Coleman v. Swift Transportation

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

VIKKI R. COLEMAN, §

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Plaintiff, §

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V. § No. 3:23-cv-1729-G-BN

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SWIFT TRANSPORTATION, §

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Defendant. §

MEMORANDUM OPINION AND ORDER ON REQUEST FOR

CONTINUANCE AND THE THIRD MOTION TO COMPEL

DISCOVERY FROM PLAINTIFF

In this lawsuit that Senior United States District Judge A. Joe Fish has

referred to the undesigned United States magistrate judge for pretrial management

under 28 U.S.C. § 636(b) and a standing order of reference, Defendant Swift

Transportation has filed a third Motion to Compel Discovery from Plaintiff, asking

the Court to order pro se Plaintiff Vikki R. Coleman to provide written responses and

documents responsive to Swift’s outstanding production requests and to provide a list

of dates and times when she is available to appear for deposition well in advance of

the discovery deadline (set for November 11, 2024). See Dkt. No. 46.

Swift also filed a Motion for Judgment on the Pleadings, Motion to Dismiss,

and alternative Motion for Summary Judgment. See Dkt. No. 49.

Coleman has since filed a letter to the Court that was construed and docketed

as a request for continuance. See Dkt. No. 52. Coleman’s motion

 “pray[s] that the court will allow for a continuation in the matter”;

 explains that “[t]his case has caused me extensive hardship in my life to

survive, and I need a fair settlement”;

 explains that “[a]ll the information requests as I understood were

responded to with no feedback from Swift”; and

 explains that “[t]he request for a deposition only offered to take place in

October was not possible for me”; that “[t]he months of October,

November and December were not available on my schedule”; and that

“I am available, December 2-20. 2024.during the A.M.” and “am

available after the first of the year,” but that “I don’t have an attorney,

and I am not comfortable with appearing for a deposition.”

Dkt. No. 52. Swift filed a response opposing the continuance request.

I. Coleman’s Request for Continuance

Time has now passed, and Coleman has effectively obtained whatever

additional time that she might have claimed to need. And she offers no other basis

for a continuance, and so the Court denies her request for continuance [Dkt. No. 52].

And the Court will not insert or involve itself in any settlement discussions that the

parties may have.

But, in light of her pro se status and the Court’s lack of action of the pending

matters until now, the Court sets a deadline of April 18, 2025 for Coleman to respond

to Swift’s Motion for Judgment on the Pleadings, Motion to Dismiss, and alternative

Motion for Summary Judgment [Dkt. No. 49]. This deadline will not be extended.

If Coleman timely files a response, Swift may file any reply by no later than May 3,

2025.

II. Swift’s Motion to Compel Discovery from Plaintiff

Coleman’s proceeding pro se does not excuse her from appearing for a properly

noticed deposition. She must cooperate with Swift’s counsel in agreeing to a date and

time for her deposition if Swift still seeks to take it.

And the Court previously ordered Coleman to, by Tuesday, March 26, 2024,

serve on Swift’s counsel complete responses (without objections) to all of the requests

for production in Defendant’s First Set of Requests for Production and produce all

unproduced documents and electronically stored information that are responsive to

the requests and that are in Coleman’s possession, custody, or control, in compliance

with Federal Rule of Civil Procedure 34(b)’s requirements. See Dkt. No. 34. Swift

reports that Coleman did not comply with the terms of this Electronic Order, and has

never provided responses to these requests or any documents responsive to these

requests.

The Court now again orders Coleman to, by April 9, 2025, serve on Swift’s

counsel complete responses (without objections) to all of the requests for production

in Defendant’s First Set of Requests for Production and produce all unproduced

documents and electronically stored information that are responsive to the requests

and that are in Coleman’s possession, custody, or control, in compliance with Federal

Rule of Civil Procedure 34(b)’s requirements.

The Court grants Swift’s Motion to Compel Discovery from Plaintiff [Dkt. No.

46] to the extent laid out above, but, under the circumstances, declines to award

expenses under Federal Rule of Civil Procedure 37(a)(5) on this third motion to

compel.

But Coleman is warned that, if she fails to comply with this order requiring

her to comply with Swift’s discovery requests, Federal Rule of Civil Procedure

37(b)(2)(A) provides that, “[i]f a party ... fails to obey an order to provide or permit

discovery, ... the court where the action is pending may issue further just orders. They

may include the following:

(i) directing that the matters embraced in the order or other designated

facts be taken as established for purposes of the action, as the prevailing

party claims;

(ii) prohibiting the disobedient party from supporting or opposing

designated claims or defenses, or from introducing designated matters

in evidence;

(iii) striking pleadings in whole or in part;

(iv) staying further proceedings until the order is obeyed;

(v) dismissing the action or proceeding in whole or in part;

(vi) rendering a default judgment against the disobedient party; or

(vii) treating as contempt of court the failure to obey any order except an

order to submit to a physical or mental examination.”

