Wells v. General Dynamics Information Technology, Inc. et al
Filing
135
ORDER DENYING 118 Motion to Dismiss for Lack of Prosecution; DENYING AS MOOT 118 Motion to Compel. Discovery to be complete by 8/31/2012. Plaintiff's deposition will be completed by 6/28/2012. Dispositive and Daubert moptions due 10/1/2012. Ordered by Judge Marc Thomas Treadwell on 5/31/2012. (tlh)
IN THE UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
TAMMY WELLS,
Plaintiff,
v.
GENERAL DYNAMICS INFORMATION
TECHNOLOGY, INC., et al.,
Defendants.
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CIVIL ACTION NO. 5:12-CV-18 (MTT)
ORDER
This matter is before the Court on the Defendants’ Motion to Dismiss for Lack of
Prosecution or, alternatively, to Compel Medical Authorizations and the Plaintiff’s
Deposition. (Doc. 118). For the following reasons, the Motion is DENIED.
I. FACTUAL AND PROCEDURAL HISTORY
The Plaintiff’s complaint was filed on May 11, 2010, in the United States District
Court for the Northern District of Georgia. (Doc. 1). After rulings on several motions,
including two of the Defendants’ Motions to Dismiss, the Northern District of Georgia
transferred venue to this Court on January 12, 2012.1 (Doc. 115).
The Plaintiff is proceeding pro se at this stage in the litigation.2 The Plaintiff’s
remaining claims, according to the most recent Northern District of Georgia court order,
1
It appears that Discovery Period was scheduled to expire on January 31, 2012. However, that
discovery period and the previous dispositive motions deadlines were stayed pending a ruling
on the Defendants’ present Motion.
2
The Plaintiff’s first counsel was not certified to practice in Georgia, a fact the Plaintiff did not
realize until after she hired the attorney. The Plaintiff’s second counsel’s Motion to Withdraw as
Attorney (Doc. 99) was granted on December 5, 2011. (Doc. 103).
are: (1) the Plaintiff’s racially hostile work environment claims brought pursuant to Title
VII and § 1981 against Defendant General Dynamics Technology, Inc. (GDIT); (2) the
Plaintiff’s retaliation claims brought pursuant to Title VII and § 1981 against Defendant
GDIT and Defendant Michael Ragland; and (3) the Plaintiff’s identity theft claims,
including a claim for punitive damages, against Defendants Gwendolyn Krind, Tabitha
Waldrop and Elizabeth Lines. (Doc. 68).
The Defendants’ moved to dismiss for failure to prosecute or, alternatively, to
compel the Plaintiff to sign medical authorizations and appear for her deposition. (Doc.
118). First, the Defendants allege, that the Plaintiff “has failed and refused to complete
her own deposition, which began almost three months ago on November 3 and 4,
2011.” (Doc. 118-1 at 2). They also allege that she refused to execute medical records
and Social Security release forms. Last, the Defendants allege, the “Plaintiff has
perjured herself repeatedly … [and] has delayed this matter unreasonably in an effort to
prosecute meritless claims.” (Doc. 118-1 at 2).
II. MOTION TO DISMISS FOR LACK OF PROSECUTION
The Defendants’ Motion to Dismiss for Lack of Prosecution is DENIED. Pursuant
to Federal Rule of Civil Procedure 41(b) a “district court is authorized on [the]
defendant’s motion to dismiss an action for failure to prosecute or to obey a court order
or federal rule.” Goforth v. Owens, 766 F.2d 1533, 1535 (11th Cir. 1985). The legal
standard pursuant to Rule 41(b) provides that a dismissal is warranted when “there is a
clear record of delay or willful contempt and a finding that lesser sanctions would not
suffice. Dismissal of a case with prejudice is considered a sanction of last resort,
applicable only in extreme circumstances.” Id. “A finding of such extreme
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circumstances necessary to support the sanction of dismissal must, at a minimum, be
based on evidence of willful delay….” McKelvey v. AT&T Technologies, Inc., 789 F.2d
1518, 1520 (11th Cir. 1986) (emphasis added). In addition, the Court should not take
into account the probable merit of a litigant's case when determining whether to impose
the sanction of dismissal. Malautea v. Suzuki Motor Co., 987 F.2d 1536, 1544 (11th
Cir. 1993).
Here, the Plaintiff’s conduct does not rise to the level necessary to warrant
dismissal for failure to prosecute. The record shows that, at the Plaintiff’s request, the
Parties scheduled a two day deposition for November 3 and 4, 2011, in Atlanta,
Georgia. All five Defendants were present at the video deposition. On the first day, the
Plaintiff’s deposition lasted for approximately three hours of on-air time. The Plaintiff
then requested a recess for the day. The Parties eventually reconvened at 1:05 p.m. the
next afternoon, three hours after the scheduled time, and the Plaintiff was unable to be
deposed for more than approximately thirty minutes because she was heavily
medicated and her eyes were closed.3
The Plaintiff’s counsel withdrew from representation on December 5, 2011, and
on December 30, 2011, defense counsel began contacting the Plaintiff in an attempt to
obtain her signature on the medical and Social Security release forms and to schedule a
date to complete her deposition. On January 6, 2012, after the Plaintiff had not
responded to the requests, defense counsel unilaterally noticed the Plaintiff’s deposition
for January 19, 2012. That same day, the Plaintiff responded to defense counsel,
3
The Plaintiff alleges she was in intense pain during the duration of the deposition. She further
alleges that the accommodations at defense counsel’s firm made her pain worse.
