Anderson v. Grant
Filing
152
OPINION AND ORDER: IT IS HEREBY ORDERED that Defendant CentraArchy Restaurant Management Company's Objections 146 are OVERRULED. IT IS FURTHER ORDERED that Magistrate Judge Catherine M. Salinas's Non-Final Report and Recommendation 141 is ADOPTED AS MODIFIED in this Order. IT IS FURTHER ORDERED that Defendant CA's Motion to Dismiss Plaintiff Amy L. Anderson's Complaint 122 is DENIED. Signed by Judge William S. Duffey, Jr on 1/26/16. (kdw)
complaint [1] (“Complaint”), alleging various claims under Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”),2 and Georgia state law
claims for negligent retention and supervision, assault and battery, invasion of
privacy, false imprisonment, retaliation, punitive damages, and attorneys’ fees.
Plaintiff seeks injunctive relief and damages, including damages for medical bills
and for emotional pain and suffering. (Compl. at 12). The Complaint generally
alleges that Defendant Greg Grant, Defendant CA’s operating partner, made
numerous unwelcome sexual advances towards Plaintiff, which she declined,
objected to, and reported to management. Plaintiff alleges that, after she resisted
Grant’s advances, Grant retaliated by denying Plaintiff work shifts and then by
terminating Plaintiff from her job as a server at Lenox Square Grill, a restaurant
operated by Defendant CA. (Compl. ¶¶ 6-8). On August 14, 2014, Plaintiff filed
an amended complaint [43] adding Drew Frederickson as a defendant.
Frederickson is a former manager of the restaurant. Plaintiff also added claims for
defamation-slander and slander per se against Defendant CA and Defendant
Frederickson.
On April 29, 2014, Defendant CA served Plaintiff with interrogatories and
2
Plaintiff’s Title VII claims include gender discrimination, quid pro quo
sexual harassment, hostile work environment, and retaliation.
2
requests for production of documents [13] seeking, among other information and
documents, information related to Plaintiff’s social media activity. Following
Plaintiff’s refusal to provide responsive documents from her social media accounts,
on July 28, 2014, Defendant CA filed a motion to compel [33]. Defendant CA
argued that the requested social media information is relevant because Plaintiff
placed her emotional state at issue in this case by alleging that Defendants’ actions
caused her emotional pain and suffering. Plaintiff’s online activity, Defendant CA
argued, may provide insight regarding Plaintiff’s emotional state. ([33], [64] at
10).
On December 2, 2014, the magistrate judge previously assigned to this
matter, Magistrate Judge E. Clayton Scofield, granted Defendant CA’s motion to
compel and ordered Plaintiff to provide all of the user names and email addresses
for any social media accounts that Plaintiff had, as well as all responsive
information and documents contained in her social media accounts, including any
and all Twitter, Instagram, and Facebook accounts. (December 2, 2014, Order
[64]).
Plaintiff and her counsel at that time, Jack Rosenberg, largely ignored
Magistrate Judge Scofield’s December 2, 2014, Order, and produced only one
message thread from Plaintiff’s Facebook account (consisting of two pages),
3
nothing from her Instagram account, and continued to falsely represent to the Court
that Plaintiff did not have a Twitter account. ([33.5] at 7-8, 11). Plaintiff admitted
during her deposition that she did not search for potentially responsive information
from her social media accounts other than to retrieve the one message thread she
produced from her Facebook account. (See Deposition of Amy Anderson, [88.3]
at 77-79). She testified that this scant production was made following the advice
of Mr. Rosenberg, who did not send her a copy of Magistrate Judge Scofield’s
December 2, 2014, Order granting Defendant CA’s motion to compel production
of social media information. Plaintiff testified that Rosenberg did not even discuss
the Order with her. She states that Rosenberg concluded that a motion to
reconsider and an appeal stayed the contempt order entered by the Magistrate
Judge on June 16, 2015.
