United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. MITCHELL U.S. MAGISTRATE JUDGE
matter previously came before the court on defendant Tyson
Foods, Inc.'s (“Tyson”) Motion to Dismiss for
Failure to Cooperate in Discovery (ECF No. 26), after
plaintiff Marion Lamar Hayes failed to serve his discovery
responses in accordance with court orders in April and May of
2019. The court denied Tyson's motion but ordered Mr.
Hayes to serve discovery responses by June 21, 2019. The
court also ordered Mr. Hayes to show cause as to why he
should not be held in contempt of court and/or fined for
failure to comply with the court's previous discovery
orders. Mr. Hayes did not respond to the court's show
cause order, and it is unclear whether he fully complied with
the court's third order requiring him to serve his
delinquent discovery responses. The court therefore sets this
matter for an in-person hearing at which the court will
decide the extent to which it will impose monetary sanctions
for Mr. Hayes' conduct and discuss related matters
regarding how to move this case forward, all as detailed
Hayes filed this personal injury lawsuit in the district
court of Finney County, Kansas, on February 1, 2018. Tyson
removed the case to federal court on November 20, 2018.
(See Notice of Removal (ECF No. 1).) On February 19,
2019, Tyson served Mr. Hayes with interrogatories and
requests for production of documents. (See
Certificate of Service (ECF No. 11).) Mr. Hayes'
discovery responses were due on March 21. See Fed.
R. Civ. P. 33(b)(2); 34(b)(2)(A). Mr. Hayes did not serve any
objections or responses by that date.
April 4, at Tyson's request, the court held a discovery
conference. During the conference, Mr. Hayes' counsel
explained that his client lives out of state and is an
over-the-road truck driver who has difficulty communicating
with his counsel from the road. The parties agreed that Mr.
Hayes would serve his discovery responses by April 13, and
the court ordered that he do so.
Hayes did not serve his discovery responses by April 13.
Tyson once again requested another discovery conference with
the court. During that telephone conference on May 2, Mr.
Hayes' counsel noted that Mr. Hayes would be back in
Kansas later that month, and the discovery responses could be
completed then. The court ordered Mr. Hayes to serve his
discovery responses on or before May 23. (See Order
(ECF No. 24).)
Hayes did not serve his discovery responses by May 23, again
ignoring the court-imposed deadline. On May 29, Tyson filed a
motion to dismiss this case for Mr. Hayes' failure to
participate in discovery. The court entered an order denying
Tyson's motion (ECF No. 33) but ordered Mr. Hayes to
produce his delinquent discovery response by June 21. The
court warned Mr. Hayes that continued failure to comply with
the federal rules and court orders could result in dismissal
of his case. In addition, the court ordered Mr. Hayes to show
cause in writing by June 21 why he should not be held in
contempt of court and/or fined up to $1, 000 per day from May
23 until the date he serves his discovery responses.
came and went. Mr. Hayes did not file any response to the
order to show cause. Instead, he filed a Notice of Response
to Discovery (ECF No. 34) stating that he had “served
answers to [Tyson's] First Interrogatories and Request
for Production of Documents” on June 21.
24, Tyson informed the court that, contrary to Mr. Hayes'
representation, he did not serve his responses to Tyson's
document requests or any responsive documents by the June 21
deadline. (See Resp. to Pl.'s Notice (ECF No.
35) ¶ 6.) Tyson also states that Mr. Hayes'
interrogatory responses “were neither fully answered
nor verified by Plaintiff's signature.”
court directed Mr. Hayes to show cause why he should not be
held in contempt of court and/or fined up to $1, 000 per day.
(Mem. & Order (ECF No. 33), at 6.) The Federal Rules of
Civil Procedure authorize sanctions where a party fails to
obey an order to provide or permit discovery, including
holding a party in contempt of court for failing to obey a
court order. Fed.R.Civ.P. 37(b)(2)(A)(vii). Instead of or in
addition to the sanctions listed in Rule 37(b)(2)(A),
“the court must order the
disobedient party, the attorney advising that party, or both
to pay the reasonable expenses, including attorney's
fees, caused by the failure, unless the failure was
substantially justified or other circumstances make an award
of expenses unjust.” Fed.R.Civ.P. 37(b)(2)(C) (emphasis
court finds monetary sanctions are warranted, and that the
circumstances may also warrant certifying facts to the
district judge pursuant to 28 U.S.C. § 636(e)(6)(B) to
support a finding of civil contempt. The court begins with
the reasoning already set forth in the court's prior
order detailing Mr. Hayes' failure to comply with the
court's first two orders compelling production.
(See Mem. & Order (ECF No. 33).) Since then, Mr.
Hayes did not file any response to the court's show cause
order and it is unclear whether his noncompliance continued.
Although Mr. Hayes filed a notice stating he served his
discovery responses, Tyson disputes this representation and
argues that Mr. Hayes served incomplete, unverified
interrogatory responses and did not serve any responses to
its requests for production or responsive documents.
Meanwhile, discovery closed on June 30, 2019.
court cannot allow Mr. Hayes' pattern of ignoring the
court's orders and failing to participate in discovery to
continue. It is disruptive to the orderly and efficient
administration of this case, and Tyson has suffered prejudice
from Mr. Hayes' willful disregard of this court's
orders and case schedule. The court therefore sets this
matter for an in-person hearing at 9:00 a.m.
on Tuesday, July 16, 2019 in
Courtroom 643 at the courthouse in Kansas City, Kansas, to
determine the nature and amount of these monetary sanctions,
as well as whether certification of facts to the district
judge pursuant to 28 U.S.C. § 636(e)(6)(B) is
appropriate. At the hearing, the court expects the parties to
be prepared to address the following subjects:
. the status of Mr. Hayes' compliance
with the court's June 13, 2019 Memorandum and Order (ECF
No. 33), including any outstanding discovery requests and any