United States District Court, D. Delaware
DEBORAH J. ARANGA, Plaintiff,
ADVANCED STUDENT TRANSPORTATION, INC., Defendant.
Deborah J. Aranga, Wilmington, Delaware. Pro Se Plaintiff.
C. Witherow, Esquire, Cooch and Taylor, Wilmington, Delaware.
Counsel for Defendant.
Deborah J. Aranga ("Plaintiff) commenced this action on
January 5, 2017, alleging employment discrimination under the
Americans with Disabilities Act of 1990 ("ADA"), as
amended, 42 U.S.C. §§ 12101, et seq. (D.I.
2) She proceeds pro se and has been granted leave to
proceed in forma pauperis. (D.I. 4) Defendant
Advanced Student Transportation, Inc. ("Defendant")
moves to dismiss pursuant to Fed.R.Civ.P. 37 for failure to
comply with a discovery order, Plaintiffs failure to attend
her deposition, and for failure to prosecute. (D.I. 29)
Defendant also moves for summary judgment. (D.I. 30) For the
reasons set forth below, the Court will grant the motion to
dismiss and will deny as moot the motion for summary
March 20, 2018, the Court entered a scheduling order setting
a discover}' deadline of September 21, 2018, and a
dispositive motion deadline of October 22, 2018. (D.I. 18) On
July 26, 2018, Defendant served written discovery on
Plaintiff. (D.I. 20) On September 13, 2018, Defendant filed a
notice to take Plaintiffs deposition on September 20, 2018.
(D.I. 21) On the same date, Defendant filed a motion to
compel answers to interrogatories and a request for
production of documents and a motion to modify the scheduling
order. (D.I. 22, 23) Plaintiff responded to the requests for
production of documents while the motion was pending. (D.I.
24) Plaintiff did not appear for her deposition on September
20, 2018. (D.I. 29-1 at 8-9)
October 17, 2017, the Court granted Defendant's motion to
compel and gave Plaintiff until on or before November 16,
2018 to respond to Defendant's discovery requests. (D.I.
25) The Court also modified the scheduling and discovery
order, setting a new discovery deadline of December 17, 2018
and a dispositive motion deadline of January 15, 2019. (D.I.
27) Defendant rescheduled Plaintiffs deposition to take place
on November 28, 2018. (D.I. 28) The notice was filed on
November 15, 2018. (Id.) On that same day, Defendant
sent a letter to Plaintiff informing her that it was
important she attend her deposition and asking her to contact
counsel should she have any questions. (D.I. 29-1 at 23) On
November 19, 2018, another letter was sent to Plaintiff
advising that, to date, Defendant had not received Plaintiffs
answers to interrogatories within the timeframe ordered by
the Court. (Id. at 27)
did not appear at the rescheduled deposition on November 18,
2018. (Id. at 34) Nor did Plaintiff contact defense
counsel with an explanation why she could not attend or
request the deposition be rescheduled. (Id. at 35)
On December 5, 2018, Defendant filed a motion to dismiss
pursuant to Fed.R.Civ.P. 37 for failure to comply with a
discovery order, Plaintiffs failure to attend her deposition,
and for failure to prosecute her case. (D.I. 29) Plaintiff
did not file a response to the motion.
January 9, 2019, Defendant filed a motion for summary
judgment on the grounds that Plaintiff has not produced
sufficient evidence demonstrating that she has a disability
within the meaning of Title V of the ADA. (D.I. 30, 31)
Plaintiff filed an opposition to the motion for summary
judgment and states that when she was hired she filled out a
"self identification disclosure" and answered that
she was permanently disabled and receiving social security
disability. (D.I. 32)
Rule Civil Procedure 37(b)(2) provides for sanctions once a
court has ordered a party to answer discovery and the party
fails to comply with the order. See Fed. R. Civ. P.
37(b)(2). Rule 37(d) provides for sanctions when a party
fails to attend her own deposition, serve answers to
interrogatories, or respond to a request for inspection.
Dismissal of an action pursuant to the Rules lies within the
discretion of the trial court. See Curtis T. Bedwell and
Sons, Inc. v. International Fidelity Ins. Co., 843 F.2d
683, 691 (3d Or. 1988).
to Fed.R.Civ.P. 41(b), a court may dismiss an action
"[f]or failure of the plaintiff to prosecute or to
comply with [the Federal Rules] or any order of court."
Although dismissal is an extreme sanction that should only be
used in limited circumstances, dismissal is appropriate if a
party fails to prosecute the action. See Harris v. City
of Philadelphia, 47 F.3d 1311, 1330 (3d Cir. 1995).
Dismissal "must be a sanction of last, nor first
resort." Poulis v. State Farm Fire and Cas.
Co., 747 F.2d 863, 869 (3d Cir. 1984).
typically assess the following factors in determining whether
dismissal is warranted: (1) the extent of the party's
personal responsibility; (2) the prejudice to the adversary
caused by the failure to meet scheduling orders and respond
to discovery; (3) a history of dilatoriness; (4) whether the
conduct of the party was willful or in bad faith; (5) the
effectiveness of sanctions other than dismissal, which
entails an analysis of other available sanctions; and (6) the
meritoriousness of the claim or defense. See Poulis,
747 F.2d at 868; see also Hildebrand v. Allegheny
Cty.,923 F.3d 128 (3d Cir. 2019); Em ...