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, 93 F.3d 801, 808 (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.” Id. Furthermore, a
district court must consider whether a lesser sanction “would be
more appropriate for the particular violation.” Id. Dismissal
is appropriate as “a sanction of last resort . . . after less -4-
dire alternatives have been explored without success.” Trakas v.
Quality Brands, Inc., 759 F.2d 185, 186-87 (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), 2006 WL 3791387, 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), 2001 WL 950219, 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
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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, 93 F.3d 801, 808 (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.” Id. Furthermore, a
district court must consider whether a lesser sanction “would be
more appropriate for the particular violation.” Id. Dismissal
is appropriate as “a sanction of last resort . . . after less -4-
dire alternatives have been explored without success.” Trakas v.
Quality Brands, Inc., 759 F.2d 185, 186-87 (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), 2006 WL 3791387, 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), 2001 WL 950219, 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., 460 F.3d 1217,
1234 (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