IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

ALEC DAVID BARNETT, JR., Parent and

Next Friend of R.P., a minor, et al, )

)

Plaintiffs, )

)

v. ) Civil Action No. 13-0470-KD-M

)

BALDWIN COUNTY BOARD OF )

EDUCATION, et al., )

)

Defendants. ) 

ORDER 

This action is before the Court on the second motion to dismiss filed by Defendants 

Baldwin County Board of Education, Dr. Alan T. Lee, Norman Moore, Robert Callahan, Jr., 

David Cox, David Tarwater, Elmer McDaniel, Angie Swiger, Shannon Cauley, and Lee Mansell 

(Defendants) (doc. 55); Plaintiffs’ response (doc. 57); and Defendants’ reply (doc. 58). Upon 

consideration, and for the reasons set forth herein, the motion is GRANTED. Accordingly, the 

claims brought by plaintiff Lenora Chapman, as parent and next friend of D.C., a minor, are 

dismissed with prejudice for failure to prosecute and failure to obey the orders of this Court. 

This action will proceed only as to the remaining co-plaintiff Lenka Lampkin, parent and next 

friend of R.L., a minor. 

Chapman and Lampkin filed their fourth amended complaint against Defendants claiming 

that they had violated Title VI of the Civil Rights Act of 1964, the Equal Protection Clause, and 

the Fourth Amendment to the U.S. Constitution (Counts I, II, III, IV) on basis of race as to their 

children D.C. and R.L. Chapman and Lampkin also raised state law claims of false imprisonment 

of D.C. and R.L. (Counts V and VI). (Doc. 51) 

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Defendants filed their first motion to dismiss for failure to prosecute after Chapman and 

D.C. failed to attend an agreed-upon and duly noticed deposition on January 28, 20151 (doc. 47). 

At the deposition, Chapman’s counsel explained that he was unable to locate her prior to the 

deposition, but would continue his attempts to locate and contact Defendants on February 3, 

2015, to advise as to whether he had located Chapman and D.C. and if so, provide a date, time 

and location for their deposition (doc. 47-1, Deposition Transcript). Defendants did not hear 

from Chapman’s counsel and on February 9, 2015, filed their first motion to dismiss for failure 

to prosecute based on the failure to attend the deposition. In response, Chapman argued that 

contact with counsel had been reinstated, that counsel had a new address and contact number, 

and that she would be available for deposition on a mutually agreed date and location (doc. 49). 

The motion to dismiss was denied on basis that Chapman had not shown a clear pattern 

of delay or willful contempt (doc. 52). Also, Chapman represented to the Court and opposing 

counsel that she would be available for a deposition at a mutually agreed upon date and time. 

Based on that representation, the Court re-opened discovery for the limited purpose of deposing 

Chapman and D.C., ordered Chapman to appear for a deposition on or before March 20, 2015, 

and extended the deadline for motions for summary judgment.

In addition, Chapman was warned that failure to attend the deposition might result in 

dismissal of this action with prejudice for failure to prosecute and failure to obey an order of this 

Court. The order stated as follows: 

Chapman is warned that failure to attend the deposition may result in dismissal 

of this action with prejudice for failure to prosecute and failure to obey an order 

of this court. Moon v. Newsome, 863 F.2d 835, 837 (11th Cir.1989) (As a general 

rule, where a litigant has been forewarned, dismissal for failure to obey a court 

order is not an abuse of discretion.); see also Zow v. Regions Financial Corp., - -

- Fed. Appx. - - - , 2014 WL 6981070 (11th Cir. 2014)(finding that the district 

court did not abuse its discretion by dismissing an action with prejudice after the 

 1

 Lampkin attended her deposition. 

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plaintiffs were given two warnings that their case would be dismissed if they did 

not participate in the Rule 26(f) discovery planning conference, their subsequent 

disregard of those warning, and failure to participate).

(Doc. 52)

On March 24, 2014, defendants filed their second motion to dismiss which is now 

pending before the Court (doc. 55). Defendants move to dismiss on basis that Chapman has 

failed to prosecute the action and now had failed to comply with this Court’s order. Defendants 

assert that Chapman and D.C. again failed to appear for their noticed deposition on the agreed 

upon date of March 20, 2015 in Montgomery, Alabama. Defendants point out that at the 

deposition, Chapman’s counsel stated that he had advised Chapman as to the importance of the 

deposition but did not know whether extraordinary circumstance prevented her and D.C. from 

attending (doc. 55-6, Deposition Transcript, p. 8-9). 

