United States District Court, W.D. Oklahoma
TIMOTHY D. DeGIUSTI UNITED STATES DISTRICT JUDGE.
the Court is Defendants' Motion to Dismiss as Sanction
[Doc. No. 170], filed pursuant to Fed.R.Civ.P. 37(b)(2)(B).
Defendants seek a dismissal with prejudice of this action due
to Plaintiff's failure to cooperate with a mental
examination by Dr. David E. Johnsen, Ph.D. ordered by the
Court. See 5/9/17 Order [Doc. No. 167] [hereafter,
“Order”]. Alternatively, Defendants seek the
imposition of a lesser sanction, and propose as an
appropriate consequence of Plaintiff's misconduct that
his demand for emotional distress damages should be stricken
or his evidence regarding such damages should be excluded or
limited. Plaintiff has timely opposed the Motion, which is
allegations regarding Plaintiff's lack of cooperation are
based on a letter from Dr. Johnsen describing his
interactions with Plaintiff on the date of the examination.
According to Dr. Johnsen, Plaintiff failed to complete any
paperwork, to participate fully in the personal interview,
and to complete the psychological tests that Dr. Johnsen
planned to administer. In response, Plaintiff provides his
own affidavit describing a slightly different version of
events. Plaintiff does not completely disagree with Dr.
Johnsen's account but, instead, suggests he was led to
believe that he could not be compelled to participate with
the examination or complete the psychological testing.
Defendants in reply challenge this belief as unfounded and
consideration of the Motion, the Court first finds that the
Motion should be denied for failure to comply with LCvR37.1.
This rule provides: “With respect to all motions or
objections relating to discovery pursuant to Fed.R.Civ.P. 26
through 37 and 45, this court shall refuse to hear any such
motion or objection unless counsel for the movant first
advises the court in writing that counsel personally met and
conferred in good faith and, after a sincere attempt to
resolve differences, have been unable to reach an
accord.” See LCvR37.1. Defendants do not
certify that they made any effort to resolve Plaintiff's
lack of cooperation or misunderstanding of his responsibility
before filing their Motion.
upon consideration of the circumstances presented by the
Motion, the case record, and controlling case law, the Court
finds that the requested dismissal would be unwarranted in
any event. “Dismissal with prejudice ‘represents
an extreme sanction' and thus is considered appropriate
only in cases involving ‘willfulness, bad faith, or
[some] fault' on the part of the party to be
sanctioned.” Procter & Gamble Co. v.
Haugen, 427 F.3d 727, 738 (10th Cir. 2005) (quoting
Ehrenhaus v. Reynolds, 965 F.2d 916, 920 (10th Cir.
1992); Chavez v. City of Albuquerque, 402 F.3d 1039,
1044 (10th Cir. 2005)) (internal quotations omitted and
alteration in Chavez). “Before imposing
dismissal as a sanction, a district court should ordinarily
evaluate the following factors on the record: ‘(1) the
degree of actual prejudice to the [other party]; (2) the
amount of interference with the judicial process; . . . (3)
the culpability of the litigant; (4) whether the court warned
the party in advance that dismissal would be a likely
sanction for noncompliance; and (5) the efficacy of lesser
sanctions.'” Gripe v. City of Enid, 312
F.3d 1184, 1187 (10th Cir. 2002) (quoting Ehrenhaus,
965 F.2d at 921, alteration in Gripe); see
Procter & Gamble, 427 F.3d at 738; Chavez,
402 F.3d at 1044. The Court is not persuaded by
Defendants' argument that these factors weigh in favor of
the dismissal of Plaintiff's case at this point.
the Court is unwilling to assume, as Defendants do, that
Plaintiff must have known that he was required to participate
fully in the psychological examination and that a failure to
comply with Dr. Johnsen's requests would result in
sanctions by the Court. However, Plaintiff admits the
examination by Dr. Johnsen was not completed as ordered on
May 18, 2017. Therefore, the Court will give Plaintiff a
second opportunity to submit to the required mental
examination “in accordance with the American and
Oklahoma Psychological Associations' guidelines for the
evaluation, testing, and diagnosis of mental disorders and
mental injuries.” See Order at 3. Should
Plaintiff again fail to comply with the Order requiring a
mental examination, the Court will determine an appropriate
sanction for his willful behavior, which would severely
prejudice Defendants' ability to evaluate or defend
against Plaintiff's claim for emotional distress damages.
Sanctions authorized by Rule 37(b)(2)(A) include an order
preventing Plaintiff from pursuing such damages at trial or
dismissing his case.
THEREFORE ORDERED that Defendants' Motion to Dismiss as
Sanction [Doc. No. 170] is DENIED.
FURTHER ORDERED that Plaintiff shall comply with the Order of
May 9, 2017 [Doc. No. 167], requiring him to submit to a
mental examination by Dr. Johnsen, on a date to be determined
by the parties but no later than July 28, 2017. Noncompliance
with this Order will result in the imposition of an