LaToya OWENS, Plaintiff, v. LINN COMPANIES, Defendant Case No. 16–cv–776 (WMW/TNL) United States District Court, D. Minnesota Signed April 17, 2017 Counsel LaToya Owens, 1866 113th Lane NW, Coon Rapids, MN 55433 (pro se Plaintiff); and Kevin M. Mosher and Brian M. Hansen, Thompson Coe, 408 St. Peter Street, Suite 510, Saint Paul, MN 55102 (for Defendant). Leung, Tony N., United States Magistrate Judge REPORT AND RECOMMENDATION *1 This matter is before the Court, United States Magistrate Judge Tony N. Leung, on Plaintiff's Motion for Sanction on Discovery Violations Due to Spoliation, (ECF No. 27), Defendant's Motion to Dismiss Plaintiff's Complaint and for Sanctions, (ECF No. 31), Defendant's Motion to Dismiss Plaintiff's Complaint and for Sanctions, (ECF Nos. 40, 41),[1] and Plaintiff's Motion for Video/CD View Device/Monitoring System, (ECF No. 44). These motions have been referred to the undersigned for a report and recommendation[2] to the district court, the Honorable Wilhelmina M. Wright, District Judge for the United States District Court for the District of Minnesota, under 28 U.S.C. § 636 and D. Minn. LR 72.1. (ECF No. 39). For the reasons stated below, the Court recommends Plaintiff's spoliation motion be denied. The Court also recommends Defendant's motions be granted and Plaintiff be sanctioned with dismissal of her lawsuit. I. PROCEDURAL AND FACTUAL HISTORY A. The Complaint Plaintiff filed her Complaint on March 25, 2016. (Compl., ECF No. 1). Plaintiff asserts an employment discrimination claim pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., regarding termination of her employment and harassment. (Compl., at 2, 4, 6).[3] Plaintiff indicates she was employed by Defendant Linn Companies from June 2014 through February 5, 2015. (Compl., at 6). Plaintiff alleges she “was subjected to racial harassment by [her] hiring manager Jackie Sutton, who made derogatory comments ... referring to African American hair and size, [and] treated African American employees and customers differently.” (Compl., at 6). Plaintiff asserted Sutton would “follow and make African American customers uncomfortable.” (Compl., at 6). Plaintiff alleges that on February 5, 2015, she reported “the racial harassment and differential treatment to a [sic] Tyler (supervisor) prior to [her] scheduled shift.” (Compl., at 6). While reporting Sutton's behavior, Plaintiff “went passed [sic] the time [she] was supposed to clock in for work,” punching in five minutes late. (Compl., at 6). Sutton “lea[r]ned of the report [Plaintiff] made and terminated [Plaintiff's] employment for being late effective the same day as [her] complaint of race discrimination.” (Compl., at 6). B. Pretrial Schedule *2 Defendant answered the Complaint on May 25, 2016. (ECF No. 7). The following day, the Court scheduled a pretrial scheduling conference for July 15, 2016. (ECF No. 9). On July 5, 2016, Plaintiff emailed the chambers of the undersigned requesting to reschedule the pretrial conference. (ECF No. 12). Plaintiff indicated that on June 16, 2016, she sent a letter to Defendant “requesting employment documents.” (ECF No. 12, at 2; see ECF No. 12, at 3).[4] Plaintiff asserted she has “rights as it pertains to the review of [her] employment personnel record(s)” per Minnesota Statutes §§ 181.960, 181.961. (ECF No. 12, at 2; see ECF No. 12, at 8). Plaintiff asserted that the requested documents are “extremely important and necessary to complete” the Rule 26(f) report. (ECF No. 12, at 2; see ECF No. 12, at 8). As Plaintiff noted, she would “not be able to prepare [her] case until such information is released to [her].” (ECF No. 12, at 2). On July 11, 2016, the Court denied Plaintiff's request to reschedule the pretrial conference, finding that “Plaintiff's request is based on her belief that she is entitled to discovery at this stage of the litigation, but Fed. R. Civ. P. 26(d) clearly states ‘[a] party may not seek discovery from any source before the parties have conferred as required by Rule 26(f).’ ” (ECF No. 13). The Court held the pretrial conference on July 15, 2016 as scheduled. (ECF No. 14). That same day, the Court issued its Scheduling Order. (Scheduling Order, ECF No. 15). The Court ordered all pre-discovery disclosures required by Fed. R. Civ. P. 26(a)(1) be completed on or before July 22, 2016. (Scheduling Order ¶ 1(a)). All fact discovery was to be completed by November 1, 2016. (Scheduling Order ¶ 1(b)). The Court also noted: Failure to comply with any provision of this Order or any other prior consistent Order shall subject the non-complying party, non-complying counsel and/or the party such counsel represents to any and all appropriate remedies, sanctions and the like, including without limitation: assessment of costs, fines and attorneys' fees and disbursements; waiver of rights to object; exclusion or limitation of witnesses, testimony, exhibits and other evidence; striking of pleadings; complete or partial dismissal with prejudice; entry of whole or partial default judgment; and/or any other relief that this Court may from time to time deem appropriate. *3 (Scheduling Order ¶ 8(b)). The Court scheduled a settlement conference for November 7, 2016, (ECF No. 17), and referred Plaintiff to the Early Settlement Conference Project, (ECF No. 18).[5] C. Discovery Disputes 1. First Discovery Dispute Defendant served its Rule 26 initial disclosures on July 21, 2016. (September 13, 2016 Affidavit of Brian Hansen ¶ 2, Ex. 1, ECF No. 23 (hereinafter “Hansen 9/13/16 Aff.”). Plaintiff did not serve her Rule 26 initial disclosures as required in the Scheduling Order. (See Hansen 9/13/16 Aff. ¶ 5, Ex. 4). Defendant served discovery requests of interrogatories, requests for production, and requests for admission on July 26, 2016. (Hansen 9/13/16 Aff. ¶ 3, Ex. 2). Because Defendant had not received Plaintiff's responses to its discovery requests, it sent a letter on August 23, 2016 reminding Plaintiff of her obligations and offering her an extension of time to answer. (Hansen 9/13/16 Aff. ¶ 4, Ex. 3). On September 1, 2016, Defendant sent another letter, indicating it still had not received Plaintiff's initial disclosures or responses to discovery requests. (Hansen 9/13/16 Aff. ¶ 5, Ex. 4). On September 6, 2016, Plaintiff responded via email that she was “unable to put together any Initial Disclosures as well as [her] discovery without the evidence [she] requested.” (Hansen 9/13/16 Aff. ¶ 6, Ex. 5). Plaintiff requested the same seven items requested in her June 16, 2016 letter to Defendant. (Compare ECF No. 12, at 3, with Hansen 9/13/16 Aff. ¶ 6, Ex. 5). Plaintiff emailed Defendant's counsel on September 7, 2016, indicating that she had “[c]ompleted the initial discovery [.] [Y]ou will be receiving this shortly in the mail” and indicating that she had requested evidence from Defendant several time and had “not received ANYTHING.” (Hansen 9/13/16 Aff. ¶ 7, Ex. 6) (emphasis in original). Plaintiff indicated that “[f]or the last time [she was] requesting the evidence to this case prior” to the September 27, 2016 motions hearing. (Hansen 9/13/16 Aff.