FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

Nov. 9, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 09-12249

Non-Argument Calendar

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D. C. Docket No. 08-00456-CV-W-E

JAMES H. SHORTZ,

Plaintiff-Appellant,

versus

CITY OF TUSKEGEE, AL,

LESTER C. PATRICK,

MICHAEL T. CLEMENTS,

ROBIN COLLINS,

ERMA KENNEDY,

Defendants-Appellees,

TUSKEGEE POLICE DEPARTMENT,

Defendants.

________________________

Appeal from the United States District Court

for the Middle District of Alabama

_________________________

(November 9, 2009)
Before TJOFLAT, WILSON and FAY, Circuit Judges.

PER CURIAM:

James H. Shortz appeals from the district court’s dismissal of his complaint,

pursuant to Fed.R.Civ.P. 37, for failure to comply with the court’s discovery

orders, in his action brought under 29 U.S.C. § 201, et seq; 42 U.S.C. § 1981; and

28 U.S.C. § 1367. For the reasons set forth below, we affirm.

I.

Shortz filed a complaint against the City of Tuskegee, (“the City”); the

Tuskegee Police Department (“TPD”); Tuskegee Police Chief Lester C. Patrick;

Police Captain Michael T. Clements; Police Lieutenant Robin Collins; and Erma

Kennedy, an Administrative Assistant for the City of Tuskegee (collectively, “the

defendants”), alleging violations of the Fair Labor Standards Act, 29 U.S.C. § 201,

et seq and 42 U.S.C. § 1981, and asserting state law claims of fraud and breach of

agreement. Shortz asserted that he began work as a TPD police officer with the

understanding that he would accrue additional benefits after completing a sixmonth probationary period. After the expiration of the six-month probationary

period, Shortz was informed “that the six-month probationary period was not the

policy, and that [he] would have to complete a one-year probationary period

instead.” Shortly thereafter, Shortz resigned his position as a police officer. He

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subsequently learned that his position had been filled by a Caucasian male. Shortz

also asserted that he should have been paid overtime for off-duty court appearances

on behalf of the City.

The district court held a scheduling conference on July 23, 2008, at which it

ordered that all discovery be completed by November 10, 2008.

On September 24, 2008, the defendants filed a motion to compel production,

asserting that Shortz’s responses to their interrogatories were unsworn, incomplete,

and evasive, and that Shortz had provided no documents in response to their

request for production of documents. They also filed a motion to compel Shortz to

submit to a deposition, asserting that Shortz informed defense counsel, at 3:40 pm

on the day before his scheduled deposition, that he had a scheduling conflict and

would not be able to appear for the deposition.

On October 9, 2008, the magistrate judge held a hearing on the defendants’

motions to compel. The parties agreed that the defendants would depose Shortz on

October 20, 2008 and Shortz would depose Patrick, Clements, Collins, and

Kennedy on October 21, 2008. Shortz acknowledged that he did not produce any

documents in response to the defendants’ request for production of documents.

The court instructed Shortz to produce his state and federal income tax returns

from 2007 forward; any correspondence that he sent to the City that was relevant to

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his lawsuit; copies of letters he had written to the TPD police chief; and the

document he was relying on to prove constructive discharge. The court informed

Shortz that he was required to make a good faith effort to find any documents that

he may use to support his claims and provide those documents to defense counsel.

It noted that “[i]f something came up later that you should have produced, that

would not be in your favor and may be taken against you, could even cause the

case to be dismissed for some reason.”

With respect to the defendants’ interrogatories, the court instructed Shortz to

provide his employment history for the last 20 years; a list of all compensatory

damages he was claiming; and information regarding prior arrests, criminal

convictions, and prior lawsuits in which he was involved. The court explained to

Shortz that compensatory damages could include back pay, emotional damages,

and mental anguish. It ordered Shortz to deliver to the defendants, by October 18,

2008, the information and documents he had promised to provide.

On October 22, 2008, the defendants filed a “Motion to Compel Production

and For Other Relief,” noting that Shortz had failed to provide responses to their

interrogatories and document requests by the close of business on October 17,

2008. They asserted that Shortz also did not have the court-ordered discovery

responses when he appeared for his October 20, 2008 deposition, and Shortz stated

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during his deposition that he had “been too busy” to comply with the court’s order

to provide the additional responses. They noted that, on October 21, 2008, Shortz

told defense counsel that he still had not prepared his discovery responses.

