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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. )

______________________________________ )

MEMORANDUM IN SUPPORT OF 

MOTION TO DISMISS WITHOUT PREJUDICE 

UNDER RULE 37(d) OF THE FEDERAL RULES OF CIVIL PROCEDURE

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

Union”) and, in accordance with the Court’s April 24, 2007, order, submits the following supplemental

brief in support of its April 20, 2007, motion to dismiss without prejudice. Docket Entry Nos. 63, 64.

Introduction

Plaintiff Alma McBroom has failed to respond to any of the APWU’s written discovery requests.

Ms. McBroom has also failed to comply with a subpoena commanding her presence for her deposition.

Counsel for the APWU has unsuccessfully attempted to get Ms. McBroom’s counsel, Deborah Nickson

to provide a date certain upon which Ms. McBroom will be available to participate in discovery. Ms.

Nickson has instead consistently responded that Ms. McBroom is too physically and mentally

incapacitated to participate in discovery at any time in the foreseeable future. In light of Ms.

McBroom’s continuing illness and her doctor’s certification that she is physically and mentally

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In its motion to dismiss, filed on April 20, 2007, the APWU additionally asserted

tha tdismissal would also be appropriate under Rule 41 of the FRCP because of the plaintiff’s

failure to prosecute. The APWU no longer wishes to pursue this alternate ground for dismissal.

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unprepared to participate in this litigation, the APWU respectfully requests, in accordance with Rule

37(d) of the Federal Rules of Civil Procedure that the Court dismiss Ms. McBroom’s claims without

prejudice.1

This remedy does not harm Ms. McBroom because she may refile her claim at a later date when

she is physically and mentally prepared to actively participate in litigation.

Background

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

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

Declaration of Jennifer Ku, attached hereto as Attachment 1 (“Ku Dec. II”) at ¶¶ 2, 3 and Exs. A, B, and

C attached thereto. 

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. Ku Dec. II at ¶ 4 and Ex. D attached thereto. On April 3, 2007, Ms. Ku called Ms. Nickson

to discuss possible dates for Ms. McBroom’s deposition. Id. Ms. Nickson responded that her client

was not well and that she would get back to Ms. Ku in a couple of weeks to discuss possible deposition

dates. 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. E 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

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depose Ms. McBroom on April 18, 2007. Id. at ¶ 5 and Ex. F 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 ¶ 6 and Exs. G and H 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 ¶ 8. On

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 ¶ 9.

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

to the airport, Ms. Nickson called Ms. Ku. Id. at ¶ 10. 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

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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 ¶ 11. She

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

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 ¶ 12 and Ex. I 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 ¶ 13

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

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, pharmacologic [sic], and pyschologic [sic] care for

medical effects suffered as a result of an on the job related 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 due 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 beenrestricted 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.

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2 This is the second letter explaining Ms. McBroom’s inability to participate in this

case. On March 21, 2007, Ms. Nickson, on Ms. McBroom’s behalf, filed a request for an

extension of time to file a response to the APWU’s pending motion to dismiss, or in the

alternative, for summary judgment. Docket Entry No. 49. In support of this motion, Ms.

McBroom submitted a March 20, 2007, letter from Dr. McCloud. Id. This earlier letter was

virtually identical to Dr. McCloud’s letter of April 23, 2007. 

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Id. (emphasis added).2

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. II at ¶ 14. 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.

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 ¶ 8. 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 ¶ 15. 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 ¶ 11. 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.

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Id. at ¶ 14. 

On April 20, 2007, the National Union filed a motion to dismiss Ms. McBroom’s claims without

prejudice in order to allow Ms. McBroom to refile her claim at a time when she is physically and

mentally prepared to participate in the case. Docket Entry No. 63. On April 24, 2007, the Court issued

an order directing the APWU to submit a supplemental brief in support of this motion. Docket Entry

No. 64. 

On April 27, 2007, Ms. MsBroom, through counsel, filed a motion to continue or suspend all

proceedings for 120 days “or until such time as her treating medical advisor releases her from his care.”

Docket Entry No. 66. Attached to Ms. McBroom’s motion was a third letter from Dr. McCloud,

providing in relevant part: “Due to ongoing/unresolved emotional lability[sic] and secondary anxiety

neurosis, Ms. Alma McBroom should not participate in any stressful legal proceedings for the next 45-

60 days.” Id.

Argument

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 refile her claim at a later date, it will not contest the timeliness of

such refiled claim upon any ground that it could not have contested the timeliness of the instant live

claim.

Under Rule 37(b)(2)(C), the Court has discretion to dismiss the plaintiff’s claims as a sanction

for failure to cooperate in the discovery process. Rule 37(d) provides:

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If a party or an officer, director, or managing agent of a party or a person

designated under Rule 30(b)(6) or 31(a) to testify on behalf of a party fails (1)

to appear before the officer who is to take the deposition, after being served

with a proper notice, or (2) to serve answers or objections to interrogatories

submitted under Rule 33, after proper service of the interrogatories, or (3) to

serve a written response to a request for production of documents under Rule

34, after proper service of the request, the court in which the action is

pending on motion may make such orders in regard to the failure as are just,

and among others it may take any action authorized under subparagraphs (A),

(B), and (C) of subdivision (b)(2) of this rule.

