TINNYE DANETTE HAYNES and KATHY SUE PORTER, Individually and on behalf of all others similarly situated, Plaintiffs, v. JAN J. OTHO D/B/A KIND KEEPERS, Defendant No. MO:16-CV-00096-DC United States District Court, W.D. Texas, Midland-Odessa Division Filed September 13, 2017 Counsel James E. Hunnicutt, Mary L. Scott, Jennifer Jackson Spencer, Spencer Scott PLLC, Dallas, TX, for Plaintiffs. Jan J. Otho, Midland, TX, Pro Se. Counts, David, United States Magistrate Judge ORDER TO PARTICIPATE *1 BEFORE THE COURT is Plaintiffs' Motion to Strike Defendant's Answer and for Final Default Judgement. (Doc. 51). Before ruling on the motion, the Court gives Defendant Jan J. Otho a final opportunity to participate in the case. I. BACKGROUND Plaintiffs filed their Complaint over a year ago on April 15, 2016. (Doc. 1). At the beginning of the case, Defendant's attorney withdrew. (See Oral Order Granting Oral Mot. to Withdraw on October 11, 2016). Defendant chose to proceed pro se, and the Court advised Defendant through a Pro Se Litigant Advisory of her duties in the case. (Doc. 25). From the beginning, issues arose. First, Defendant displayed an unwillingness to participate in discovery. Defendant failed to send initial disclosures to Plaintiffs as required by Federal Rule of Civil Procedure 26 or to respond to Plaintiffs' First Set of Interrogatories as required by Rule 33. (Doc. 26). These failures forced the Court to order Defendant to make initial disclosures, respond to Plaintiffs' interrogatories, and pay Plaintiffs' attorney fees and expenses. (Id.). Despite the Court's Order, Plaintiffs allege Defendant has yet to respond to any discovery request or to pay their attorney fees. (Doc. 60 at 2). Second, through the life of the case, Defendant has chosen not to communicate with the Court or Plaintiffs on multiple occasions. Plaintiffs reported in their Motion to Compel that Defendant was unresponsive. (Doc. 32 at 3-4). Additionally, despite the Court ordering Defendant to appear, Defendant failed to appear at a hearing held on March 1, 2017. (Docs. 37 and 38). Defendant's unresponsiveness led the Court to believe Defendant had changed addresses. (Doc. 42). As a result, the Court issued an Order to Show Cause to determine Defendant's location. (Id.). Defendant responded that she had not changed addresses, leaving the Court to conclude she was simply unresponsive to the Court's orders and the discovery process. (Doc. 43). Defendant's only explanation for her unresponsiveness is that it is too costly for her to mail opposing counsel paperwork. (Id.).[1] Third, Defendant has not followed proper procedure. The Court is sympathetic to the fact that Defendant is neither an attorney nor represented by an attorney. However, the Court has advised Defendant on numerous occasions that despite proceeding pro se, she must, at a minimum, participate in the case and follow the rules. (See Doc. 62 at 22:14-22:30). The following examples reveal that Defendant has not so much as attempted to do so. In the first example, it appears Defendant possesses relevant evidence but chooses not to participate in discovery. (Id.).[2] By doing so, Defendant prevents Plaintiffs from obtaining relevant information. Next, the Court advised Defendant to respond to Plaintiffs' Motion to Strike Answer and for Final Default Judgment at the Final Pretrial Conference. (Doc. 62 at 21:00-21:50). Defendant attempted to respond by dropping off a letter with Court Security Officers. The Court told Defendant this was not a proper submission and instructed her to file the response with the Clerk's Office. Defendant did not file the response. Additionally, the Court cautioned Defendant at the Final Pretrial Conference that she should file a Witness and Exhibit List. (Id. at 20:35-20:50). However, Defendant has yet to file any pretrial documents. Finally, Defendant settled with Plaintiff Tinnye Haynes. (Doc. 58). Pursuant to the settlement agreement, the Court ordered Defendant to deposit settlement funds into the Court's Registry by August 24, 2017. As of the date of this order, Defendant has failed to deposit the funds. *2 Fourth, there is confusion in the prosecution of this case. Plaintiffs filed their Motion to Strike Answer and for Default Judgment on August 15, 2017, only three weeks before the scheduled trial date and over a year and a half after the commencement of the suit. (Doc. 51). As a result, Plaintiffs were required to request a continuance. (Doc. 52). Further, Plaintiffs did not designate Expert Witnesses until August 16, 2017, one day before the Final Pretrial Conference. (Doc. 54). When questioned about these filings, Plaintiffs' counsel admitted there was confusion in her office regarding the case. (Doc 62 at 12:45-13:10). While the Court appreciates counsel's honesty, it believes that the confusion has prolonged this case. II. STANDARD OF REVIEW Plaintiffs request the Court strike Defendant's Answer and enter a Default Judgment against Defendant pursuant to Rule 37 of the Federal Rules of Civil Procedure. Striking a pleading is a drastic remedy, is viewed with disfavor by the federal courts, and is a request infrequently granted. 