¶ 7, Ex. 6). On September 13, 2016, Defendant moved to compel discovery. (ECF No. 20). Defendant, through its motion, sought Plaintiff's initial disclosures pursuant to Rule 26(a)(1) and Plaintiff's responses to Defendant's discovery requests under Rules 33, 34, and 36. (ECF No. 20, at 2; ECF No. 22). Plaintiff did not file any response to Defendant's motion. The Court held a hearing on September 27, 2016 and granted in part and denied in part Defendant's motion. (ECF Nos. 25, 26). The Court ordered that: Plaintiff provide her initial disclosures pursuant to Rule 26(a)(1)(A) within 14 days; Plaintiff respond to Defendant's requests for admission within 14 days; Plaintiff respond to Defendant's requests for production within 14 days; and Plaintiff respond to Defendant's interrogatories within 14 days. (ECF Nos. 25, 26). The Court also granted in part and denied in part Plaintiff's oral motion to compel—made in response to Defendant's motion—ordering Defendant to “use all reasonable efforts to locate the February 5, 2015 store video/audio.” (ECF Nos. 25, 26). If Defendant could not produce the video, Defendant's counsel was to inform Plaintiff in writing and under oath, within 14 days, of the “steps taken to locate the video and the results of the search.” (ECF Nos. 25, 26). The Court again ordered that *4 All prior consistent orders remain in full force and effect. Failure to comply with any provision of this Order or any other prior consistent order shall subject the non-complying party, non-complying counsel and/or the party such counsel represents to any and all appropriate remedies, sanctions and the like, including without limitation: assessment of costs, fines and attorneys' fees and disbursements; waiver of rights to object; exclusion or limitation of witnesses, testimony, exhibits, and other evidence; striking of pleadings; complete or partial dismissal with prejudice; entry of whole or partial default judgment; and/or any other relief that this Court may from time to time deem appropriate. (ECF Nos. 25, 26). On October 7, 2016, Defendant served its Supplemental Response to Plaintiff's Requests for Documents. (October 20, 2016 Affidavit of Brian Hansen ¶ 5, Ex. 3, ECF No. 35 (hereinafter “Hansen 10/20/16 Aff.”). Regarding the February 5, 2015 video, Defendant indicated: Following a good faith search for any such video [Defendant] asserts that no such video exists. Plaintiff's termination occurred in the customer area of the subject store. Video from that area is overwritten approximately every two weeks, meaning that if a video ever existed it would have been overwritten by mid-November, 2014, and is now irretrievable. In any event, video from that part of the store does not contain audio. (Hansen 10/20/16 Aff. ¶ 5, Ex. 3). 2. Present Disputes Ten days later, on October 17, 2016, Plaintiff moved to sanction Defendant. (ECF No. 27). In her motion, Plaintiff alleges that Defendant violated its discovery obligations through spoliation of evidence via destruction of the February 5, 2015 video and alteration of the February 1, 2015 video.[6] (ECF No. 29, at 1). As to the February 5, 2015 video, Plaintiff asserts that Defendant became aware of its duty to preserve this video on April 9, 2015 when it received a charge letter from the EEOC. (ECF No. 29, at 2).[7] With respect to the February 1, 2015 video, Plaintiff alleges it has been deliberately altered via “blocked out audio, overlapping of conversations, frame freezing, [and] slicing ....” (ECF No. 29, 4). Plaintiff asserts that her IT video surveillance expert has testified that the video/ audio CD provided to the Plaintiff from the Defendant was spoliated. The content(s) of the CD was created in June, 2015, from a couple different computer programming sources that specialize in altering and slicing videos. This information is based on facts. (ECF No. 29, at 4). Plaintiff further asserts Defendant “altered the video evidence by removing original sound of communication and replacing it with musical sound which lost all authentic [sic] of the evidence.” (ECF No. 29 at 4). *5 On October 19, 2016, Defendant moved for sanctions, including dismissal of Plaintiff's complaint, on the grounds that Plaintiff violated Court orders and failed to provide any discovery. (ECF No. 31). As detailed in its supporting memorandum, Defendant had still not received Plaintiff's initial disclosures or responses to discovery requests. (ECF No. 32, at 3–4; October 19, 2016 Affidavit of Brian Hansen ¶¶ 4–9, Exs. 5–10, ECF Nos. 33–34 (hereinafter “Hansen 10/19/16 Aff.”); see Hansen 10/20/16 Aff. ¶ 7, Ex. 5). Plaintiff did not file any response to Defendant's motion. Defendant filed another motion seeking sanctions, including dismissal of Plaintiff's complaint, because Plaintiff failed to appear for her deposition and her previous failure to provide discovery. (ECF Nos. 40, 41). Defendant originally noticed Plaintiff's deposition for October 20, 2016, but rescheduled it to October 27, 2016 at 1:00 p.m. at Plaintiff's request. (October 28, 2016 Affidavit of Brian Hansen ¶¶ 2–6, Exs. 1–4, ECF No. 43 (hereinafter “Hansen 10/28/16 Aff.”)). Plaintiff emailed Defendant on October 27, 2016, asking to reschedule the deposition, this time due to illness. (Hansen 10/28/16 Aff. ¶ 5, Ex. 4). Defendant's counsel indicated that a court reporter had already been scheduled, so the deposition could not be moved. (Hansen 10/28/16 Aff. ¶ 5, Ex. 4). Plaintiff arrived at the deposition at 12:45 p.m. and indicated she was too ill to proceed, leaving over Defendant's objection. (Hansen 10/28/16 Aff. ¶ 6). Plaintiff did not file any response to Defendant's motion. Given these motions, the Court cancelled the previously-scheduled settlement conference and scheduled a motions hearing in its place. (ECF No. 38; see ECF No. 46). At the hearing on November 7, 2016, Plaintiff fully presented arguments in support of her motion but, shortly into Defendant's argument, Plaintiff appeared to have medical difficulties. (ECF Nos. 47, 49). The hearing was adjourned so Plaintiff could receive medical care. (ECF Nos. 47, 49). The Court rescheduled the motions hearing to January 31, 2017. (ECF No. 49). Following a letter request by Defendant, (ECF No. 50), the Court stayed all deadlines in this case pending resolution of the outstanding disputes, (ECF No. 51). Prior to the January 31, 2017 continued motions hearing, Defendant submitted a supplemental memorandum detailing its efforts to resolve the pending discovery matters without Court intervention. (ECF No. 52). On November 16, 2016, Defendant's counsel emailed Plaintiff to reschedule her deposition in November or December 2016. (January 23, 2017 Affidavit of Brian Hansen ¶ 2, Ex. 1, ECF No. 53 (hereinafter “Hansen 1/23/17 Aff.”)). Plaintiff indicated that, given the Thanksgiving and Christmas holidays and childcare concerns, “it's going to be very hard to find time to travel to St. Paul to complete a (possibly) all day deposition.” (Hansen 1/23/17 Aff. ¶ 2, Ex. 1). Plaintiff indicated she would respond with any availability she had, with Defendant's counsel stating he would work with Plaintiff on dates she is available through January 31. (Hansen 1/23/17 Aff. ¶ 2, Ex. 1). On November 30, 2016, Defendant sent a letter seeking to schedule Plaintiff's deposition “anytime between now and January 31st.” (Hansen 1/23/17 Aff. ¶ 3, Ex. 2). On December 29, 2016, Defendant sent another letter seeking to schedule Plaintiff's deposition and requesting her compliance with her discovery obligations. (Hansen 1/23/17 Aff. ¶ 4, Ex. 3). As noted in this letter, Plaintiff's last correspondence with Defendant was her November 18, 2016 email response that she would “be in touch soon.” (Hansen 1/23/17 Aff. ¶ 4, Ex. 3). Defendant