Opinion
Case No. 3:18-cv-00317-AC
12-11-2018
VALERIE DICKSON, Plaintiff, v. MCMENAMINS, INC., Defendant.
FINDINGS AND RECOMMENDATION :
Introduction
Currently before the court is defendant McMenamins, Inc.'s ("McMenamins"), motion to dismiss with prejudice and for sanctions based on the failure of plaintiff Valerie Dickson ("Dickson") to timely respond to discovery requests or appear for a deposition. The court finds Dickson was not responsible for the discovery violations and should not be punished by the dismissal of this action. Similarly, McMenamins should not be prejudiced by Dickson's discovery violation and Dickson's attorney should be required to reimburse McMenamins for all attorney fees and costs incurred as a result of the discovery violations. Accordingly, McMenamins' motion should be granted in part and denied in part.
McMenamins requested oral argument in their motion. The court finds this motion appropriate for disposition without oral argument, pursuant to LR 7-1(d)(1), and denies the request.
Background
On February 20, 2018, McMenamins timely removed this case from the Circuit Court of the State of Oregon for the County of Multnomah after Dickson filed her Amended Complaint on February 9, 2018 (the "Complaint") in which she alleged a federal claim for the first time. (Notice of Removal of Action under 28 U.S.C. §§ 1331, 1441, and 1446, ECF No. 1 ("Notice"), ¶¶ 1, 3, 5.) In the Complaint, Dickson alleges McMenamins, her former employer, terminated her for testifying in a civil case, discriminated against her based on her gender, and engaged in conduct intended to inflict severe emotional distress on her. (Notice, Ex. 2.)
At the time of removal, Dickson had not produced documents requested by McMenamins on December 12, 2017. (O'Connor Decl. dated September 24, 2018, ECF No. 13, ¶ 2.) In fact, McMenamins did not obtain the documents until April 2018, when it sent a messenger to the office of Dickson's attorney to obtain, copy, and number the documents before returning them. (O'Connor Decl. ¶ 2.) Thereafter, Dickson's attorney failed to communicate with McMenamins's counsel, provide input on a stipulated protective order, respond to a first set of interrogatories, or facilitate the scheduling of Dickson's deposition. (O'Connor Decl. ¶¶ 3-7.) Eventually, McMenamins unilaterally scheduled Dickson's deposition for September 21, 2018, and served her attorney with notice of the deposition on August 29, 2018. (O'Connor Decl. ¶ 8.) Neither Dickson nor her attorney appeared at the deposition. (O'Connor Decl. ¶ 9.) Later that day, Dickson's attorney represented he was not aware of the deposition, but did not dispute he was properly noticed, and admitted he "had not kept up on the case." (O'Connor Decl. ¶ 10.) McMenamins filed the instant motion seeking dismissal of the case with prejudice and recovery of attorney fees and costs as sanctions under rule 37(d)(1)(A) of the Federal Rules of Civil Procedure ("Rule 37(d)").
Dickson opposes the motion, asserting the failure to participate in discovery was the result of an illness suffered by her attorney, was not willful or in bad faith, and outside her control. Dickson represents she was not aware of her attorney's condition, the ignored discovery requests, or the scheduling of her deposition. (Dickson Decl. dated October 19, 2018, ECF No. 29, ¶¶ 3, 4.)
As the parties are aware of the details of the attorney's illness, the court will not include any details here. --------
Legal Standard
Rule 37(d) permits district courts, in their discretion, to impose sanctions where:
(i) a party or a party's officer, director, or managing agent—or a person designated under Rule 30(b)(6) or 31(a)(4)—fails, after being served with proper notice, to appear for that person's deposition; orFED. R. CIV. P. 37(d)(1)(A)(i), (ii) (2018). The sanctions that may be imposed pursuant to Rule 37(d) include the following:
(ii) a party, after being properly served with interrogatories under Rule 33 or a request for inspection under Rule 34, fails to serve its answers, objections, or written response.
(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;FED. R. CIV. P. 37(d)(3) (2018); see also FED. R. CIV. P. 37(b)(2)(A)(i)-(vi) (2018). "Instead of or in addition to these sanctions, the court must require the party failing to act, 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.(d)(3). The burden to establish that noncompliance with the requirements of Rule 37(d) was substantially justified, or that special circumstances would render the imposition of sanctions inappropriate, is on the party facing sanctions. See Hyde & Drath v. Baker, 24 F.3d 1162, 1171 (9th Cir. 1994).
(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.
Discussion
The court finds the sanction of dismissal of the action inappropriate. Such sanction would unduly prejudice Dickson, who is not responsible for the discovery violations. Moreover, the violations were the result of circumstances not in Dickson's control; neither Dickson nor her attorney caused, or had control, over the attorney's illness. Dickson has now retained new counsel, who is prepared to move quickly through discovery, get the case back on track, and avoid any additional prejudice to McMenamins caused by the delay resulting from the discovery violations.
Monetary sanctions to reimburse McMenamins for attorney fees and costs incurred as a direct result of the discovery violations are the appropriate sanction under Rule 37(d). Dickson's attorney, not Dickson, shall reimburse McMenamins for costs related to Dickson's unattended deposition, including court reporter fees and attorney fees to attend the deposition; attorney fees incurred to prepare for the deposition (taking into account McMenamins will benefit to some degree from such preparation when preparing for the newly scheduled deposition of Dickson); and attorney fees related to the preparation of the motion to dismiss. McMenamins may not recover for attorney fees related to emails or phone calls attributed to following up on discovery requests or for attorney fees incurred in preparing the reply to the instant motion to dismiss.
The court directed the parties to confer on the appropriate amount of sanctions at a November 14, 2018 status conference. In the event this Findings and Recommendation is adopted, Dickson's attorney is to pay McMenamins the agreed-upon amount within fourteen days of the date on which the order adopting this Findings and Recommendation is filed. If the parties are unable to reach agreement on the appropriate amount of sanctions, the parties shall contact the court on or before the end of the fourteen day time period.
Conclusion
McMenamins' motion (ECF No. 12) to dismiss with prejudice and for monetary sanctions should be GRANTED in part and DENIED in part. McMenamins' motion to dismiss should be DENIED. McMenamins' motion for monetary sanctions should be GRANTED and Dickson's attorney ordered to reimburse McMenamins for costs incurred as a result of Dickson's discovery violations as set forth herein.
Scheduling Order
The Findings and Recommendation will be referred to a district judge for review. Objections, if any, are due December 28, 2018. If no objections are filed, then the Findings and Recommendation will go under advisement on that date.
If objections are filed, then a response is due within fourteen (14) days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.
DATED this 11th day of December, 2018.
/s/ John V. Acosta
JOHN V. ACOSTA
United States Magistrate Judge