The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATION REGARDING DEFENDANT'S MOTION FOR
DISMISSAL SANCTIONS FOR FAILURE TO COMPLY WITH COURT ORDER AND
PLAINTIFFS' MOTION FOR JUDGMENT ON MERITS (Docs. 66 and 71)
Defendant Wal-Mart Stores, Inc.*fn1 ("Defendant") filed a motion for dismissal sanctions against Plaintiffs Corey Taylor and Jotasha Taylor ("Plaintiffs") for failure to comply with a court order on December 9, 2011. Plaintiffs filed a motion for judgment on the merits on January 17, 2012. The motions were heard on March 2, 2012, before the Honorable Dennis L. Beck, United States Magistrate Judge. Colleen Howard appeared telephonically on behalf of Defendant. Plaintiffs did not appear.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiffs, proceeding pro se and in forma pauperis, filed the instant action on June 24, 2010. Plaintiffs allege a violation of 42 U.S.C. § 1981, unlawful intimidation by use of force, fraud and intentional infliction of emotional distress arising out of the purchase of tires at a Wal- Mart store located in Odessa, Texas, and subsequent service related to those tires at Wal-Mart stores located in Shreveport, Louisiana and in Fresno, California.
In August 2011, Plaintiff Corey Taylor failed to complete his deposition and Plaintiff Jotasha Taylor failed to appear for her deposition. Due to these failures, Defendant filed a motion to compel. The Court granted the motion and ordered Plaintiffs to appear for their depositions. The Court also ordered Plaintiffs to pay sanctions in the amount of $1,658.00. Doc.
62. Plaintiffs failed to pay the sanctions.
Based on Plaintiffs' failure to pay the sanctions, Defendant filed a motion for dismissal
sanctions. Plaintiffs filed a nonsensical response and did not appear for the hearing scheduled for January 13, 2012. At the hearing, Defendant reported to the Court that Plaintiffs' depositions had been re-noticed for January 25, 2012. Accordingly, the Court continued the motion for dismissal sanctions and ordered Defendant to provide supplemental briefing regarding Plaintiffs' appearance at the depositions. Doc. 70.
On January 17, 2012, Plaintiffs filed a document entitled "Motion for Judgment [sic] on Merits." Doc. 71. Defendant filed an opposition to Plaintiffs' motion, but Plaintiffs did not file a reply. Doc. 74.
On January 26, 2012, Defendant filed the supplemental brief requested by the Court. Defendant reported that Plaintiffs failed to appear at their properly noticed depositions on January 25, 2012. Doc. 72-1 (Declaration of Colleen Howard ¶¶ 3-7).
On February 6, 2012, the Court issued a minute order scheduling both Defendant's motion for dismissal sanctions and Plaintiffs' motion for judgment on the merits for hearing on March 2, 2012.
I. Motion for Dismissal ...