David O'Dens ("O'Dens"), his law firm SettlePou ("SettlePou"), and their client, Ocwen Loan Servicing LLC ("Ocwen"). The underlying debt relates to a 2005 mortgage loan made by ResMae Mortgage Corporation to Kirby in connection with property at 1125 East Eighth St., Tulsa Oklahoma ("the 1125 property"). It appears that in 2011, Kirby transferred title to the 1125 property to the "1125 East 8th Street Trust" ("the 1125 Trust").
To appreciate the discovery problems in this case, it is critical to understand the different positions occupied by the two Plaintiffs and the three Defendants relative to the dispute. Kirby executed the Note and Mortgage that gives rise to the debt that is at the heart of this case. Meadows' role is unclear. While his name does not appear on documents associated with the mortgage loan to Kirby, he testified at his deposition that he is a Trustee of the 1125 Trust.
There is a long and painful background to Defendants' motion. The story begins with discovery requests — Interrogatories, Requests for Production and Requests for Admission — that were served on the Plaintiffs in November 2014. From that date to the present, Plaintiffs' responses have been the subject of numerous Motions to Compel, Court hearings, conferences and sanctions motions. See, Dkt. Nos. 25, 29, 56, 67, 76, 84, 86, 93, 99, 118, 119, 124, 129, 130, 162. After all of this, the Defendants still have not received basic discovery to which they are entitled, and which the Plaintiffs were ordered to properly provide.
The instant motion was filed on July 6, 2015, with supporting documentation. Plaintiffs did not respond to the motion. On July 29, 2015, Defendants filed a Reply, noting Plaintiffs' failure to respond and ongoing failure to comply with the Court's orders. [Dkt. No. 164]. Thus, Plaintiffs twice received notice of Defendants' motion, but ignored it.
On August 21, 2015, the Court directed the Defendants to submit the full transcripts of Plaintiffs' depositions for review. [Dkt. No. 183]. On August 26, the Court set the Defendants' motion for hearing and emphasized in that Order that Defendants had specifically requested that Plaintiffs' lawsuit be dismissed. [Dkt. No. 193].
Finally, on August 28, 2015, Plaintiffs acknowledged Defendants' motion by filing a Motion for Leave to File Response to Defednants' (sic) Motion for Sanctions. [Dkt. No. 195]. Although their response was already a month overdue, Plaintiffs asked for an additional three weeks to respond. Defendants objected to the Plaintiffs' motion [Dkt. No. 198]. The Motion was denied on September 4, 2015. [Dkt. No. 199].
On September 8, 2015, Plaintiffs filed a "Motion to Strike Hearing by Cleary on Defendnats (sic) Motion for Sanctions." [Dkt. No. 200]. This motion was largely an ad hominem attack on the undersigned, but they stated that their schedules would not allow them to attend the September 9 hearing in person. [Id., p. 2]. The Court granted this motion in part and denied it in part: The hearing would go forward as scheduled, but Plaintiffs would be permitted to appear by phone. [Dkt. No. 202]. O'Dens appeared in person on behalf of all three Defendants; Kirby and Meadows both were given a full opportunity to respond to the motion. At the hearing, Defense counsel spent much of his time addressing the Ehrenhaus factors and how they were satisfied in this case. Plaintiffs never addressed Ehrenhaus.
The instant motion specifically concerns three separate Orders of this Court issued in May 2015.
Pursuant to Fed. R. Civ. P. 37, a party who fails to obey an order to provide or permit discovery may be subject to sanctions. These sanctions include the following:
Rule 37(b)(2)(A)(i)-(vii).
Rule 37(b) concerns the most serious sanctions a court may impose for discovery violations. First, there must be a specific Court Order that has been violated. Here, the Court has entered at least three specific Orders directing Plaintiffs to amend their discovery responses to omit certain objections, properly verify their interrogatory answers, serve discovery responses by each Plaintiff individually and serve discovery responses to each Defendant separately. Finally, the Court has ordered Plaintiffs to pay a sanction award of $4,401 by July 1, 2015. Second, the Court must find that the order(s) have been disobeyed. Plaintiffs have failed to comply with the Court's orders, despite numerous opportunities to do so.
