Smith v. AFSCME Council 4 et al

Filing 188

ORDER granting in part and denying in part 162 Motion to Preclude; denying 169 Motion to Strike; denying 171 Motion to Strike; denying 171 Motion for Default Judgment; granting in part and denying in part 172 Motion to Preclude; denying 172 Motion to Strike; granting 183 Motion for Extension of Time. See attached ruling for new deadlines. Signed by Judge Donna F. Martinez on 5/13/11. (Turner, M.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
WANDA A. SMITH,
Plaintiff,
v.
AFSCME COUNCIL 4, ET AL.
Defendants.

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CASE NO. 3:08cv1735(RNC)

RULING ON DISCOVERY MOTIONS
Pending before the court are a series of discovery motions:
defendant AFSCME International's Motion to Strike or Preclude
Plaintiff's Damage Analysis (doc. #162), defendant AFSCME
International's Motion to Strike, for Entry of a Default Judgment
and for Dismissal (doc. #169), defendant Council 4's Motion to
Strike, for Entry of a Default Judgment and for Dismissal (doc.
#171), and defendant Council 4's Motion to Strike or Preclude
Plaintiff's Damage Analysis (doc. #172).1

Also pending is the

plaintiff’s Motion to Modify Scheduling Order (doc. #183).

Oral

argument on these motions was held on April 28, 2011.
A.

Defendants’ Motions to Strike or Preclude the Plaintiff’s
Damages Analysis, docs. #162, 172
Both defendants seek relief under Fed. R. Civ. P. 37(b) due

to plaintiff’s failure to comply with a court order requiring the
plaintiff to produce a supplemental damage analysis.
motions have a history.

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These

Last fall, both defendants filed motions

Another discovery motion, Council 4's Motion to Compel
(doc. #181) is pending but is not yet ripe.

objecting to the plaintiff’s damage analysis as insufficient.
(See docs. #114, 134.)

The original damage analysis merely

stated that the plaintiff sought “noneconomic damages, in an
amount to be determined.”
After oral argument, by order dated January 31, 2011, the
court ordered the plaintiff to submit a supplemental damage
analysis.

(Doc. #154.)

The court specified the following items

to be included in the damage analysis:
If the plaintiff alleges any economic loss, including
but not limited to medical bills, lost wages, or loss of
earning capacity, she must provide a computation of
those damages. If, as the plaintiff has suggested, she
seeks only non-economic damages, then she must fully set
forth each category of non-economic damages she claims
(e.g, emotional distress or damage to reputation) and
produce all documents or other evidence she may use to
support each claim, as well as a list of witnesses she
may call to support the claims. In addition, plaintiff
shall summarize any medical treatment arising out of her
alleged emotional distress, setting forth the names of
any medical providers and the dates and frequency of
treatment.
(Doc. #154.)
The defendants’ current motions argue that the plaintiff
failed to comply with that order.

On February 15, 2011,

plaintiff submitted a Revised Damages Statement stating that she
claimed four categories of damages: (1) loss of
reputation/career; (2) humiliation and embarrassment; (3)
emotional distress, mental anguish and fear; and (4) punitive

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damages.2
Plaintiff produced no documents in support of her damages–
no witness lists, no exhibit lists, no medical records, and no
other documentation of any sort.

The defendants argue that the

plaintiff has violated a court order.

They now seek an order

pursuant to Fed. R. Civ. P. 37(b) precluding any evidence of
damages, striking her damages claim from the complaint, and
reimbursing them for their attorney’s fees relating to these
motions.

Notably, the plaintiff did not file a timely objection

to defendant AFSCME’s motion and did not seek an extension to do
so.

She did object to Council 4's motion, arguing that the

defendants have not been prejudiced and that documentary evidence
is not needed to prove her noneconomic damages.
At oral argument, for the first time, the plaintiff’s
attorney conceded that her client has had no medical treatment in
connection with her non-economic damages, that she does not
intend to offer any documents to prove those non-economic
damages, and that she does not intend to call any witnesses other
than the plaintiff herself to prove the alleged non-economic
damages.

She also agreed that her client seeks only non-economic

damages in the categories set forth in her Revised Damages
Statement and has sustained no economic loss.

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Plaintiff seeks $75,000 for each category from each
defendant, for a total of $300,000 from each defendant.
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The plaintiff did not comply with the court’s order.

In

light of the plaintiff’s concessions in open court, the
defendants’ motions are GRANTED IN PART.

The plaintiff will be

precluded at trial from offering any evidence other than her own
testimony in support of damages.

The plaintiff will also be

precluded from seeking economic damages.
The defendants’ requests for attorney’s fees are granted.
To comply with the court’s January 31, 2011 order, the
plaintiff’s attorney had only to notify the defendants that she
intended to rely exclusively on plaintiff’s own testimony and
that there were no witnesses, evidence or medical records to
disclose.

Instead, she submitted a noncompliant statement of

damages and then compounded the matter by failing to respond to
one defendant’s motion and responding evasively to the other
defendant’s motion.

Even when oral argument was scheduled, she

did not provide any clarification or detail.

All of this

resulted in unnecessary wasted time and attention by the court
and the defendants (not to mention the plaintiff herself).
Therefore, at the conclusion of this case, the defendants
may submit affidavits setting forth the reasonable costs and fees
incurred in connection with the preparation and argument of their
motions, docs. #162 and 172.

