     Case: 10-20102 Document: 00511468631 Page: 1 Date Filed: 05/05/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                             May 5, 2011

                                       No. 10-20102                         Lyle W. Cayce
                                                                                 Clerk

SARAH WORRELL,

                                                   Plaintiff–Appellant
v.

HOUSTON CAN! ACADEMY,

                                                   Defendant–Appellee




                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 4:07-CV-1100


Before HIGGINBOTHAM, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
       Sarah Worrell appeals the district court’s dismissal of her employment-
discrimination suit under Federal Rule of Civil Procedure 37(b)(2) based on her
failure to obey multiple discovery orders. Finding no abuse of discretion, we
affirm.
                                   I. BACKGROUND
       On April 3, 2007, Worrell sued her former employer, Houston Can!
Academy (“HCA”), for employment discrimination and retaliation in violation of

       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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                                 No. 10-20102

Title VII of the Civil Rights Act of 1964. Worrell was represented by Melvin
Houston. On May 29, 2008, Worrell served HCA with her initial disclosures.
The parties held a Rule 26(f) conference by telephone on June 26, and HCA
propounded its first set of interrogatories and requests for production of
documents on June 30.
      On September 18, HCA filed a motion to compel, asserting that Worrell
had failed to respond to HCA’s discovery requests within thirty days, as required
by Rules 33(b)(2) and 34(b)(2)(A). In addition, HCA argued that Worrell’s initial
disclosures were “materially deficient.” Specifically, HCA argued that Worrell
had failed to (1) identify the actual addresses and telephone numbers of the
individuals likely to have discoverable information, or identify the subjects of
that discoverable information, as required by Rule 26(a)(1)(A)(i); (2) provide a
copy or description of all documents in her control that supported her claims, as
required by Rule 26(a)(1)(A)(ii); and (3) provide a computation of her damages
and the documents on which that computation was based, as required by Rule
26(a)(1)(A)(iii). HCA attached to its motion several exhibits showing that from
July 7 to September 17 it had faxed numerous letters to Houston demanding
that Worrell cure the deficiencies in her disclosures and respond to HCA’s
discovery requests.
      Worrell did not respond to the motion. On October 22, the magistrate
judge assigned to the case, after waiting five weeks for a response, granted the
motion and ordered Worrell to provide complete disclosures and responses to
HCA within five days.     The judge also sanctioned Worrell, ordering her to
reimburse HCA for the costs and expenses it had incurred in filing the motion
to compel. Further, the judge warned Worrell that “[a]ny failure . . . to comply


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                                       No. 10-20102

with this Order will result in sanctions, including the possible dismissal of this
action.” (emphasis omitted.)
       On October 27, Worrell filed a motion to reconsider the magistrate judge’s
order. In her motion, Worrell attempted to explain away her failure to respond
to the motion to compel by arguing that Worrell’s attorney, Houston, had been
“unaware” of the filing of the motion to compel because of the effects of
Hurricane Ike, which made landfall on September 13. According to Worrell, the
storm damaged Houston’s computer systems and caused him to lose power for
more than ten days. HCA refuted this argument by producing evidence showing
that Houston had received an e-mail from HCA’s counsel on September 17
advising him that a motion to compel would be filed the next day, and that
Houston responded to that e-mail within twenty-four hours. On December 2, the
magistrate judge denied the motion to reconsider, finding that Houston had been
on notice of the imminent filing of the motion to compel and that the effects of
Hurricane Ike could not adequately explain why Worrell had failed to respond
to the motion for over a month.
       Also on October 27, Worrell served HCA with her first amended initial
disclosures and her original responses to HCA’s discovery requests.                         On
December 11, HCA filed a second motion to compel. In its motion, HCA argued
that Worrell’s amended disclosures were nearly identical to her original
disclosures and contained the same deficiencies. HCA also argued that Worrell’s
answers to interrogatories 1, 2, 4–8, and 10–14 were unresponsive1 and that she


       1
         Specifically, HCA argued that Worrell’s answers failed to provide, among other things,
(1) specific contact information for potential witnesses; (2) individualized descriptions of the
relevant knowledge of potential witnesses; (3) the amounts claimed for each type of damages,
an explanation of how each amount was calculated, and a description of the documents on

