UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

_______________________________________

)

ALMA T. MCBROOM, )

)

Plaintiff, )

)

v. ) Civil Action No. 2:06-CV-767-MEF-SRW

)

JOHN E. POTTER, et al., )

)

Defendants. )

______________________________________ )

MOTION TO DISMISS WITHOUT PREJUDICE 

UNDER RULES 37 (d) AND 41 (b) OF THE FEDERAL RULES OF CIVIL PROCEDURE

Introduction

Comes now defendant American Postal Workers Union, AFL-CIO (“APWU” or “National

Union”) and, in accordance with Rules 37 (d) and 41 (b) of the Federal Rules of Civil Procedure,

respectfully moves this Court to issue an order sanctioning the plaintiff Alma McBroom with dismissal

without prejudice of this action as a result of Ms. McBroom’s asserted physical and mental inability to

cooperate in discovery and her failure to prosecute this case. 

As of the date of this motion, Ms. McBroom has refused to participate in written discovery or

to comply with a subpoena commanding her presence at her deposition. Ms. McBroom’s counsel has

informed counsel for the APWU that Ms. McBroom is too physically and mentally incapacitated to

participate in discovery at any time in the foreseeable future. 

Under the current scheduling order, the parties’ dispositive motions must be filed with the Court

no later than April 30, 2007. As Ms. McBroom’s counsel could not offer a date by which Ms.

McBroom will be well enough to participate in discovery, the APWU would be placed in the impossible

position of filing its dispositive motion without the benefit of any discovery from Ms. McBroom. For

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this reason, the APWU requests that the Court issue an order dismissing this suit. Such a remedy would

not prejudice Ms. McBroom in any way because the APWU will not object to her refiling the suit nunc

pro tunc at a time when she is physically and mentally well enough to pursue her claims.

Background

On March 15, 2007, the APWU served Ms. McBroom, then pro se, with written discovery

requests in the form of requests for interrogatories and for production of documents. 

On April 2, 2007 APWU attorney Jennifer Ku emailed plaintiff Alma McBroom’s newly

appointed attorney Deborah Nickson to open a discussion about possible dates for Ms. McBroom’s

deposition. Declaration of Jennifer Ku, attached hereto as Attachment 1 (“Ku Dec.”) at ¶ 2 and Ex. A

attached thereto. On April 3, 3007, Ms. Ku called Ms. Nickson to discuss possible dates for her client’s

deposition. Id. Ms. Nickson responded that her client was not well and that she would get back to Ms.

Ku in to discuss possible deposition dates after she speaks with her client next week. Id. As April 30,

2007, the date for submission of dispositive motions was fast approaching, the APWU did not find this

response to be acceptable. Id. Following this conversation, Ms. Ku emailed Ms. Nickson several

specific dates for an April deposition. Id. and Ex. B attached thereto. Ms. Nickson did not respond.

Id.

On April 5, 2007, the APWU served Ms. McBroom’s attorney with a notice of its intent to

depose Ms. McBroom on April 18, 2007. Id. at ¶ 3 and Ex. C attached thereto. On April 6, 2007, on

behalf of the APWU, a process server personally served Ms. McBroom with a subpoena commanding

her appearance at the deposition on April 18, 2007. Id. at ¶ 4 and Exs. D and E attached thereto.

Despite having nearly two weeks notice of the deposition, Ms. Nickson did not attempt to

contact the APWU until April 17, 2007, the day before the deposition was to take place. Id. at ¶ 6. On

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April 16, 2007, Ms. Ku had left a phone message for Ms. Nickson to confirm the deposition. Id. On

the morning of April 17, 2007, Ms. Nickson left a voice mail message for Ms. Ku in which she stated

that she had received Ms. Ku’s message, but was waiting to hear back from Ms. McBroom’s doctor to

find out if he would release her to participate in the deposition. Id. She suggested the parties should

reset the date for the deposition and indicated that, if the doctor did not release McBroom, then she

would not advise her client to appear at the deposition. Id. Ms. Nickson stated that, if Ms. McBroom’s

doctor did not release her, then she would provide the APWU with a medical certification. Id.

That morning Ms. Ku returned Ms. Nickson’s call and left her a message reminding her that Ms.