Under these circumstances, the Court may impose a "merits sanction"; that is, sanctions that "directly impact or resolve the merits of the case." Steven S. Gensler, Federal Rules of Civil Procedure: Rules and Commentary, p. 789 [2013]. For example, a court may impose a proof-based sanction, deeming certain facts to be established, or precluding a party from offering evidence on certain issues. Rule 37(b)(2)(A)(i) & (ii). A court may also strike parts of pleadings, dismiss the case in full or part, or enter a default judgment. Rule 37(b)(2)(A)(iii), (v) & (vi). See also, O'Neil v. Burton Group, 559 Fed. Appx. 719, 720 n.4 (10th Cir. 2014); Porter Bridge Loan Co., Inc. v. Northrop, 566 Fed.Appx. 753, 756 (10th Cir. 2014); Klein-Becker USA, LLC v. Englert, 711 F.3d 1153, 1159-60 (10th Cir. 2013); Gross v. Gen. Motors LLC, 441 Fed. Appx. 562, 564-66 (10th Cir. 2011).
In Ehrenhaus, 965 F.2d 916, the Tenth Circuit Court of Appeals discussed a court's authority to dismiss a case for failure to obey discovery orders. The Tenth Circuit noted that a district court's authority is rooted in Rule 37(b), but recognized that "dismissal represents an extreme sanction appropriate only in cases of willful misconduct." Id. at 920. The court observed that in many cases a lesser sanction would "deter the errant party from further misconduct." Id. The court also observed:
Id., n.3.
The Tenth Circuit outlined five factors a court should consider before determining the appropriate sanction to be imposed. The five factors are:
Id. at 921 (citations omitted).
These factors do not constitute a rigid test; but are matters for a court's consideration before imposing dismissal as a sanction. "The court should ordinarily evaluate these factors on the record." See, Bud Brooks Trucking v. Bill Hodges Trucking, 909 F.2d 1437, 1439 (10th Cir.1990).
Plaintiffs' misconduct in the discovery process has not taken place in a vacuum. To fully understand the Plaintiffs' willful obstruction of discovery, it is necessary to recount related deposition conduct. Defendants first noticed Plaintiffs for depositions in February 2015, but Plaintiffs failed to appear, claiming they never received the deposition notice. In March 2015, Defendants filed a Motion to Compel Depositions. [Dkt. No. 56]. The Court addressed the issue during a discovery hearing on March 23, 2015. [Transcript of 3/23/2015 hearing, pp. 52-61]. By agreement and by Court order, a deposition schedule was established. Plaintiffs would give their depositions on April 9, 2015.
On the appointed day, it became clear that Plaintiffs had no intention of honoring their promise to cooperate in deposition discovery, or following the Court's Order in this regard. When Attorney O'Dens arrived at the agreedupon location to begin the depositions, Plaintiffs presented him with an 11page, single-spaced document entitled "Deposition Requirements and Stipulations" (`the Requirements"). See, Dkt.No. 84, Exhibit "3." Plaintiffs unilaterally imposed a myriad of wholly inappropriate, unreasonable and frivolous conditions on the Court-ordered depositions. These were clearly designed to derail the depositions and stop them from occurring. These are but a few examples of Plaintiffs' preconditions
(1) Depositions would not proceed "unless and until the deposing counsel [s]igns an `Acknowledgment of Receipt'" of the Requirements and gives it to the Deponent. [Id., Exhibit "3," ¶ 1].
(2) Deponents would not answer orally, insisting that they would respond to questions only in writing:
(3) Deponent would not take "any oral or written oath of any kind." [Id., ¶ 5]. Deponent would "authenticate and affirm his testimony in writing using the Affirmation contained in section 11" of the Requirements. [Id.]. The proposed Affirmation states:
The Plaintiffs then sought essentially to bar any legal proceeding over the truthfulness of their testimony:
(4) Prior to each question, Defense counsel would have to specify "which item and/or `Count' within the Complaint that the question is related to by specifying the page number and line number in the Complaint. . . ." [Id., ¶ 9].