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                                         No. 10-20102

had failed to sign and return various third-party records requests for access to
Worrell’s medical, education, and employment records. Lastly, HCA asserted
that Worrell had failed to produce any documents in response to HCA’s requests
for production.2
       On February 11, 2009, the magistrate judge granted the second motion to
compel over Worrell’s opposition. The judge determined that Worrell’s amended
disclosures and original discovery responses were “not complete”:
       For example, the amended initial disclosures list numerous persons
       likely to have discoverable information. Each person is then
       identified as having the exact same type of discoverable information,
       and each person’s address is listed as “c/o” Defendant’s counsel.
       That same type of response is provided in response to Interrogatory
       Nos. 1 and 2. Similarly deficient is Plaintiff’s calculation of
       damages for which no calculation at all has been provided. Finally,
       Plaintiff has not provided to Defendant any documents responsive
       to Defendant’s requests for production[;] Plaintiff instead
       respond[ed] that responsive documents would be made available for
       copying and inspection.



which the calculations were based; (4) information concerning Worrell’s physicians and other
health-care providers; (5) the identity of any person who may have witnessed the alleged
discrimination or retaliation; (6) a description of Worrell’s sources of income; (7) complete
information concerning Worrell’s education and employment history; (8) information
concerning any complaints of discrimination that Worrell may have filed in other matters or
any other litigation involving Worrell; (9) a complete description of Worrell’s mitigation efforts;
(10) the identity of each person with whom Worrell had communicated concerning her
allegations, and the substance of those communications; and (11) information concerning
occasions when Worrell has been unable to work.
       2
          Although the magistrate judge’s October 22 order expressly required Worrell to
“provide Defendant with . . . all documents responsive to Defendant’s Requests for Production,”
Worrell responded to every single request with one of two cut-and-paste statements: (1) “Any
documents responsive to this request that pertain to this case in any way are available for
inspection and copying at the offices of Melvin Houston & Associates”; or (2) “At this time,
Plaintiff has not assessed the location of any documents responsive to this request. Plaintiff
will supplement.”

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                                  No. 10-20102

Accordingly, the magistrate judge held that Worrell had failed to comply with
the October 22, 2008 order, and the judge ordered her, for the second time, to
provide complete disclosures and responses. The judge warned Worrell that
“[a]ny information and documents not so provided by February 16, 2009, cannot
be used, in any form, at trial.” Worrell filed a motion to reconsider on February
13, which the magistrate judge denied on March 10.
      Worrell served HCA with her second amended initial disclosures and first
amended discovery responses on February 18, two days after the deadline set by
the magistrate judge in the February 11 order. On March 20, ten days before
the discovery deadline, HCA filed a motion to dismiss, arguing, among other
things, that Worrell’s most recent disclosures and responses remained
incomplete and that dismissal was an appropriate sanction given Worrell’s
continued failure to obey the October 22, 2008 and February 11, 2009 orders.
The motion also sought lesser sanctions.
      At a show-cause hearing held on August 14, which Worrell herself
attended, the district court orally found that Worrell still had not fully complied
with the two previous discovery orders. The court stayed the case for sixty days
and ordered Worrell, for the third time, to provide complete disclosures and
responses.   The court did not dismiss the case, but it ordered Worrell to
reimburse HCA for the expenses it had incurred in filing and presenting the
motion to dismiss, and it explicitly warned Worrell that if she did not fully
comply within the sixty-day stay period ending on October 13, her case would be
dismissed. Finally, the court instructed the parties that “[u]pon compliance,”
they would be permitted to “move the Court to lift the stay and enter an
amended scheduling order.”


