DocketNumber: No. 06-2452-JAR
Citation Numbers: 252 F.R.D. 693
Judges: Robinson
Filed Date: 7/22/2008
Status: Precedential
Modified Date: 11/26/2022
MEMORANDUM AND ORDER
The Court now considers defendant General Motors Corporation’s (“GM”) Motion for Sanctions (Doc. 108). GM seeks sanctions, including dismissal pursuant to Fed.R.Civ.P. 37(b) and 41(b). For the reasons stated in detail below, GM’s motion is granted and this action is dismissed with prejudice.
Background
Plaintiff Lisa Gross initiated this suit on October 18, 2006. She claimed that GM had discriminated against her in violation of Title VII of the Civil Rights Act of 1964 and in violation of the Americans With Disabilities Act (“ADA”). Specifically, she claimed that GM failed to accommodate her disability, treated her differently from similarly situated employees, terminated her in retaliation for her requesting leave, and retaliated against her for requesting accommodations for her disability (Doc. 1) Additionally, she filed a Motion to Proceed in Forma Pauperis (Doc. 2) and a Motion to Appoint Counsel (Doc. 3). Her motion to proceed in forma pauperis was granted but her motion for appointment of an attorney was denied (Doc. 5). Thereafter, plaintiff filed a Motion for Reconsideration of the Court’s Order denying appointment of counsel (Doc. 6), which was granted (Doc. 12). Magistrate Judge Waxse appointed attorney Mark Meyer to plaintiffs case.
On February 25, 2007, plaintiff filed her amended complaint through her attorney. In it, she claimed sexual harassment and hostile work environment, retaliation for reporting allegations of sexual harassment and for requesting accommodations for her disability, and failure of GM to provide accommodations for her alleged bipolar disorder. On September 6, 2007, GM filed its motion for summary judgment (Doc. 38), which was granted in part and denied in part (Doc. 44).
The Court granted summary judgment with respect to plaintiffs (1) hostile work environment claim; (2) retaliation for leaving the assembly line claim; and (3) discrimination under the ADA claim. The Court, however, denied summary judgment, finding that there was a genuine issue of material fact as to whether plaintiff was retaliated against for requesting accommodations for her alleged disability.
Subsequently, plaintiff moved to withdraw her appointed counsel (Doc. 50). That motion was granted on March 25, 2008. Plaintiff continued her action pro se for five days before requesting appointment of another attorney. She filed a motion requesting the Court forward her documents (Doc. 54), a motion to order her prior attorney Mark Meyer to forward her the case file (Doe. 55), an email motion requesting appointment of counsel (Doc. 57), and a motion for leave to restate or amend her claim (Doc. 58). On May 6, 2008, the Court appointed attorney Michael Francis (Doc. 60).
After receiving notice of his appointment on May 6, 2008, Francis contacted plaintiff by email later that day, explaining that he had not yet reviewed the complaint, discovery, or depositions in plaintiffs case. Francis stated that he would probably file a motion to continue the June 2006 trial date, because he had another trial starting around that time period and that he feared he would not be prepared for trial (Doe. 61). Later that month, plaintiff, acting on her own behalf, filed a motion for the Court to withdraw her second appointed counsel (Doc. 64). In her motion, plaintiff claims that she contacted Francis on a number of occasions and he failed to give her any direction or advice. “It has been over 20 days since Mr. Francis took on this case and yet I am still [sic] to get any guidance or advise from him____ I believe Mr. Francis is wasting time.” Plaintiff also
On June 12, 2008, the Court held a telephone conference
Also during the telephone conference, the Court ruled on GM’s motion to compel discovery of plaintiffs medical records. GM stated that it had received confirmation from plaintiff on August 2, 2007, that her medical records were available, and indeed, did receive some preliminary progress sheets discussing plaintiffs medical history. GM also contacted plaintiffs former attorney, Meyer, who, while representing plaintiff, had agreed that plaintiffs medical records were relevant and would be turned over. Another pretrial conference was held on August 27, 2007, where plaintiff again agreed to provide her remaining medical records. But again, the records were not provided. On September 1, 2007, GM forwarded a subpoena to plaintiffs medical provider requesting disclosure of her medical records. The provider explained that plaintiff had not consented to such disclosure and that without her consent it would not turn over her medical records.