On December 3, 2008, the magistrate judge ordered Shortz to show cause,

on or before December 16, 2008, why the defendants’ October 22, 2008 motion to

compel should not be granted. Shortz failed to respond to the court’s order to

show cause and, on December 23, 2008, the court granted the defendants’ motion

to compel, directing Shortz to respond to the defendants’ interrogatories and

requests for production on or before December 29, 2008, and to appear for a

second deposition at a location, date, and time convenient to the defendants. The

court also cautioned Shortz that “failure to respond to discovery or to appear for

deposition as ordered may result in sanctions, including dismissal.”

On January 7, 2009, the defendants filed a response, asserting that they had

not received any discovery from Shortz since the entry of the court’s December 23,

2008 order compelling Shortz to respond to their interrogatories and requests for

production on or before December 29, 2008.

On March 26, 2009, the district court held a status conference. Shortz stated

that he remembered appearing before the magistrate judge on October 9, 2008 and

understood the December 23, 2008 order. He also admitted that he had not

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provided the defendants with documents or sworn answers to their interrogatories.

Shortz explained:

I’ve been injured. And over the last year and a half, I

have been petitioning the courts for some relief. I’ve

filed – I wish I could have brought it in here. I’ve got a

box full of documents that I have filed with courts, this

court and the circuit court of Macon County, trying to

converse with this – with the defendant’s attorney.

Trying to do things within the framework of the system.

But every time I move forward, there is a road block.

There is an impediment. There is things that have been

going on that have restricted my ability to move forward.

I’m just about bankrupt. I don’t have any money. This

thing is just like a high-stakes poker game. We call until

you can’t respond. Then we win. That’s about the size

of what I’ve – that’s what I see is going on. But I’m just

tired. And if you want to dismiss it, fine. I’ll go home

and rest. But I came to this Court expecting to get some

relief.

The court noted that dismissal was one of the penalties for failing to comply with

the court’s discovery orders. It stated:

it’s a drastic remedy, but you have been ordered to do

this. And the second point about this discussion is you

were ordered by a federal judge . . . to do this. You had a

nice long hearing in October. Then there was another

motion and an order in December. You acknowledged

you got it. You read them. You understood them and

you were able to comply with them, and you didn’t

comply with them. That is known as contempt of court

for failure to comply with a lawful, unambiguous order

of a judge.

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The court asked Shortz if he had anything else to say about the matter and Shortz

responded “[n]othing beyond what I appealed to the court for in the beginning

initially, for some relief. That’s all I want, some relief.”

Subsequently, the court dismissed with prejudice Shortz’s lawsuit based on

Shortz’s failure to comply with court orders to provide discovery. The court found

that the magistrate judge’s orders were valid and lawful, and that Shortz was aware

of the court’s orders, understood them, had the ability to comply with them, and

intentionally did not comply with them. It noted that Shortz provided “no

justifiable reason” for his failure to comply with the magistrate judge’s orders and

stated that he would “just go home and rest” if the court dismissed his lawsuit. The

court found that any sanction less than dismissal with prejudice “would not suffice

in that it would prejudice Defendants with further delay and expense and would

hinder the court substantially in the orderly disposition of its cases. Moreover, any

lesser sanction would be ineffective and futile given that [Shortz] purposefully has

disregarded multiple court orders.”

Shortz filed a motion to set aside the order dismissing his case with

prejudice, asserting that his statement that he would “just go home and rest” was

misunderstood and that he was prepared to fully comply with all discovery

requests within seven days of any order setting aside the dismissal order. He also

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asserted that the court failed to make a finding that lesser sanctions would be

insufficient or that the defendants would be prejudiced by lesser sanctions.

The court denied Shortz’s motion to set aside the dismissal order, noting that

Shortz’s

statement that he ‘would just go home and rest’ was

preceded by an inquiry into his multiple failures to follow

the orders of this court and [Shortz’s] flippant response

that the court could dismiss the case. [Shortz’s] assertions

that he is prepared to comply with discovery requests are

overshadowed by his history of willfully, deliberately

and contumaciously disregarding the prior orders of this

court that he respond to discovery. [Shortz] was warned

‘that failure to respond to discovery or to appear for

deposition as ordered may result in sanctions, including

dismissal’ . . . yet he still failed to comply.

