Tolliver v. Trinity Parish Foundation et al

Filing 97

MEMORANDUM re pending motions. Signed by Judge Leonard P. Stark on 7/28/16. (ntl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
M. DENISE TOLLIVER,
Plaintiff,

: Civ. No. 14-1021-LPS

v.

TRINITY PARISH FOUNDATION, et al.,
Defendants.

MEMORANDUM
1.

Introduction. Plaintiff M. Denise Tolliver ("Plaintiff"), who proceeds prose, filed

this action on August 8, 2014, alleging employment discrimination following her termination as
executive director of Defendant Delaware Futures, Inc. (D.I. 1) Plaintiff also filed suit in State
Court and, following removal of that action, the Court consolidated the cases. (See D.I. 20) The
second amended complaint, filed September 1, 2015, is the operative complaint. (D.I. 25) Named
as defendants are Trinity Parish Foundation, Delaware Futures, Inc., Patricia Downing, and Maile
Statuto. Before the Court are several motions filed by Plaintiff. (D.I. 28, 42, 43, 44, 52, 60, 70, 73,
79)
2.

Motions for Summary Judgment. On September 10, 2015, Plaintiff filed a motion

for summary judgment, prior to entry of the Court's Scheduling Order and prior to discovery among
the parties. (D.I. 28) On June 2, 2016, Plaintiff filed a second motion for summary judgment while
the parties were in the midst of a discovery dispute and discovery had not yet been completed
(although the discovery deadline had passed). (D.I. 79) A hearing was set to resolve the discovery
dispute, but it was deferred pending the Court's resolution of Plaintiff's motion to disqualify

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counsel. Therefore, the Court will deny the motions as premature without prejudice to renew after
the completion of discovery.
3.

Motions to Compel. Plaintiff moves to compel Defendants to answer

interrogatories sh e served upon D efendants Downing and Statuto and non-parties Nicole Sailer and
Evette Houston. (D.I. 42, 43) Defendants objected to the interrogatories on the grounds that they
were served upon non-parties and the number of interrogatories propounded exceeded the
allowable number as set forth in the September 22, 2015 scheduling order. A ccording to
Defendants, the parties ultimately reached an agreement and Plaintiff served amended
interrogatories upon Defendants on January 15, 2015. (See D.I. 47, 48, 52) Defendants answered
the amended interrogatories on February 22, 2016. (See D.I. 55) Accordingly, the Court will deny
the motions to compel as moot. (D.I. 42, 43, 44)
4.

Motions to Strike. Plaintiff moves to strike discovery produced by Defendants in

response to discovery requests from Plaintiff. (D.I. 70, 73) Plaintiff also seeks sanctions including
attorneys fees and costs . Plaintiff asks the Court to strike as evidence all records produced
concerning her Delaware Department of Labor case and all medical records. T h e records were not
produced to the Court for inspection. Therefore, the Court will deny the m otions as premature.
(D.I. 70, 73) Plaintiff will have an opportunity to seek to preclude the material at issue should this
case proceed to trial. Finally, the Court finds that Defendants have not engaged in actions that
warrant the imposition of sanction. Also, because Plaintiff proceeds pro se, sanctions in the form of
attorneys fees are not available to her.
5.

Motion for Default Judgment and Declaratory Judgment. Plaintiff filed a

motion requesting entry of declaratory judgment against Defendants. (D.I. 60) She also moves for
default judgment under Fed. R. Civ. P 37 for Defendants' alleged failure to respond to discovery

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propounded upon them. (D.I. 46, 60) The second amended complaint does not seek declaratory
relief. Should Plaintiff wish to seek declaratory relief, her appropriate avenue is to move the Court
for leave to amend her complaint. In addition, the relief she seeks under Rule 37 is premature.
Default judgment under Rule 3 7 is one of several sanctions a court may impose upon a party who
fails to obey an order to provide or permit discovery. See Fed. R. Civ. P. 37(b)(2)(A). There is no
indication that Defendants failed to obey a discovery order entered by the Court. Therefore, the
Court will deny the motions. (D.I. 46, 60)
An appropriate Order follows.

HON. LEON RD P. STARK
UNITED STATES DISTRICT JUDGE

Wilmington, Delaware
July 28, 2016

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