Pending its motion for summary judgment, GM and plaintiff decided not to pursue GM’s discovery of her medical records. After the Court ruled on summary judgment, plaintiff terminated Meyer and refused to consent to the disclosure of her records. On June 12, 2008, after hearing GM’s arguments, the Court granted its motion to compel plaintiff to release her medical records. The Court ordered plaintiff to contact her provider on June 12 or 13, 2008, and consent to the release of her records.
On June 26, 2008, plaintiff filed a motion to withdraw her request for a jury trial. A few days later, GM filed its current motion for sanctions, including dismissal. On July 2, 2008, the Court held another telephone conference with the parties, to hear plaintiffs motion to withdraw her jury request and GM’s motion for sanctions. Plaintiff had not yet filed a written response, so the Court told plaintiff that the Court would rule on the motion after plaintiff had an opportunity to respond in writing. After reviewing plaintiffs right to a jury trial and explaining to her the consequences of her motion, the Court granted plaintiffs request to withdraw her request for a jury trial. Additionally, the Court ordered plaintiff to file a response to GM’s motion for sanctions, which she did on that same day.
In her response, plaintiff explained that “THE DEFENDANT IS LYING!!! through its counsel.” She claimed that she did not
Sanctions Under Fed. R. Civ. P 37(b) and 41(b)
Rule 37(b) provides that “[i]f a party ... fails to obey an order to provide or permit discovery, including an order under Rule 37(a),” the Court may dismiss the action in whole or in part.
When considering dismissal under Rules 37 and 41, the Court should consider a list of non-exhaustive factors.
Considering the first factor, it is apparent that GM has suffered prejudice in preparing for trial. GM requested the medical records over one year ago and has still not received the information. It is obvious that GM has suffered prejudice as the evidence it seeks is essential to its defense and relevant to plaintiffs claim, as this Court noted during the telephone conference, and as plaintiffs former attorney acknowledged.
Not only is GM prejudiced because it has not received the medical records, it has had to contend with mounting attorney’s fees in prosecuting this claim after the summary judgment ruling; it has had to prepare for two telephone conferences, prepare motions to compel disclosure, as well as reply to plaintiffs many responses and motions in opposition. Not to mention, GM has also had to file responses to plaintiffs many motions seeking to start the process anew and for the
The second factor is the degree of interference with the judicial process. Here, plaintiff, by willfully disobeying the Court’s orders, “flouted the court’s authority.”
A litigant’s culpability is the third factor. Here, GM has not received any medical records since the summary judgment order was rendered five months ago. Furthermore, plaintiff has no one to blame but herself. GM states that it has contacted her medical provider on a number of occasions, only to be told that plaintiff has failed to sign a release granting the medical provider the authority to release the records. In fact, when confronted by the Court during the June 12 telephone conference, plaintiff contended that the documents were not relevant. Additionally, plaintiff cannot blame her attorneys for such failure to disclose because of any acts and omissions of counsel are attributable to the client.
Considering the fourth factor, the Court is aware that plaintiff was not explicitly warned that dismissal was a sanction. But, under the Ehrenhaus factors, notice is not a prerequisite for dismissal
Consequently, having addressed the Ehrenhaus factors, the Court is convinced that dismissal with prejudice under Fed.R.Civ.P. 87(b) and 41(b) is appropriate.
IT IS THEREFORE ORDERED BY THE COURT that Defendant General Motors Corporation’s Motion for Sanctions, Including Dismissal (Doc. 108) is GRANTED.
IT IS FURTHER ORDERED that this action is dismissed with prejudice.
IT IS SO ORDERED.
. During the telephone conference the Court denied plaintiff’s motion requesting the Court forward her documents (Doc. 54) and her motion to order her prior attorney Mark Meyer to forward her the case file (Doc. 55).
. The Court also notes that it sent an email to plaintiff’s former attorney inquiring as to whether her case file was forwarded. Mr. Meyer stated that it was.