FED. R. CIV. P. 37(b)(2)(A)(i)-(vii).

Rule 37(b)(2)(C) further requires that, “[i]nstead of or in addition to the orders

[described under Rule 37(b)(2)(A)], the court must order the disobedient party, 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.” FED. R. CIV. P. 37(b)(2)(C).

Rule 37(b) “is designed to empower the court to compel production of evidence

by the imposition of reasonable sanctions.” Dorsey v. Acad. Moving & Storage, Inc.,

423 F.2d 858, 860 (5th Cir. 1970). “Sanctions under Rule 37 serve the dual function

of reimbursing the moving party and deterring the violator of the discovery orders (as

well as other potential violators).” Day v. Allstate Ins. Co., 788 F.2d 1110, 1114 (5th

Cir. 1986).

Rule 37(b)(2) “empowers the courts to impose sanctions for failures to obey

discovery orders. In addition to a broad range of sanctions, including contempt, [Rule]

37(b)(2) authorizes the court to impose a concurrent sanction of reasonable expenses,

including attorney’s fees, caused by the failure to obey a discovery order.” Smith &

Fuller, P.A. v. Cooper Tire & Rubber Co., 685 F.3d 486, 488 (5th Cir. 2012) (cleaned

up); see also Chilcutt v. United States, 4 F.3d 1313, 1322 n.23 (5th Cir. 1993) (“Rule

37(b) clearly indicates that district courts have authority to grant a broad spectrum

of sanctions.”).

“The district court has broad discretion under Rule 37(b) to fashion remedies

suited to the misconduct.” Smith, 685 F.3d at 488 (cleaned up). “This discretion,

however, is limited” based on the type of sanctions imposed. Id.

The United States Court of Appeals for the Fifth Circuit has explained that its

“caselaw imposes a heighted standard for litigation-ending sanctions (sometimes

called ‘death penalty’ sanctions). For a lesser sanction, we broadly require the district

court to determine the sanctions are ‘just’ and ‘related to the particular ‘claim’ which

was at issue in the order to provide discovery.’” Law Funder, L.L.C. v. Munoz, 924

F.3d 753, 758 (5th Cir. 2019) (cleaned up).

The sanction imposed should be the least severe sanction adequate to achieve

the proper functions of Rule 37(b)(2) under the particular circumstances. See Smith,

685 F.3d at 488-90.

And the Fifth Circuit recently repeated its guidance that, “to levy a litigation-

ending sanction for a discovery violation, the court must make four findings. First,

the violation reflects bad faith or willfulness. Second, the client, not counsel, is

responsible for the violation. Third, the violation substantially prejudiced the

opposing party. Fourth, a lesser sanction would not substantially achieve the desired

deterrent effect.” Vikas WSP, Ltd. v. Econ. Mud Prod. Co., 23 F.4th 442, 454 (5th Cir.

2022) (cleaned up); accord Nissho-Iwai Am. Corp. v. Kline, 845 F.2d 1300, 1304 (5th

Cir. 1988) (“We have repeatedly emphasized that a dismissal with prejudice is a

‘draconian’ remedy, or a ‘remedy of the last resort,’ to be employed only when the

failure to comply with the court’s order results from wilfullness or bad faith rather

than from an inability to comply. Nevertheless, deliberate, repeated refusals to obey

discovery orders have been held to warrant the use of this ultimate sanction.”

(cleaned up)); Batson v. Neal Spelce Assocs., Inc., 765 F.2d 511, 514 (5th Cir. 1985)

(“[D]ismissal is authorized only when the failure to comply with the court’s order

results from willfulness or bad faith, and not from the inability to comply.”).

But “[l]esser sanctions do not require a finding of willfulness.” Smith, 685 F.3d

at 488. “Of course, the flagrancy of a party’s behavior must be directly proportionate

to the severity of the sanction imposed,” but “the lack of willful, contumacious, or

prolonged misconduct [does not] prohibit[] all sanctions.” Chilcutt, 4 F.3d at 1322

n.23. Even where a party was “unable to comply with the discovery requests, the

district court still ha[s] broad discretion to mete out a lesser sanction than dismissal.”

Id. (cleaned up).