McBroom had received a subpoena and that she and undersigned counsel had plans to travel to

Montgomery, Alabama that same day. Id. at ¶ 7.

At approximately 2:00 p.m., on April 17, shortly before the two APWU attorneys were to travel

to the airport, Ms. Nickson again called Ms. Ku. Id. at ¶ 8. She informed Ms. Ku that Ms. McBroom’s

doctor had not released her to participate in the deposition. Id. Ms. Ku asked if that meant that Ms.

McBroom did not intend to comply with the subpoena and appear for her scheduled deposition. Id.

Ms. Nickson replied that Ms. McBroom would follow the doctor’s recommendation. Id. Ms. Ku

further asked Ms. Nickson why she had waited until the last minute to inform the APWU that it was

likely that her client did not intend to appear for her deposition. Id. Ms. Nickson responded that she

did not contact the APWU sooner because nothing had changed since March 21, 2007, when she

requested an extension of time to respond to the APWU’s pending motion to dismiss. Id.

Ms. Ku also asked Ms. Nickson whether Ms. McBroom intended to respond to the APWU’s

written discovery requests, the responses to which were due on April 18, 2007. Id. at ¶ 9. She

responded that Ms. McBroom was not well enough to discuss the discovery requests with her attorney.

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Id.

Following that telephone conversation, Ms. Ku faxed and emailed a letter to Ms. Nickson under

her own and Ms. Zwack’s signatures. Id. at ¶ 10 and Ex. F attached thereto. The letter memorialized

Ms. Ku’s understanding of her conversation with Ms. Nickson. Id. In the letter, she requested that Ms.

Nickson provide medical certification for Ms. McBroom’s asserted ailments. Id.

In response, Ms. Nickson provided the APWU with a letter from Dr. Joel McCloud. Id. at ¶ 11

and Ex. G attached thereto. This letter provided the following explanation of Ms. McBroom’s ability

to participate in this litigation:

Ms. Alma McBroom is a patient in my care. She has a follow up

appointment scheduled for April 23, 2007. She continues to receive

aggressive medical, pharmacological, and pyschologic [sic] care for medical

effects suffered as the result of an on the job injury on 8/2/2003. Despite

these interventions,she remains with significant and debilitating physical and

emotional pains, compounded by her loss of physical and financial

independence du to inability to work, and provide for her single parent

household. She now suffers from hypertension, worsening headaches and

chest pains in addition to overwhelming feelings of marked anxiety and

suppressed anger as a result of her “wrongful termination” following her

injury. These combined with her now chronic low back pain render her very

physically and emotionally fragile. Her ability to see and obtain additional

psychiatric care has been restricted by the Department of Labors [sic]

refusal to pay for this much needed intervention. However, I think that

it is in her best interest to receive this care before proceeding with more

stressful legal proceedings.

Id. (emphasis added).

Ms. McBroom has not indicated through her attorney whether she has any future plans to seek

out this additional psychiatric care recommended by her physician as a prerequisite to her proceeding

with legal proceedings. Ku Dec. at ¶ 12. Nevertheless, in her telephone conversation with Ms. Ku, Ms.

Nickson insisted that Ms. McBroom would not proceed with the litigation until her doctor released her

to do so. Id.

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At no time prior to April 17, 2007, did Ms. Nickson attempt to reschedule the deposition.

Similarly, she took no steps to file a motion to quash the subpoena. Id. at ¶ 6. Ms. Nickson did not so

much as place a telephone call to APWU’s counsel, prior to April 17, 2007, to inform the APWU that

Ms. McBroom may not appear for her deposition. Id. This eleventh hour cancellation of the deposition,

in defiance of the subpoena, cost the APWU significant financial hardship. Id. at ¶ 13. As the APWU

is headquartered in Washington, D.C., two attorneys for APWU had planned to travel to Montgomery,

Alabama for the deposition. Id. By the time Ms. McBroom informed the APWU through her attorney

that she did not intend to appear for the deposition, it was already too late for counsel for APWU to

cancel airline flights and hotel accommodations for a full refund. Id.

Ms. Nickson has indicated that Ms. McBroom is in no position to comply with the APWU’s

written discovery requests. Id. at ¶ 9. Ms. Nickson was unable to predict when Ms. McBroom may

become well enough to appear for a deposition or to respond to the APWU’s written discovery requests.

