Atkinson v. Volusia County School Board

Filing 40

ORDER granting 34 Defendant's Motion to Dismiss and Motion for Sanctions. This case is dismissed with prejudice. Signed by Judge Paul G. Byron on 9/16/2016. (SEN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
ELIZABETH ATKINSON,
Plaintiff,
v.

Case No: 6:15-cv-619-Orl-40DAB

VOLUSIA COUNTY SCHOOL BOARD,
Defendant.
ORDER
This cause comes before the Court on Defendant’s Motion for Dismissal, Motion
for Sanctions, or, in the Alternative, Motion to Extend Deadlines and Compel Plaintiff to
Appear for Deposition and to Attend Mediation (Doc. 34), filed June 14, 2016. Plaintiff
has not filed a brief in response to Defendant’s motion. On September 16, 2016, the
Court held a hearing at which counsel for both parties appeared. Upon review of the
record and after hearing oral argument, Defendant’s motion will be granted.
I.

BACKGROUND
On March 31, 2015, Plaintiff initiated this lawsuit by filing a two-count Complaint in

which she alleges she was discriminated against by Defendant due to her age. (Doc. 1).
Since that date, however, Plaintiff has failed to comply with various Court orders, failed
to respond to Defendant’s discovery requests, and failed to appear for mediation. The
timeline of this case follows:
On May 27, 2015, the Court ordered Plaintiff to show cause why this case should
not be dismissed for failing to comply with the Court’s interested persons and related
cases orders. (Doc. 18). Although Plaintiff thereafter rectified her deficiencies, the Court

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again ordered Plaintiff to show cause on September 16, 2015 to explain why this case
should not be dismissed for failing to file a Case Management Report within the time
required. (Doc. 23). Plaintiff did not respond and the Court dismissed the case without
prejudice for lack of diligent prosecution. (Doc. 24).
Seventeen days later, Plaintiff moved to vacate the dismissal and re-open the
case. In the motion, Plaintiff’s counsel explained that her failure to comply with the Court’s
orders was due to “an extremely heavy workload” and internal turmoil within her firm.
(Doc. 25, ¶ 6). Although the Court found counsel’s explanation deficient, the Court
nevertheless vacated the dismissal on December 23, 2015 for equitable reasons, as
Plaintiff’s discrimination claims would have been effectively time-barred were the
dismissal to stand. (Doc. 27, p. 3). Notably, the Court’s order re-instating the case
admonished Plaintiff’s counsel and warned that “the failure to meet future deadlines may
result in the imposition of sanctions, including monetary fines or the involuntary dismissal
of this case.” (Id.).
Despite re-instatement, Plaintiff continued to miss deadlines and disobey court
orders. Although Defendant served a request for production and interrogatories, Plaintiff
never responded, forcing Defendant to file a motion to compel on April 25, 2016.
(Doc. 32). The Magistrate Judge ultimately granted Defendant’s motion to compel and
ordered Plaintiff to respond to Defendant’s discovery requests by May 30, 2016.
(Doc. 33, p. 3). The Magistrate Judge additionally awarded Defendant $500 in costs for
bringing the motion and ordered that this amount be paid to counsel also on May 30,
2016. (Id.). The Magistrate Judge further warned Plaintiff that her failure to comply may
result in additional sanctions up to and including dismissal. (Id.). Nevertheless, Plaintiff

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did not produce the discovery ordered and did not pay Defendant’s costs within the time
required. (Doc. 34, ¶ 11). Defendant also informs the Court that Plaintiff and her counsel
failed to appear for Plaintiff’s deposition on May 12, 2016 and for mediation on May 26,
2016, despite the fact that the parties coordinated both events. (Id. ¶¶ 12–19).
Defendant now moves to dismiss this lawsuit with prejudice, to recover attorney’s
fees and costs, to impose further sanctions for disobeying the Court’s orders, and to
extend certain case management deadlines. Although Plaintiff has not responded to
Defendant’s motion, counsel for Plaintiff appeared before the Court on September 15,
2016 to discuss Defendant’s motion and the status of the case. At that hearing, Plaintiff’s
counsel confirmed that the Court’s understanding of the events in this case is accurate.
II.

