UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

_____________________________ ) VENANCIO AGUASANTA ARIAS, ) et al., ) ) Plaintiffs, ) ) v. ) Civil Action No. 01-1908 (RWR) ) DYNCORP AEROSPACE OPERATIONS, ) Consolidated with Civil Action LLC, et al., ) No. 07-1042 (RWR) for case ) management and discovery Defendants. ) purposes _____________________________ )

MEMORANDUM OPINION

Plaintiffs, citizens and domiciliaries of Ecuador, brought

an action alleging physical harm and property damage stemming

from the defendants’ contract with the United States government

to spray pesticides in order to eradicate Colombian cocaine and

heroin farms. The parties moved jointly to dismiss two specific

categories of plaintiffs who had failed to provide complete

questionnaire responses to the defendants as a part of their

discovery obligations, although the parties diverge on whether

the dismissals should be with or without prejudice. The

defendants later moved to add another 165 plaintiffs to those

being dismissed. Because the plaintiffs in the two dismissal

categories have failed repeatedly to comply with their discovery

obligations and the failure prejudices the defendants, the -2-

plaintiffs identified in both motions will be dismissed from this

action with prejudice.

BACKGROUND

The parties filed a joint status report and motion to

dismiss a group of 425 plaintiffs who fall into two specific

categories: (1) plaintiffs who have provided sufficient

information about the alleged date(s) of their exposure to the

defendants’ spray but who did not disclose sufficient information

about their location at the time of their exposure; and (2)

plaintiffs who did not provide sufficient information about their

alleged damages. (Joint Status Rep. and Mot. to Dismiss Without

Prejudice the Pls. in Two Categories Specified by the Court on

July 17, 2009 at 1.) The parties do not agree on whether these

plaintiffs should be dismissed with or without prejudice. (Id.

at 2 n.2.)

The defendants then moved separately to dismiss with

prejudice 165 additional plaintiffs who fall into the two named

categories. (See Defs.’ Mot. to Dismiss With Prejudice Add’l

Pls. (“Defs.’ Mot. to Dis.”) at 1; Defs.’ Reply at 1.) In

support of their motion, the defendants argue that the plaintiffs

in these two categories have been “given several chances to

provide the information ordered by the Court but [have] failed to

do so.” (Defs.’ Mot. to Dis. at 12.) The plaintiffs oppose

additional dismissals and argue that no dismissal should be with -3-

prejudice because the plaintiffs have provided sufficient

information regarding either exposure location or damages. (See

Pls.’ Opp’n to Defs.’ Mot. to Dismiss With Prejudice Add’l Pls.

(“Pls.’ Opp’n”) at 2.)

DISCUSSION

Federal Rules of Civil Procedure 37 and 41 govern

dismissals. Under Rule 37(b), a court may dismiss an action or

proceeding in whole or in part for a party’s failure to comply

with a court order. Fed. R. Civ. P. 37(b)(2)(A)(v). Under Rule

41(b), “[i]f the plaintiff fails to prosecute or to comply with

. . . a court order, a defendant may move to dismiss the action

or any claim against it.” Fed. R. Civ. P. 41(b). A dismissal

under these provisions “operates as an adjudication on the

merits” unless the order states otherwise. Id.

The central requirement of a Rule 37 sanction is that it be

just. Bonds v. District of Columbia,

(D.C. Cir.

1996). “In determining whether a severe sanction is justified,

the district court may consider the resulting prejudice to the

other party, any prejudice to the judicial system, and the need

to deter similar misconduct in the future.”

Furthermore, a

district court must consider whether a lesser sanction “would be

more appropriate for the particular violation.”

Dismissal

is appropriate as “a sanction of last resort . . . after less -4-

dire alternatives have been explored without success.” Trakas v.

Quality Brands, Inc.,

(D.C. Cir. 1985).

While a Rule 37(b) dismissal usually follows some showing of

willfulness, bad faith or fault, a plaintiff’s persistent failure

to comply with discovery and discovery-related orders can be

viewed as willful where multiple warnings and second chances have

been given to the plaintiff. Handy v. Shaw, Bransford, Veilleux

& Roth, Civil Action No. 00-2336 (CKK),

, at *8

(D.D.C. Dec. 22, 2006) (noting that the plaintiff’s failure to

comply with the defendants’ discovery requests prevented the

defendants from defending against certain claims at trial).

Also, less severe sanctions may be ineffective when despite ample

opportunities to comply with a court order, a plaintiff produces

discovery responses only selectively. See Smith v. O’Neill,

Civil Action No. 99-00547 (ESH/DAR),

, at *6

(D.D.C. Aug. 3, 2001).