Id. at ¶ 12. 

According to the Court’s scheduling order, most recently issued on March 22, 2007, the parties

are to submit any dispositive motion by no later than April 30, 2007. Docket No. 52.

Argument

In this motion, the APWU requests that the Court dismiss this action without prejudice. The

APWU makes this request, not in an effort to penalize the plaintiff, but to permit her the time she needs

to sufficiently recover her physical and mental strength to prosecute this litigation. The dismissal of

this action without prejudice will not compromise Ms. McBroom’s legal rights in any way. The APWU

agrees that, should Ms. McBroom wish to re-file her claim at a later date, it will not contest the

timeliness of such re-filed claim upon any ground that it could not have contested the timeliness of the

instant live claim.

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Without the action of this Court the APWU will be forced into the impossible position of

drafting a dispositive motion based on no facts other than those alleged in McBroom’s pro se complaint.

The APWU has timely requested written discovery and has attempted to depose Ms. McBroom after

providing reasonable notice and service of a subpoena. Ms. McBroom has made clear, however, that

she does not intend to cooperate in discovery at any time in the foreseeable future. 

As plaintiff has made unequivocally clear, she does not currently intend to participate in this

case. Ms. McBroom has expressed through her attorney that she intends to strictly comply with her

doctor’s recommendations. Her doctor has recommended that she not pursue litigation until receiving

additional psychiatric care, care that according to her doctor’s letter, she has no present means of

affording. Continuation of this case without the plaintiff’s participation does not serve the interests of

justice and works only to frustrate the court’s interest in efficiency. 

Conclusion

For the foregoing reasons, the APWU respectfully requests that, as a result of the plaintiff’s

failure to comply with discovery and failure to prosecute this case, in accordance with Rules 37 (d) and

41 (b) of the Federal Rules of Civil Procedure, the Court dismiss the plaintiff’s claims without

prejudice.

Dated: April 20, 2007 Respectfully submitted,

O’DONNELL, SCHWARTZ & ANDERSON, P.C.

By: /s/ Brenda Zwack 

 Brenda C. Zwack (D.C. No. 482673)

 Admitted Pro Hac Vice

 1300 L Street, NW, Suite 1200

 Washington, DC 20005-4126

 Tel (202) 898-1707/Fax (202) 682-9276

 bzwack@odsalaw.com

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Attorneys for the American Postal Workers Union, 

AFL-CIO

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Certificate of Service

I hereby certify that I have this day caused the following people to be served by first class mail

postage pre-paid and through the Court’s electronic filing system with a copy of the foregoing Motion

to Dismiss Without Prejudice Under Rules 37 (d) and 41 (b) of the Federal Rules of Civil Procedure;

attached Declaration of Jennifer Ku with attached exhibits; and Proposed Order:

Deborah M. Nickson

2820 Fairlane Drive, Suite A-10

Montgomery, AL 36116

William Post Roberts, II

Howell, Sarto & Howell

P.O. Box 681864

147 E. Main Street

Prattville, AL 36067

Dated: April 20, 2007 /s/: Brenda C. Zwack 

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UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

_______________________________________

ALMA T. MCBROOM, )

)

Plaintiff, )

)

v. ) Civil Action No. 2:06-CV-767-MEF-SRW

)

JOHN E. POTTER, et al., )

)

Defendants. )

_______________________________________ )

ORDER

UPON CONSIDERATION of the Motion to Dismiss Without Prejudice Under Rules 37 (d)

and 41 (b) of the Federal Rules of Civil Procedure of the American Postal Workers Union, AFLCIO;

IT IS ORDERED that the Motion to Dismiss Without Prejudice Under Rules 37 (d) and 41

(b) of the Federal Rules of Civil Procedure of the American Postal Workers Union, AFL-CIO, is

HEREBY GRANTED.

The plaintiff’s claims are dismissed without prejudice.

Date:_________________________ ________________________________

 U.S. DISTRICT COURT JUDGE

Copies to:

Brenda C. Zwack Deborah M. Nickson

bzwack@odsalaw.com debnicks@bellsouth.net

William Post Roberts, II

WPRII@knology.net

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