Moore v. Walgreens Co.

Filing 24

ORDER granting 14 Motion for Sanctions. See Order for details, including instructions to parties. Signed by Magistrate Judge Philip R. Lammens on 10/22/2015. (JWM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
JAMES MOORE, JR., as Personal
Representative of THE ESTATE OF
TERRI ANN MOORE
Plaintiff,
v.

Case No: 5:14-cv-670-Oc-30PRL

WALGREENS CO.
Defendant.

ORDER
On October 24, 2014, Plaintiff initiated this action by filing a Complaint (Doc. 1) in state
court, alleging that, in 2011, Plaintiff’s wife, decedent Terri Ann Moore, slipped and fell in
Defendant’s Walgreens store due to a slippery substance on the floor. (Doc. 2, ¶ 5). Plaintiff
further alleges that decedent sustained serious injuries resulting in physical and mental pain,
including grief and depression, eventually leading to her suicide on October 6, 2013. (Doc. 2, ¶
18). On December 5, 2014, Defendant removed the action to this Court. (Doc. 1). Following
Plaintiff’s repeated failure to appear for his own deposition, Defendant moved for sanctions.
(Doc. 14).
On October 15, 2015, pursuant to prior notice, the undersigned conducted a hearing on
Defendant’s motion and heard argument from counsel for both parties, as well as from Plaintiff
James Moore, Jr., who had been ordered to appear in person at the hearing. For the following
reasons, Defendant’s motion for sanctions is granted.

I.

BACKGROUND

After Plaintiff failed to attend his properly noticed deposition on two separate occasions,
the Court compelled Plaintiff’s deposition. (Doc. 13). The Court explicitly stated that “Plaintiff
James Moore Jr. is ORDERED to appear for his properly noticed deposition within 45 days of the
date of this Order. Plaintiff is cautioned that failure to comply with this Order could result in
sanctions under Fed. R. Civ. P. 37(b)(2)(A), which may include dismissal of this action in whole
or in part.” (Doc. 13)
Despite the Court’s warning, Plaintiff again failed to appear for his deposition when it was
properly noticed for a third time. As a result, Defendant moved for sanctions, arguing that the
case should be dismissed pursuant to 37(b)(2)(A). Meanwhile, Plaintiff’s counsel moved to
withdraw on the grounds that irreconcilable differences had arisen between him and his client, and
that Plaintiff refused to communicate with him. (Doc. 15). Counsel’s motion to withdraw (Doc.
15) was initially denied as procedurally deficient, but counsel later renewed the motion after
satisfying the necessary requirements of the Local Rules.

(Doc. 18).

Accordingly, the

undersigned set the case for hearing on October 15, 2015 to address the pending issues.
During the hearing, when asked to address the Court, Plaintiff began by stating that he had
“no excuses” for failing to attend three properly noticed depositions. He went on, however, to
say that he had experienced “truck problems,” at the times of the first and third depositions. As
to the second deposition, Plaintiff claimed that he was on the way to the deposition, but then
learned from the court reporter that it had been cancelled. Mr. Roller, counsel for Plaintiff,
explained that he repeatedly attempted to reach Plaintiff to confirm that he would be attending the
second deposition. However, after not being able to reach Plaintiff (and in light of Plaintiff’s
failure to appear at the prior deposition), Mr. Roller notified Defendant accordingly and the

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deposition was cancelled to avoid inconvenience and needless expense. Mr. Roller explained that
he was never able to reach Plaintiff on that occasion, and could not confirm whether Plaintiff had
communicated with the court reporter. Notably, Plaintiff did not dispute that his counsel made
repeated attempts to contact him, and that he failed to respond.
II.

DISCUSSION

For the reasons explained below, Defendant’s motion for sanctions is due to be granted.
The undersigned finds it compelling that Plaintiff immediately conceded he had “no excuses” for
failing to appear at his depositions.

Although Plaintiff later vaguely suggested that “truck

problems” somehow impeded his ability to attend the first and third depositions, I do not find
Plaintiff credible in this regard. In making this determination, I have considered the totality of
the circumstances, including Plaintiff’s insincere demeanor at the hearing, and his failure to offer
any details or explanation regarding how his “truck problems” impacted his ability to attend the
depositions. Significantly, Plaintiff also offered no justification whatsoever for his failure to
communicate with counsel regarding any challenges he faced attending his depositions. Someone
acting in good faith would, at a minimum, communicate with his or her counsel regarding
transportation issues or emergencies that would interfere with attendance at one’s own deposition.
That Plaintiff failed to do so, and even refused to communicate with his own counsel, at best
indicates a flagrant disregard for his discovery obligations and the Court’s explicit Order
compelling his deposition. At worst, it indicates Plaintiff’s bad faith.
The Court notes that Plaintiff has had an ample opportunity to respond to the sanctions
motion. Although Plaintiff did not file a formal response to the sanctions motion, his counsel
previously argued on his behalf (in his motion for an extension of time to respond to the sanctions
motion, Doc. 17) that the Court should not impose the severe sanction of dismissal, and there is a