(5) Defense counsel would have to agree that when using any of 22 words/phrases, he would "state the legal definition for the record completely and succinctly." These words included the following terms:
[Id., at ¶ 10].
(6) The Requirements provided "canned but truthful" responses to Counsel's anticipated preliminary questions. These included the following:
[Id., ¶ 17-2].
(7) Defense counsel would have to agree that the Plaintiffs would be granted immunity from criminal prosecution in connection with the pending lawsuit. [Id., ¶¶ 32-33].
(8) Finally, Plaintiffs required Defense counsel to sign the following certification:
The undersigned has never before been confronted with such inane, disruptive, and sophomoric behavior. The Plaintiffs' objective clearly was to frustrate and obstruct the scheduled depositions, and that is exactly what occurred. Defense counsel could not go forward with the depositions if it required acceding to Plaintiffs' demands. It was this conduct that caused the Court to assess fees and costs of $4,401 against the Plaintiffs jointly and severally. [Dkt. No. 129, at 6].
At a hearing on May 8, 2015, the Court addressed the Plaintiffs' depositions and expressly warned them that any such behavior in the future could result in their case being dismissed:
[Transcript of 5/8/2015 hearing, p. 47, lines 7-19 (emphasis added)].
The depositions were then re-scheduled for the Federal courthouse, so that the undersigned could supervise Plaintiffs' behavior. At the hearing on the instant motion, Meadows told the Court that Plaintiffs had fully answered all questions at their depositions, but that O'Dens insisted on asking the same questions over and over. The Court has reviewed the full transcripts of those depositions and they clearly reveal that Meadows' representation to the Court is both foolish and false. Plaintiffs' continued to obstruct deposition discovery, by pretending not to understand even basic questions and terms. For example, Meadows refused to state where he lives and testified that he could not understand the term "Tulsa, Oklahoma":
Q: Mr. Meadows, where do you live?
A: I think that's already been answered, but my answer will stay the same. I live in my body.
Q: Okay. Do you have a physical address where you live?
A: There's a mailing address, if that's what you're asking.
Q: What is your mailing address?
A: Well, it would be the 1125 East 8th Street.
Q: Okay. In Tulsa, Oklahoma?
A: Are you talking about the — clarify "Tulsa, Oklahoma."
Q: You really don't know what "Tulsa, Oklahoma" means?. . . . Where are you right now? Do you know?
A: I'm in my body. I know that. I'm looking at you.
Q: Are you sitting in the United States courthouse in Tulsa, Oklahoma?
A: What do you mean by "Tulsa, Oklahoma"? That's where we're asking. That's where we're at again.
Q: You don't understand that it means to be in the city of Tulsa in the state of Oklahoma?
A: Those are legal fictions that I do not understand.
[6/8/2015 dep. of Caleb Meadows, pp. 4-5].
Meadows frequently refused to answer basic questions about his claims. For example, he was asked what property he alleged was being taken from him by the Defendants — a fundamental element of his claim for damages:
Q: Can you tell me what property is being taken via a sham foreclosure?
A: David, at this point, I don't feel comfortable with asking that question because you directed me to answer it, but you didn't give me a way not to answer it, so why would you do something like that?
[Meadow dep., pp. 16-17].
Q: You've made a verified allegation in this lawsuit that you, along with Mr. Kirby, are having property taken away from you via a sham foreclosure that exceeds $500,000, and I'm asking a very simple question. What property do you fear you're going to lose via a sham foreclosure?
A: That's already been answered. Mr. Kirby: Objection. There's a fear in how you're conducting this. That has not been resolved.
Q: Do you have legal title to 1125 East 8th Street in Tulsa, Oklahoma?
A: I'm going to ask for a break.
Q: You can take a break as soon as you answer my question.
A: I can take a break whenever I want.