again offered to schedule Plaintiff's deposition for “anytime between now and January 31st” and also offered to depose Plaintiff on the weekend or spread over several days to accommodate her schedule. (Hansen 1/23/17 Aff. ¶ 4, Ex. 3). Defendant provided tracking information showing that Plaintiff received both letters. (Hansen 1/23/17 Aff. ¶¶ 3–4, Exs. 2–3). Plaintiff did not file any response to Defendant's supplemental memorandum. *6 The Court held a continued motions hearing on January 31, 2017. (ECF No. 56). Plaintiff made various arguments related to the February 1, 2015 and February 5, 2015 videos. Plaintiff asserted she was never late to work on February 1, but was late punching in because she was making coffee for a customer. Forty-five minutes into her shift, Plaintiff told Namtvedt that she had to talk to him about a complaint, thereafter making a discrimination complaint about Sutton. Regarding her claims that the February 1, 2015 video is altered, Plaintiff asserted audio from another day was spliced into the video to cover up her discrimination complaint to Namtvedt. Plaintiff asserted that evidence supporting her claim was that the timing was changed, the creation dates of the video depict it was edited, there are no watermarks on the video, and the movement and gestures did not match the conversation. Plaintiff asserts the EEOC dismissed her claim based on the altered video. The Court then viewed the video at Plaintiff's request.[8] Plaintiff argued there was a gap around the 6:11:29 to 6:11:50 time mark wherein she made her discrimination complaint to Namtvedt. Plaintiff wants Defendant to pay about $200 for an electronic examination of this video to see if it has been altered. (Pl.'s Ex. 1). Regarding the February 5, 2015 video, Plaintiff indicated she was scheduled to work on February 6, 2015, but went to her workplace on February 5, 2015 to purchase gasoline as a customer. As Plaintiff walked in, Sutton “stormed up” and demanded Plaintiff reveal what was said on audio and video. Plaintiff indicated she stood by her complaint and Sutton walked away. Plaintiff was then asked if she was fired. Plaintiff felt embarrassed. Plaintiff argues that the February 5, 2015 video is important to prove her case in that it shows rude behavior and retaliation. Plaintiff argues that Defendant had obligations to preserve the February 5, 2015 video but destroyed it. Defendant argued that the pleadings speak for themselves and contradict Plaintiff. Defendant asserted Plaintiff's filings indicate she spoke to Namtvedt before her shift, but at the hearing she argued she spoke to Namtvedt 45 minutes into her shift. Defendant also indicated that Plaintiff asserted at the hearing she was late due to making a customer coffee, but in the video she was late due to her mother. Defendant asserted again the February 1, 2015 video has not been altered. As to the February 5, 2015 video, Defendant argued that Plaintiff cannot show willfulness in spoliation because the video was destroyed 14 to 17 days after recording pursuant standard practice, and before Defendant was notified of any lawsuit or legal complaint. The parties then disputed the contents of a February 3, 2015 email from Sutton to Dumonceaux. Defendant's submitted the email into evidence. (Def.'s Ex. 1). The email, from Sutton to Dumonceaux, reads, in its entirety, as follows: Amy, If you have time to listen and watch video ... I think it is very clear what we should do. It's of Tyler and Latoya in the office. Make sure you have the audio turned on. 6:07am to 6:15am 2/1/2015 She even talks about find another job and admits to being late both days. *7 Jackie (Def.'s Ex. 1) (formatting and ellipses as found in original). Plaintiff, at the hearing, claimed the email submitted into evidence by Defendant was altered. The Court permitted Defendant until February 3, 2017 to submit her copy from discovery into evidence. On February 3, 2017, Plaintiff emailed the Court indicating she had “packed away” the documents for her lawsuit and could not locate the email, asking the Court to move forward with deciding the motions. (ECF No. 57). Defendant, regarding its motions, noted that Plaintiff has informed Defendant's counsel that she has responded to its discovery requests on multiple occasions. Defendant rested on the record submitted to the Court. Plaintiff argued that she has mailed her discovery answers on three separate occasions. Plaintiff also indicated that due to Christmas, two birthdays, and other holidays she could not complete a deposition. Plaintiff asserted she was ready to do a deposition but Defendant's counsel said they did not have time. Plaintiff asserted she is now willing to complete her deposition. At the end of the hearing, Plaintiff submitted what purports to be her discovery responses. (Pl.'s Ex. 2). This includes: Plaintiff's Answers To The Production Of Documents Request [sic] From Defendant dated October 6, 2016; Plaintiff's Answers to Admission Request [sic] From Defendant dated October 6, 2016; and Plaintiff's Answers to Interrogatory Request [sic] From Defendant dated October 6, 2016. (Pl.'s Ex. 2). Defendant reported it had not seen these documents before. II. PLAINTIFF'S SPOLIATION MOTION A. Legal Standard Spoliation is defined as the “intentional destruction, mutilation, alteration, or concealment of evidence.” BLACK'S LAW DICTIONARY (10th ed. 2014). “The obligation to preserve evidence begins when a party knows or should have known that the evidence is relevant to future or current litigation.” E*Trade Securities LLC v. Deutsche Bank AG, 230 F.R.D. 582, 588 (D. Minn. 2005) (citations omitted). “If destruction of relevant information occurs before any litigation has begun, in order to justify sanctions, the requesting party must show that the destruction was the result of bad faith.” Id. “The ultimate focus for imposing sanctions for spoliation of evidence is the intentional destruction of evidence indicating a desire to suppress the truth, not the prospect of litigation.” Greyhound Lines, Inc. v. Wade, 485 F.3d 1032, 1035 (8th Cir. 2007). “Intent rarely is proved by direct evidence, and a district court has substantial leeway to determine intent through consideration of circumstantial evidence, witness credibility, motives of the witnesses in a particular case, and other factors.” Morris v. Union Pacific R.R., 373 F.3d 896, 901 (8th Cir. 2004). Before imposing a sanction for destruction of evidence, there must be a finding of prejudice to the opposing party. Dillon v. Nissan Motor Co., Ltd., 986 F.2d 263, 267 (8th Cir. 1993). B. Analysis 1. February 5, 2015 Video On September 27, 2016, the Court granted in part and denied in part Plaintiff's oral motion requesting the February 5, 2015 video, ordering Defendant to “use all reasonable efforts to locate the February 5, 2015 store video/audio.” (ECF Nos. 25, 26). If Defendant could not produce the video, Defendant's counsel was to inform Plaintiff in writing and under oath, within 14 days, of the “steps taken to locate the video and the results of the search.” (ECF Nos. 25, 26). Defendant provided Plaintiff its Supplemental Response to Plaintiff's Requests for Documents on October 7, 2016. (Hansen 10/20/16 Aff. ¶ 5, Ex. 3). While the response appears to contain a typo as to the date,[9] the response is clear: Defendant searched for the video but no such video exists because it was overwritten pursuant to its