Raymond Setzke v. Steve Whitmill

241 F. App'x 351

• Court: Court of Appeals for the Eighth Circuit
• Decided: July 20, 2007
• Docket: 06-1812
• Status: Unpublished

Opinion

PER CURIAM.

Raymond Setzke appeals the district court’s 1 dismissal without prejudice of his 42 U.S.C. § 1983 action after he failed to appear for two scheduled depositions. We see no abuse of discretion in the district court’s dismissal of the action. See Doe v. Cassel, 403 F.3d 986, 990 (8th Cir.2005) (per curiam) (Fed.R.Civ.P. 41(b) dismissal); Boogaerts v. Bank of Bradley, 961 F.2d 765, 768 (8th Cir.1992) (per curiam) (Fed.R.Civ.P. 37 dismissal). Setzke admitted to defense counsel by telephone that he received notice of the first deposition, the court warned him that failure to attend the second deposition could result in dismissal, and defendants produced unrebutted proof that they properly noticed the second deposition. See Aziz v. Wright, 34 F.3d 587, 588-89 (8th Cir.1994) (affirming dismissal under Rule 41(b) for plaintiffs failure to comply with court order allowing deposition). We also see no abuse of discretion in the award of reasonable costs to defendants. See Fed.R.Civ.P. 37(d) (court shall require party failing to attend own deposition to pay “reasonable expenses, including attorney’s fees, caused by the failure”); Ranger Transp., Inc. v. Wal-Mart Stores, 903 F.2d 1185, 1188 (8th Cir.1990) (per curiam) (standard of review).

Accordingly, we affirm.

1 . The Honorable Jimm Larry Hendren, Chief Judge, United States District Court for the Western District of Arkansas.