IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

____________________

No. 98-31401

Summary Calendar ____________________

NELSON ROY JR

Plaintiff - Appellant

v.

ADM GROW MARK; DAVID A BURGBACHER; FREDDIE J BERGERON

Defendants - Appellees

_________________________________________________________________

Appeal from the United States District Court for the Eastern District of Louisiana No. 98-CV-988-K _________________________________________________________________ March 22, 2000

Before KING, Chief Judge, and HIGGINBOTHAM and STEWART, Circuit Judges.

PER CURIAM:*

Plaintiff - Appellant Nelson Roy (“Roy”) appeals the

district court’s dismissal of his employment discrimination case

against Defendants - Appellees ADM Grow Mark, David Burgbacher,

and Freddie Bergeron (“ADM”). Pursuant to its authority under

Rule 37(b)(2)(C) of the Federal Rules of Civil Procedure, the

district court dismissed Roy’s suit with prejudice because he

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

1 failed to comply with the court’s discovery order. Finding that

the district court did not abuse its discretion, we affirm.

I.

On March 30, 1998, Roy filed suit in district court against

ADM, his former employer, alleging that his dismissal from

employment was based upon race discrimination in violation of

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et

seq. With his complaint, Roy also filed an application to

proceed in forma pauperis. His application was denied because

the magistrate judge found that he was able to pay the filing

fee. On April 28, 1998, Roy filed an Application for Appointment

of Attorney Pursuant to 42 U.S.C. § 2000e-5(f)(1). This

application was denied as well, because the magistrate judge

found that “[p]etitioner has not made sufficient effort to obtain

counsel. Further, petitioner was hired by the same people who

terminated him, giving rise to the implication that

discrimination is not present.” Roy’s objection to this ruling

was untimely.

Following this denial, a preliminary conference was held on

July 22, 1998, which Roy failed to attend. ADM filed a Motion to

Dismiss, to which Roy responded with a Motion to Stay

Proceedings. Roy argued that no action should be taken until the

district court ruled on his appeal from the magistrate judge’s

order denying him counsel. ADM argued that Roy was not entitled

to reconsideration of that order because his objection was

untimely. The magistrate judge granted ADM’s Motion to Dismiss as

2 to the individual defendants, Davis Burgbacher and Freddie

Bergeron, but denied it as to the entity, ADM Grow Mark. The

magistrate judge did not rule on Roy’s Motion to Stay.

On September 21, 1998, ADM filed a Notice of Deposition

scheduling Roy’s deposition for October 6 at 10 a.m. ADM mailed

Roy a copy of the notice with a letter advising him that if he

had scheduling conflicts to notify ADM immediately; otherwise,

ADM would expect him to appear as scheduled. Roy failed to

appear for his deposition. ADM’s counsel left a message at Roy’s

home to contact her immediately, for a motion to dismiss might be

filed for his failure to attend. Roy did not return the call.

The following day, however, ADM’s counsel received a letter from

Roy indicating that he was unable to attend the deposition

because he had taken a new job and was working the night shift

seven days a week.

ADM filed a Motion to Compel Plaintiff to Appear for

Deposition and for Sanctions Pursuant to Rule 37(d). Roy

objected, stating this time that he did not know that he had to

attend the deposition because he was under the impression that,

until the court ruled on his Motion to Stay, a stay was

automatically in effect. Further, he claimed that he did not

receive the voice mail from ADM’s counsel because his phone was

broken, that his 7:00 p.m - 5:35 a.m. work schedule made it

unsafe for him to drive to a deposition at 10:00 a.m., that ADM

had failed to state “a proper motive for the deposition,” and

that being deposed in the offices of a law firm was unfair

3 because he was proceeding pro se and feared being taken advantage

of.

ADM also filed a Motion to Extend Time to Supplement Witness

and Exhibit List because the trial date was approaching and it

had still not deposed Roy. Roy objected, stating that “if

Defense Counselor would not have wasted so much time with her

viscouse [sic] and vain attempts to have this case dismissed ...

Defense Counselor could have filed discovery and gained

everything she thought or think [sic] she may need for her

Witness and Exhibit list.” Subsequently, Roy filed his own

Motion to Compel and Motion to Extend Time to Submit Witness

List.