. In addition to her motion to restate her claims, plaintiff filed a number of motions requesting either to start the process anew or for judgment. Additionally, she filed two motions (Docs. 89, 97) for "reconsideration” of the Court’s summary judgment order, which were denied.
. Fed.R.Civ.P. 37(b)(A)(v).
. Fed.R.Civ.P. 41(b).
. LaFleur v. Teen Help, 342 F.3d 1145, 1151 (10th Cir.2003).
. Ehrenhaus v. Reynolds, 965 F.2d 916, 920 (10th Cir.1992).
. LaFleur, 342 F.3d at 1151.
. Procter & Gamble Co. v. Haugen, 427 F.3d 727, 738 (10th Cir.2005).
. See Ecclesiastes 9:10-11-12, Inc. v. LMC Holding Co., 497 F.3d 1135, 1143-44 (10th Cir.2007) (utilizing the Ehrenhaus factors in a Rule 41 scenario); Procter & Gamble, 427 F.3d at 738 (using the Ehrenhaus factors in a Rule 37 context).
. LaFleur, 342 F.3d at 1151 (citing Gripe v. City of Enid, 312 F.3d 1184, 1188 (10th Cir.2002)).
. Chavez v. City of Albuquerque, 402 F.3d 1039, 1044 (10th Cir.2005).
. See Ecclesiastes 9:10-11-12, Inc., 497 F.3d at 1145 (finding prejudice to defendant where plaintiff failed to be deposed on an issue that was essential to the claims).
. See Jones v. Thompson, 996 F.2d 261, 264 (10th Cir.1993) (finding prejudice to movant where plaintiffs caused delay, failed to show for depositions, failed to show for pretrial conference, resulting in an accumulation of attorney's fees for the opposition).
. Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir.1992) (reasoning that ignoring court orders without suffering the consequences would inhibit the court from administering justice).
. LaFleur, 342 F.3d at 1152 (noting that the magistrate judge’s attempt to "hold hearings in a futile attempt to accomplish discovery” interfered with the judicial process).
. Not only did the Court deal with what plaintiff filed on the electronic system, it had to reconcile her many emails with her motions, contact GM so as not to take part in ex parte communications, and inform GM of the numerous paper motions, including a taped recording that was mailed to Chambers. Moreover, on the day that the Court held a second telephone conference and granted her motion to “withdraw request for a jury trial,” the Court received plaintiff's response to GM's motion for sanctions, which stated that plaintiff would like to withdraw her motion to "withdraw request for a jury trial.”
. LaFleur, 342 F.3d at 1152.
. Ehrenhaus, 965 F.2d at 921.
. See Ecclesiastes 9:10-11-12, Inc. v. LMC Holding Co., 497 F.3d 1135, 1149 (10th Cir.2007).
. Ehrenhaus, 965 F.2d at 922.
. See Chavez v. City of Albuquerque, 402 F.3d 1039, 1045 (10th Cir.2005) (dismissing an action without prior warning where plaintiff perjured himself during discovery); Archibeque v. Atchison, Topeka & Santa Fe Ry. Co., 70 F.3d 1172, 1175 (10th Cir.1995) (dismissing action without notice to plaintiff that dismissal was imminent).
. See Ecclesiastes 9:10-11-12, Inc., 497 F.3d at 1150 (stating that though the district court did not promise dismissal, "it certainly left open, if not highlighted, such a possibility.”).
. See Hobratschk v. Perretta, 210 F.3d 389, No. 99-1293, 2000 WL 313530 at *2 (10th Cir. Mar. 28, 2000) (stating that a district court need not impose lesser sanctions before dismissal with prejudice).
. See Jones v. Thompson, 996 F.2d 261, 265-66 (10th Cir.1993) (stating that lesser sanctions would not be effective where plaintiff repeatedly ignored court orders).
. Jones, 996 F.2d at 265-66 (quoting Nat’l Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639, 643, 96 S.Ct. 2778, 49 L.Ed.2d 747 (1976)).
. See generally Ashby v. McKenna, 110 Fed. Appx. 86, 87-88 (10th Cir.2004) (finding that because plaintiff "unduly hampered reasonable efforts to obtain his medical records,” dismissal with prejudice was appropriate).