retention policy. (Hansen 10/20/16 Aff. ¶ 5, Ex. 3). Moreover, even if the video existed, it would not contain audio because the requested incident—Plaintiff's termination—occurred in the customer area of the store. (Hansen 10/20/16 Aff. ¶ 5, Ex. 3). This response complies with the Court's September 27, 2016 Order. Nonetheless, Plaintiff asserts that by failing to produce the February 5 video, Defendant has violated the Court's September 27, 2016 Order and has failed to provide discovery. *8 Plaintiff cannot show that Defendant had an obligation to preserve the February 5, 2015 store video. Plaintiff filed a complaint with the Minnesota Department of Human Rights, which sent a charge letter to Defendant on April 9, 2015. The language of the charge letter mirrors Plaintiff's Complaint, (Compare Hansen 10/20/16 Aff. ¶ 6, Ex. 4, with Compl., at 6), and makes no reference to a February 1, 2015 incident, only February 5, 2015. Thus, Defendant did not know nor should it have known that it had any obligation to preserve the February 5, 2015 video. Even assuming Defendant was made aware of the February 1, 2015 incident in the April 9, 2015 charge letter, the video from that date would have been overwritten pursuant to Defendant's video retention policy on approximately February 20, 2015. In order to determine whether sanctions are warranted when documents have been destroyed due to a company's retention policy prior to litigation, a court must consider: “(1) whether the record retention policy is reasonable considering the facts and circumstances surrounding those documents, (2) whether lawsuits or complaints have been filed frequently concerning the type of records at issue, and (3) whether the document retention policy was instituted in bad faith.” Stevenson v. Union Pacific R.R. Co., 354 F.3d 739, 746 (8th Cir. 2004) (citing Lewy v. Remington Arms Co., Inc., 836 F.2d 1104, 1112 (8th Cir. 1988)). When litigation is imminent or has already commenced, “a corporation cannot blindly destroy documents and expect to be shielded by a seemingly innocuous document retention policy.” E*Trade, 230 F.R.D. at 589 (citing Stevenson, 354 F.3d at 749). Plaintiff makes no showing that Defendant's record retention policy is not reasonable, that Defendant has previously had any issues concerning video destruction, that employment discrimination lawsuits frequently require store surveillance videos, or that the record retention policy was instituted in bad faith. In looking at the three factors set forth above, it is reasonable for a company like Defendant, a gas station, to maintain video for approximately 14 days. See, e.g., Adkins v. Wolever, 692 F.3d 499 (6th Cir. 2012) (no spoliation sanction for prison that recorded over videos 10 days after creation due to storage space limitations). The Court has no evidence that Defendant has had complaints as to its records retention policy. There is no showing that store surveillance videos are typically necessary to resolve employment discrimination claims. And there is no allegation that Defendant's record retention policy was instituted in bad faith. Absent these factors, the Court cannot conclude, as Plaintiff asks, that Defendant acted in bad faith in its pre-litigation routine destruction of the February 5, 2015 store video. Finally, Plaintiff cannot show that Defendant destroyed the February 5, 2015 video in order to suppress the truth. As Plaintiff argued at the motions hearing, the February 5, 2015 video would show Plaintiff went to her workplace on February 5, 2015 to purchase gasoline as a customer. As Plaintiff walked in, Sutton “stormed up” and demanded Plaintiff reveal what was said on audio and video. Plaintiff indicated she stood by her February 1, 2015 discrimination complaint and Sutton walked away. Plaintiff was then asked if she was fired. Plaintiff argues that video is important to prove her case in that it shows rude behavior and retaliation. Defendant does not dispute that Plaintiff was fired on February 5, 2015 by Sutton. And, as noted above, even if the February 5, 2015 video was preserved, it would contain only video without audio given the location in the store. Thus, the video would provide little to no support for Plaintiff's assertions and, therefore, Defendant cannot be said to have sought to suppress the truth. Without a showing of bad faith, sanctions are not justified. E*Trade Securities LLC, 230 F.R.D. at 588. 2. February 1, 2015 Video *9 Regarding her claims that the February 1, 2015 video is altered, Plaintiff asserted audio from another day was spliced into the video to cover up her discrimination complaint to Namtvedt. Plaintiff asserted that evidence supporting her claim are that: the timing was changed; the creation dates of the video depict it was edited; there are no watermarks on the video; and the movement and gestures did not match the conversation. Plaintiff further argued there was a gap around the 6:11:29 to 6:11:50 time mark wherein she made her discrimination complaint to Namtvedt. Plaintiff asserted she was never late to work on February 1, but was late punching in because she was making coffee for a customer. Forty-five minutes into her shift, Plaintiff told Namtvedt that she had to talk to him about a complaint, thereafter making a discrimination complaint about Sutton. Plaintiff provides no evidence to support her claims that the February 1, 2015 has been altered in any way. Indeed, upon viewing the video at the hearing, the Court could not discern anything peculiar with the video. (Hansen 10/20/16 Aff. ¶ 3, Ex. 2). Rather, the video depicts Plaintiff entering the break room at 6:06:56 a.m and removing her jacket, clocking in on the computer shortly thereafter, then talking to Namtvedt at 6:08 a.m. saying “I apologize. It was my mom's fault.” (Hansen 10/20/16 Aff. ¶ 3, Ex. 2). Namtvedt responded saying “We say life happens.” (Hansen 10/20/16 Aff. ¶ 3, Ex. 2). The exchange between the parties was casual and lighthearted. Plaintiff and Namtvedt then start talking again at around 6:09:28 a.m., with Namtvedt asking Plaintiff about the previous day, indicating she clocked in late even though she was in the store 20 minutes early with her neighbor. (Hansen 10/20/16 Aff. ¶ 3, Ex. 2). Plaintiff said she was late clocking in because she was talking to her neighbor. (Hansen 10/20/16 Aff. ¶ 3, Ex. 2). Plaintiff then said she was ready to leave her job and was searching for a new job. (Hansen 10/20/16 Aff. ¶ 3, Ex. 2). While the video and audio does freeze at times, the Court does not find these freezes suspicious. Plaintiff claims that during these temporary freezes she was making her discrimination complaint about Sutton. The conversation before and after the freezes continues on the same conversational topic: Plaintiff's tardiness clocking into work. The entire contents of the audible conversation were related to Plaintiff's tardiness and her dislike for her job. The Court does not find it plausible that Plaintiff and Namtvedt would discuss tardiness, switch course to racial discrimination complaints, then return to tardiness discussions in the short time frames in which the video and audio is frozen. Moreover, Plaintiff's argument at the hearing contradicts the record in this case. In her Complaint, Plaintiff alleges that on February 5, 2015 she reported “racial harassment and differential treatment” to Namtvedt “prior to [her] scheduled shift.” (Compl., at 