           Case: 17-11430   Date Filed: 02/28/2018   Page: 1 of 7


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 17-11430
                        Non-Argument Calendar
                      ________________________

                D.C. Docket No. 1:14-cv-00127-JRH-BKE



MARIA FOUNTAIN,

                                                           Plaintiff-Appellant,

                                 versus

UNITED STATES OF AMERICA,

                                                          Defendant-Appellee,

JOHN M. MCHUGH, et al.,

                                                                    Defendants.

                      ________________________

               Appeal from the United States District Court
                  for the Southern District of Georgia
                     ________________________

                            (February 28, 2018)
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Before ED CARNES, Chief Judge, JULIE CARNES, and HULL, Circuit Judges.

PER CURIAM:

      Maria Fountain, proceeding pro se, filed a Federal Tort Claims Act lawsuit

against the government but failed to attend a court-ordered deposition. The district

court dismissed her suit as a sanction under Federal Rule of Civil Procedure 37.

She appeals that dismissal.

      Fountain filed this suit in June 2014, alleging that the government

negligently damaged her recreational vehicle. The court warned Fountain that it

was her “duty to cooperate fully in any discovery that may be initiated by the

[government],” and that “[u]pon being given at least five days’ notice of the

scheduled deposition date, [Fountain must] appear and permit her deposition to be

taken.” The court explained that failure to answer questions at the deposition

would “not be tolerated and [might] subject [Fountain] to severe sanctions,

including dismissal of this case.” After granting Fountain’s three unopposed

motions to stay the proceedings because of her medical issues, the court set a

discovery deadline for October 2, 2016.

      The government emailed Fountain on July 8, 2016, to arrange a deposition

between August 29 and September 16 in Savannah, Georgia. She replied several

days later, stating that she would need about a week to do some research. On July

21 she informed the government that it had not complied with her discovery

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requests because she could not print the documents off a compact disc the

government provided to her. The government told Fountain that it would try to

send the documents in a different format. It also reminded her that it had been two

weeks since the email about scheduling a deposition and that if she did not identify

a deposition date, then the government would pick one. Fountain responded that

she objected to the government’s attempt to depose her because it had not provided

her with the discovery information she requested. On July 22 the government

advised Fountain that she could not oppose a deposition on the ground that its

discovery obligations remained unfulfilled, see Fed. R. Civ. P. 26(d)(3)(B), and

gave her one last chance to identify a deposition date. Fountain objected again on

the ground that the government was not complying with its discovery obligations.

      After Fountain did not identify a deposition date, on July 27 the government

noticed the deposition for September 7 in Savannah. Three weeks after receiving

that notice, Fountain filed a motion seeking a protective order to stop the

government from taking her deposition. The court denied that motion on August

29, ruling that the discovery dispute did not bar the deposition and that Fountain

had not shown good cause for why she could not travel from her home in El Paso,

Texas, to Savannah. It ordered her to attend the deposition.

      The government emailed Fountain on September 1 to confirm that she would

attend the deposition. Fountain replied that she would not attend, claiming for the
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first time that she had an upcoming surgery. The government reminded Fountain

of the court’s order but nevertheless offered to reschedule the deposition. Fountain

emailed back, stating that she was “not able to respond to [the government’s]

requests . . . because [she was] running a fever and [had] the flu.” The government

pressed her for an answer, but on the afternoon of September 6 — one day before

the deposition — Fountain told the government that she would review its offer the

next morning. The government immediately emailed back telling Fountain that if

she did not attend the deposition, it would file a motion for sanctions under Rule

37 and seek dismissal of her case and attorney’s fees. Fountain replied several

minutes later that she would not attend the deposition.

      The government filed its Rule 37 motion on September 8, seeking dismissal

of the case and $162.39 in attorney’s fees. The district court referred that motion

to a magistrate judge. The magistrate judge prepared a report recommending that

the government’s motion for dismissal be granted based on Fountain’s bad faith

refusal to comply with the court’s order to attend the deposition. The report also

recommended granting the government’s motion for attorney’s fees. The court

adopted the report and recommendation, granted the government’s motion for

sanctions and attorney’s fees, and dismissed the case. This is Fountain’s appeal.

      Rule 37(b)(2)(A)(v) permits courts to dismiss an action as a sanction for

failing to obey a discovery order. Pro se litigants are subject to that rule. See
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Moon v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989). “The standard of review

for a Rule 37(b) dismissal 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. Fla. Steel Corp., 691 F.2d

480, 481 (11th Cir. 1982). Dismissal is inappropriate where “a party’s failure to

comply is due to inability rather than to willfulness, bad faith, or disregard of

responsibilities.” Id. Fountain contends that dismissal was inappropriate here

because she acted in good faith in trying to comply with the court’s deposition

order.

         The district court did not abuse its discretion in dismissing Fountain’s suit.

The court informed her that she must comply with the government’s discovery

requests, attend any depositions, and answer questions at her deposition. It warned

her that failing to cooperate could result in sanctions, including dismissal of her

case. See Moon, 863 F.2d at 837 (“While dismissal is an extraordinary remedy,

dismissal upon disregard of an order, especially where the litigant has been

forewarned, generally is not an abuse of discretion.”). The government gave

Fountain plenty of notice about the deposition; it emailed her on July 8 to arrange a

date between August 29 and September 16. After Fountain repeatedly refused to

identify an acceptable date, the government chose September 7, and the court

ordered Fountain to attend the deposition. When the government emailed her on
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September 1 to confirm that she would attend, she claimed for the first time that a

pending surgery prevented her from attending. Even when the government bent

over backwards and offered to reschedule the deposition to accommodate her

surgery, she responded by claiming that she was too sick to respond to the

government’s proposal. And she confirmed that she would not attend the

deposition only hours before it was scheduled to begin.

       Those facts indicate that Fountain willfully and repeatedly refused to comply

with the discovery process and with the court’s order to attend the deposition. See

Aztec, 691 F.2d at 481 (“When a party demonstrates a flagrant disregard for the

court and the discovery process . . . dismissal is not an abuse of discretion.”). And

they show that a lesser sanction would not have been effective. See id. at 481–82

(stating that we must consider “whether a less drastic but equally effective remedy

could have been fashioned”). The record supports the court’s findings that

Fountain “knowingly and willfully failed to comply with court ordered discovery”

and that any “sanctions less severe than dismissal would [have been] ineffective”

to secure compliance. Id. As a result, the court did not abuse its discretion in

dismissing Fountain’s suit. 1



       1
         Fountain argues that the court denied her due process when it denied her motion for a
protective order without considering her reply brief, but she did not follow the local rules by
immediately notifying the court of her intent to file a reply brief. See S.D. Ga. Local Rule 7.6.
She argues that she notified the court by telephone, but there is no record evidence to support
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       AFFIRMED.




that argument and, in any event, it comes too late because she raises it for the first time in her
reply brief to this Court. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 683 (11th Cir.
2014) (“We decline to address an argument advanced by an appellant for the first time in a reply
brief.”) (quotation marks omitted). And nothing in the record supports her assertions that the
government filed its motion for sanctions to circumvent the discovery process, that the court
failed to consider her objections to the report and recommendation, and that the court did not
take her disability into account in rejecting a less drastic remedy.
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