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                                  No. 10-20102

      Worrell served HCA with her third amended initial disclosures and second
amended interrogatory answers on October 13. Worrell did not serve HCA with
an amended response to HCA’s requests for production, however, until October
14, one day after the deadline set by the district court. On November 11, almost
one month after the end of the sixty-day stay period, Worrell finally filed a
motion to lift the stay. HCA responded to Worrell’s motion by arguing that
Worrell had failed to comply with the district court’s August 14, 2009 order (and,
by extension, the magistrate judge’s October 22, 2008 and February 11, 2009
orders), and it again requested dismissal of the case.
      On January 15, 2010, the district court denied Worrell’s motion to lift the
stay and dismissed her case. In its order, the district court closely examined
Worrell’s most recent disclosures and interrogatory answers. The court found
that the amended disclosures “reiterated the[ ] same deficiencies”:
      Nearly all of Plaintiff’s witnesses are described as having the exact
      same global knowledge of the events purportedly giving rise to the
      suit. In addition, Plaintiff again lists as the addresses for many of
      her witnesses not their own addresses but the office address of
      Defendant HCA’s counsel. Most, if not all, of these witnesses are
      former employees of Defendant who are not in HCA’s control, and
      who do not reside at the office address of Defendant’s counsel.
      Plaintiff has shown no good faith effort to ascertain the addresses
      of her witnesses and, if she possesses the addresses, she has been
      obstinate in refusing to provide them to Defendant.
(footnote and emphasis omitted).        The court also found that Worrell’s
interrogatory answers were still incomplete:
      HCA has repeatedly requested documents about Plaintiff’s interim
      earnings and her alleged emotional distress following her
      termination by HCA, and Plaintiff has not provided any documents
      in response. In HCA’s Interrogatory No. 6, Plaintiff was asked to
      identify persons who had witnessed alleged discrimination or

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                                        No. 10-20102

       retaliation against her, and to identify related documents. Instead
       of giving particularized answers, Plaintiff in her response merely
       directs HCA to her answers to other interrogatories that list the
       names of all 44 of her ostensible witnesses and all pages of all
       documents she has produced. In response to Interrogatory No. 8,
       Plaintiff failed to state, as requested, whether her departure from
       each employer was voluntary or involuntary.
(footnotes omitted).       Lastly, the court determined that Worrell’s amended
response to HCA’s requests for production had been filed late:
       Plaintiff produced only a one-page witness statement (which
       contained a time stamp showing Plaintiff possessed it for at least
       nine months) before the expiration of the 60-day deadline on
       October 13th. After expiration of the deadline, Plaintiff proffered to
       HCA her “Supplemental” responses to HCA’s requests for
       production, with no explanation as to why the response had not
       timely been made during the generous 60-day extension. Nor has
       Plaintiff provided any explanation as to why she failed to move to
       reopen the case until a month after expiration of the deadline set by
       the Court.
       Based on these factual findings, the district court ruled that Worrell had
“substantially and materially failed and refused to comply with” the August 14,
2009 order. The court then held that given Worrell’s “failure to provide any
justification” for her refusal to comply and “the contemptible manner” in which
she had prosecuted her case, her misconduct was “contumacious and in bad
faith.”3 After finding that Worrell had been aware of her obligations to the court,


       3
          The district court also highlighted several other instances in which Worrell or
Houston, or both, had defied court orders or failed or refused to observe the rules of procedure,
thereby causing unnecessary expense and delay: (1) The district court sanctioned Houston
after he refused to dismiss the second defendant in Worrell’s original complaint, GreatSchools,
Inc. (“GSI”), even though he knew that GSI had no connection to either Worrell or HCA. We
affirmed this sanction on appeal. See Worrell v. Hous. Can! Acad., 287 F. App’x 320, 325 (5th
Cir. 2008) (per curiam) (unpublished). (2) Houston refused to pay the above sanction until,
more than three months after we issued our mandate affirming the sanction, GSI filed a

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                                         No. 10-20102

that HCA had been prejudiced as a result of Worrell’s misconduct, and that no
lesser sanction alone would be sufficient, the court dismissed the case with
prejudice under Rule 37(b)(2).4 Worrell appeals.5
                             II. STANDARD OF REVIEW
       Federal Rule of Civil Procedure 37(b)(2) authorizes a district court “to
dismiss a complaint with prejudice when a party refuses to obey a valid
discovery order.” Batson v. Neal Spelce Assocs., Inc., 765 F.2d 511, 514 (5th Cir.