The plaintiffs here were first ordered to comply with the

defendants’ discovery requests in November 2007 by providing

initial questionnaire responses to the defendants by April 25,

2008. (Scheduling Order, Docket #63, at 1.) The parties

modified this deadline, to require that initial questionnaire

responses be due by June 25, 2008. (Consent Notice, Docket #68

¶ 3.) Then, on October 21, 2008, because the plaintiffs had

provided incomplete initial questionnaires to the defendants, -5-

Magistrate Judge Deborah Robinson ordered the plaintiffs to

provide to the defendants “verified, factual and complete”

questionnaire responses no later than November 19, 2008. (Order,

Docket #76 ¶¶ 1-3.) Magistrate Judge Robinson further ordered

the parties to discuss the “voluntary dismissal of plaintiffs who

have failed to provide adequate responses to the

[q]uestionnaire[,]” and “[a]ny resulting dismissals shall be with

prejudice and the plaintiffs are not entitled to any further

opportunity to supplement their [q]uestionnaire responses in

support of their responses to the defendants’ motions to

dismiss.” (Id. ¶ 6.) Notwithstanding this Order, on December 1,

2008, the final deadline for all questionnaire responses was yet

again extended to January 21, 2009 (Order, Docket #84) and, as of

July 17, 2009, there were still outstanding incomplete

questionnaires, belonging to plaintiffs who either (1) provided

sufficient information about dates of exposure but who did not

disclose their location, or (2) did not provide sufficient

information about their alleged damages.

It has been over two years since the plaintiffs were first

directed to complete the defendants’ questionnaires. Multiple

orders have directed the plaintiffs to respond in full to the

questionnaires, and the plaintiffs received three extensions of

time in which to do so. Despite these orders and extensions of

time, however, the plaintiffs now argue that the defendants -6-

should draw their own conclusions from the incomplete information

in the plaintiffs’ questionnaires. For example, the plaintiffs

state that some of the plaintiffs have “listed their address or

community name and claimed damages to crops or animals,” and

“[t]he obvious conclusion drawn from these two pieces of

information is that the crops or animals were exposed at the

location identified.” (Pls.’ Opp’n at 3.) The plaintiffs

further assert that if a questionnaire indicates that exposure

occurred on “the farm” this should be read to mean “my farm” or

at least a farm “within their communities.” (Id. at 4.)

The plaintiffs essentially are asking the defendants to draw

conclusions based on incomplete information. If a plaintiff

meant “my farm” rather than “the farm,” that plaintiff simply

should have stated so in his questionnaire. Despite the

plaintiffs’ ample opportunity to fill in the information gaps,

they now turn to the defendants to do this work for them. This,

however, is not the defendants’ duty.

Moreover, the plaintiffs’ failure to furnish the requested

information impedes the defendants’ ability to prepare their

defense. Without the requested information, the defendants are

hampered in knowing the full extent, nature and location of the

plaintiffs’ alleged damages. See, e.g., In re

Phenylpropanolamine (PPA) Prods. Liab. Litig.,

(9th Cir. 2006) (explaining that “the purpose of the -7-

Plaintiff’s Fact Sheet was to give each defendant the specific

information necessary to defend the case against it, and that

without this device, [the] defendant was unable to mount its

defense because it had no information about the plaintiff or the

plaintiff’s injuries outside the allegations of the complaint”).

Contrary to the plaintiffs’ claim that any “lingering doubts

. . . can be resolved through additional discovery” (Pls.’ Opp’n

at 4), plaintiffs have demonstrated no good cause entitling them

to yet another extension of time to comply with discovery

obligations with which they should have complied long ago. Nor

have they shown that one more grant of additional time will

succeed or that a lesser sanction would be effective here.

Furthermore, as the defendants note, the plaintiffs in the

two dismissal categories are distinct from plaintiffs who have

submitted no questionnaires altogether. The plaintiffs who have

submitted incomplete questionnaires either are or have been

available at some point during the course of this litigation.

Yet, they continue to withhold essential information regarding

their claims. Thus, unlike plaintiffs who have not participated

in the litigation at all, these plaintiffs have repeatedly

resisted prodding to plainly state data to which they have

access.

By having failed to complete the defendants’ questionnaires,

the plaintiffs identified in the two dismissal categories -8-

disregarded multiple court orders and prevented the defendants

from sufficiently defending their case. Thus, the parties’ joint

motion to dismiss will be granted in part and the defendants’

motion to dismiss as revised will be granted. The claims of the

plaintiffs to be dismissed will be dismissed with prejudice.

CONCLUSION

The plaintiffs in the two dismissal categories have been

given repeated opportunities to provide the requested information

about the location of their exposure and their alleged damages,

but have failed to do so. Because this failure prejudices the

defendants and violates multiple explicit court orders, and no

lesser sanction is appropriate, the plaintiffs who fall within

the two specified categories will be dismissed with prejudice in

a separate Order signed today.

SIGNED this 12th day of January, 2010.

________/s/_________________ RICHARD W. ROBERTS United States District Judge