Computer Programs & Systems, Inc. et al v. Texas General Hospital et al

Filing 142

MEMORANDUM OPINION & ORDER, Plfs' 101 Motion to Dismiss Counterclaim for Failure to Prosecute is DENIED as to its request for dismissal under Rule 41(b) for failure to prosecute as set out. Lesser sanctions are imposed as set out. The evide nce Dfts may use to support their counterclaims is limited to the documents they produced to Plfs prior to close of discovery on 5/26/2020 & any matters received from Plfs in the discovery process. Signed by District Judge Terry F. Moorer on 7/13/2020. (tot)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
COMPUTER PROGRAMS &
SYSTEMS, INC., et al.,
Plaintiffs/Counter Defendants,
vs.
TEXAS GENERAL HOSPITAL, et al.,
Defendants/Counter Claimants.

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CIV. ACT. NO. 1:18-cv-112-TFM-N

MEMORANDUM OPINION AND ORDER
Pending before the Court is Plaintiffs’ Motion to Dismiss Defendants’ Counterclaim for
Failure to Prosecute (Doc. 101, filed 3/16/2020), Defendants’ Response to Plaintiffs’ Motion to
Dismiss Defendants’ Counterclaim for Failure to Prosecute (Doc. 110, filed 4/7/2020), and
Plaintiffs’ Reply in Support of Motion to Dismiss Defendants’ Counterclaim for Failure to
Prosecute (Doc. 111, filed 4/15/2020). The motion, as it pertained to allegations of discovery
violations, was referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and S.D.
Ala. GenLR 72(a). On June 10, 2020, the Magistrate Judge entered a report and recommendation
which recommends the request for dismissal under Fed. R. Civ. P. 41(b) be denied, but that lesser
sanctions should be imposed under Fed. R. Civ. P. 37(b)(2)(A)(ii). Both parties timely objected
on June 24, 2020. See Docs. 130, 131. No responses to the objections were filed. Therefore this
matter is ripe for review.
Defendants object to several findings and the ultimate recommendation made by the
Magistrate Judge.

See Doc. 130.

First, though Defendants do not object regarding the

recommendation on denying the motion to dismiss, they do object to the recommendation of lesser
sanctions and instead argue that no sanctions are appropriate. They also object to particular
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findings made by the Magistrate Judge. The Court has reviewed those objections and finds they
lack merit with one small exception. Defendants state “TGH should be permitted to use its initial
production of approximately 400 pages of documents along with the additional documents it has
since produced to Plaintiffs prior to the close of discovery on May 26, 2020, as well as [Plaintiffs’]
discovery responses and production, deposition testimony, and witness testimony.” Id. at 2. This
objection also relates specifically to the “limited” objection filed by the Plaintiffs. See Doc. 131.
Plaintiffs request that “the Report be modified so that Defendants are limited to solely using the
405 pages of documents they produced to Plaintiffs in April 2019 and the documents they produced
on May 14, 2020. Defendants should be prohibited from using any other evidence, including the
documents referenced below that were produced on May 26, 2020.”
In response to Defendants’ objection, the Court does not read that it was the Magistrate
Judge’s intention to preclude Defendants from utilizing any of the discovery it received in turn
from the Plaintiffs. Rather, that Defendants are prohibited from introducing any evidence has not
been produced to Plaintiffs in the discovery process. However, to the extent the sanction was not
clear, this is how the Court intends to apply it at this time.
With regard to the Plaintiffs’ limited objection, the Court finds that the objection is not the
appropriate mechanism to bring up its concerns regarding the last minute “discovery dump.” This
discovery was issued after the briefing on the instant motion and also not something that the
Magistrate Judge would have been aware of when she issued her Report and Recommendation, as
Plaintiffs themselves note. Doc. 131 at 3, n. 2. Further, it was not raised by Plaintiffs in the days
after it was done, but rather raised almost a month later in response to the Report and
Recommendation. The Court finds that to the extent there was an issue with the last minute
discovery, it is more appropriate to raise the issue by separate motion such that the Court may have

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sufficient briefing to determine whether the 600+ pages are appropriate to address within the
sanction. As the current briefing on the summary judgments has been suspended prior to resolving
the issue of sealing, there is no prejudice to the parties. To the extent still necessary, the Court
will allow an appropriate motion to be filed on this issue, but will not address it here. Therefore,
Plaintiffs’ objection is also overruled.
In conclusion, after due and proper consideration of all portions of this file deemed relevant
to the issue raised, and a de novo determination of those portions of the Report and
Recommendation to which objection is made, the objections are overruled and the Report and
Recommendation of the Magistrate Judge made under 28 U.S.C. § 636(b)(1)(B) is ADOPTED as
the opinion of this Court.
Accordingly, it is ORDERED as follows:
(1) Plaintiffs’ Motion to Dismiss Defendants’ Counterclaim for Failure to Prosecute (Doc.
101) is DENIED as to its request for dismissal under Rule 41(b) for failure to
prosecute;
(2) Lesser sanctions are imposed on Defendants under Federal Rule of Civil Procedure
37(b)(2)(A)(ii).

Specifically, the evidence Defendants may use to support their

counterclaims in this action, both at summary judgment and at trial, is limited to the
documents they produced to Plaintiffs prior to the close of discovery on May 26, 2020
and any matters received from Plaintiffs in the discovery process. No evidence outside
of this shall be permitted to support the counterclaims.
DONE and ORDERED this 13th day of July 2020.
/s/ Terry F. Moorer
TERRY F. MOORER
UNITED STATES DISTRICT JUDGE

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