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Court Forgives Plaintiff for Failing to Respond to Discovery from Defendant, But Cautions Against Further Delays

Onyeneho v. Farmers Ins. Exchange
No. JKB-12-3692 (United States District Court for the District of Maryland, May 13, 2014)

by Colleen K. O’Brien, Associate
Semmes, Bowen & Semmes (

Available at

In Onyeneho v. Farmers Ins. Exchange, the Court granted the Defendant’s Motion to Compel, but denied the Defendant’s Motion to Dismiss for Lack of Prosecution, where Plaintiff failed to respond to Defendant’s discovery requests.

Proceeding pro se, Plaintiff filed this case alleging employment discrimination and retaliation against Defendant. The Scheduling Order provided that all depositions and other discovery were to be completed by December 20, 2013. On December 16, 2013, Defendant filed a letter requesting a sixty-day extension of the discovery period on grounds that it had served discovery requests on Plaintiff in September 2013, which were due in October 2013, however, as of December 2013, Defendant had received no discovery responses even though it had correspondence with Plaintiff about the discovery requests. Defendant requested additional time to try to resolve the discovery dispute, or if unsuccessful, to file a Motion to Compel. The Defendant’s Motion was granted. Thereafter, in January 2014, Defendant filed a Motion to Dismiss for Lack of Prosecution, or, alternatively, to Compel Plaintiff’s Discovery Responses. In February 2014, an attorney entered an appearance on Plaintiff’s behalf, and a Consent Motion to Extend the Time for Plaintiff to respond to Defendant’s Motion to Extend the time for Completion of Discovery, which indicated that the discovery problems could be “easily resolved” by counsel’s entry of appearance and by the parties’ additional time to conduct discovery, which could be readily addressed without wasting Court time or resources. The Court extended the discovery deadline until April 2014. After another brief extension of the response deadline as to Defendant’s Motion, Plaintiff filed both a response as well as a Motion for Voluntary Dismissal without Prejudice. Following a final briefing on the motions, Defendant requested that all case deadlines be stayed until after the Court ruled on the two pending motions.

Judge Bredar denied Plaintiff’s Motion for Voluntary Dismissal Without Prejudice on the grounds that Plaintiff showed a “profound” lack of diligence in litigating the case, both while pro se and after being represented by counsel. To the Court, there was no judicial economy in dismissing the case and allowing Plaintiff to have a “fresh start” with the filing of a new Complaint. It would have been unduly prejudicial to Defendant to be subjected to another round of litigation when the first round—already in progress—had already proven an inadequate vehicle for resolution of the dispute.

The Court also denied Defendant’s Motion to Dismiss for Lack of Prosecution under Fed. R. Civ. P. 41(b), which allows involuntary dismissal with prejudice if a Plaintiff fails to prosecute or to comply with the Federal Rules or Court Order. The Fourth Circuit has cautioned that dismissal with prejudice is a “harsh sanction” which should not be invoked lightly in view of the public policy of deciding cases on their merits. While Plaintiff and his counsel bore most of the responsibility for the delay in the case, the degree of prejudice to Defendant was fairly minimal, and Defendant would be fully able to defend itself on the merits as long as Plaintiff made full and complete discovery responses. Further, there was not a drawn out history of deliberately proceeding in a dilatory fashion, and sanctions less drastic than dismissal were more appropriate under the circumstances. Therefore, the Court denied the Motion to Dismiss, but granted Defendant’s alternative Motion to Compel. The Court, however, put Plaintiff and his counsel “on notice” that any future failure to comply with either the governing rules or the Court’s orders would “weigh heavily” against Plaintiff should involuntary dismissal with prejudice again be contemplated, either because of a defense motion or because the Court acts sua sponte.