Q: Actually, you can't, Mr. Meadows, but I really don't want to get into that with you. Just answer the question and we'll take a break.
A: I'm not prepared to answer it. I do not feel comfortable with answering it, especially after you've threatened me.
[Id., pp. 17-18].
Meadows refused to answer whether he had ever purchased the real property at 1125 East 8th Street. [Id., p. 19]. He refused to answer whether he had borrowed money to purchase the real property because he did not know the meaning of "borrow":
Q: Have you ever borrowed any money from Resmae Corporation in connection with the purchase of a piece of property in Tulsa, Oklahoma?
Mr. Kirby: Objection. I think you need to define what you're talking about. We don't know what that means.
A: Yeah. I don't know what borrower — borrowed means.
Q: You don't know what "borrow" means?
A: No.
[Id., p.20].
He refused to answer whether he had ever borrowed money from anyone, because he did not know the meaning of the word "money."
Q: You've never borrowed any money from anybody? Mr. Kirby: Objection. What do you mean by "money."
A: What do you mean by "money."
Q: You don't know what "money" means? Mr. Kirby: Would you clarify please?
A: Please give me your clarification and define it so that I may answer you — fully answer and give a truthful response to your question.
Q: You don't understand what "money" means? Have you ever seen United States currency?
Mr. Kirby: Objection. Speculation.
A: I'm not certain.
[Id., pp. 21-22].
Elsewhere, Meadows testified that he did not understand the word "prepare" [id., at 24], "married" [id. at 32], or the phrase "Social Security number" [id., at 41].
Kirby's deposition proceeded in the same vein. Just as Meadows had done, Kirby testified he did not know the meaning of "Tulsa County, Oklahoma."
Q: When you signed the answers, Plaintiff's Response to Defendant's Second Set of Interrogatories Propounded to Elbert Kirby, Jr., were you in Tulsa County when you signed them?
A: What is your definition of Tulsa County?
Q: Tulsa County, Oklahoma.
A: What is that?
Q: You don't know what Tulsa County, Oklahoma, is?
A: I'm asking you to help me understand what you're asking.
Q: I'm asking you: You don't understand what Tulsa County, Oklahoma, is?
A: Well, it would depend on how you spell it and what you're making reference to.
Q: Where do you live?
A: In my body.
Q: Okay. Where do you physically reside?
A: Reside? What do you mean by that?
[Id., p. 82].
The witness would not even provide a clear answer as to his name:
Q: Is Elbert Kirby Jr. your full legal name?
A: I'm not certain what you're asking.
Q: Do you go by any other name?
A: Are you asking me if I have other legal aliases?
Q: Yes.
A: I don't have that one. I don't possess a legal alias.
Q: Do you possess any other alias?
A: Would you rephrase that? I'm not certain what you're asking.
Q: Okay. Are you known by any other name other than Elbert Kirby, Jr.?
A: I would be uncertain as to how to answer what others would know.
Q: Have you ever told anybody that your name is anything other than Elbert Kirby, Jr.?
A: I've been told many things. I've been told son, friend, comrade, adversary. There's many names that have been used. It's a label.
Q; My question, sir, have you ever been — Mr. Meadows: Objection. You're badgering the witness.
Q: Have you ever referred to yourself as anything other than Elbert Kirby, Jr., as your legal name?
A: I do not refer to myself.
[6/8/2015 dep. of Elbert Kirby, Jr., pp. 5-6].
Much time was spent trying to get the witnesses to explain what they meant by simple, common words.
Q: Are you willing to swear or affirm under penalty of perjury that the allegations [in the Second Verified Petition] are correct?
A: Affirm.
Q: And by "affirm," you mean "yes"?
A: By "affirm," I mean what affirm means.
Q: What does affirm mean to you?
A: What would it mean in the legality term?
Q: Does it mean "yes" or "no" to you?
A; It doesn't just mean "yes" or "no." It means affirm.
Q: You don't have any problem understanding the term "affirm"?