6). This reporting caused Plaintiff to be approximately five minutes late clocking in for work. (Compl., at 6). Plaintiff then claims she was fired that same day by Sutton when she learned of the report. (Compl., at 6). At the hearing, Plaintiff asserted her conversation with Namtvedt occurred 45 minutes after her shift began on February 1, 2015 and she was late because she was helping a customer make coffee. Upon viewing the video, Plaintiff's conversation with Namtvedt occurred at around 6:07 a.m. following her clocking in for her shift; a shift that was scheduled to start at 6:00 a.m. (Hansen 10/20/16 Aff. ¶ 2, Ex. 1, at 18). In the video, Plaintiff blamed her tardiness on her mother. Plaintiff's shifting factual allegations do not lend credibility to her claim that the video has been altered. The Court cannot conclude on the record before it that any spoliation of the February 1, 2015 video occurred. Plaintiff's allegations that audio from a different conversation was spliced into the video over the true audio is not credible and unsupported. In addition to the above, Plaintiff asserts that the audio was edited and replaced with music. (ECF No. 29, at 4). When viewing the video, background music plays over what would presumably be the gas station's speaker system. (Hansen 10/20/16 Aff. ¶ 3, Ex. 2). As Defendant points out, Namtvedt is heard singing along with the music “undercutting [Plaintiff's] claim that the music was added by [Defendant] at a later date.” (ECF No. 36, at 5 n.2; Hansen 10/20/16 Aff. ¶ 3, Ex. 2). Again, the Court finds Plaintiff lacks credibility. *10 Even with the minor technical difficulties in the video and audio, the Court cannot conclude any bad faith on behalf of Defendant. This is particularly so where Defendant's counsel let Plaintiff know that they had troubles with the video and audio recording itself, making themselves available to Plaintiff to try to resolve the problem should it be necessary. The Court does not find, as Plaintiff requests, that Defendant has engaged in any behavior showing a desire to suppress the truth. Greyhound Lines, Inc., 485 F.3d at 1035. Absent such a finding, the Court will not find spoliation or impose a sanction. In sum, Plaintiff has failed to show any spoliation in relation to the February 1 or February 5, 2015 videos. Therefore, this Court recommends Plaintiff's motion be denied. C. Requests for Sanctions/Fees Both Plaintiff and Defendant request a sanction or fees from the other for Plaintiff's spoliation motion. Specifically, Plaintiff requests that Defendant pay for a forensic examination of the February 1, 2015 video, that Defendant be ordered to provide the “true original” February 1, 2015 video, that Defendant provide the February 5, 2015 video, that Defendant pay Plaintiff a “monetary sanction ‘for the expense and time ... spent engaged in this discovery dispute,” and punitive sanctions against Defendant. (ECF No. 29, at 5–6). Defendant requests an award of $2,500 in legal fees incurred in responding to Plaintiff's “quixotic crusade ... for a videotape she has been told repeatedly does not exist” and “intransigence in all matters relating to discovery in this litigation.” (ECF No. 36, at 1, 8–10). Defendant argues that Plaintiff has abused her Court-approved in forma pauperis status. (ECF No. 36, at 9) (“Because she has no costs[, Plaintiff] has been free to flaunt court orders and to harass [Defendant] with meritless claims without fear of consequence.”). Under Rule 37, a party may seek sanctions against a party that fails to comply with its discovery obligations. See generally Fed. R. Civ. P. 37. Under Rule 37(a),[10] a party may move for an order compelling discovery. When filing such a motion, the moving party must certify that she “has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action.” Fed. R. Civ. P. 37(a)(1). If a Rule 37 motion is granted, “the court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees.” Fed. R. Civ. P. 37(a)(5)(A). The Court must not order such a payment if: “(i) the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action; (ii) the opposing party's nondisclosure, response, or objection was substantially justified; or (iii) other circumstances make an award of expenses unjust.” Id. If the motion is denied, the court “must, after giving an opportunity to be heard, require the movant, the attorney filing the motion, or both to pay the party or deponent who opposed the motion its reasonable expenses incurred in opposing the motion, including attorney's fees.” Fed. R. Civ. P. 37(a)(5)(B). Such payment must not be ordered if the motion “was substantially justified or other circumstances make an award of expenses unjust.” *11 Here, the Court recommends denying Plaintiff's motion in its entirety. Thus, per the requirements of Rule 37(a)(5)(B), the Court must award expenses against Plaintiff in favor of Defendant. Defendant has put forth $2,500 in reasonable expenses. Notwithstanding the Court's serious consideration of granting Defendant's requested fees given Plaintiff's dubious actions, inactions, and credibility in connection with this litigation to date, awarding such an amount is not warranted given this Court's ultimate recommendation below that this case be dismissed, the fact that the Court granted in part Plaintiff's September 27, 2016 oral motion to compel, and provided the overall circumstances in this case. Plaintiff's application to proceed in forma pauperis (“IFP”) was granted. (ECF No. 3). If Plaintiff could not afford the $400 civil case filing fee, it would be difficult for the Court to conclude that Plaintiff could afford $2,500 in expenses. Therefore, given the ultimate recommendation below that Plaintiff's case be dismissed, as well as her IFP status, and that the Court did grant in part an oral motion by Plaintiff, the Court concludes an award of $2,500 in expenses to Defendant would not serve the interests of justice. III. DEFENDANT'S MOTIONS TO DISMISS A. Legal Standard Federal Rules of Civil Procedure 37 and 41 provide courts with the discretion to dismiss an action for failure to comply with court orders and the Federal Rules of Civil Procedure. The district court has “a large measure of discretion in deciding what sanctions are appropriate for misconduct.” Hutchins v. A.G. Edwards & Sons, Inc., 116 F.3d 1256, 1260 (8th Cir. 1997). The Eighth Circuit has “repeatedly stressed that the ‘sanction imposed by the district court must be proportionate to the litigant's transgression,’ and that ‘[d]ismissal with prejudice is an extreme sanction and should be used only in cases of willful disobedience of a court order or continued or persistent failure to prosecute a complaint.’ ” Smith v. Gold Dust Casino, 526 F.3d 402, 405 (8th Cir. 2008) (quoting Rodgers v. The Curators of the Univ. of Mo., 135 F.3d 1216, 1219 (8th Cir. 1998), and Givens v. A.H. Robins Co., 751 F.2d 261, 263 (8th Cir. 1984)) (emphasis in original). Under Rule 37, if a party “fails to obey an order to provide or permit discovery,” a court may enter an order that includes the following: (i) directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims; (ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence; (iii) striking pleadings in whole or in part; (iv) staying further proceedings until the order is obeyed; (v) dismissing the action or proceeding in whole or in part; (vi) rendering a default judgment against the disobedient party; or (vii) treating as contempt of court the failure to obey any order except an order to submit to a physical or mental examination. Fed. R. Civ. P. 37(b)(2)(A). These sanctions are also available, among other sanctions, if a party fails to provide its disclosures required under Rule 26(a), fails to answer requests for admission, or fails to attend a deposition. Fed. R. Civ. P. 37(c), (d). Rule 37 sanctions are “not merely to penalize those whose conduct may be deemed to warrant such a sanction, but to deter those who might be tempted to such conduct in the absence of such a deterrent.” Nat'l Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 643 (1976) (per curiam). “To justify a sanction of dismissal, Rule 37 requires: ‘(1) an order compelling discovery, (2) a willful violation of that order, and (3) prejudice to the other party.’ ” Sentis Group, Inc. v. Shell Oil Co., 559 F.3d 888, 899 (8th Cir. 2009) (quoting Schoffstall v. Henderson, 223 F.3d 818, 823 (8th Cir. 2000)). A court's discretion to issue Rule 37 sanctions “is bounded by the requirement of Rule 37(b)(2) that the sanction be ‘just’ and relate to the claim at issue in the order to provide discovery.” Hairston v. Alert Safety Light Products, Inc., 307 F.3d 717, 719 (8th Cir. 2002) (quoting Avionic Co. v. General Dynamics Corp., 957 F.2d 555, 558 (8th Cir. 1992)). “ ‘[T]he district court's discretion narrows as the severity of the sanction or remedy it elects increases.’ ” Sentis Group, Inc., 559 F.3d at 898 (quoting Wegener v. Johnson, 527 F.3d 687, 692 (8th Cir. 2008)). Dismissal “is among the harshest of sanctions, and ‘there is a strong policy in favor of deciding a case on its merits, and against depriving a party of his day in court.’ ” Sentis Group, Inc., 559 F.3d at 898 (quoting Fox v. Studebaker–Worthington, Inc., 516 F.3d 1016, 1020 (8th Cir. 1975)). Nonetheless, dismissal is within the range of acceptable sanctions and the reviewing court will not “substitute our [its] judgment for that of the district court even though [it] may have chosen a different sanction had [it] been standing in the shoes of the trial court.” International Bhd. of Elec. Workers, Local Union No. 545 v. Hope Elec. Corp., 380 F.3d 1084, 1105–1106 (8th Cir. 2004) (quoting Chrysler Corp. v. Carey, 186 F.3d 1016, 1020 (8th Cir. 1999). When the facts show willfulness and bad faith, the district court need not investigate the propriety of a less extreme sanction. Hairston, 307 F.3d at 719. *12 Rule 41(b) allows the Court, acting sua sponte, to dismiss a case “[i]f the plaintiff fails to prosecute or to comply with [the Federal Rules] or a court order.” Fed. R. Civ. P. 41(b); Holly v. Anderson, 467 F.3d 1120, 1121 (8th Cir. 2006). Dismissal under Rule 41(b) may be appropriate without a finding that the party acted in bad faith if a plaintiff has “acted intentionally as opposed to accidentally or involuntarily.” Doe v. Cassel, 403 F.3d 986, 990 (8th Cir. 2005) (citations omitted). “Willful as used in the context of a failure to comply with a court order ... implies a conscious or intentional failure to act, as distinguished from accidental or involuntary noncompliance.” Omaha Indian Tribe, Treaty of 1854 with U.S. v. Tract I–Blackbird Bend Area, 933 F.2d 1462, 1468–69 (8th Cir. 1991) (quoting Welsh v. Automatic Poultry Feeder Co., 439 F.2d 95, 97 (8th Cir. 1971)). In determining whether a court abused its discretion in dismissing a matter under Rule 41(b), the reviewing court “employs a balancing test that focuses foremost upon the degree of egregious conduct which prompted the order of dismissal and to a lesser extent upon the adverse impact of such conduct upon both the defendant and the administration of justice in the district court.” Smith, 526 F.3d at 405 (quoting Rodgers, 135 F.3d at 1219). B. Analysis This Court concludes that dismissal of this lawsuit without prejudice is appropriate under Rules 37 and 41. First, Plaintiff's pro se status does not relieve her of obligations to comply with court orders and the Federal Rules of Civil Procedure. See Soliman v. Johanns, 412 F.3d 920, 922 (8th Cir. 2005) (“Even pro se litigants must comply with court rules and directives.”) (citation omitted); Lindstedt v. City of Granby, 238 F.3d 933, 937 (8th Cir. 2000) (“A pro se litigant is bound by the litigation rules as is a lawyer, particularly here with the fulfilling of simple requirements of discovery.”); Ackra Direct Mktg. Corp. v. Fingerhut Corp., 86 F.3d 852, 856 (8th Cir. 1996) (“In general, pro se representation does not excuse a party from complying with a court's orders and with the Federal Rules of Civil Procedure.”) (citations omitted). On July 15, 2016, the Court issued its Pretrial Scheduling Order. (ECF No. 15). Pursuant to the Scheduling Order, all pre-discovery disclosures required by Fed. R. Civ. P. 26(a)(1) were to be completed on or before July 22, 2016. (Scheduling Order ¶ 1(a)). Defendant met this deadline. Plaintiff did not. Defendant offered Plaintiff an extension of time to provide her disclosures, but Plaintiff responded on September 6, 2016 that she could not provide her initial disclosures without the discovery she requested—the February 1 and 5, 2015 videos discussed at length above.[11] Nonetheless, the next day, Plaintiff told Defendant via email that she had completed her initial discovery and it was in the mail. Defendant received nothing and, on September 13, 2016, moved to compel. The Court granted Defendant's motion and ordered Plaintiff to provide her initial disclosures pursuant to Rule 26(a)(1)(A) within 14 days. Plaintiff never provided her initial disclosures, necessitating Defendant's present motions. As of the January 31, 2017 motions hearing—which was continued almost four months due to Plaintiff's medical emergency as displayed in the courtroom on November 7, 2016 after she had fully completed her arguments—Plaintiff still had not provided her initial disclosures. Moreover, even if the Court were to consider the documents submitted by Plaintiff at the hearing, (Pl.'s Ex. 2), these documents do not contain any of Plaintiff's initial disclosures as required by Rule 26(a)(1)(A). The Court concludes Plaintiff has violated both the Scheduling Order and its September 27, 2016 Order by failing to provide her Rule 26 initial disclosures. *13 The Scheduling Order set a November 1, 2016 deadline for the parties to complete discovery. (Scheduling Order ¶ 1(b)). Defendant timely served its discovery requests on July 26, 2016. When Defendant had received no responses, it reached out to Plaintiff to remind her of her obligations to answer and offering her an extension of time to answer the discovery requests. Defendant sent a follow-up letter on September 1, 2016. As noted above, Plaintiff responded via email on September 6, 2016 indicating she could not complete her discovery responses without all the evidence she requested, but the next day she reported her discovery was in the mail. Defendant moved to compel Plaintiff's discovery responses, which this Court granted on September 27, 2016. The Court ordered that Plaintiff respond to Defendant's requests for admission, requests for production, and interrogatories within 14 days. (ECF Nos. 25, 26). Plaintiff never responded to Defendant's discovery requests, resulting in Defendant's present motions. Indeed, on October 14, 2016, Plaintiff again told Defendant it “should be receiving the documents in the