motion to hold him in contempt. (3) Worrell failed to serve HCA within 120 days after the
filing of the complaint, as required by Rule 4(m). When Worrell finally effected service, the
district court determined that Worrell’s failure to follow Rule 4(m) was without good cause,
although the court exercised its discretion to extend the time for service on other grounds.
(4) The district court dismissed the second defendant in Worrell’s amended complaint, America
Can! Academy, after Worrell completely failed to serve it with process. (5) In response to
HCA’s second motion to compel, Worrell inappropriately filed a retaliatory motion to compel
against HCA. In the February 11, 2009 order, the magistrate judge denied Worrell’s motion
after determining that it contained “only conclusory statements” and that it failed to “identify
any particular discovery request that [was] deficient.”
       4
         The district court also ordered Houston to reimburse HCA for the costs and expenses
HCA had incurred in prosecuting the motion to dismiss, and the court forwarded a copy of its
order to the Chief Judge of the Southern District of Texas to determine if disciplinary action
should be taken against Houston for what the district court characterized as “serious and
repetitive” violations of the Texas Disciplinary Rules of Professional Conduct.
       5
         Worrell’s notice of appeal states that she is appealing from the “Memorandum and
Order and Final Judgment entered in this action on January 15, 2010, wherein the district
court dismissed all of the Plaintiff’s claims.” “[O]ur review of a district court’s sanction for the
violation of . . . its discovery order[s] necessarily includes a review of the underlying discovery
order[s],” which in this case are the magistrate judge’s October 22, 2008 and February 11,
2009 orders and the district court’s August 14, 2009 order. FDIC v. Conner, 20 F.3d 1376,
1381 (5th Cir. 1994) (citation and internal quotation marks omitted). Worrell’s opening brief
also purports to appeal the magistrate judge’s April 16, 2009 order, which imposed sanctions
on Worrell for her refusal to return to HCA documents that contained legally protected
information. But this argument is inadequately briefed on appeal, and thus it is waived. See
FED . R. APP . P. 28(a)(9)(A) (requiring that an appellant’s brief “contain . . . [the] appellant’s
contentions and the reasons for them, with citations to the authorities and parts of the record
on which the appellant relies”).

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                                  No. 10-20102

1985) (citing Nat’l Hockey League v. Metro Hockey Club, Inc., 427 U.S. 639, 640
(1976)). “The district court’s discretion under Rule 37 is broad.” Id. at 515.
Thus, “[i]n reviewing a [Rule 37] dismissal by the district court, our duty is to
decide not whether we would have dismissed the action as an original matter,
but whether the district court abused its discretion in so doing.” Id. at 514
(citing Nat’l Hockey League, 427 U.S. at 642). Moreover, we will not disturb the
factual findings on which the district court based its decision unless they are
clearly erroneous. See Bluitt v. Arco Chem. Co., 777 F.2d 188, 191 (5th Cir.
1985).
                                III. ANALYSIS
      In determining whether a district court abused its discretion, our case law
has addressed a number of considerations:
      First, dismissal is authorized only when the failure to comply with
      the court’s order results from willfulness or bad faith, and not from
      the inability to comply. Next, dismissal is proper only in situations
      where the deterrent value of Rule 37 cannot be substantially
      achieved by the use of less drastic sanctions. Another consideration
      is whether the other party’s preparation for trial was substantially
      prejudiced. Finally, dismissal may be inappropriate when neglect
      is plainly attributable to an attorney rather than a blameless client,
      or when a party’s simple negligence is grounded in confusion or
      sincere misunderstanding of the court’s orders.
Prince v. Poulos, 876 F.2d 30, 32 (5th Cir. 1989) (quoting Bluitt, 777 F.2d at
190–91); see also Batson, 765 F.2d at 514–15 (same). Applying this standard to
the facts of this case, we have no difficulty in concluding that the district court
did not abuse its discretion in dismissing Worrell’s case with prejudice under
Rule 37(b)(2).