A; Who stated that there was a problem? Why are you asking me a question from that deny? Why would you state that?
[Id., pp. 13-14].
Kirby professed ignorance of the meaning words such as "residence [id., p. 146], "United States" [id., p. 83], "reside" [id., p. 82], "Tulsa County, Oklahoma" [id., p. 82].
In response to the question whether he transferred title to the 1125 East 8th Street property to 1125 East 8th Street Trust, Kirby offered a particularly — and intentionally — incoherent answer:
A: Based upon the information that you have presented and the affidavit of prejudice and bias that I put in and the threat that you brought by bringing [Magistrate Judge] Cleary's name into this deposition has caused me a tremendous amount of duress. I'm not certain what you're trying to compel from me. I'm offering you the answers the best way I know how.
[Id. at pp. 150-51].
Kirby refused to state that interrogatory answers he provided were answered "under penalty of perjury":
Q: When you answered the Interrogatories, did you intend to swear or affirm that the answers were true under penalty of perjury?
A: So I said earlier; I don't swear, so I would be unable to do that.
Q: Did you affirm that the answers were true under penalty of perjury?
A: There is an affirm in every statement that's spoken in truth, indeed.
[Id., p. 72].
This behavior continued until O'Dens finally gave up:
MR. O'DENS: Let the record reflect that Mr. Kirby is not responsive at this point.
THE WITNESS: And you are, as the witness now, giving your hearsay of what you would attest as to what nonresponsive is, but you continue to ask the same questions. I object, and let the record reflect that you are badgering the witness.
[Id., p. 81].
At times, the witness's testimony amounted to mere gibberish:
Q: Do you recall speaking to a representative of Ocwen Loan Servicing on April the 30th, 2010? [after discussion as to whether the question had been answered]. . . . Well, this is my opportunity to ask questions, not yours. You can either answer my question or not. It's up to you.
A: I answered it the first time happily.
Q: But you're unhappy to answer it a second time?
A:
[Id., pp. 42-43 (emphasis added)].
The Plaintiffs' behavior in scuttling the depositions scheduled for April 9, 2015, and their misconduct in refusing to answer even simple questions at the June 8, 2015, depositions make it clear that Plaintiffs' goal was to undermine and frustrate the discovery process. Deposition questions were designed to elicit the basic information that Plaintiffs should have provided in written discovery. Plaintiffs' refusal to obey the Court's specific discovery orders [Dkt. Nos. 118 & 130] was only part of their overall plan to prevent any meaningful discovery from occurring.
This small view of Plaintiffs' deposition conduct clearly establishes that their representations to the Court on September 9, 2015, were untrue. Plaintiffs did not answer questions at their depositions. Instead, they continued the same juvenile nonsense they have displayed throughout discovery.
Plaintiffs have willfully disobeyed this Court's orders regarding discovery and failed to comply with the Rules of Civil Procedure. They have failed to verify their interrogatory answers, failed to answer discovery individually, failed to serve separate discovery responses to each Defendant, and failed to pay a discovery sanction — all as ordered by this Court. This misconduct is in violation of the Federal Rules, including Rules 30(c)(2) (improper objections), 30(d)(2) (impeding, delaying or frustrating the fair examination of deponent), 33(b)(3) (verification of interrogatories), 34(b)(2)(B) & (C) (responses and objections to production requests), 37(a)(5) (sanctions for failure to cooperate in discovery). Plaintiffs do not dispute their failures and have offered no evidence to refute the Defendants' evidence. The Court must now consider whether the sanction requested by Defendants — dismissal of Plaintiffs' lawsuit — is an appropriate sanction in these circumstances. The Court will now consider the factors identified in Ehrenhaus in deciding the question.
