WILFREDO NAVARRO, PLAINTIFF-APPELLANT,
v.
RINA COHAN, INDIVIDUALLY AND AS AN ASSISTANT STATE ATTORNEY, ET AL., DEFENDANTS-APPELLEES
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The court held that the district court did not abuse its discretion in dismissing the complaint for failure to prosecute and attend a deposition after lesser sanctions had failed.
Plaintiff repeatedly failed to respond to defendants' motions and court orders, and eventually failed to appear for a scheduled deposition. The distri…
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PER CURIAM:
Appellant is the president of United Cubans, an anti-Castro organization in the United States. His original complaint was filed on June 30, 1983 against Tony Pineda of the Florida Department of Law Enforcement and fourteen other defendants. Appellant sought damages for alleged violations of his constitutional rights during his arrest and detainment at the Miami International Airport on January 28, 1982. The defendants filed various motions to dismiss, to strike and for more definite statement. Appellant did not respond. Instead appellant filed a motion for leave to file an amended complaint. The process then repeated itself: the defendants filed more motions to dismiss and strike, and appellant failed to respond.
On December 13, 1984 the district court granted appellant’s motion to file an amended complaint, and appellant adopted the amended complaint he had filed previously. After still more motions to dismiss and strike, the district court ordered appellant to respond within ten days. In response, appellant filed a second amended complaint, which promptly generated more motions to strike. On July 9, 1985 the district court granted the defendants’ motions to strike the latest complaint. The court began to consider dismissal for lack of prosecution and ordered appellant to show cause why the case should not be dismissed.
After appellant responded, the district court found that there was no excuse for appellant’s failure to respond to the defend ants’ motions. Rather than dismissing the case, however, the district court fined appellant’s counsel $2500 and ordered appellant to find new counsel within forty-five days.
After a hearing, the district court on March 26,1986 issued an order stating that appellant would be personally accountable and responsible for the progress of the case. Appellant and his new attorney then filed responses to the defendants’ outstanding motions.
As discovery began, the defendants began to leave the case. Most of the defendants were voluntarily dismissed. Eventually, only appellee remained. Counsel for appellee arranged a deposition of appellant on June 23, 1987, but appellant did not appear. Appellee then moved for sanctions. Appellant responded by contending that his failure to appear was excusable neglect.
The district court disagreed and found that appellant had violated the court’s order that he be personally responsible and accountable for the prosecution of his case. That finding is not clearly erroneous. Although the district court noted dismissal was a last resort, it was time for the last resort. On September 18,1987, the district court dismissed the complaint pursuant to Fed.R.Civ.Pro. 37. 117 F.R.D. 175.
We reverse Rule 37 sanctions only for abuse of discretion. Adolph Coors Co. v. Movement Against Racism And The Klan, 777 F. 2d 1538, 1542 (11th Cir.1985). The sanction of dismissal is an extreme remedy and should not be imposed if lesser sanctions will suffice. Hashemi v. Campaigner Publications, Inc., 737 F. 2d 1538, 1538-39 (11th Cir.1984).
The district court recognized this principle and restrained from ordering dismissal until after other lesser sanctions had failed. After several acts of neglect and indifference on the part of appellant, the district court issued an order instructing appellant that he would be personally responsible for the case and directly accountable to court. The district court also imposed a monetary fine. Only after these lesser sanctions proved futile did the district court “with great reluctance” dismiss the case for failure to attend the deposition.
Under the circumstances in this case we conclude that the district court did not abuse its discretion in dismissing the complaint. See Hashemi, 737 F. 2d at 1539. The district court’s dismissal is therefore
AFFIRMED.
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Malautea v. Suzuki Motor Co., Ltd., 987 F.2d 1536 (11th Cir. 1993)…02 S.Ct. 2099, 2106, 72 L.Ed.2d 492 (1982). Finally, the severe sanction of a dismissal or default judgment is appropriate only as a last resort, when less drastic sanctions would not ensure compliance with the court’s orders. See Navarro v. Cohan, 856 F. 2d 141, 142 (11th Cir.1988). In this case, the defendants richly deserved the sanction of a default judgment. The discovery orders of July 24, July 26, and August 30 clearly encompassed the General Motors information and were definite enough to support Rul…
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Citronelle-Mobile Gathering, Inc. v. Watkins, 943 F.2d 1297 (11th Cir. 1991)…court to refuse to allow Chamberlain to defend these actions until he obeys the previous orders. In previous cases, we have affirmed dismissals and default judgments which are much more extreme sanctions than those imposed here. Navarro v. Cohan, 856 F. 2d 141 (11th Cir.1988); Buchanan v. Bowman, 820 F. 2d 359 (11th Cir.1987). Therefore, we find the sanctions imposed in this case within the district court’s discretion. Accordingly, the court’s September 18, 1990, sanction order is interpreted to permit…
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Wouters v. Ferrara, 9 F.3d 924 (11th Cir. 1993)…ply limited to search for an abuse of discretion and determination that the trial court’s findings are supported by the record, we will find abuse of discretion if less drastic sanctions would suffice. Malautea, 987 F. 2d at 1542; Navarro v. Cohan, 856 F. 2d 141, 142 (11th Cir.1988); Pesaplastic, 799 F. 2d at 1519. We agree with plaintiffs that the district court abused its discretion by dismissing the fourteen plaintiffs who failed to respond properly to interrogatories. First, a lesser sanction was avai…
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- Adolph Coors Co. v. Movement Against Racism AND THE Klan, 777 F.2d 1538 (11th Cir. 1985)
- Cyrus Hashemi v. Campaigner Publ'ns, Inc., 737 F.2d 1538 (11th Cir. 1984)