mail any day now as I just received your response to the February 5 store surveillance video/ audio yesterday evening 10/13/16.” (Hansen 10/19/16 Aff. ¶ 5, Ex. 6). And again on October 18, 2016, Plaintiff reported she had mailed her discovery responses. (Hansen 10/19/16 Aff. ¶ 8, Ex. 9). As of the January 31, 2017 motions hearing—which was continued almost four months due to Plaintiff's medical emergency—Plaintiff still had not provided her discovery responses. At the end of the hearing, without any discussion of the matter during the preceding arguments, Plaintiff provided what she purported to be her discovery responses, including: Plaintiff's Answers To The Production Of Documents Request [sic] From Defendant dated October 6, 2016; Plaintiff's Answers to Admission Request [sic] From Defendant dated October 6, 2016; and Plaintiff's Answers to Interrogatory Request [sic] From Defendant dated October 6, 2016. (Pl.'s Ex. 2). Defendant had never seen these documents before. Moreover, in reviewing these documents, they appear generally nonresponsive to Defendant's discovery requests. For example, Plaintiff indicates she cannot or will not respond until “Defendant provides information of store employees to Plaintiff,” (Pl.'s Ex. 2, at Interrogatory Answers Nos. 2, 3, 5, 6, 10, 17; Pl.'s Ex. 2, at Document Production Answers Nos. 1, 3, 10); she cannot respond until Defendant provides the February 1 and 5, 2015 store videos, (Pl.'s Ex. 2, at Interrogatory Answers Nos. 7, 8, 14; Pl.'s Ex. 2, at Document Production Answers Nos. 8, 17); or that Defendant's questions have no merit, (Pl.'s Ex. 2, at Interrogatory Answers Nos. 12, 13; Pl.'s Ex. 2, at Document Production Answers Nos. 4, 6, 12–15), when in fact they do. The Court concludes Plaintiff has violated its September 27, 2016 Order, the Scheduling Order, and the Federal Rules of Civil Procedure by failing to provide her answers to Defendant's discovery requests. As ordered by the Court, Plaintiff was to provide her discovery responses within 14 days of September 27, 2016. Plaintiff did not do so. Plaintiff did not respond to Defendant's discovery requests within the 30 days prescribed by the Federal Rules of Civil Procedure. Fed. R. Civ. P. 33(b)(2); Fed. R. Civ. P. 34(b)(2)(A); Fed. R. Civ. P. 36(a)(3). Plaintiff did not respond to Defendant's discovery requests by the discovery deadline of November 1, 2016. Even if the Court were to find Plaintiff had somehow complied with her discovery requirements through handing over documents at the final moments of the January 31, 2017 hearing, such action does not purge the complete lack of compliance exhibited over the preceding five months. Additionally, the documents Plaintiff turned over at the end of that hearing were still unresponsive and incomplete. The Scheduling Order also set a November 1, 2016 deadline for the parties to complete discovery, including depositions. (Scheduling Order ¶¶ 1(b), 1(g)). Plaintiff's deposition was first set for October 20, 2016, but the date was changed at Plaintiff's request. After various scheduling discussions, Plaintiff's deposition was ultimately noticed for October 27, 2016, at 1:00 p.m. (Hansen 10/28/16 Aff. ¶ 2, Ex. 1). Plaintiff emailed Defendant the morning of her deposition, asking to reschedule due to illness. Defendant's counsel indicated that a court reporter had already been scheduled, so the deposition could not be moved. Plaintiff arrived at the deposition at 12:45 p.m., 15 minutes before its scheduled start, and indicated she was too ill to proceed. Plaintiff left. Despite Defendant's repeated attempts to reschedule Plaintiff's deposition for any time between the November 7, 2016 motions hearing and the January 31, 2017 motions hearing, Defendant was unable to schedule the deposition. Defendant even offered to break up the deposition into several smaller days or complete it on the weekend to accommodate Plaintiff's schedule, but to no avail. At the January 31, 2017 hearing, Plaintiff only indicated that she had been busy with holiday celebrations and was now willing to undergo a deposition. The Court concludes Plaintiff has violated both the Scheduling Order and Rule 30 by failing to attend her deposition noticed by Defendant. *14 Second, all of the elements for sanctions under Rule 37 have been satisfied: this Court issued its Scheduling Order and, on September 27, 2016, ordered Plaintiff to respond to Defendant's discovery requests. Each of the Court's orders specifically referenced the sanctions and remedies violators of the order would face. Plaintiff violated these orders. In a case Plaintiff filed more than one year ago, she has still failed to meet her basic discovery obligations. Defendant has been prejudiced by Plaintiff's conduct, not the least of which are the legal fees, time, and angst incurred by Defendant given the difficulties Plaintiff's actions and inactions have caused beyond the ordinary difficulties in an adversarial litigation system. Plaintiff has provided no discovery to Defendant, depriving Defendant of any substantive ability to investigate Plaintiff's claims or test her case. One of the purposes of discovery is to prevent unfair surprise. Doe v. Young, 664 F.3d 727, 734–35 (8th Cir. 2011). Plaintiff has attempted to litigate while holding all her cards secret and demanding to see all those held by Defendant. Indeed, Plaintiff's actions are particularly troublesome where she has made continuous demands that Defendant comply with discovery rules all while flouting those rules herself. Defendant has been forced to bring several motions and attend several motions hearings. The Court concludes that Plaintiff's conduct is willful. Third, Plaintiff's willful conduct supports sanctions under Rule 41(b). This Court has repeatedly warned the parties that failure to comply with the Court's orders could result in dismissal of the lawsuit. (ECF No. 9, at 11; Scheduling Order, at 5; ECF No. 16, at 4; ECF Nos. 25, 26; ECF No. 38, at 2–3; ECF No. 49; ECF No. 51, at 2). It should be no surprise to Plaintiff that she could be sanctioned for noncompliance with this Court's orders and the Federal Rules. Plaintiff has provided no convincing reason as to why she could not comply with the Court's orders or the Rules, primarily indicating that Defendant has failed to give her all the evidence she wants or that holidays made scheduling difficult. See Smith v. Gold Dust Casino, 526 F.3d at 405 (reversing dismissal with prejudice under Rule 41 because pro se plaintiff had informed the court that he was having heart surgery, which prevented him from complying with discovery deadlines, subsequently informed the court of his progress, and made “sincere efforts” to complete discovery). Finally, this Court concludes that no lesser sanction than dismissal is appropriate. As concluded above, it would be unwarranted to award Defendant monetary awards in the context of a discovery motion under the totality of the circumstances in this case to date. For similar reasons, it would also be unwarranted to order a monetary sanction be payed as a result of Plaintiff's many instances of noncompliance with the Court's orders and the Federal Rules of Civil Procedure. Lesser sanctions are equally unavailing. Despite being ordered to comply with her discovery obligations and provided ample opportunities to do so by Defendant, as well as receiving a de facto four-month continuance to do so given the