Allen v. Bellsouth Telecommunications LLC

Filing 21

MEMORANDUM OPINION. Signed by Magistrate Judge John E Ott on 2/18/2016. (AVC)

FILED
2016 Feb-18 AM 10:17
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ANIKA ALLEN,

)
)
Plaintiff,
)
)
v.
)
)
BELLSOUTH TELECOMMUNICATIONS, LLC, )
d/b/a AT&T SOUTHEAST,
)
)
Defendant.
)

2:15-cv-01270-JEO

MEMORANDUM OPINION
In this action Plaintiff Anika Allen, who is acting pro se, claims that her former
employer, Defendant BellSouth Telecommunications, LLC d/b/a AT&T Southeast
(“BellSouth”), violated her rights under the Americans with Disabilities Act, 42 U.S.C. § 12101
et seq. (Doc. 1). The parties have consented to an exercise of plenary jurisdiction by a
magistrate judge pursuant to 28 U.S.C. § 636(c). (Doc. 12). Now before the court is BellSouth’s
motion to dismiss this action as a sanction under FED. R. CIV. P. 37. (Doc. 20). The court finds
that the motion is due to be granted.
On January 14, 2015, BellSouth moved to compel discovery, alleging that Allen had
failed to serve responses to BellSouth’s interrogatories and requests for production. (Doc. 16).
The court entered an order requiring Allen to show cause in writing why the motion to compel
should not be granted or, in lieu of such filing, to serve the discovery responses sought by
BellSouth and notify the court that she had done so, by February 1, 2016. (Doc. 17). That date
came and went without Allen filing anything in this court. Allen did not provide BellSouth with
any discovery responses either, for BellSouth filed a motion on February 2, 2016, asking the

court to dismiss the action as a sanction under Rule 37. (Doc. 18). The court denied that motion
on the ground that the court had previously only ordered Allen to show cause why BellSouth’s
motion to compel was not due to be granted, so a dismissal of the action for failure to provide
discovery responses would be premature. (Doc. 19). However, the court’s order further granted
BellSouth’s motion to compel discovery and required her to serve her discovery responses by
February 14, 2016. (Id.) Finally, the court advised that, if Allen were to fail to comply with the
court’s order to compel, BellSouth might file a renewed motion for sanctions and that Allen’s
claims might be dismissed with prejudice as a result. (Id.) BellSouth is now back, again asking
for dismissal as a sanction under Rule 37 because Allen failed to serve any discovery responses
within the deadline set by the court’s prior order. (Doc. 20).
FED. R. CIV. P. 37(a) authorizes a court, upon motion, to issue an order compelling a
party to provide responses to discovery requests, including to answer interrogatories under FED.
R. CIV. P. 33 and to produce documents under FED. R. CIV. P. 34. If a party fails to obey an
order to provide discovery, including an order under Rule 37(a), the court may issue further “just
orders,” which may include an order “dismissing the action or proceeding in whole or in part.”
FED. R. CIV. P. 37(b)(2)(A)(v). Dismissal under Rule 37(b)(2) is an extreme sanction but is
within the district court’s discretion “where a party engages in a clear pattern of delay or willful
contempt (contumacious conduct); and the district court specifically finds that lesser sanctions
would not suffice.” Pippen v. Georgia-Pacific Gypsum, LLC, 408 F. App’x 299, 303 (11th Cir.
2011) (quoting Betty K. Agencies Ltd. v. M/V MONADA, 432 F.3d 1333, 1337-38 (11th Cir.
2005)).
Here, Allen has engaged in a clear pattern of contumacious conduct. She originally filed
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the action, was granted leave to proceed in forma pauperis, and then participated by phone in a
Rule 26(f) scheduling conference on November 16, 2015. (See Doc. 14). But since then, she has
wholly failed to participate in the action. She initially failed to serve her responses to valid
discovery requests, failed to communicate with defendant’s counsel, and failed to respond to the
court’s show cause order or otherwise offer any excuse for her failure to comply with her
discovery obligations. She has now failed to comply with the court’s order compelling
discovery. Despite reminders by the court that her pro se status does not excuse her from
compliance with court rules and orders (Docs. 17) and an explicit warning that her action might
be subject to dismissal if she continued to ignore her obligations as a litigant (Doc. 19), she has
continued on that course without offering any excuse or explanation. Because the court further
finds that a lesser sanction would not suffice, BellSouth’s motion for a dismissal with prejudice
as a Rule 37(b) sanction is due to be GRANTED. A separate final order will be entered.
DONE this 18th day of February, 2016.

___________________________
JOHN E. OTT
Chief United States Magistrate Judge

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