It noted that its order dismissing the case had stated that any lesser sanction would

not suffice because it would result in prejudice to the defendants.

II.

We review a district court’s dismissal of an action as a discovery sanction

for an abuse of discretion. BankAtlantic v. Blythe Eastman Paine Webber, Inc., 12

F.3d 1045, 1048 (11th Cir. 1994). The Federal Rules of Civil Procedure provide a

district court with authority to impose sanctions, including dismissal, on a party for

failing to comply with a court’s discovery order. Fed.R.Civ. P. 37(b)(2). Rule

37(b)(2)(A) provides, in pertinent part: “If a party . . . fails to obey an order to

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provide or permit discovery . . . the court where the action is pending may issue

further just orders. They may include . . . dismissing the action or proceeding in

whole or in part.” Fed.R.Civ.P. 37(b)(2)(A). “Dismissal with prejudice is the most

severe Rule 37 sanction,” but it “may be appropriate when a plaintiff’s

recalcitrance is due to wilfulness, bad faith or fault.” Phipps v. Blakeney, 8 F.3d

788, 790 (11th Cir. 1993). Dismissal is not an abuse of discretion “[w]hen a party

demonstrates a flagrant disregard for the court and the discovery process.” Aztec

Steel Co. v. Florida Steel Corp., 691 F.2d 480, 481 (11th Cir. 1982). Because

dismissal with prejudice is considered a drastic sanction, a district court may only

implement it as a last resort, when: (1) a party’s failure to comply with a court

order is a result of willfulness or bad faith; and (2) the district court finds that

lesser sanctions would not suffice. Malautea v. Suzuki Motor Co., Ltd., 987 F.2d

1536, 1542 (11th Cir. 1993).

III.

The district court did not abuse its discretion in dismissing with prejudice

Shortz’s claims. The magistrate judge explained to Shortz, at the October 9, 2008

hearing, exactly what documents he had to produce, specifically explaining what

types of compensatory damages he could claim. Furthermore, Shortz was aware of

the consequences of failing to comply with the court’s orders, as the magistrate

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warned Shortz on two occasions that failure to produce the requested discovery

could result in dismissal of his case. At the March 26, 2009 hearing, Shortz stated

that he remembered appearing at the October 9, 2008 hearing, and that he

understood the magistrate’s December 23, 2008 order to produce discovery

documents by December 29, 2008. Although Shortz claims that the magistrate’s

December 23, 2008 order interfered with his enjoyment of the holiday season, he

ignores the fact that he was initially ordered to respond to discovery by October 18,

2008.

It is also noted that Shortz failed to respond to the magistrate judge’s

December 23, 2008 order to show cause as to why the defendants’ motion to

compel should not be granted. He also failed to give a compelling reason for

failing to comply with discovery requests at the March 26th hearing, stating instead

that he had encountered “road block[s]” and “impediment[s]” and lacked money,

and telling the court that he would “go home and rest” if it dismissed his case.

Because Shortz failed to enunciate any compelling reason for failing to comply

with the court’s repeated orders to respond to the defendants’ discovery requests,

the district court correctly found that Shortz’s failure to comply was a result of

willfulness or bad faith. See Malautea, 987 F.2d at 1542. This is further supported

by Shortz’s antagonistic relationship with defense counsel and his demeanor before

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both the magistrate and the district court.

Finally, the district court found that any sanction less than dismissal with

prejudice would not have sufficed. Malautea, 987 F.2d at 1542. In light of

Shortz’s continued failure to comply with the court’s orders and his failure to offer

an explanation for his non-compliance, the district court did not abuse its discretion

in making this finding. Furthermore, the magistrate explained to Shortz, at the

October 9, 2008 hearing, exactly what documents and information he had to

provide to the defendants. Shortz was eventually given until December 29, 2008 to

produce this information. The fact that Shortz failed to produce the requested

information after two-and-a-half months leads to the conclusion that further

sanctions would not have successfully compelled production. Accordingly, we

affirm the district court’s dismissal of Shortz’s lawsuit.

AFFIRMED.

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