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strong preference that cases be heard on the merits instead of imposing sanctions that deprive a
litigant of his day in court, citing Owen v. Benton, 190 Fed. Appx. 762 (11th Cir. 2005). In
addition, and importantly, Plaintiff was given an opportunity to personally address the Court
during the hearing on October 15, 2015. Plaintiff did attend the hearing and directly responded
to the Court’s inquiry about his failure to attend his depositions and was given an opportunity to
state why a sanction should not be imposed.
Pursuant to Rule 37(d), a court may sanction a party who, after being served with proper
notice, fails to appear for his deposition. Fed.R.Civ.P. 37(d)(1)(A)(i). At the hearing, counsel
for Defendant affirmed that the sanction primarily sought by Defendant is dismissal. In its
motion, Defendant also requests attorney’s fees and costs. (Doc. 14).
Indeed, dismissal is a sanction available under Rule 37 in these circumstances. See, e.g.,
Clark v. Keen, 346 Fed. Appx. 441, 442 (11th Cir. 2009) (affirming District Court’s imposition of
sanctions in the form of dismissal where plaintiffs willfully refused to comply with discovery).
There is ample authority supporting dismissal of a case under Rule 37 where a plaintiff’s refusal
to participate in discovery has been willful. See, e.g., Griffin v. Aluminum Co. of Am., 564 F.2d
1171, 1172 (5th Cir.1977) (noting that the former Fifth Circuit “has approved dismissal as a
sanction imposed under Rule 37(d), [where] plaintiff's failure to comply with discovery has
involved either repeated refusals or an indication of full understanding of discovery obligations
coupled with a bad faith refusal to comply”).1 “[T]he sanction of dismissal is a most extreme
remedy and one not to be imposed if lesser sanctions will do.” Hashemi v. Campaigner Publ'ns,
Inc., 737 F.2d 1538, 1538-39 (11th Cir.1984) (upholding dismissal pursuant to Fed. R. Civ. P.

1

See Bonner v. City of Pritchard, 661 F. 2d 1206 (11th Cir. 1981) (en banc) (adopting a binding
precedent all Fifth Circuit cases decided prior to October 1, 1981).
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37(d)). However, “the district court retains the discretion to dismiss a complaint where the party's
conduct amounts to flagrant disregard and willful disobedience of the court's discovery orders.”
Id. at 1539 (quotation omitted).
Here, the Court finds that Plaintiff’s conduct amounted to flagrant disregard and willful
disobedience of the discovery process and the Court’s order. Plaintiff does not dispute that he
failed to appear for his properly noticed deposition on at least two separate occasions. Indeed, on
the last occasion, he flagrantly disregarded the Court’s explicit Order (Doc. 13) cautioning him
that failure to comply could result in sanctions under Fed. R. Civ. P. 37, “including dismissal of
the action in whole or in part.” Plaintiff willfully disobeyed this order, while continuing to refuse
to communicate or cooperate with his own counsel.
At the hearing, Plaintiff immediately conceded that he had “no excuses” for disobeying the
Court’s Order and repeatedly failing to attend his own deposition. Plaintiff’s suggestion that he
had “truck problems” at the time of the first and third depositions is simply not credible. He
offered nothing to substantiate his car troubles, a reasonable basis for failing to communicate with
his attorney about his difficulty getting to his depositions, or any argument that his relationship
with his attorney impeded his ability to attend. Indeed, his apparent inexplicable refusal to
communicate with his own counsel regarding attendance at each of his scheduled depositions
indicates his flagrant disregard and willful disobedience, and possibility bad faith. At no time did
Plaintiff claim there was merely an oversight, that he was confused, or that he sincerely
misunderstood his counsel’s instructions, the discovery process, or the Court’s Order. In other
words, this case lacks the factors that have been recognized as making dismissal inappropriate.
See Marshall v. Segona, 621 F.2d 763, 766-68 (5th Cir. 1980) (contrasting cases where dismissal
for failure to participate in discovery was appropriate with cases where dismissal was too harsh a

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sanction due to factors such as neglect attributable to counsel, simple negligence, confusion, or
sincere misunderstanding).
Further, the Court is left with the impression that Plaintiff has no serious plans to continue
to prosecute this case. His counsel first moved to withdraw on September 3, 2015, and was
granted permission to withdraw at the hearing on October 15, 2015. Although Plaintiff stated he
would like to find a new attorney, he has made no attempt to do so, and stated he had no idea how
long he would need to find a new attorney.
In these circumstances, Defendant is entitled, at a minimum, to sanctions in the form of
attorney’s fees and costs.

If this lesser sanction proves insufficient, the undersigned will

recommend dismissal of this action with prejudice for the reasons stated above.
III.

CONCLUSION

Accordingly, upon due consideration, Defendant’s Motion for Sanctions (Doc. 14) is
GRANTED in the form of attorney’s fees and costs.
Within 10 days of the entry date of this Order, Defendant is directed to submit a complete
assessment of all fees and costs associated with the first and third depositions, as well as the costs
and fees associated with preparation of Defendant’s motion to compel, Defendant’s motion for
sanctions, and counsel’s attendance at the hearing on October 15, 2015.
Thereafter, Plaintiff shall have 14 days within which to file a response to Defendant’s
assessment and to show cause why monetary sanctions should not be imposed against Plaintiff in
the amounts incurred by Defendant.
Meanwhile, Plaintiff is advised that, if he chooses to retain counsel, counsel must file a
notice of appearance on or before November 6, 2015, failing which it will be deemed that Plaintiff
intends to continue proceeding pro se.

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Finally, Plaintiff is strongly cautioned that failure to comply with any aspect of this Order
or any future Order of the Court will result in a recommendation that the case be dismissed
immediately, and without further notice. Plaintiff is further advised that once the issue of this
sanction is resolved, Plaintiff will be directed to appear for his deposition.
DONE and ENTERED in Ocala, Florida on October 21, 2015.

Copies furnished to:
Counsel of Record
Unrepresented Parties

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