Discovery Sanctions — Due Process — Failure to Provide Notice of Intent to Dismiss Action as Sanction for Misconduct Requires Reversal

Okpala v. Computer Sci. Corp., 2014 U.S. App. LEXIS 22489 (4th Cir. Nov. 26, 2014):

Henry Uche Okpala appeals the district court's order dismissing with prejudice his wrongful termination action for misconduct during discovery. We vacate and remand for further proceedings.

A district court may dismiss a civil action if a party fails to comply with a discovery order or attend a properly noticed deposition. Fed. R. Civ. P. 37(b), (d). Such dismissals are reviewed for an abuse of discretion. Nat'l Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639, 642 (1976); see Mut. Fed. Sav. & Loan Ass'n v. Richards & Assocs., Inc., 872 F.2d 88, 92 (4th Cir. 1989) (discussing factors courts consider before imposing sanctions under Rule 37); see also Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir. 1989) (setting forth factors courts entertaining dismissal under Fed. R. Civ. P. 41(b) should consider). We require district courts "to provide explicit and clear notice when they intend to dismiss the plaintiff's action with prejudice" as a sanction for misconduct. Choice Hotels Int'l, Inc. v. Goodwin & Boone, 11 F.3d 469, 471-72 (4th Cir. 1993).

Upon review of the record, we conclude that [*2]  the district court failed to provide such notice before ordering the dismissal of Okpala's suit. Accordingly, we vacate the order of dismissal and remand for proceedings consistent with this opinion. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process.

VACATED AND REMANDED

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