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asserting that she was having health problems, planning a funeral, and attempting to
obtain new counsel. She stated she would be unable to comply with defense counsel’s
requests. After some back and forth, the Plaintiff emailed the Northern District
Magistrate Judge’s courtroom deputy asserting that “[her] health precludes [her] from
returning to the jurisdiction. Therefore, [she is] unable to conduct discovery or
depositions. [She] is requesting a continuance for sixty days for recovery and an
opportunity to find new counsel.” (Doc. 118-1 at 9). For reasons not entirely clear to
this Court, and after the case had been pending in the Northern District for
approximately nineteen months, the Magistrate Judge granted the Defendants’ motion
to transfer venue and transferred the case to the Middle District of Georgia. (Docs. 91
and 115).
On January 17, 2012, defense counsel notified the Plaintiff that the Defendants
were still planning on conducting her deposition as scheduled on January 19, 2012.
The Plaintiff responded she was unable to fly because of health reasons. Defense
counsel then told the Plaintiff the deposition could be moved to counsel’s Washington,
D.C. office, a closer location to Germantown, Maryland where the Plaintiff lived. The
Plaintiff still insisted she would not be able to attend deposition because of health
reasons. She did not attend the scheduled deposition.
The Court is concerned with the Plaintiff’s reluctance to complete her deposition.
However, her conduct does not create an “extreme circumstance” worthy of granting a
dismissal with prejudice in this case. There is not a “clear record of delay or willful
contempt.” Although the Defendants properly noticed the Plaintiff’s deposition, the
correspondence between defense counsel and the Plaintiff makes clear that the Plaintiff
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told defense counsel that she would not be able to attend the deposition. The
Defendants further argue that the Plaintiff is attempting to “prosecute meritless claims.”
However, the Court cannot consider the merits of the underlying claims when making a
decision on a motion to dismiss for failure to prosecute.
The Plaintiff has not disobeyed this Court’s orders, nor is there evidence she
disobeyed the Northern District of Georgia’s orders. Indeed, the Plaintiff responded to
the Defendant’s Motion to Dismiss, and obeyed the Court when it ordered her to sign
and forward the medical authorizations for eighteen healthcare providers to defense
counsel. Further, although the Defendants allege the Plaintiff willfully perjured herself
during her deposition and interrogatories, there is no clear evidence of willful perjury.
Inconsistencies, memory lapses and mistakes do not constitute willful perjury.
Accordingly, the Defendants’ Motion to Dismiss for Failure to Prosecute is
DENIED.
III. MOTION TO COMPEL MEDICAL AUTHORIZATIONS
AND THE PLAINTIFF’S DEPOSITION
The Defendants’ Motion to Compel is DENIED as moot.4 On April 3, 2012, the
Court ordered the Plaintiff to sign the medical authorizations provided by the
Defendants and forward them to defense counsel. (Doc. 129). The Plaintiff moved for
4
The Defendants allege in the Motion that they want the Plaintiff to sign a Social Security
release as well. The Court did not receive the Social Security release form with the medical
records release forms from the Defendants. If the Defendants have not obtained a signed
Social Security release form from the Plaintiff, and still would like one, they should send the
Court a copy of the Social Security release for review. The Court will then handle it in the same
manner it handled the medical records release forms.
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reconsideration of the Court’s Order, which was granted in part and denied in part.5
(Doc. 134). Defense counsel has now received all of the signed medical record
authorizations ordered by the Court. The Court will address the Plaintiff’s deposition
below. Accordingly, the Motion is DENIED as moot.
IV. DISCOVERY PERIOD AND DISPOSITIVE MOTIONS DEADLINE
The discovery period will expire on August 31, 2012. The Plaintiff’s deposition
will be completed by June 28, 2012. Once defense counsel has received the Plaintiff’s
medical records, the parties will schedule the Plaintiff’s deposition at a mutually
agreeable location and notify the Court. If there are further issues regarding the
Plaintiff’s deposition, counsel will notify the Court, and the Court will convene the
deposition in Macon, Georgia. Dispositive motions and Daubert motions are due
October 1, 2012, thirty days following the expiration of the discovery period.
SO ORDERED, this the 31st day of May, 2012.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT
5
The Court did not require the Plaintiff to provide medical authorizations for two providers
because the medical records did not appear to be related to the case.
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