Dunahue v. Kelley

Opinion

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS DELTA DIVISION REGINALD DUNAHUE ADC #106911 PLAINTIFF

V. No. 2:18-cv-103-DPM WENDY KELLEY, Director, Arkansas Department of Correction, et al. DEFENDANTS

ORDER 1. Motion for copies, Ne 109, granted. The Court directs the Clerk to mail Dunahue a copy of the docket sheet with this Order. 2. On de novo review, the Court declines the recommendation, Ne 106, without prejudice. FED. R. CIv. P. 72(b)(3). As the Magistrate Judge notes, failing to appear for one’s deposition arguably amounts to a failure to prosecute, which can warrant dismissal. FED. R. CIv. P. 41(b). In the circumstances, though, dismissal is also akin to a discovery sanction, which requires a more searching inquiry: There must be “(1) an order compelling discovery, (2) a willful violation of the order, and (3) prejudice to the other party.” Comstock v. UPS Ground Freight, Inc., 775 F.3d 990, 992 (8th Cir. 2014) (quotation omitted). And in our circuit, the Court also “must investigate whether a sanction less extreme than dismissal would suffice, unless the party’s failure was deliberate or in bad faith.” Avionic Co. v. General Dynamics Corp.,

957 F.2d 555, 558 (8th Cir. 1992) (emphasis original). The record here needs fleshing out. The Court therefore returns the case to the Magistrate Judge for a supplemental recommendation on whether Dunahue’s discovery violation warrants dismissal under Rule 37’s more exacting standard. So Ordered. APY stall = D.P. Marshall Jr. United States District Judge HU Aether 20l? _

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