That is because “the type of conduct displayed by a party had no bearing on

whether sanctions should be imposed, but only on the type of sanctions imposed,” and

“[t]he willfulness or good faith of [a party], can hardly affect the fact of noncompliance

and [is] relevant only to the path which the District Court might follow in dealing

with [the party’s] failure to comply.” Id. (cleaned up).

III. Coleman’s Pro Se Status and the Court’s Expectations

Finally, the Court notes that Coleman chose to exercise the right to prosecute

this action without an attorney and, through that decision, undertook certain

responsibilities, including:

(1) to be aware of the Federal Rules of Civil Procedure, the Northern District

of Texas Local Civil Rules, and Standing Orders of this Court (all of which are

available on the Court’s website: http://www.txnd.uscourts.gov/rules-and-orders); see

also N.D. TEX. L. CIV. R. 83.14 (“Any party proceeding on the party’s own behalf is

considered pro se. Pro se parties must read and follow the local civil rules of this court

and the Federal Rules of Civil Procedure.”);

(2) to timely comply with any order issued by this Court; and

(3) to cooperate with counsel for other parties and participants.

As a pro se litigant, the Court may hold Coleman’s filings to a less stringent

standard than papers drafted and filed by an attorney. But this is Coleman’s lawsuit.

And, because she must ultimately prove an entitlement to relief, neither the Court

(or any of its staff) nor counsel for other litigants will serve as de facto counsel for

him. See Barker v. Norman, 651 F.2d 1107, 1129 n.26 (5th Cir. Unit A July 1981)

(explaining that “a district judge ... is neither required nor permitted to be counsel

for any party, whether that party is appearing pro se or through counsel”).

Coleman is also cautioned that the Court possesses the power to impose

sanctions – which can include dismissing this lawsuit – for failure to comply with

orders of the Court and applicable rules of procedure, including those rules that

govern discovery. See FED. R. CIV. P. 16(f); FED. R. CIV. P. 37.

Coleman is further cautioned that (1) the progress of this case will not be

delayed because one side is without an attorney and (2) the Court will not be more

inclined to grant extensions because one side is without an attorney.

Relatedly, Federal Rule of Civil Procedure 41(b) “authorizes the district court

to dismiss an action sua sponte for failure to prosecute or comply with [a Federal Rule

of Civil Procedure or] a court order.” Griggs v. S.G.E. Mgmt., L.L.C., 905 F.3d 835,

844 (5th Cir. 2018) (citing McCullough v. Lynaugh, 835 F.2d 1126, 1127 (5th Cir.

1988) (per curiam)); accord Nottingham v. Warden, Bill Clements Unit, 837 F.3d 438,

440 (5th Cir. 2016) (failure to comply with a court order); Rosin v. Thaler, 450 F. App’x

383, 383-84 (5th Cir. 2011) (per curiam) (failure to prosecute).

While the text of Rule 41(b) may not extend to a failure to comply with a court’s

local rule insofar as that violation does not also qualify as a failure to prosecute, see

Campbell v. Wilkinson, 988 F.3d 798, 800-01 (5th Cir. 2021) (discussing Berry v.

CIGNA/RSI-CIGNA, 975 F.2d 1188 (5th Cir. 1992)), the Court specifically ORDERS

the parties to abide by the Court’s local rules insofar as a provision of those rules is

not modified by this order or another order of the Court in this case. So, as applicable,

a failure to comply with the Court’s local rules will also violate this order and subject

the violation of the local rules to Rule 41(b).

And dismissal may be with or without prejudice. See Long v. Simmons, 77 F.3d

878, 879-80 (5th Cir. 1996). But a dismissal with prejudice is appropriate only if the

failure to comply with the court order was the result of purposeful delay or

contumacious conduct and the imposition of lesser sanctions would be futile. See id.

at 880; see also Berry, 975 F.2d at 1191; cf. Nottingham, 837 F.3d at 442 (noting that

“lesser sanctions” may “include assessments of fines, costs, or damages against the

plaintiff, conditional dismissal, dismissal without prejudice, and explicit warnings”

(quoting Thrasher v. City of Amarillo, 709 F.3d 509, 514 (5th Cir. 2013))).

And the Court’s authority under Rule 41(b) is not diluted by a party proceeding

pro se, as “[t]he right of self-representation does not exempt a party from compliance

with relevant rules of procedural and substantive law.” Wright v. LBA Hospitality,

754 F. App’x 298, 300 (5th Cir. 2019) (per curiam) (citations omitted).

SO ORDERED.

DATE: March 19, 2025

DAVID L. HORAN

UNITED STATES MAGISTRATE JUDGE

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