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Jefferson v. Amsted Rail Co., Inc.

United States District Court, D. Kansas

November 18, 2019




         Before the court is defendant's third motion to impose sanctions based on plaintiff's continued failure to fully comply with discovery requests, discovery orders, and orders requiring her participation in submitting a proposed pretrial order (ECF No. 43). Defendant seeks dismissal of plaintiff's claims with prejudice or, alternatively, an award of attorneys' fees and costs.

         As recapped below, plaintiff, who is proceeding pro se and in forma pauperis, has developed a pattern in this case of complying a little, but never fully or enough, with the court's orders and defendant's discovery requests. Given plaintiff's pro se status, the court thus far has declined to impose sanctions, opting instead on a conservative approach of counseling plaintiff-both in person and in written orders-on her specific duties in complying with discovery and court orders. But plaintiff's intentional inaction in this case (even if not accompanied by wrongful intent) has reached the point where it is costing defendant a significant amount in attorneys' fees, is consuming a considerable amount of the court's time, and is delaying the legal process and resolution of this case. Because warning plaintiff has proven ineffective, the court now grants, in part, defendant's motion for sanctions. The severe sanction of case dismissal is not warranted (at least, not at this juncture), but the lesser sanction of a fee award is imposed.

         I. Background

         Plaintiff's violations in this case are well documented on the record, but the court highlights some events here for the reader's convenience:

• The scheduling order required the parties to submit confidential settlement reports by April 12, 2019 (ECF No. 15 at 3). Plaintiff ignored this order and did not submit her report (see ECF No. 23).
• Defendant served interrogatories, requests for production of documents, and requests for admission on April 4, 2019. Plaintiff failed to respond, and defendant was forced to file a motion to compel the discovery on June 11, 2019 (ECF No. 28). Only after the motion was filed did plaintiff serve deficient responses to the discovery requests on June 14, 2019 (ECF No. 29). Plaintiff filed no response to the motion to compel.
• On June 26, 2019, the court ordered plaintiff to address the alleged deficiencies in her responses to the interrogatories and requests for admission and, by July 10, 2019, to respond fully to the requests for production of documents (ECF No. 30). Plaintiff failed to comply with this order: as of July 12, 2019, she had produced no more than a handful of documents and had not adequately supplemented her interrogatory responses (see ECF No. 35).
• Defendant then filed a second motion to compel, which requested sanctions (ECF No. 32). Plaintiff filed no response to the motion. On July 23, 2019, the court granted the motion, stating:
Plaintiff is hereby ORDERED that by August 6, 2019, she must produce to defendant all requested documents in her possession, custody, or control, without objection, and must fully answer Interrogatory Nos. 2, 3, 7, and 9. It is important that plaintiff meet this August 6, 2019 deadline so defense counsel has adequate time to prepare for plaintiff's deposition scheduled for August 8, 2019 (ECF No. 35 at 2, emphasis in original).

         But at the time, the court declined to impose sanctions, opting instead to give plaintiff her “first warning” that sanctions, including dismissal, were likely should she fail to comply with the discovery order or stymy the completion of discovery:

At this time, the court declines to impose sanctions upon plaintiff, who is proceeding pro se and in forma pauperis. The court cautions plaintiff, however, that if she fails to comply with this discovery order or otherwise stymies the completion of discovery (including the taking of her deposition) for any unjustifiable reason, the court likely will impose sanctions. These sanctions could include dismissal of plaintiff's claims and/or the requirement that she pay the attorney fees and expenses incurred by defendant (ECF No. 35 at 2).

         Plaintiff failed to produce any documents or supplemental interrogatory responses by the deadline.

         • Plaintiff appeared for her deposition on August 8, 2019. During the deposition, plaintiff produced hard-copy documents and forwarded e-mails to defense counsel responsive to defendant's discovery requests. Plaintiff stated she had additional responsive documents that she would provide “momentarily” (see ECF No. 44-1 at 3-4).

         • But plaintiff never produced the additional documents, nor did she supplement her interrogatory responses. So, on August 19, 2019, defendant filed a motion for sanctions (ECF No. 38).

         • Pursuant to the scheduling order (ECF No. 15), as modified (ECF No. 37), the parties were required to submit a jointly proposed pretrial order by August 23, 2019. Plaintiff violated this order by failing to participate in the drafting and submission of a proposed pretrial order.

         • On August 27, 2019, the undersigned U.S. Magistrate Judge, James P. O'Hara, convened a status conference to discuss plaintiff's missed deadlines and the allegations in defendant's motion for sanctions. During the conference, the court again reminded plaintiff of her discovery obligations and her obligations to meet court-set deadlines. Plaintiff asked, and the court answered, questions about the specific steps that she must follow under the Federal Rules of Civil Procedure. The court then denied defendant's motion for sanctions without prejudice to refiling and, as noted in the written amended scheduling order filed the same day, “cautioned plaintiff that this was her ‘final warning,' and stated if she fails to comply with the deadlines set out below, the undersigned would almost certainly require her to pay defendant's attorney fees and recommend that the case be dismissed with prejudice.” (ECF No. 42 at 2, emphasis in original). The court then reset the discovery deadline to September 17, 2019, for plaintiff to (1) produce “a written response to each and every document request served by defendant, ” (2) produce “all outstanding responsive documents that are in her custody, possession, or control without asserting any objection, ” and (3) “supplement her answers to Interrogatory Nos. 2, 3, 7, and 9, and . . . sign her answers under oath.” (Id. at 2-3). The court also reset the deadline for submission of a “jointly proposed draft” pretrial order to September 23, 2019 (Id. at 3).