5C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1380 (3d ed. 2017). However, Rule 37(b)(2)(A) does permit a court to strike pleadings in whole or in part and grant default judgments against disobedient parties. For example, a court may enter a Default Judgment for failure to participate in discovery. See United States v. Real Prop. Known as 200 Acres of Land Near FM 2686 Rio Grande City, Tex., 773 F.3d 654, 660 (5th Cir. 2014). A default judgment may even be entered against a pro se litigant when the litigant willfully refuses to comply with discovery orders. See Bivins v. Miss. Press Register, Inc., 72 F. App'x 166, 167 (5th Cir. 2003). III. DISCUSSION One of the primary purposes of the discovery process is to eliminate “trial by surprise.” 8 Fed. Prac. & Proc. § 2001 (3d ed. 2017). In other words, parties should know what information and documents an opposing party possesses before trial begins. For this reason, participation in the discovery process is necessary as it enables both sides to prepare for trial. Further, Courts issue orders to resolve cases efficiently and to ensure compliance with the law. Failure to follow a Court's order is a serious transgression and can lead to consequences for the violating party in a civil lawsuit. See Bivins, 72 F. App'x at 167. Courts know that pro se litigants do not possess the benefits of a law degree and therefore Courts attempt to give pro se litigants significant latitude and flexibility to ensure fairness. See Perez v. United States, 312 F.3d 191, 194–95 (5th Cir. 2002). Additionally, this Court prefers to resolve cases fairly through the trial or settlement process. However, parties choose whether or not to participate in a lawsuit. When a party chooses not to participate in a lawsuit or fails to comply with a court's order, courts possess tools to resolve the case. See Fed. R. Civ. P. 37. Courts do not wish to use these tools, but circumstances sometimes necessitate the entry of a default judgment and sanctions such as striking a pleading. With the above background information, standard of review, and discussion in mind, the Court reset trial for a distant date — November 20, 2017. (Doc. 59). With this extra time, the Court hopes to give Defendant a final opportunity to participate in the case. Accordingly, the Court ORDERS Defendant to complete the following by SEPTEMBER 29, 2017, in compliance with the Local Rules: 1. Comply with the Initial Disclosure Requirements of Federal Rule of Civil Procedure 26; 2. Respond to Plaintiffs' First Set of Interrogatories in compliance with Federal Rule of Civil Procedure 33 (See Doc. 32-1 for a copy of Plaintiffs' First Set of Interrogatories); *3 3. Participate in any additional discovery requested by the Plaintiffs unless the discovery is otherwise objectionable under the Federal Rules of Civil Procedure; 4. File a Witness and Exhibit List in preparation for trial with the Clerk's Office; and 5. File a response to Plaintiffs' Motion to Strike Answer to Complaint and for Final Default Judgment. (Doc. 51). If Defendant does not comply with this ORDER, the Court will proceed with consideration of the entry of default judgment. Finally, the Court reminds Defendant that she owes Plaintiffs their attorney fees and expenses pursuant to the Court's Order to Compel. (Doc. 26). Also, Defendant owes money to the Court's Registry pursuant to the settlement agreement she signed. (Doc. 59). A failure to pay these amounts can lead to further civil consequences. It is so ORDERED. SIGNED this 13th day of September, 2017. Footnotes [1] This justification does not explain the failure to appear. Further, when asked at the Final Pretrial Conference whether Defendant uses email to communicate with opposing counsel, Defendant indicated that she did not prefer email. (Doc 62 at 15:10-16:45). [2] Defendant states, “I have plenty of discriminating evidence about these women[,] but honestly I just want to get this [case] resolved and not go through everything that I know about them.”