The plaintiff’s attorney, not her

client, will be responsible for any fees awarded.

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B.

Defendant AFSCME International’s Motion to Strike, for Entry
of a Default Judgment and for Dismissal, doc. #169
Last November, defendant AFSCME International filed a Motion

to Compel, arguing that the plaintiff had failed to fully respond
to its written discovery requests served in June 2010.

The

court’s January 31, 2011 order granted in part the defendant’s
motion, requiring the plaintiff to supplement her responses by
February 22, 2011.3
The plaintiff not only missed the February 22 deadline but
still had not provided any supplementary responses by the time of
oral argument on April 28, 2011.

The defendant, citing Fed. R.

Civ. P. 37(b), seeks as relief “the striking of all of her
pleadings, the issuance of a default judgment in Defendant's
favor and the dismissal of the Second Amended Complaint with
Prejudice."

The defendant also seeks its attorney’s fees.

Plaintiff’s objection to the motion offers no explanation or
excuses, only an argument that the discovery was not particularly

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At oral argument held on January 20, 2011, plaintiff’s
counsel explained that part of the reason for the delay was that
she had not yet had time to fully review the defendants' document
production. The production consisted of 18 boxes made available
at the offices of defense counsel on Long Island. Her client
could not afford to copy the documents, and counsel had
difficulty finding time on a weekday to travel to counsel’s
offices. In court, it was agreed that plaintiff's counsel would
review the documents on a Saturday, February 5, and would
supplement plaintiff’s responses within a week after that. (See
Transcript, doc. #155 at 53.) The court allowed even more time
than requested, ordering plaintiff to supplement by February 22.
(Doc. #154.)
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important and the defendants were not prejudiced.

Since then,

the plaintiff’s attorney has informed the court of her very busy
litigation schedule in recent weeks, including a trial and
briefing of nine different motions.

(See doc. #183.)4

The defendant’s motion is DENIED WITHOUT PREJUDICE.

The

plaintiff shall supplement her responses, as previously ordered,
on or before May 31, 2011.
deadline will be granted.

No further extensions of that
The defendants reasonably request that

they receive the discovery and have some time to review it before
deposing the plaintiff.

Defendants may have until June 22, 2011

to depose the plaintiff.
C.

Defendant Council 4's Motion to Strike, for Entry of a
Default Judgment and for Dismissal, doc. #171
Defendant Council 4 moves for relief under Fed. R. Civ. P.

37(b), asking the court to strike or dismiss the plaintiff’s
complaint and enter default judgment because the plaintiff has
not responded in full to its discovery requests.
Fed. R. Civ. P. 37(b) addresses failure to comply with a
court order.

The plaintiff has not previously been ordered by

the court to comply with this discovery, and a 37(b) motion is

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Plaintiff filed a motion for extension of her deadline on
February 22, 2011 but offered no explanation in that motion
resulting in the motion being denied for lack of good cause
shown. (See docs. #164-67.) Plaintiff did not refile the motion
specifying her good cause. Rather, the plaintiff’s attorney
first explained her circumstances in doc. #183, a motion for
extension of time filed on April 25, 2011.
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therefore premature.

Moreover, it appears that the ground has

shifted since the filing of the motion, with plaintiff
subsequently providing at least partial responses to the
discovery requests.

In addition, Council 4 has since filed a

Motion to Compel, which appears to more clearly reflect the
current state of discovery and is a more appropriate way to
handle the dispute.

Therefore, the Motion to Strike, for Entry

of a Default Judgment and for Dismissal, doc. #171, is DENIED AS
MOOT.
The court will take up the pending Motion to Compel, doc.
#181, when it is fully briefed.

However, the parties are urged

to attempt to resolve this discovery dispute without court
intervention.

As discussed at oral argument, the plaintiff is

required to identify by Bates stamp any previously produced
documents that are responsive to Council 4's production requests.
D.

Plaintiff’s Motion to Modify Scheduling Order, doc. #183
The discovery deadline expired on April 30, 2011.

On April

25, 2011, five days before the date when all discovery should
have been completed, the plaintiff filed a motion to extend that
deadline by 30 days.

Counsel explained how busy her schedule has

been in recent weeks and sought an extension to May 31, arguing
that “[t]his additional thirty days is required within which to
complete Plaintiff’s discovery.”

(Doc. #183.)

The plaintiff’s motion is GRANTED in that the discovery

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deadline is extended to May 31, 2011 for plaintiff to complete
all currently pending discovery (not to propound new discovery).
The defendants shall have until June 22, 2011 to complete the
plaintiff’s deposition.
This is not a recommended ruling.

This is a discovery

ruling and order which is reviewable pursuant to the
“clearly erroneous” statutory standard of review. 28 U.S.C.
§ 636(b)(1)(A); Fed. R. Civ. P. 72(a); and D. Conn. L. Civ.
R. 72.2.

As such, it is an order of the Court unless

reversed or modified by the district judge upon motion
timely made.
SO ORDERED at Hartford, Connecticut this 13th day of May,
2011.
__________/s/_________________
Donna F. Martinez
United States Magistrate Judge

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