Kellogg et al v. J.C. Penney Corp., Inc et al

Filing 46

ORDER granting in part and denying in part 36 Motion to Dismiss. Signed by Judge Donna F. Martinez on 1/25/13. (Nichols, J.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
EMILY KELLOGG et al.,
Plaintiffs,
v.
J.C. PENNEY CORP., INC et
al.,
Defendants.

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CASE NO. 3:11CV733(RNC)

RULING OF SANCTIONS
Pending before the court is defendants' Second Motion for
Involuntary Dismissal, doc. #36.

District Judge Robert N.

Chatigny referred the motion to the undersigned for a ruling.
(Doc. #41.)

As set forth below, the motion is denied as to

dismissal but granted as to monetary sanctions.
A.

Procedural History

In April 2011, plaintiff Emily Kellogg brought this
premises liability action in state court alleging injury
suffered as the result of a slip-and-fall in a J.C. Penney store
in Waterbury.1
this court.

In May 2011, defendants removed the action to

(Doc. #1.)

In August 2011, Judge Chatigny ordered

the parties to complete discovery by February 3, 2012.

(Doc.

#15.)
1

At oral argument, plaintiffs' counsel represented that
Richard Kellogg, the second plaintiff, will file a voluntary
dismissal of his bystander emotional distress claim.

At their Rule 26(f) conference, counsel agreed that they
would respond to one another's discovery requests by October 3,
2011.

Plaintiff did not do so.

On December 5, 2012, two days

before her scheduled deposition, plaintiff answered
interrogatories, produced emergency room records and indicated
that physical therapy and primary care records would be
forthcoming.

Unable to prepare fully for the deposition,

defendants' counsel was forced to cancel it.
On December 7, 2011, defendants filed a motion to compel
discovery.

(Doc. #17.)

response of any kind.

The plaintiff filed no objection or
Magistrate Judge Martinez granted the

motion and ordered plaintiff to supplement her discovery by
March 22, 2012.

(Doc. #19.)

Plaintiff did not comply.

On March 23, 2012, defendants filed their first Rule 37
motion to dismiss.

(Doc. #20.)

Plaintiff waited until August

24, 2012 to file an opposition to the motion.2

(Docs. #25, #26.)

In that opposition, she represented that she would produce the
missing discovery by the end of August 2012.
She did not.

(Doc. #25 at 2.)

On October 3, 2012, Judge Martinez heard oral

argument on the motion to dismiss.

Plaintiff's counsel

represented that noncompliance with discovery orders was the
fault of a former associate, and she assured the court that she
2

Plaintiff's counsel said she did not know that the motion
had been filed (although she approved a March 30, 2012 status
report that mentioned the pendency of the motion).
2

would give the case top priority.

Deciding against involuntary

dismissal, the court ordered plaintiff to produce certain
supplemental discovery, addressed other "housekeeping" matters
and amended the case deadlines.

(Doc. #31.)

Plaintiff did not

timely comply with the amended discovery deadlines.
On November 5, 2012, defendants filed the pending Rule 37
Motion to Dismiss representing that plaintiff again failed to
comply with discovery deadlines.
respond.

(Doc. #36.)

Plaintiff did not

On December 20, 2012, Judge Martinez heard oral

argument on the motion.

Just prior to the hearing, plaintiff

produced authorizations to release her medical records.
Plaintiff's counsel argued that the failure to mail timely
discovery responses was attributable in part to the firm's
clerical staff and also to some extenuating personal
circumstances3 that had lasted for some time and affected the
handling of the case.
B.

Discussion

A district court may sanction a party who fails to comply
with a discovery order of that court, including dismissing the
action in whole or in part.

See Fed. R. Civ. P. 37(b)(2)(A)(v).

Disciplinary sanctions under Rule 37 are intended to "ensure
that a party will not benefit from its own failure to comply,"

3

Plaintiff's counsel provided the court with a more thorough
description at the hearing.
3

to obtain specific compliance and "to serve a general deterrent
effect on the case at hand and on other litigation."

Southern

New England Telephone Co. v. Global NAPs Inc., 624 F.3d 123, 149
(2d Cir. 2010).

In exercising its discretion to impose Rule 37

sanctions, the court is guided by the following factors: (1) the
willfulness of the noncompliance; (2) the efficacy of lesser
sanctions; (3) the duration of the noncompliance; and (4)
whether the noncompliant party was warned that further
noncompliance could result in sanctions.

Id. at 144.

Dismissal under Rule 37 may be justified by a showing of
"willfulness, bad faith, or fault on the part of the sanctioned
party," including "gross negligence" in following discovery
orders.

Southern New England Telephone Co. v. Global NAPs,

Inc., 251 F.R.D. 82, 90 (D. Conn. 2008), aff'd, 624 F.3d 123 (2d
Cir. 2010).

"While a showing of prejudice to the moving party

is not a requirement for a dismissal under Rule 37, a court may
consider it in weighing the appropriateness of the sanction."
Id.

Dismissal is a "'drastic remedy' generally to be used only

when the court has considered lesser alternatives."
New England Telephone Co., 624 F.3d at 144.

Southern

Nevertheless,

"discovery orders are meant to be followed" and "'a party who
flouts such orders does so at his peril.'"

Bambu Sales, Inc. v.

Ozak Trading Inc., 58 F.3d 849, 853 (2d Cir. 1995).

4

Counsel for the plaintiff has argued on separate occasions
that the noncompliance was the fault of a former associate and
the firm's clerical staff.

As the court articulated in October,

the alleged failings of their subordinates do not absolve
counsel of record of their obligation to observe and comply with
court orders, nor do they justify the continued disregard for
discovery orders, particularly in light of counsel's assurances
to this court in October that the case would be a top priority.
At the December hearing, counsel disclosed some mitigating
personal circumstances that contributed to the noncompliance
but, to his credit, took ultimate responsibility and conceded
that counsel, and not plaintiff, should bear the brunt of any
sanction.
Under the present circumstances, dismissal is not
warranted.

Although plaintiff's noncompliance with discovery

orders has been protracted and continued after counsel was
warned that further noncompliance might result in sanctions, it
does not appear that either plaintiff or her counsel acted
willfully or in bad faith.

Plaintiff and her counsel are now

well aware of the precarious position in which their
noncompliance with court orders has placed the case.

Lesser

sanctions should be sufficient to secure the just, speedy and
inexpensive determination of this action.
1.
5

See Fed. R. Civ. P.

C.

Order

In light of the foregoing, plaintiff's counsel shall pay
the defendants' reasonable expenses incurred in making the Doc.
#36 motion, including attorney's fees.
37(b)(2)(C).

Fed. R. Civ. P.

Counsel are encouraged to confer and agree on the

appropriate amount of fees to be imposed.
On or before February 4, 2013, plaintiff's counsel shall
serve all relevant medical records and/or proper medical
releases, the alleged photos of the scene of the incident, a
thorough and precise damages analysis, and reports of any
plaintiff's expert.

All other deadlines remain in effect.

Plaintiff is cautioned that further noncompliance with any court
order may result in dismissal of her case with prejudice.

Fed.

R. Civ. P. 37(b)(2)(A)(v), 41(b); Agiwal v. Mid Island Mortg.
Corp., 555 F.3d 298, 302 (2d Cir. 2009).
The clerk of the court shall mail a copy of this ruling to
plaintiff Emily Kellogg at 111 Dekoven Drive, Unit 907,
Middletown, CT 06457.
SO ORDERED at Hartford, Connecticut this 25th day of
January, 2013.
_________/s/___________________
Donna F. Martinez
United States Magistrate Judge

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