Plaintiffs' discovery misconduct has significantly prejudiced Defendants. As this Court noted in a previous Order, see Dkt. No. 130, at ¶I(B)-(C), it is critical to understand that the two Plaintiffs and three Defendants are not identically situated with respect to the claims herein. In 2005, Plaintiff Kirby executed a Note and Mortgage to ResMae Mortgage Corporation in connection with real property at 1125 East Eighth St., Tulsa, Oklahoma, thereby creating the underlying debt that lies at the heart of this controversy. Plaintiff Meadows is not a signatory to any of these loan documents. Defendants claim Meadows is a mere tenant of the East Eighth Street property. [Dkt. No. 19, ¶ II(B)]. However, Meadows says he has an ownership interest in the property by virtue of being a Trustee of a Trust which apparently now hold title to the property. [6/8/2015 dep. of Caleb Meadows, pp. 74-75]. Because of the differences in their status with respect to the underlying indebtedness related to the Eighth Street property, it is critical that the Plaintiffs answer discovery requests separately.
Similarly, the three named Defendants are positioned differently with respect to the claims herein. Defendant O'Dens is a partner in the Texas law firm, SettlePou. O'Dens and SettlePou first became involved with the Plaintiffs on march 24, 2014, when they entered appearances in a foreclosure action in Tulsa County District Court regarding the Eighth Street property. [Dkt. No. 33, Ex. 1G, Ortwerth Dec., p. 8, ¶¶ 17-18]. Defendant Ocwen took over loan servicing on Kirby's loan from Saxon Mortgage Services on April 16, 2010. [id., p. 5, ¶ 13]. Thus, it is important for each Defendant to get from each Plaintiff, a full description of what that Defendant did that gives rise to liability.
In November 2014, Defendants served discovery requests on the Plaintiffs. These consisted of interrogatories from each Defendant directed to each Plaintiff, and two sets document requests: one from the Defendants to Kirby and one from Defendants to Meadows. The discovery responses were problematic. Kirby and Meadows answered the discovery jointly; thus, there was no way for the Defendants to differentiate Kirby's answers from Meadows'. Further, the discovery responses were usually directed to the Defendants as though they constituted one entity. Thus, an individual Defendant could not discern with specificity what he or it was alleged to have done that constituted a basis for liability herein. In addition, Requests for Admission were not answered as required by the Federal Rules. Finally, the Plaintiffs interrogatory answers were not verified properly as required by the Federal Rules of Civil Procedure.
Now, nine months later, despite Court orders to correct their discovery responses, properly verify the interrogatories and separate out their answers [Dkt. Nos. 118 & 130], nothing has been done. Discovery has now closed and Defendants have not received basic information they need to understand Plaintiffs' individual claims or determine how those claims relate to individual Defendants. This has made it impossible for Defendants to adequately prepare this case in the event of trial. Plaintiffs have intentionally denied the Defendants basic Rule 26 discovery, and it is now past the discovery deadline. Defendants have been prejudiced by unnecessary delay and increased attorney fees. Ehrenhaus, 965 F.2d at 921. This factor favors dismissal.
As a result of Plaintiffs' misconduct, this Court has been called upon repeatedly to intervene in on-going discovery disputes. Between January and July 2015, the parties filed 24 discovery motions, the Court conducted two lengthy discovery hearings, and the Court presided over Plaintiffs' depositions at the Courthouse after Plaintiffs had earlier obstructed the taking of depositions. On one occasion, the Court had to call a U.S. Marshal into the Courtroom after Plaintiff Kirby refused to obey the Court's directives during a hearing. Plaintiffs' disobedience has resulted in a situation where certain pretrial deadlines have had to be extended and the trial date continued. Still, the Defendants have not received the basic discovery they sought nine months ago. Plaintiffs have ignored the Court's orders, flouted their discovery obligations and disrupted the Court's scheduling of this case. Id.
Consideration of this factor weighs in favor of dismissal.
At the September 9 hearing, Meadows asserted that the law is clear that a case cannot be dismissed as a sanction absent a showing of bad faith. Meadows's first error is that "bad faith" is not the only ground to support a dismissal sanction. Failure to follow the rules or obey court orders is sufficient when it is the result of "willfulness, bad faith,
More importantly, however, Plaintiffs' conduct herein does establish bad faith. A review of the 11 pages of deposition requirements Meadows sought to enforce at the April 9 depositions or a cursory reading of the transcripts of his and Kirby's June 8 depositions fully establish that the Plaintiffs here have acted willfully and in bad faith.