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                                    No. 10-20102

      First, the district court’s findings that Worrell failed to comply with
multiple court orders and that she did so in bad faith are not clearly erroneous.
Rather, there is sufficient evidence showing that Worrell: (1) served initial
disclosures that were “materially deficient” under Rule 26(a); (2) failed to
respond to HCA’s discovery requests, in violation of Rules 33 and 34; (3) ignored
numerous out-of-court demands from HCA’s counsel to resolve these issues;
(4) failed to respond to HCA’s first motion to compel for over a month without
explanation; (5) made false representations in her October 27, 2008 motion to
reconsider about Houston’s awareness of the filing of the first motion to compel;
(6) violated the October 22, 2008 order by serving amended disclosures that
contained the same deficiencies as the original disclosures, by serving
unresponsive interrogatory answers, and by failing to produce any document in
response to HCA’s requests for production; (7) failed to serve her second
amended initial disclosures and first amended discovery responses before the
February 16, 2009 deadline set by the magistrate judge’s February 11, 2009
order; (8) violated the February 11, 2009 order by serving second amended
disclosures that contained the same deficiencies as the first amended disclosures
and by serving first amended discovery responses that were incomplete;
(9) failed to serve her amended responses to HCA’s requests for production
before the October 13, 2009 deadline set by the district court’s August 14, 2009
order; and (10) violated the August 14, 2009 order by failing to serve disclosures
and discovery responses that were complete under the federal rules and
responsive to prior court orders.
      In addition, the record is rife with evidence showing that Worrell and
Houston delayed the proceedings, missed deadlines, caused the other parties to


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                                  No. 10-20102

incur needless expense, violated multiple orders from multiple courts, ignored
the requirements of the rules of procedure, failed to respond to the reasonable
inquiries of opposing counsel, and otherwise conducted themselves in a wholly
inappropriate and unprofessional manner. Given this voluminous record of
misconduct, we cannot say that the district court’s finding of bad faith was
clearly erroneous.
      Second, at the time the district court dismissed the case, Worrell had
already received several lesser sanctions related to the discovery violations at
issue here: (1) the October 22, 2008 and August 14, 2009 orders’ monetary
sanctions requiring Worrell to reimburse HCA for the expenses it had incurred
in prosecuting the September 18, 2008 motion to compel and the March 20, 2009
motion to dismiss; (2) the February 11, 2009 order’s preclusion of all information
and all documents not produced before the February 16, 2009 deadline; and
(3) the August 14, 2009 order’s sixty-day stay of the case. Moreover, the October
22, 2008 and August 13, 2009 orders both explicitly warned Worrell that her
continued failure to obey court orders would result in dismissal of her case.
Based on this record, we refuse to hold that the district court should have given
Worrell yet another chance to do what she should have done more than fifteen
months earlier and had refused to do on three prior occasions. See Prince, 876
F.2d at 32 (affirming a district court’s dismissal under Rule 37(b)(2) when “prior
to dismissing the appellant’s complaint the district court twice imposed
monetary sanctions for discovery abuses and warned the appellant that further
failure to comply with such orders would result in dismissal of his complaint”).
Rather, the record is more than sufficient to prove that the imposition of lesser
sanctions would have been an exercise in futility.


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                                 No. 10-20102

      Third, there can be no doubt that HCA was substantially prejudiced by
Worrell’s misconduct.    Worrell’s repeated failures to comply with the prior
discovery orders denied HCA the most basic information about Worrell’s claims,
hampering its ability to prepare a defense. Additionally, HCA unnecessarily
incurred significant attorney fees and expenses seeking discovery of that
information, and the many delays caused by Worrell’s misconduct caused a
straightforward single-plaintiff employment-discrimination case to drag on
without resolution for nearly three years.
      Fourth, as the district court correctly found, this is not a case where a
blameless client had been made to suffer for her attorney’s misdeeds. Worrell
was present at the August 14, 2009 show-cause hearing at which the district
court orally held that her current disclosures and responses were deficient and
explicitly ordered her to provide complete disclosures and responses within sixty
days or face dismissal of her lawsuit. She was also personally sanctioned on two
prior occasions for the underlying discovery abuses. Thus, Worrell knew about
her obligations to the court and bears considerable personal responsibility for
her failure to satisfy those obligations. Cf. Woodson v. Surgitek, Inc., 57 F.3d
1406, 1418 (5th Cir. 1995) (affirming the involuntary dismissal of an action as
a sanction even though the client shared little of the blame for his attorney’s
sanctionable conduct).
      Lastly, there is no evidence in the record to support an argument that
Worrell’s failure to obey the prior discovery orders was grounded in confusion or
a sincere misunderstanding.       The prior orders were clear and easy to
understand, and Worrell did not seek clarification of those orders from the
district court. Accordingly, under the analysis required by our case law, we find