Fed. R. Civ. P. 37(d). Rule 37(b)(2)(C) provides that the Court may, in its discretion, order dismissal

as a sanction for a plaintiff’s failure to comply with discovery. Fed. R. Civ. P. 37(b)(2)(C). 

Although other sanctions for a party’s failure to comply with discovery requests are available

under Rule 37, dismissal without prejudice is appropriate in this case. Ms. McBroom herself contends

that she is physically and mentally incapable of participating in discovery. Specifically, she blames her

failure to respond to written interrogatories and requests for the production of documents, as well as her

failure to appear at her deposition, on the assertion that her “significant and debilitating physical and

emotional pains” preclude her participation in litigation. Attachment 1, Ex. J; Docket Entry No. 49.

As Ms. McBroom is currently unable to provide a date certain upon which she will be well enough to

resume her participation in this litigation, dismissal without prejudice is appropriate. 

Much of the case law addressing the appropriateness of dismissal as a sanction for failure to

comply with discovery involves instances where the dismissal was with prejudice. See, e.g., Phipps v.

Blakeney, 8 F.3d 788, 790 (11th Cir. 1993) (dismissal was not an abuse of discretion where the district

court found willful noncompliance with discovery orders); Hashemi v. Campaigner Publications Inc.,

737 F.2d 1538, 1539 (11th Cir. 1984) (dismissal was an appropriate sanction for failure to appear at

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3 The federal district courts of Alabama, Florida, and Georgia were originally part

of the Fifth Circuit, but were split off to form the Eleventh Circuit effective October 1, 1981. For

this reason, Fifth Circuit decisions from before this split are considered binding precedent in the

Eleventh Circuit. Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1209 (11th Cir. 1981).

Phillips v. Insurance Co. of North America was decided on January 8, 1981.

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scheduled depositions or adequately explain reasons for absence, where there were other failures to

comply with discovery); Aztec Steel Co. v. Florida Steel Corp., 691 F.2d 480, 481-82 (11th Cir. 1982)

(dismissal was not an abuse of discretion where a party has demonstrated a flagrant disregard for the

court and the discovery process); Phillips v. Insurance Co. of North America, 633 F.2d 1165, 1167 (5th

Cir. 1981) (the district court did not abuse its discretion for failing to order a less severe sanction than

dismissal for appellant’s failure to comply with discovery).3 Though such a severe sanction may be

appropriate in this instance, the APWU is not asking the Court to order such a remedy. Instead, the

APWU seeks a dismissal without prejudice, and is willing to agree not to assert any timeliness defense

in any subsequent refiling of this suit that it could not have asserted in the original filing. Thus,

dismissal without prejudice would not harm Ms. McBroom in any way. See Marshall v. Segona, 621

F.2d 763, 768 (5th Cir. 1980) (whether a party’s preparation for trial was substantially prejudiced is a

consideration in dismissing an action as a sanction for failing to comply with a discovery order).

The United States Court of Appeals for the Fifth Circuit has stated that “the language of Rule

37(d) makes clear that the application of sanctions is entrusted to the discretion of the trial judge, and

that overleniency is to be avoided where it results in inadequate protection of discovery.” Diaz v.

Southern Drilling Corp., 427 F.2d 1118, 1126 (5th Cir. 1970); see also Malautea v. Suzuki Motor Co.,

Ltd., 987 F.2d 1536, 1542 (11th Cir. 1993) (under Rule 37, the district court has broad discretion to

impose sanctions for discovery violations); Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1366

(11th Cir. 1997) (same).

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The sanction of dismissal is necessary in this case to protect the APWU’s right to conduct

discovery. Ms. McBroom has steadfastly refused to comply with any of the APWU’s discovery

requests. The APWU accepts that Ms. McBroom’s refusal to cooperate may be because she is not well

enough to meet these responsibilities. Nevertheless, the Union is paralyzed in its defense by Ms.

McBroom’s failure to cooperate. Even if the Court agrees to Ms. McBroom’s motion for a 120 day

continuance, the APWU will still be without the benefit of discovery and in the impossible position of

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

As such, the APWU is unfairly prejudiced by Ms. McBroom’s inaction, and therefore begs the

Court’s intervention. As the Eleventh Circuit has repeatedly pointed out, Rule 37 sanctions are intended

to prevent unfair prejudice to the litigants and insure the integrity of the discovery process. Gratton v.

Great American Communications, 178 F.3d 1373, 1374 (11th Cir. 1999); Aztec Steel Co. v. Florida

Steel Corp., 691 F.2d 480, 482 (11th Cir. 1982). 

Courts must grant sanctions under Rule 37(d) that are “just” to the situation. Insurance Corp.

of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 707-08 (1982). Under these

circumstances, dismissal without prejudice is the appropriate and just sanction. For this reason, the

APWU requests that the Court issue an order dismissing this suit without prejudice. 

Conclusion

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

failure to comply with discovery, in accordance with Rule 37(d) of the Federal Rules of Civil Procedure,

the Court dismiss the plaintiff’s claims without prejudice.

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Dated: May 4, 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

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

Defendant American Postal Workers Union, AFL-CIO’s Supplemental Memorandum in Support of

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

attached Second Declaration of Jennifer Ku with attached exhibits:

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: May 4, 2007 /s/: Brenda C. Zwack 

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