         II. Plaintiff's Failure to Heed the “Final Warning” and the Current State of Discovery

         Defendant filed the instant motion for sanctions on September 20, 2019, asserting plaintiff still had not complied with any part of the court's August 27, 2019 order requiring that she produce written responses to document requests, supplement her document production, and supplement her answers to Interrogatory Nos. 2, 3, 7, and 9, all by September 17, 2019. Plaintiff responded that defendant's motion was filed prematurely because the court gave her “until September 23, 2019 to comply with Defendant's Discovery Request” and, indeed, she “complied with discovery requirements” on that date.[1] Plaintiff's argument fails for at least two reasons. First, the court's order clearly set September 17, 2019, not September 23, 2019, as the deadline for plaintiff to produce discovery, thereby making plaintiff's production on September 23, 2019 late. Secondly, and more importantly, even if plaintiff's discovery production had been timely, it was nonetheless incomplete. Plaintiff's certificate of service states plaintiff served her written responses to defendant's document requests (as well as answers to requests for admission), but it says nothing about completing her document production or supplementing her answers to interrogatories.[2] The still-incomplete status of this discovery is discussed further below.

         Additionally, plaintiff failed to satisfy the court's August 27, 2019 order requiring submission of a proposed pretrial order. On September 23, 2019, defense counsel submitted defendant's version of a proposed pretrial order as an attachment to an e-mail. The body of the e-mail stated counsel had sent a copy of defendant's draft to plaintiff on September 20, 2019, but that, beyond acknowledging the September 23, 2019 submission deadline, plaintiff provided no feedback, edits, or consent to submit the draft. Plaintiff did not submit her own version of a proposed pretrial order to the court.[3]

         Despite plaintiff's clear failure to comply with the deadlines set in the court's discovery order, briefing on the instant motion (which includes a sur-reply and a sur-sur-reply), indicates plaintiff has taken some further steps to fulfill her discovery obligations.[4] There is no dispute, for example, that plaintiff produced written responses to defendant's document requests on September 23, 2019. Nor is there any dispute that plaintiff produced additional, new documents on that date. But plaintiff's pattern of producing some, but not all, of the required discovery continued.

         First, in responding to defendant's 22 document requests, on September 23, 2019, plaintiff produced documents in folders she designated as corresponding to Request Nos. 2, 4, 6, and 7, a folder of pay stubs, and a folder labeled “medical.”[5] Although plaintiff's written responses indicated she had produced or made available for inspection and copying documents in response to all 22 requests, plaintiff hasn't indicated which documents correspond to Request Nos. 1, 3, 5, or 8-22.[6] Defendant does not discuss each of these requests, but notes, as an example, that plaintiff has not produced documents responsive to Request Nos. 3, 7, and 8 about her employment before and after her employment with defendant.[7] Plaintiff's only response to this argument is that she “concedes that she may have not provided the documents in an organized fashion.”[8] This explanation obviously isn't sufficient to meet plaintiff's discovery obligations and the court's specific directive in its August 27, 2019 order that plaintiff “organize the documents in file folders labeled with their corresponding request number.”[9]

         Second, the court finds plaintiff has failed to supplement her responses to Interrogatory Nos. 2, 3, 7, and 9, despite the court ordering her to so do no less than three times. After defendant noted this omission in its reply brief, plaintiff addressed it in her sur-reply only with the conclusory statement that “Defendant has been provided with the Requested Interrogatory Answers.”[10] Plaintiff cites nothing in support of her statement, such as a certificate of service or an affidavit. Defendant, however, has submitted evidence of the contrary. The declaration of its counsel, R. Evan Jarrold, states that at no time since serving her original interrogatory responses in June 2019 has plaintiff served any supplemental responses.[11] It's therefore clear that discovery remains incomplete as to plaintiff's document production and answers to interrogatories.

         III. Sanctions

         The question now is what should be done to sanction plaintiff's past and continuing violations of the court's discovery orders and rules. Defendant argues that “dismissal is the only appropriate remedy, ”[12] but alternatively requests plaintiff be ordered to pay its attorneys' fees and costs incurred in preparing its motions to compel and motion for sanctions.[13] Plaintiff counters that her shortcomings do not rise to the level justifying dismissal and that a “monetary sanction would also be draconian.”[14] She requests instead that the court “direct[] the parties to resolve the discrepancy between themselves.”[15]

         The Federal Rules of Civil Procedure recognize that sometimes it may be necessary for the court to dismiss an action as a sanction for a plaintiff's failure to prosecute a case, participate in discovery, or comply with court orders.[16] The Tenth Circuit has directed, however, that dismissal is a severe sanction that should only be used when lesser sanctions would be ineffective.[17] In other words, dismissal is a “weapon of last, rather than first, resort.”[18] Due process requires that dismissal be based on willful discovery violations or intentional noncompliance with a court order rather than a party's inability to comply.[19] The Tenth Circuit has defined willful noncompliance as “any intentional failure as distinguished from involuntary noncompliance. No wrongful intent need be shown.”[20]

         To determine whether a plaintiff's discovery violations and/or noncompliance with court orders warrants dismissal as a sanction, the court must weigh the five factors set out by the Tenth Circuit in Ehrenhaus v. Reynolds: (1) the degree of actual prejudice to the defendant; (2) the amount of interference in the judicial process; (3) the culpability of the plaintiff; (4) whether the court warned the plaintiff that noncompliance likely would result in dismissal; and (5) whether lesser sanctions would be appropriate and effective.[21] This list of factors is non-exhaustive, and the factors are not necessarily weighted ...

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