DISCUSSION
Defendant moves to impose sanctions pursuant to Rules 37(b)(2)(A), 37(b)(2)(C),

and 37(d)(1)(A)(i) of the Federal Rules of Civil Procedure and to involuntarily dismiss
Plaintiff’s lawsuit under Rule 41(b). Rule 37(b)(2)(A) allows a court to impose sanctions
due to a party’s failure to comply with a prior order to provide or permit discovery.
Permissible sanctions include prohibiting the disobedient party from supporting her claims
or from introducing certain matters into evidence, striking pleadings, staying the
proceedings until the order is obeyed, dismissal, and holding the disobedient party in
contempt. See Fed. R. Civ. P. 37(b)(2)(A)(i)–(vii). The violation of a court’s prior order
to provide or permit discovery additionally requires the award of reasonable attorney’s
fees and costs to the opposing party. Fed. R. Civ. P. 37(b)(2)(C). Rule 37(d)(1)(A)(i)
allows a court to impose sanctions due to a party’s failure to appear for her own
deposition. Permissible sanctions under this Rule include the same sanctions allowable

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under Rule 37(b)(2)(A) except for holding the disobedient party in contempt. See Fed. R.
Civ. P. 37(d)(3). A party’s failure to appear for her own deposition also requires the court
to award reasonable attorney’s fees and costs caused by the failure to appear unless the
failure to appear was “substantially justified” or equitable reasons counsel against the
award of fees and costs. Id. Finally, Rule 41(b) allows the court to dismiss a plaintiff’s
lawsuit for failing to prosecute or for failing to comply with a prior court order.
The Court is mindful that it has broad discretion in fashioning an appropriate
sanction and that dismissal with prejudice is an “extreme sanction” which should only be
employed when (1) a party engages in a clear pattern of delay or willful misconduct, and
(2) the Court finds that lesser sanctions would be ineffective. Betty K Agencies, Ltd. v.
M/V MONADA, 432 F.3d 1333, 1337–38 (11th Cir. 2005). Upon review of the record as
recounted by the Court in Section I of this Order, the Court finds that both circumstances
are present here. Plaintiff and her counsel have engaged in a clear pattern of delay and
willful misconduct by failing to timely comply with the Court’s interested persons and
related cases orders; by failing to timely file a Case Management Report; by failing to
timely respond to Defendant’s discovery requests; by disobeying the Magistrate Judge’s
order compelling discovery responses and awarding fees and costs; by failing to appear
for Plaintiff’s properly-noticed deposition; and by failing to attend a jointly-coordinated
mediation. Finally, the Court finds that a lesser sanction would not be effective in this
case. The Court has already imposed monetary sanctions against Plaintiff, but she has
failed to pay the amount owed. Moreover, the Court has warned Plaintiff at least twice
that continued failures to comply with court orders would result in dismissal, but she has

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disregarded them. The Court therefore has no reason to believe that any other sanction
would coerce compliance.
At the September 15, 2016 hearing, counsel for Plaintiff acknowledged her
shortcomings in this case and apologized to both the Court and opposing counsel. The
Court has no doubt that counsel’s sentiments are sincere and that her litigation of this
case constitutes an anomaly in what has been an otherwise stellar career. Nevertheless,
the Court finds that Plaintiff’s conduct has resulted in severe prejudice to Defendant in
terms of time, cost, and hindering Defendant’s ability to fairly defend against this lawsuit.
If the integrity of the federal judicial system is to be maintained, the prosecution of this
case must end.
The Court therefore finds that dismissal of this case is warranted under Rule 41(b),
Rule 37(b)(2)(A), and Rule 37(d).

The Court additionally awards Defendant its

reasonable attorney’s fees and costs incurred due to Plaintiff’s failure to appear for
deposition under Rule 37(d)(3). As stated at the September 15, 2016 hearing, the Court
will entertain a properly supported motion for attorney’s fees from Defendant.
III.

CONCLUSION
It is therefore ORDERED AND ADJUDGED as follows:
1. Defendant’s Motion for Dismissal, Motion for Sanctions, or, in the
Alternative, Motion to Extend Deadlines and Compel Plaintiff to Appear for
Deposition and to Attend Mediation (Doc. 34) is GRANTED.
2. This case is DISMISSED WITH PREJUDICE.
3. The Clerk of Court is DIRECTED to enter the Judgment of the Court that
this case is dismissed with prejudice.

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4. Defendant has fourteen (14) days from the date of this Order to file a
properly supported motion for attorney’s fees. Plaintiff has fourteen (14)
days from the date Defendant files its motion for attorney’s fees to respond.
DONE AND ORDERED in Orlando, Florida on September 16, 2016.

Copies furnished to:
Counsel of Record

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