On October 28, 1998, the magistrate judge conducted a

hearing on ADM’s motions. She specifically advised Roy that “the

mere filing of a motion to stay does not operate to halt this

proceeding or to otherwise relieve him of the obligations imposed

by the Federal Rules of Civil Procedure, including the obligation

to appear for a duly-noticed deposition.” Roy argued that ADM

should conduct discovery the same way he was conducting discovery

- through document requests and interrogatories. The magistrate

judge informed Roy that ADM had a right to depose him, and she

granted ADM’s Motion to Compel. She held its Motion for

Sanctions in abeyance, however, pending the conclusion of Roy’s

deposition. ADM’s deadline to supplement its witness and exhibit

list was extended to one week following the conclusion of Roy’s

deposition.

4 Roy was to be deposed at 2:00 p.m. on October 30. He

arrived thirty minutes late and, by 7:00 p.m., his deposition was

not yet completed. The court ordered that the deposition be

reconvened at 10:00 a.m. on November 13. Also on November 13,

the court scheduled hearings on Roy’s Motion to Compel and Motion

to Extend Time to Submit Witness List.

On November 10, Roy filed another Motion to Stay requesting

that all proceedings in this case, including the reconvening of

his deposition, be stayed pending the court’s rulings on various

matters. Specifically, Roy contended inter alia that his

original notice of deposition was improper because it did not

state with specificity the testimony sought to be elicited. On

November 13, before the Motion to Stay was ruled upon, Roy failed

to appear for either the recommencement of his deposition or for

argument of his own motions. A proces verbal was taken before

the court, and the two motions scheduled to be heard were

dismissed for Roy’s failure to appear. Roy eventually arrived at

2:25 p.m., some four-and-a-half hours late, and explained that he

had encountered transportation difficulties.

The magistrate judge entered a Report and Recommendation

recommending that Roy’s case be dismissed with prejudice pursuant

to Rules 37(b)(2)(C) and 41(b).1 The magistrate judge noted

1 The magistrate based the decision to dismiss on both Rule 37(b)(2)(C), which allows the court to dismiss for failure to comply with a discovery order, and 41(b) which allows the court to dismiss for failure to prosecute. Finding adequate grounds for dismissal under Rule 37(b), we need not consider whether dismissal under Rule 41(b) was appropriate.

5 Roy’s failure to attend the preliminary scheduling conference,

his failure to attend the October 6 deposition, her specific

warning that filing a motion to stay does not allow him to shirk

his obligations under the Federal Rules, his tardiness at the

October 30 deposition, and his failure to attend both the

reconvening of his deposition and the hearing on motions he

himself had filed. She then concluded:

As plaintiff is unrepresented by counsel, these failures are attributable to him alone. Trial is less than two months away and the expense and prejudice to defendant continues. Despite the Court’s admonishments, plaintiff has failed to present himself for the completion of his deposition in a timely fashion. This contumacious conduct cannot be countenanced.

Roy filed a timely objection to the magistrate judge’s

Report and Recommendation arguing that the notice of deposition

was improper, that allowing a deposition to be taken was an abuse

of discretion, and that the magistrate judge should be removed

because she was biased against him. The district court found

that Roy’s objections were without merit. It adopted the

magistrate judge’s Report and Recommendation, commenting that

“plaintiff has chosen to sue defendants; he cannot now deny

defendants the right to defend themselves.” Roy now appeals.

II.

Under Rule 37(d), a party refusing to attend his own

deposition can be sanctioned under Rule 37(b). Among the

sanctions available to a district court under Rule 37(b) is

dismissal of the action with prejudice. Although our task in

reviewing a sanction imposed under Rule 37(b) is to determine

6 whether the district court abused its discretion in ordering the

sanction, we have noted that a district judge should use the

draconian remedy of dismissal with prejudice only in extreme

circumstances. See Griffin v. Aluminum Co. of America,

(5th Cir. 1977). “Deliberate, repeated refusals to

comply with discovery orders have been held to justify the use of

this ultimate sanction.” Bonaventure v. Butler,

(5th Cir. 1979) (dismissal affirmed where plaintiff three

times refused to appear for a deposition); see also Jones v.

Louisiana State Bar Ass’n,

(5th Cir. 1979) (dismissal

where plaintiff deliberately refused two orders to produce

recordings and documents he possessed); Emerick v. Fenick

Industries, Inc.,

(5th Cir. 1976) (default entered

were defendant ignored three orders to produce documents).

In determining whether a district court abused its

discretion, our precedent has addressed a number of

considerations. First, dismissal is authorized only when the

failure to comply with the court’s order is due to willfulness,

bad faith, or any fault of the petitioner. See National Hockey

League v. Metropolitan Hockey Club,

(1976); see

also Batson v. Neal Spelce Assocs.,

(5th Cir.