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                                       No. 10-20102

that the district court did not abuse its discretion in dismissing Worrell’s case
under Rule 37(b)(2).6
       None of Worrell’s arguments to the contrary are availing. First, Worrell
contends that she failed to respond to HCA’s original discovery requests because
those requests had been “prematurely propounded” on June 20, 2008, prior to
the scheduling conference on September 2, 2008. Rule 26(d), however, expressly
sets the starting point for discovery at the Rule 26(f) conference, not the
scheduling conference. See F ED. R. C IV. P. 26(d)(1). In this case, the Rule 26(f)
conference took place on June 26, 2008, four days before HCA propounded its
first discovery requests. Therefore, HCA’s actions were proper, and, under Rules
33 and 34, Worrell should have responded to those requests within thirty days.
Worrell failed to do so.
       Second, Worrell argues that her failure to respond to HCA’s first motion
to compel should have been excused because of Hurricane Ike. This argument
was rejected by the magistrate judge’s December 2, 2008 order because of
evidence presented by HCA showing that on September 17, 2008, Houston had
received an e-mail from HCA’s counsel advising him that a motion to compel
would be filed the next day, and that Houston had responded to that e-mail
within twenty-four hours. Worrell now asserts that this e-mail exchange is
irrelevant because the e-mail account (i.e., Houston’s e-mail account on his
Blackberry phone) was not the official e-mail account on file with the district
court for purposes of service (i.e., Houston’s Yahoo! e-mail account).                  This


       6
         In her opening brief, Worrell also appeals the portion of the February 11, 2009 order
in which the magistrate judge denied Worrell’s retaliatory motion to compel. See supra note
3(5). The magistrate judge’s reasoning in the order is sound, and therefore we find no abuse
of discretion.

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                                  No. 10-20102

argument is misguided. Even if we were to accept that Houston did not have
access to his Yahoo! account because of Hurricane Ike and thus did not receive
a copy of the motion to compel at the time it was served, the record does not
show that the motion was not properly served on Houston via the Yahoo!
account, and the e-mail exchange that was presented to the magistrate judge
still shows that Houston had notice of the imminent filing of the motion. In
these circumstances, it was Houston’s responsibility either to locate a copy of
the motion through other channels or to notify the court that because of
Hurricane Ike, he would need an extension of deadlines. Houston failed to do
either. Moreover, as the magistrate judge explained, the effects of Hurricane Ike
do not adequately explain why Worrell failed to respond to the motion for over
a month. Therefore, we cannot say that the magistrate judge’s December 2, 2008
decision was in error.
      Lastly, Worrell insists that her disclosures and responses were complete
under the federal rules.    We disagree.    At every stage of the proceedings,
Worrell’s disclosures and responses were insufficient under Rules 26(a), 33, and
34. More to the point, however, they were also unresponsive to the orders
entered by the magistrate judge and district court. Ultimately, the district court
dismissed Worrell’s case not because her disclosures and responses were
deficient under the federal rules, but because she had repeatedly failed to obey
court orders requiring the correction of those deficiencies. Even if the orders
required more of Worrell than the federal rules, Worrell still had an obligation
to abide by those orders until such time as she could appeal. Because she did not
do so, her argument about the completeness of her disclosures and responses
does not absolve her of her disobedience.


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                                No. 10-20102

                             IV. CONCLUSION
      Because the district court did not abuse its discretion in dismissing
Worrell’s case with prejudice pursuant to Rule 37(b)(2), we affirm.
      AFFIRMED.




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