United States District Court, E.D. Missouri, Southeastern Division
GEORGE F. ALDRIDGE, JR., Plaintiff,
NINA HILL, Defendant.
MEMORANDUM AND ORDER
CHARLES A. SHAW, UNITED STATES DISTRICT JUDGE.
matter is before the Court on the motions of plaintiff George
F. Aldridge, Jr. for default judgment and for appointment of
counsel. (Docs. 29, 31). Defendant Nina Hill opposes the
motion for default judgment. Plaintiff did not file a reply
in support of the motion for default judgment and the time to
do so passed on October 10, 2019. The motions will be denied
for the following reasons.
for Default Judgment
moves for default judgment on the basis that defendant failed
to comply with paragraph I.3 of the Case Management Order
requiring her to submit specified discovery information to
plaintiff by August 28, 2019. Defendant responds that her
initial disclosures with 126 pages of grievance records and
2, 121 pages of medical records were mailed to plaintiff on
August 26, 2019, and tracking information showed they were
delivered to plaintiff's institution on August 30, 2019,
but the documents must have been lost during processing.
Defendant states she mailed another copy of the disclosures
to plaintiff on October 3, 2019.
motion is not based on defendant's failure to answer his
Amended Complaint but rather on an alleged failure to provide
discovery as ordered. As such, plaintiff's motion is
properly construed as a motion for discovery sanctions under
Rule 37, Fed. R. Civ. P., and not a motion for default
judgment. This Court's Local Rule 3.04(A) provides:
The Court will not consider any motion relating to discovery
and disclosure unless it contains a statement that
movant's counsel has conferred in person or by telephone
with the opposing counsel in good faith or has made
reasonable efforts to do so, but that after sincere efforts
to resolve their dispute, counsel are unable to reach an
accord. This statement also shall recite the date, time and
manner of such conference, and the names of the individuals
participating therein, or shall state with specificity the
efforts made to confer with opposing counsel.
E.D. Mo. L.R. 3.04(A).
litigants are not excused from complying with court orders or
substantive and procedural law. American Inmate Paralegal
Ass'n v. Cline, 859 F.2d 59, 61 (8th Cir. 1988).
Although plaintiff may be unable to confer with
defendant's counsel in person or by telephone, he can
write to attempt to resolve the dispute, and must do so prior
to filing any motion relating to discovery and disclosure.
Plaintiff should have written to defendant's counsel and
stated he did not receive plaintiff's initial disclosures
before he filed any motion with the Court. As a result of
plaintiff's failure to comply with Local Rule 3.04(A),
the Court will not consider the instant motion and will deny
the same without prejudice.
even if the Court were to consider the merits of the motion,
a dismissal under Rule 37 is permitted only where there is an
order compelling discovery, a willful violation of the order,
and prejudice. Comstock v. UPS Ground Freight, Inc.,
775 F.3d 990, 992 (8th Cir. 2014). Although the Case
Management Order orders that discovery be made, it is not an
“order compelling discovery, ” so the first
requirement for a discovery sanction of dismissal cannot be
met. Defendant states she mailed the initial disclosures,
they were delivered but apparently lost at plaintiff's
institution, and upon learning of this defendant mailed a
second set. Under these circumstances there is no
indication of a willful violation by defendant, and no
apparent prejudice to plaintiff.
motion for default judgment, construed as a motion for
discovery sanctions under Rule 37, will be denied without
prejudice for failure to comply with Local Rule 3.04(A).
for Appointment of Counsel
filed a third motion for appointment of counsel, although it
is titled “Second Motion for Appointment of
Counsel.” (See Docs. 3, 14.) Plaintiff's
motion is based on allegations contained in his prior motions
for appointment of counsel and on new allegations that
defendant is in default and refuses to provide discovery.
Court continues to believe that appointment of counsel is not
warranted at this time. The case is still in its early stages
as initial discovery disclosures have only recently been
exchanged and defendant is not in default. Plaintiff's
third motion for appointment of counsel will be denied under
the same standards and for the same reasons set out in the
Memorandum and Order of May 22, 2019 (Doc. 20 at 10-11).
Plaintiff may file a motion for appointment of counsel in the
future as the case progresses.
IT IS HEREBY ORDERED that plaintiffs motion
for default judgment is DENIED for failure