Culpability for this misconduct lies solely with the Plaintiffs, since they appear pro se. The Plaintiffs have willfully chosen to ignore direct orders of this Court, and have intentionally engaged in frivolous deposition conduct that demonstrates disrespect for the Court, for the opposing parties and for the judicial process itself. The misconduct cannot be blamed on anyone but the Plaintiffs. Since they are acting pro se, there are no lawyers to blame. M.E.N., 834 F.2d at 873 (quoting In re Baker, 744 F.2d 1438, 1442 (10th Cir. 1984) ("If the fault lies with the attorneys, that is where the impact of sanction should be lodged.")). Plaintiffs' conduct has been willful, intentional and in bad faith. There is no issue of accidental or involuntary noncompliance with the Court's Orders. Plaintiffs deliberately set upon a course of bad behavior; the fault lies solely with them.
This factor weighs heavily in favor of dismissal.
The Plaintiffs have been expressly warned on at least six occasions that their refusal to obey the Court's discovery orders could result in dismissal of their lawsuit:
This factor also weighs in favor of dismissal.
The Court has already imposed lesser sanctions for Plaintiffs' misconduct; however, Plaintiffs have ignored the Court's Order in this regard. After Plaintiffs' egregious misconduct at depositions scheduled for April 2015, the Court conducted a lengthy hearing on the issue of sanctions. Attorney O'Dens testified at length about costs incurred by his client as a result of Plaintiffs' shenanigans. Plaintiffs cross-examined O'Dens at length. Thereafter, after reviewing the fee request, and making appropriate reductions, the Court directed the Plaintiffs to pay $4,401.00 as reimbursement for causing O'Dens to travel from Dallas, Texas, to Tulsa for depositions that the Plaintiffs intentionally scuttled by disobeying this Court's directive as well as the Federal Rules of Civil Procedure. The Court directed Plaintiffs to pay the $4,401 by July 1, 2015. Plaintiffs ignored that Order, and have failed to pay the sanction, seek relief from the Order, or take any other appropriate action. Subsequent to the $4,401 sanction Order, Plaintiffs' conduct merited another sanction award. On July 17, 2015, pursuant to Rule 37(a)(5), the Court granted an award of fees and expenses to the Defendants in the amount of $3,006. That sum has not been paid either. Thus, lesser sanctions have been imposed against Plaintiffs in this case, but they have been ignored.
For the past 10 months, Plaintiffs have deliberately and willfully refused to cooperate in discovery. They have engaged in egregious nonsense, intended to delay these proceedings and to increase the cost of this litigation needlessly. Rule 41(b) gives courts the authority to dismiss a case for "failure of the plaintiff to prosecute or to comply with these rules or any order of the court." Knoll v. AT&T, 176 F.3d 359, 362-63 (10th Cir. 1999) (citing In re Baker, supra). Dismissal is a drastic sanction; however, it is sometimes a necessary sanction. It has been upheld as an appropriate sanction available to the district court where a party willfully fails to comply with discovery rules. Adams v. J.W. Jones Constr. Co., 703 F.2d 483, 484 n. 3 (10th Cir.1983); U.S. v. $239,500 in U.S. Currency, 764 F.2d 771, 773 (11th Cir.1985). Where dismissal is to be imposed, the Court should set forth in the record its justification for the sanction. In re Baker, 744 F.2d at 1442.
In this instance, all five of the Ehrenhaus factors favor dismissal as the appropriate remedy. After due consideration of those factors and all of the record evidence, I
The District Judge assigned to this case will conduct a de novo review of the record and determine whether to adopt or revise this Report and Recommendation or whether to recommit the matter to the undersigned. As part of his/her review of the record, the District Judge will consider the parties' written objections to this Report and Recommendation. A party wishing to file objections to this Report and Recommendation must do so by
