MARCUS FLEMING PLAINTIFF v. AMERICAN AIRLINES, INC. DEFENDANT CIVIL ACTION NO. 3:18-CV-477-DPJ-FKB United States District Court, S.D. Mississippi, Northern Division Filed July 23, 2019 Counsel Jeffery K. Harness, Law Office of Jeffery Harness, LLC, Fayette, MS, for Plaintiff. Richard Lee Kimmel, Upshaw, Williams, Biggers & Beckham, LLP, Greenwood, MS, for Defendant. Jordan III, Daniel P., United States District Judge ORDER *1 Defendant American Airlines, Inc., again seeks dismissal of this lawsuit for Plaintiff Marcus Fleming's failure to respond to discovery requests. Mot. [24]. Because the record fails to demonstrate that Fleming himself-rather than his attorney-caused the latest discovery violation, the Court concludes that dismissal with prejudice is not appropriate. But the case is dismissed without prejudice, and American will be awarded additional attorney's fees incurred in filing this motion. I. Facts and Procedural History Fleming filed this negligence action against American on June 8, 2018. In the September 14, 2018 case-management order, United States Magistrate Judge Ball directed the parties to provide pre-discovery disclosures by September 25, 2018, and set a discovery deadline of March 20, 2019. Fleming never served his pre-discovery disclosures. On September 28, 2018, American served discovery requests on Fleming. Fleming did not respond, and on December 21, 2018, American filed its first motion to compel [13]. Judge Ball denied that motion for American's failure to participate in a pre-motion discovery conference as required by the case-management order. The parties then had a January 9, 2019 telephonic discovery conference, after which, having still not received any disclosures or discovery responses from Fleming, American filed its first motion to dismiss or, in the alternative, to compel [14]. Fleming failed to timely respond, so Judge Ball entered a show-cause order, setting an April 1, 2019 deadline for Fleming to respond to American's motion. On April 1, 2019, Fleming's attorney filed a response to the show-cause order, along with two notices of service, which indicated that he had that day mailed copies of Fleming's discovery responses to American. But as of April 18, 2019, American had yet to receive Fleming's discovery responses. Notwithstanding Fleming's flagrant and ongoing failure to participate in discovery, the Court denied American's first motion to dismiss because American did not identify or address the correct test for dismissal with prejudice under Federal Rule of Civil Procedure 37. The Court did, however, grant the alternative motion to compel, directing Fleming “to provide pre-discovery disclosures and complete, verified discovery responses to American's counsel, via email,” on or before July 2, 2019. Order [22] at 4. The Court noted that “Fleming should have no trouble meeting this deadline because the Court accepts counsel's representation that the responses were already finalized and mailed on April 1, 2019.” Id. And the Court further warned that “[f]ailure to comply ... may result in further sanctions-including possible dismissal-if American so moves.” Id. Finally, it granted American's request for attorney's fees incurred in filing its first motion to dismiss, directed American to submit an affidavit supporting that request, and allowed Fleming time to object if the request was unreasonable. American filed an affidavit supporting a fee award of $2,454.40; Fleming filed no response. *2 July 2 came and went with no discovery from Fleming, so on July 3, 2019, American filed yet another motion seeking dismissal under Rule 37 as well as reasonable attorney's fees. Fleming failed to respond, and the time to do so has now expired. II. Analysis Although Fleming did not respond to American's latest motion to dismiss, that fact alone does not justify granting the motion. See L.U. Civ. R. 7.2(b)(3)(e) (explaining that motions other than dispositive motions may be granted as unopposed). Instead, the Court must examine its merits. Cf. Hetzel v. Bethlehem Steel Corp., 50 F.3d 360, 362 (5th Cir. 1995) (noting the court's disapproval of the practice of granting summary-judgment motions as unopposed). Federal Rule of Civil Procedure 37 permits the Court to sanction discovery violations-including failure to make required disclosures, respond to discovery requests, or comply with a court order to provide discovery-with an order of dismissal. See Fed. R. Civ. P. 37(b)(2)(A)(v); id. R. 37(c)(1)(C); id. R. 37(d)(3). But several factors ... must be present before a district court may dismiss a case with prejudice as a sanction for violating a discovery order: (1) the refusal to comply results from willfulness or bad faith and is accompanied by a clear record of delay or contumacious conduct; (2) the violation of the discovery order must be attributable to the client instead of the attorney; (3) the violating party's misconduct must substantially prejudice the opposing party; and (4) a less drastic sanction would not substantially achieve the desired deterrent effect. Moore v. CITGO Refining & Chems. Co., L.P., 735 F.3d 309, 316 (5th Cir. 2013) (emphasis added) (quoting Doe v. Am. Airlines, 283 F. App'x 289, 291 (5th Cir. 2008)) (internal quotation marks omitted). The Court agrees with American that the first, third, and fourth factors support dismissal with prejudice. But as to the second factor, the record indicates that Fleming's attorney-not Fleming-violated the Court's June 21, 2019. Specifically, on April 1, 2019, Fleming's attorney responded to Judge Ball's show-cause order by representing that he had mailed Fleming's discovery responses to American on that date. Resp. [19] if 4. So by his own admission, Fleming's attorney has possessed Fleming's responses to discovery requests since no later than April 1, 2019. The failure to provide those responses since that date appears to rest entirely with Fleming's attorney, and there is no suggestion in the record that Fleming contributed to that failure. Accordingly, dismissal with prejudice of Fleming's claims is inappropriate. See Bluitt v. Arco Chem. Co., 777 F.2d 188, 190 (5th Cir. 1985) (“[Rule 37] dismissal may be inappropriate when neglect is plainly attributable to an attorney rather than a blameless client ....”). That said, the procedural posture of this case is incredibly frustrating, and it does not appear that any additional order will prompt compliance. So, the case will be dismissed without prejudice, and the following sanctions are also imposed. First, Fleming is ordered to pay the $2,454.40 in attorney's fees American incurred while prosecuting its second motion to compel. See Order [22] at 4. Fleming did not object to that amount, and the Court finds it reasonable. Second, the Court will award American its reasonable attorney's fees and expenses incurred in prosecuting the instant motion. American should submit an affidavit documenting those amounts within 10 days of the entry of this Order, and Fleming will again have 14 days to file a response if he finds the fees unreasonable. The Court will retain jurisdiction until the sanctions are paid in full. III. Conclusion *3 For the foregoing reasons, American's motion to dismiss [24] is granted, but the dismissal is without prejudice. American is directed to file an affidavit in support of its present request for attorney's fees within 10 days of the entry of this order. A separate judgment will be entered in accordance with Federal Rule of Civil Procedure 58. SO ORDERED AND ADJUDGED this the 23rd day of July, 2019.