1985). Dismissal is inappropriate when a failure to comply

results from an inability to comply, such as where requested

information is not yet available or no longer exists. See

Marshall v. Segona,

(5th Cir. 1980); Dorsey v.

Academy Moving & Storage, Inc.,

(5th Cir.

7 1970). Next, dismissal is proper only in situations where the

deterrent value of Rule 37 cannot be achieved by the use of less

drastic sanctions. See Batson,

. We also

consider whether the other party’s preparation for trial was

substantially prejudiced. See

Finally, dismissal may be

inappropriate when neglect is attributable to an attorney rather

than a blameless client, or when a party’s simple negligence is

grounded in confusion or sincere misunderstanding of the court’s

orders. See id.; Silas v. Sears, Roebuck & Co.,

(5th Cir. 1978).

Roy makes two arguments on appeal. First, he contends that

the dismissal of his suit with prejudice for failure to attend

his deposition was improper because he should not have been

forced to submit to a deposition. Being deposed, Roy claims, is

burdensome, unreasonable, and an abuse of discovery under Rule

26. According to Roy, ADM could obtain the same information

using interrogatories, which would be more convenient for him and

less expensive. ADM chose to depose him, Roy asserts, to take

advantage of the fatigue his work schedule caused and the

difficulties he had been having finding transportation. This

contention is without merit.

Rule 26(b) is designed to encourage district judges to

identify instances of redundant or disproportionate discovery and

to limit the use of various discovery devices accordingly.

Permitting a defendant to depose a plaintiff is hardly the abuse

of discovery that Rule 26(b) contemplates.

8 Next, Roy argues that his failure to attend the preliminary

conference and to complete his deposition was not a product of

willfulness or bad faith; rather, his absences and delays were a

consequence of his ignorance of the law and his transportation

problems. We are mindful of the Supreme Court’s admonition

regarding the natural tendency of reviewing courts, employing

hindsight, to be heavily influenced by the severity of outright

dismissal of an action as a discovery sanction. See National

Hockey League,

. As such, we find no abuse of

discretion in the district court’s refusal to accept Roy’s

proffered explanations.

There is sufficient evidence in the record to conclude that

Roy’s failure to comply with the court’s discovery order was due

to negligence and gross indifference to the rights of ADM, not to

an inability to comply. Furthermore, the evidence suggests that

the imposition of a sanction less drastic than dismissal would

have been futile. Roy did not attend the October 6 deposition

and failed to notify ADM prior to the deposition that he would

not appear. He offered conflicting excuses for his absence.

First, he sent ADM a letter saying he was unable to attend

because of his work schedule. In later documents filed with the

court, Roy claimed not to have known he had to attend. He was

then given ample warning that the court would not tolerate

discovery abuses, and, during the hearing on ADM’s Motion to

Compel and for Sanctions, he was put on notice that his failure

to comply could result in dismissal. The magistrate judge

9 forgave his initial lapses, explained that he was required to

attend duly-noticed depositions, and delayed the imposition of

sanctions to give him the chance to comply with the court’s

discovery order.

Roy failed to comply, citing as his excuse an inability to

find a ride to the bus. He had two weeks, however, to find

transportation to the deposition at the agreed upon time, and he

offered no explanation for why he did not notify the court that

he was having difficulty getting to his deposition. Again,

counsel for ADM had prepared for Roy’s deposition and, together

with the magistrate judge and a court reporter, was left waiting

for Roy’s arrival. Given Roy’s continued resistence to being

deposed and his accusations of ADM’s malice in wanting to depose

him, it was not an abuse of discretion for the district court to

dismiss his suit with prejudice. See Bluitt v. Arco Chem. Co.,

(5th Cir. 1985) (affirming the dismissal of a

case where the district court found that the plaintiff’s failure

to obey discovery orders and heed warnings that dismissal could

occur showed that a sanction less than dismissal would have been

futile).2

III.

2 In addition to evidence of bad faith and the futility of a lesser sanction, there is also sufficient evidence in the record to satisfy our other considerations: Roy’s resistence to the taking of his deposition prejudiced ADM’s ability to mount a defense against him; his failure to comply with the discovery order was attributable to him alone; and, having been specifically advised by the magistrate judge that his attendance was required, his neglect cannot be said to be grounded in confusion.

10 For the foregoing reasons, the judgment of the district

court is AFFIRMED.

11