Sanctions: Failure to Comply with Scheduling Order, Absent Motion to Compel or Interim Order from Court, Does Not Justify Dismissal — Scheduling Order Is Not the Type of Order Contemplated by Rule 37

Holmes v. Trinity Health, 2013 U.S. App. LEXIS 18328 (8th Cir. Sept. 4, 2013):

Holmes appeals the district court's denial of her "Motion for Summary Judgment or Default Judgment," which asked the court to grant a dispositive discovery sanction against Trinity for its "willful pattern of action in failing to comply" with the scheduling order. We review the denial of discovery sanctions for an abuse of discretion and give substantial deference to the district court's determination. Stepnes v. Ritschel, 663 F.3d 952, 965 (8th Cir. 2011). The district court reasoned that because it had not issued, nor had Holmes requested, an order to compel discovery, such an extreme sanction was not justified. On appeal, Holmes argues that the court's preliminary scheduling order was the type of order contemplated by Federal Rule of Civil Procedure 37 and that no other motion by Holmes nor order from the court was necessary. Our circuit has not adopted this position; accordingly, we find no abuse of discretion in the district court's denial of the extreme sanction sought by Holmes. Chrysler Corp. v. Carey, 186 F.3d 1016, 1019 (8th Cir. 1999) ("In order to impose sanctions under Rule 37, there must be an order compelling discovery, a willful violation of that order, and prejudice to the other party."); Dependahl v. Falstaff Brewing Corp., 653 F.2d 1208, 1213 (8th Cir. 1981) ("We recognize that a Rule 37(b) sanction should not be imposed by the trial court unless a Rule 37(a) order is in effect. . . . [A] Rule 37(a) order insures that the party failing to comply with discovery is given adequate notice and an opportunity to

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