Commercial Litigation and Arbitration

Rule 37 Sanctions — Fifth Circuit Standards for Dismissal or Default — Denial of Permission to Proceed In Forma Pauperis as Sanction for Repeated Frivolous Appeals

Sandres v. State of La. Div’n of Admin., 2013 U.S. App. LEXIS 25814 (5th Cir. Dec. 30, 2013):

Under our precedent, several "Conner factors" must be present before a district court may dismiss an action under Rule 37:  

   (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.

Sandres does not argue that any of these factors are absent in this case, and indeed, each is amply present. Over the course of four years, Sandres was ordered multiple times to attend a deposition and was specifically warned that a failure to attend  would result in a dismissal. Despite these warnings, Sandres repeatedly failed to attend. Although she occasionally sought to excuse her prior failures to attend by claiming financial hardship at the last minute, she did not make such an excuse for her most recent failure. According to the district court's findings, Sandres did not offer any explanation for her failure to attend or suggest to ORM alternative times. The district court did not clearly err in finding that Sandres's failure to attend was the result of intentional conduct.

Moreover, over the course of four years, Sandres has consistently refused to cooperate with either the district court or ORM. She refused to accept any of the many dates ORM gave for her deposition and, even when a date was selected, she refused to agree upon a location. She additionally failed to participate in an important scheduling conference call without explanation. Nonetheless, she vigorously continued to seek the discovery she desired, filing a multitude of motions and appeals. Thus, the district court was fully justified in finding that Sandres acted in bad faith and had a clear record of contumacious conduct.

As Sandres was proceeding pro se, her refusals to follow the orders of the district court and the magistrate judge are attributable only to her. In addition, those refusals have caused substantial prejudice to the defendant. ORM has faced four lawsuits from Sandres over the past six years and has been unable to resolve them, in part because Sandres has refused to allow it to obtain the discovery that it needs. Indeed, the magistrate judge specifically found in June 2012 that Sandres's deposition was the primary impediment to moving forward. Despite multiple efforts by ORM and warnings by the district court, that impediment remained by November of that year.

Lastly, it is abundantly clear that no other sanction will achieve the desired deterrent effect. Sandres has repeatedly refused to heed the warnings of the magistrate judge, the district court, and this court. Moreover, despite multiple financial sanctions, she has continued to disobey clear orders from the courts of this circuit. In such circumstances, dismissal was appropriate to prevent a further needless waste of both this court's resources and those of ORM. Accordingly, we AFFIRM the district court's dismissal.


Despite filing a notice of appeal of the district court's order dismissing her case, Sandres has continued to file numerous, frivolous motions before the district court. In a motion titled "Application for Stay of Judgment Pending Appeal of Judgment or as an Alternative, a New Trial, also Stay of Ruling and Order," for instance, Sandres reiterated the same points that she had made in her prior motions, e.g. that she was denied the discovery she deserved, without discussing the standards governing stays or new trials. Similarly, in her "Motion for Separation of this Case to Serve Justice and to Proceed with Trial," Sandres failed to discuss why the district court's previous order consolidating the cases was erroneous. She simply stated that she has a right to a jury trial and that dismissing her case with prejudice was unjust. The district court denied these and other motions in two separate orders, in part on the ground that Sandres's notice of appeal deprived it of jurisdiction.

Sandres has appealed these two orders. The appeals have been docketed as case Nos. 13-31010 and 13-31019. Sandres has moved that these appeals be consolidated with her appeal of the district court's dismissal of her action, case No. 13-30070. She has further moved that she be permitted to update her briefs. ORM does not oppose these motions. As the two orders arise out of the same set of facts and raise the same issues as her initial appeal, Sandres's motions to consolidate are GRANTED. However, since the motions Sandres filed before the district court were frivolous, we DENY Sandres's motions to update her briefs. We conclude that we can adjudicate all three appeals on the basis of the briefs on file. Because the motions Sandres filed after her notice of appeal involved the same issues that were already before this court, i.e. the propriety of the dismissal of Sandres's action and the consolidation of the cases, we AFFIRM the district court's orders holding that it lacked jurisdiction. 

This court has previously warned Sandres that failing to identify errors in the district court's reasoning for granting a motion constitutes a failure to brief the issue for appeal and that such continued failures would be met with sanctions. In her appeal of this case, Sandres once again fails to note any errors the district court made in its consideration of ORM's motion to dismiss. Her appeal consists mostly of four separate summaries of the procedural history of this case. Read liberally, the appeal also complains about the consolidation of these cases and the district court's denial of her motions for expanded discovery. These complaints, however, do not address the district court's decision to dismiss Sandres's claims pursuant to Rule 37. Indeed, one would not even know why the district court dismissed Sandres's actions based on reading her brief.

Throughout this litigation, Sandres has proceeded in forma pauperis. Permitting those with limited resources to litigate without paying fees is vital to ensure the vindication of rights and the provision of justice. "But," as the Supreme Court has noted, "paupers filing pro se petitions are not subject to the financial considerations--filing fees and attorney's fees--that deter other litigants from filing frivolous petitions." The courts therefore must take it upon themselves to "issue[] orders intended to curb serious abuses" in order to avoid the squandering of judicial resources. 17 Such orders have in the past included prospectively disallowing an individual from proceeding in forma pauperis. 18 Although we choose not to take such a step today, we caution Sandres that   the continued filing of frivolous appeals and motions will result in the prospective denial of her ability to proceed in forma pauperis, at least in actions arising from her previous or prospective employment by the State of Louisiana.


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