                                                          [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT            FILED
                       ________________________ U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                              No. 06-13619                   AUG 7, 2007
                          Non-Argument Calendar            THOMAS K. KAHN
                        ________________________               CLERK


                   D. C. Docket No. 05-00302-CV-RWS-1

PATRICK J. MENE, through his Guardian, Robin Mene,

                                                            Plaintiff-Appellant,

                                   versus

MARRIOTT INTERNATIONAL, INC., d.b.a. The
Ritz-Carlton Hotel Company,
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA,
SUE STEVENSON,
THE RITZ-CARLTON HOTEL COMPANY,
RITZ-CARLTON HOTEL COMPANY, L.L.C.,

                                                         Defendants-Appellees.

                        ________________________

                 Appeal from the United States District Court
                    for the Northern District of Georgia
                      _________________________

                              (August 7, 2007)

Before ANDERSON, BARKETT and MARCUS, Circuit Judges.

PER CURIAM:
      Patrick J. Mene, through his wife, Robin Mene, who represents she is

appearing as Patrick’s guardian, appeals the district court’s order granting the

defendants’ motions for sanctions and dismissing the case for failure to submit to

depositions, pursuant to Rule 37 of the Federal Rules of Civil Procedure. Our

review of a district court’s Rule 37 sanctions order is “sharply limited to a search

for an abuse of discretion and a determination that the findings of the trial court are

fully supported by the record.” Serra Chevrolet, Inc. v. General Motors Corp., 446

F.3d 1137, 1146-47 (11th Cir. 2006). The question on review “is not whether the

reviewing court would, as an original matter, have dismissed the action; it is

whether the district court abused its discretion in dismissing the action.” Aztec

Steel Co. v. Florida Steel Corp., 691 F.2d 480, 481 (11th Cir. 1982) (citing

National Hockey League v. Metropolitan Hockey Club, 427 U.S. 639, 642 (1976)).

After careful review of the record and the parties’ briefs, we discern no such abuse

of discretion and, accordingly, affirm.

      On February 1, 2005, the Menes filed a complaint against The Marriott

International, Inc., d/b/a The Ritz-Carlton Hotel Company; Sue Stevenson, an

employee of Ritz Carlton; and The Prudential Insurance Company of America,

alleging, inter alia, breach of fiduciary duty and that the defendants had interfered

with the Menes’ attainment of long-term disability payments following a



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debilitating stroke, in violation of the Employment Retirement Income Security

Act (“ERISA”), 29 U.S.C. §§ 1105 and 1140. The district court assigned the case

to a six-month discovery track to end on November 23, 2005, and the defendants

noticed the Menes on August 2, 2005, that their depositions were requested.

      The following month, and again in October, the Menes voluntarily

rescheduled their depositions. In November, they again rescheduled, this time with

the district court’s permission, after the Menes’ counsel withdrew on the eve of the

depositions.   After a subsequent extension of the discovery period, the Menes

refused to be deposed in December until they could retain new counsel.            The

district court granted the defendants’ motion to compel discovery and ordered that

the Menes appear for deposition on January 12, 2006.

      Two days before the scheduled depositions, which the district court had

ordered them to attend, the Menes sought another extension to retain new counsel

and a protective order from being deposed. Without awaiting a ruling on their

motion from the court, the Menes informed the defendants that they would not be

participating in the depositions scheduled for January 12th and did not attend.

      Thereafter, the defendants moved for sanctions, urging the court to dismiss

the case or, in the alternative, to grant an additional extension of discovery. The

court denied their motion for sanctions to the extent it sought dismissal, but did



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order the Menes to pay the defendants’ costs and attorney’s fees in bringing the

motion and ordered the Menes “to appear for deposition at such time as may be

reasonably noticed by Defendants.” The court gave the Menes until February 28th

to retain new counsel and ordered that discovery would be reopened from March

1st to March 31st. The defendants scheduled the Menes’ depositions for March

2nd. The court received a letter from the Menes on March 1st, dated February

28th, in which they requested another 60-day extension to obtain counsel because a

firm with which they had discussed representation had declined to take the case.

Without permission from the court, the Menes did not appear for their March 2nd

depositions.

      The defendants again moved for the sanction of dismissal. On April 19,

2006, which was over 14 months after the Menes filed their complaint, during

which time they had obtained numerous extensions of deadlines from the district

court and had failed to show up twice for depositions, despite court orders

directing them to attend, the district court granted the defendants’ motion for

sanctions and dismissed the case. This appeal followed.

      On appeal, the Menes argue that the district court erred by dismissing their

case and then denying reconsideration because they acted in good faith and were

confused by the court’s discovery orders. The Menes argue that, because they



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assumed the court would grant their motion for an extension to procure new

counsel and a protective order from being deposed, their failure to appear at the

March 2nd depositions was not willful. On this record, we are unpersuaded by any

of the Menes’ contentions.

      The Federal Rules of Civil Procedure authorize that “if a party . . . fails to

obey an order to provide or permit discovery,” the presiding district court “may

make such orders in regard to the failure as are just,” including “[a]n order

dismissing the action or proceeding.”     Fed. R. Civ. P. 37(b)(2)(C).     We have

recognized that “[d]ismissal with prejudice is the most severe Rule 37 sanction and

is not favored . . . [b]ut, dismissal may be appropriate when a plaintiff’s

recalcitrance is due to wilfulness, bad faith or fault.” Phipps v. Blakeney, 8 F.3d

788, 790 (11th Cir. 1993). Dismissal is not an abuse of discretion “[w]hen a party

demonstrates a flagrant disregard for the court and the discovery process.” Aztec

Steel, 691 F.2d at 481. On the other hand, a “[v]iolation of a discovery order

caused by simple negligence, misunderstanding, or inability to comply will not

justify a Rule 37 . . . dismissal.” Malautea v. Suzuki Motor Co., 987 F.2d 1536,

1542 (11th Cir. 1993). In reviewing whether the district court properly dismissed

the action, “one consideration is whether a less drastic but equally effective remedy

could have been fashioned.” Aztec Steel, 691 F.2d at 481-82.



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      Here, the district court was plainly within its discretion to dismiss the case

after the Menes had twice disobeyed orders by the court to appear for depositions

and consistently disregarded court-imposed deadlines to retain new counsel and to

complete discovery. Because neither a fine nor the prospect of the dismissal of

their case had compelled the Menes to appear for depositions, the record gives no

indication that “a less drastic but equally effective remedy could have been

fashioned.” Aztec Steel, 691 F.2d at 481-82. Accordingly, the district court did

not abuse its discretion by dismissing the case and we affirm.

      AFFIRMED.




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