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Warner v. Kozub

January 18, 2007

BERNARD WARNER, PLAINTIFF PRO SE,
v.
DEANNA KOZUB, DEFENDANT,



The opinion of the court was delivered by: Simandle, District Judge

OPINION

I. INTRODUCTION

This matter comes before the Court on the motion of Defendant Deanna Kozub to dismiss the Complaint for Plaintiff Barnard Warner's failure to comply with a court-ordered deposition. For the reasons explained below, the Court shall deny the motion and shall stay this action pending the outcome of Warner's related criminal prosecution.

II. BACKGROUND

Plaintiff Bernard Warner ("Warner"), who is currently confined at the Burlington County Detention Center, brought this action pursuant to 42 U.S.C. § 1983 claiming, among other things, that Defendant Deanna Kozub ("Kozub"), a police officer with the Burlington Township Police Department, used excessive force against him when she detained, apprehended and/or arrested him on February 25, 2005. The Court reviewed the Complaint to identify cognizable claims as 28 U.S.C. §§ 1915(e)(2) and 1915A require and permitted this excessive force claim to go forward. Warner v. Sweeney, No. 05-287, 2005 WL 2257925, at *5 (D.N.J. Sept. 12, 2005).

After Kozub answered the Complaint, she filed a motion to take Warner's deposition, see Fed. R. Civ. P. 30(a)(2), which Magistrate Judge Rosen granted. However, Warner refused to answer questions at that deposition and, instead, he responded to each question with the same assertion of his Fifth Amendment rights: "Due to my pending criminal matter at this time I will assert my right to remain silent." (Warner Dep. at Ex. 8 to Kozub's Motion to Dismiss.)

III. DISCUSSION

Kozub moves to dismiss pursuant to Fed. R. Civ. P. 37(b), arguing that the Court may sanction Warner for refusing to comply with the Court's Order that permitted Kozub to take his deposition. Rule 37(b)(2) provides, in relevant part:

If a party ... fails to obey an order to provide or permit discovery, including an order made under subdivision (a) of this rule or Rule 35, or if a party fails to obey an order entered under Rule 26(f), the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following:

(A) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;

(B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting that party from introducing designated matters in evidence;

(C) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party[.]

See also Fed R. Civ. P. 37(d) (authorizing same sanctions for failure to attend deposition).

However, dismissal for disobeying a discovery order is a "drastic" sanction of an "extreme nature." Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863, 867 (3d Cir. 1984). Accordingly, before the Court may rule on the motion to dismiss, it must determine: (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 or the attorney was willful or in bad faith; (5) the effectiveness of ...


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