continued motions hearing, Plaintiff nevertheless failed to respond to Defendant. And because it is a plaintiff rather than a defendant engaging in the actions necessitating sanctions, many of the options available to the Court in Fed. R. Civ. P. 37(b)(2)(A)—striking pleadings, prohibiting support of claims, rendering default against the disobedient party—would effectively result in a de facto dismissal. This Court concludes that the only reasonable sanction for such blatant disrespect for its Orders and the Federal Rules of Civil Procedure is dismissal. Now, the Court must determine how that dismissal is put into effect. Unless otherwise stated, a dismissal “operates as an adjudication on the merits.” Fed. R. Civ. P. 41(b). The Court understands that dismissal with prejudice is “an extreme sanction.” Givens, 751 F.2d at 263. In this case, the sanction of dismissal without prejudice appropriately balances Plaintiffs' access to justice with the Court's need to ensure its orders and the Federal Rules are followed. Hunt v. City of Minneapolis, 203 F.3d 524, 527 (8th Cir. 2000); see Nat'l Hockey League, 427 U.S. at 643 (noting purpose of imposing sanctions is to deter future offensive conduct by the responsible individual and others). If Plaintiff seeks to re-file her complaint, she is reminded of her duty to follow the Court's orders as well as the Rules of Procedure; otherwise, Plaintiff will be scarcely in position to argue against heavier sanctions such as an order for her to pay attorney's fees and costs, and possible dismissal with prejudice. IV. RECOMMENDATION *15 Based on all the files, record, and proceedings herein, IT IS HEREBY RECOMMENDED that: 1. Plaintiff's Motion for Video/CD View Device/Monitoring System, (ECF No. 44), be GRANTED IN PART and DENIED IN PART for the reasons stated above. 2. Plaintiff's Motion for Sanction on Discovery Violations Due to Spoliation, (ECF No. 27), be DENIED for the reasons stated above. 3. Defendant's Motion to Dismiss Plaintiff's Complaint and for Sanctions, (ECF No. 31), be GRANTED for the reasons stated above; Defendant's Motion to Dismiss Plaintiff's Complaint and for Sanctions, (ECF Nos. 40, 41), be GRANTED for the reasons stated above; and Plaintiff's Complaint, (ECF No. 1), be DISMISSED WITHOUT PREJUDICE. Footnotes [1] ECF No. 41, entitled “Defendant's Notice of Motion and Motion to Dismiss or Alternatively to Compel Plaintiff's Appearance at her Deposition and for Attorney's Fees Pursuant to Rules 30 and 37 of the Federal Rules of Civil Procedure,” was docketed only as a notice of motion. The Court will considered ECF No. 41 as the same motion as ECF No. 40 and treat them together as one motion to dismiss. [2] While Plaintiff's motions could be addressed by an Order rather than a Report and Recommendation, this Court finds it prudent to address all pending motions in this matter in the same ruling given their interrelated nature, the complicated procedural history in this matter, the relief requested by the parties, the entangled analysis of the motions, and the ultimate recommendation of this Court. [3] Plaintiff first brought her claim to the Minnesota Department of Human Rights. (See Compl., at 9). That claim was dismissed and Plaintiff brought her claim to the U.S. Equal Employment Opportunity Commission (“EEOC”). (See Compl., at 8). On March 8, 2016, the EEOC adopted the findings of the Minnesota Department of Human Rights and dismissed the claim. (Compl., at 8). [4] Plaintiff provided the Court her June 16, 2016 letter to Defendant's counsel, requesting the following: (1) February 1, 2015 store video and audio of conversation between Plaintiff and Lead Manager Tyler Namtvedt of “personal issues she had with an employee the day before”; (2) February 3, 2015 email from Sutton to human resources employee Amy Dumonceaux “asking her to watch the video of [Plaintiff] being late”; (3) February 5, 2015 store video and audio of Plaintiff's termination by Sutton; (4) copy of Defendant's “measures that are in place to safeguard employees if they feel discriminated against in their working environment”; (5) copies of time records “outlining the 20 late arrivals at work” by Plaintiff; (6) copies of Plaintiff's formal write–ups from November 5, 2015, November 24, 2015, and January 9, 2016; and (7) Defendant's “complete handbook.” (ECF No. 12, at 3). Defendant's counsel responded on June 22, 2016, noting: “At this time we are not required to disclose any information, including providing you with the requested documents. Initial disclosures are due within 14 days of our [Rule 26] conference. We will disclose all documents and information pursuant to the requirements of the Federal Rules of Civil Procedure.” (ECF No. 12, at 4). [5] Plaintiff was previously referred to the Federal Bar Association Pro Se Project. (ECF No. 6). [6] Defendant provided Plaintiff the February 1, 2015 video personally on September 27, 2016. (Hansen 10/20/16 Aff. ¶ 4). Defendant's counsel informed Plaintiff that “we had some difficulty transferring the video to a disc related to finding the proper media program with which the video could be viewed.” (Hansen 10/20/16 Aff. ¶ 4). Defendant's counsel discussed with Plaintiff “that if she had difficulty viewing the video she should contact me and we would work to resolve the issue.” (Hansen 10/20/16 Aff. ¶ 4). Plaintiff never contacted Defendant prior to filing her motion. (Hansen 10/20/16 Aff. ¶ 4). Defendant indicated it had preserved the February 1, 2015 video because Plaintiff “made allegations related to that day shortly after [her] termination.” (Hansen 10/20/16 Aff. ¶ 7, Ex. 5). Defendant asserts the February 5, 2015 store video was destroyed pursuant to its standard retention policy whereby videos are delated after approximately 14 days. (Hansen 10/20/16 Aff. ¶ 7, Ex. 5; Hansen 10/20/16 Aff. ¶ 5, Ex. 3). [7] It appears the April 9, 2015 charge letter was from the Minnesota Department of Human Rights, not the EEOC. (Hansen 10/20/16 Aff. ¶ 6, Ex. 4). [8] Plaintiff's Motion for Video/CD View Device/Monitoring System, (ECF No. 44), was GRANTED IN PART insofar that the Court viewed the February 5, 2015 video. To the extent Plaintiff requests the “original” video and audio as related to her discovery motion, it should be DENIED for the reasons stated herein. [9] Defendant references mid–November 2014 while the video in question related to February 5, 2015. This date typo is of no moment because Defendant was responding to a discovery request and Court Order pertaining to the February 5, 2015 video. Moreover, Defendant has consistently responded that the February 5, 2015 store video was overwritten pursuant to its record retention policy. [10] While Plaintiff's motion may be analyzed under various prongs of Rule 37, this Court finds it best viewed under the auspices of Rule 37(a) given the relief requested. [11] Plaintiff provided the same explanation when requesting the Court reschedule the pretrial conference, indicating she could not complete the Rule 26(f) report without all the requested evidence. Plaintiff continues to employ this reasoning as discussed more fully below. At the September 27, 2016 hearing, the Court reiterated that Plaintiff's discovery obligations were independent of what she believed Defendant should have or ought to do. Thus, her continued requests for the February 2015 store videos would not and did not relieve her of her discovery obligations.