The Court entered an order giving Chapman the opportunity to show cause why her 

action should not be dismissed with prejudice for failure to prosecute and failure to obey an order 

of this Court (doc. 56). The Court found that Chapman had failed to attend two depositions, the 

latter of which occurred after the Court had ordered her to attend. The Court also stated that a 

clear pattern of delay or willful contempt appeared to have developed and if so, no lesser 

sanction than dismissal would suffice. 

In response, Chapman’s counsel asserts that he iterated to Chapman the significance and 

importance of attending the deposition but after that conversation, she did not respond to phone 

calls, text messages, or attempts to contact her at home (doc. 57, p. 2). 2 However, Chapman 

argues that dismissal with prejudice would be injurious to the claims and rights of the minor 

D.C., and requests that in the interest of justice and fairness, that D.C. “be able to maintain this 

 2 Chapman’s request for oral argument on the motion is denied (doc. 57, p. 2). The Court has 

sufficient information upon which to base its decision. Therefore, oral argument would not be 

helpful to the Court. 

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action on her rights six months past the date that she reaches the age of majority (19 years old) in 

accordance with Alabama law” (Id.)

In reply, Defendants point out that after Chapman’s counsel apprised her of the 

significance and importance of attending the deposition, Chapman and D.C. willfully failed to 

attend and failed to abide by the Court’s order to attend (doc. 58). Defendants argue that the 

action has been pending for over eighteen months3 and that dismissal without prejudice should 

not be allowed at this late stage. Defendants argue that summary judgment motions are due 

April 10, 2015, but because Chapman and D.C. have not been deposed, defendants are 

prejudiced in their ability to defend. Defendants also assert that there is no provision of law by 

which this Court may extend the statute of limitations applicable to the minor D.C. 4

Rule 37(d)(1)(A)(1) of the Federal Rules of Civil Procedure provides that the Court may 

order sanctions for a party’s failure to appear at their own deposition, after being served with 

proper notice. Among the sanctions available is the dismissal of an action.5 However, the Court 

may dismiss an action for failure to prosecute only where the plaintiff has shown a “clear pattern 

of delay or willful contempt” and the Court finds that no lesser sanction would suffice. World 

Thrust Films, Inc. v. International Family Entertainment, Inc., 41 F.3d 1454, 1456 (11th 

Cir.1995) (“This circuit has clearly stated that because dismissal is considered a drastic sanction, 

a district court may only implement it, as a last resort, when: (1) a party engages in a clear 

 

3 The complaint was filed on September 20, 2013 (doc. 1). 

4 The Court makes no determination as to the applicable statute of limitations and makes no 

finding as to whether D.C.’s claims may be governed by Ala. Code § 6-2-8(a) addressing 

suspension of limitation periods based upon disabilities including minority. 

5

 Rule 37(d)(3) states that the “[s]anctions may include any of the orders listed in Rule 

37(b)(2)(A)(i)-(vi).” Subparagraph (v) provides for “dismissing the action or proceeding in 

whole or in part.” 

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pattern of delay or willful contempt (contumacious conduct); and (2) the district court 

specifically finds that lesser sanctions would not suffice.”) 

Because Chapman has now twice failed to attend the depositions, with the second failure 

occurring after the Court ordered her to attend and warned her of the consequences, the Court 

finds that Chapman has shown a clear pattern of delay or willful contempt for the orders of this 

Court. The Court further finds that lesser sanctions would not suffice in that Defendants have 

been prejudiced in defending this action and filing their motions for summary judgment because 

they have not deposed Chapman or D.C. At this stage of the litigation, discovery has closed for 

all purposes and summary judgment motions are due April 10, 2015. Thus, the Court finds that 

no lesser sanction than dismissal with prejudice would suffice. See Zow v. Regions Financial

Corp., - - - Fed. Appx. - - - , 2014 WL 6981070 (11th Cir. 2014) (finding that the district court 

did not abuse its discretion by dismissing an action with prejudice after the plaintiffs were given 

two warnings that their case would be dismissed if they did not participate in the Rule 26(f) 

discovery planning conference, their subsequent disregard of those warning, and failure to 

participate); Moon v. Newsome, 863 F.2d 835, 837 (11th Cir.1989) (As a general rule, where a 

litigant has been forewarned, dismissal for failure to obey a court order is not an abuse of 

discretion). 

DONE and ORDERED this 8th day of April 2015.

s / Kristi K DuBose 

KRISTI K. DuBOSE

UNITED STATES DISTRICT JUDGE

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