Following Plaintiff’s deposition and admission that she did not search for all
responsive information in her social media accounts, Plaintiff still did not produce
any responsive social media documents or material. Despite Plaintiff’s insistence
that she did not use Twitter, Defendants were able to view a portion of Plaintiff’s
public Twitter feed, but could not access all of it, including Plaintiff’s private
messages. According to Defendants, the information accessible to Defendant CA
contained information relevant and responsive to its discovery requests, including
4
documents discussing Plaintiff’s work at Lenox Square Grill, the reason for her
reduction in shifts, and documents related to Defendant CA’s defenses to
Plaintiff’s defamation claim. ([122] at 6]. On March 9, 2015, Defendant CA
moved to hold Plaintiff and her counsel in contempt for willful violation of the
December 2, 2014, Order. (Mot. for Contempt and Sanctions [88]).
In Plaintiff’s response brief and at the hearing held on Defendant CA’s
Motion for Contempt and Sanctions, Plaintiff’s counsel, Rosenberg, failed to offer
any explanation, justification, or legal argument justifying Plaintiff’s failure to
comply with the Court’s December 2, 2014, Order. (See [98], [105]). During oral
argument, he misleadingly told the Court that Plaintiff had provided Plaintiff’s
social media passwords to Defendant CA, and he again asserted that there were not
any responsive documents or additional information to produce. After confirming
Plaintiff’s actual failure to provide Defendant CA with passwords to Plaintiff’s
social media accounts, and after securing Plaintiff’s counsel’s agreement to
produce the passwords, Magistrate Judge Scofield granted Defendant CA’s motion
for contempt, ordered Plaintiff to provide Defendant CA’s counsel with full access
to her social media accounts, including her passwords, and awarded Defendant CA
its attorneys’ fees and expenses. (June 26, 2015, Order [105] (the “Contempt
Order”)).
5
The Contempt Order required Plaintiff to produce, by July 10, 2015, the
passwords to her social media accounts. The Contempt Order also found Plaintiff
in civil contempt of the Court’s December 2, 2014, Order, and awarded Defendant
CA (i) the attorneys’ fees and expenses it had incurred in filing and prosecuting its
Motion for Contempt and Sanctions (under Rule 37(b)(2)(C)), and (ii) the
attorneys’ fees and expenses it incurred in taking any follow-up deposition of
Plaintiff after the information sought was produced. (Contempt Order at 4-5). The
award of attorneys’ fees and expenses was against Plaintiff and her attorney. (Id.
at 5). The Contempt Order re-opened discovery for thirty-five (35) days.
On June 30, 2015, Magistrate Judge Scofield retired, and this case was
reassigned to Magistrate Judge Catherine M. Salinas.
On July 10, 2015, rather than comply with Magistrate Judge Scofield’s
Contempt Order and instructions, Rosenberg filed multiple motions for
reconsideration of the Contempt Order. ([109], [110], [111], [112], [114], [115],
[116]). Attached to the motions for reconsideration were nearly 1,000 pages from
Plaintiff’s social media accounts, without any explanation why those documents
were filed with the Court and not produced directly to Defendant CA as required.
The attached documents included many of the documents that Defendant CA had
requested in April 2014 and which the Court ordered produced in December 2014.
6
Plaintiff and Rosenberg previously had insisted these documents did not exist.
While these social media documents were attached to Plaintiff’s submission to the
Court, the documents were so heavily redacted that it was impossible to determine
whether Plaintiff had actually produced all of the responsive information required.3
On July 22, 2015, Magistrate Judge Salinas issued her order denying the
motions for reconsideration. (July 22, 2015, Order [121]).
On July 27, 2015, Defendant CA filed its Motion to Dismiss. In it,
Defendant CA argues that Plaintiff’s and her counsel’s willful, repeated, and
flagrant disregard for the Court’s orders and their duties under the Federal Rules of
Civil Procedure (the “Federal Rules”) warrant the dismissal with prejudice of this
action. Defendant CA also seeks an award of fees from Plaintiff and Rosenberg,
jointly and severally, to pay the attorneys’ fees and expenses that Defendant CA
incurred as a result of Plaintiff’s failure to timely comply with the Court’s
Contempt Order, and unreasonable and vexatious conduct that has multiplied these
proceedings, including having to prepare a response to Plaintiff’s meritless motions
for reconsideration, and filing the Motion to Dismiss. (Mot. to Dismiss at 20-26).
After the Motion to Dismiss was filed, Plaintiff hired new attorneys, Marc
3
The Court’s Contempt Order did not allow document redaction and
permission to redact was not requested.
7
and Alan Garber, to represent her and to respond to the Motion to Dismiss.4
On August 24, 2015, Plaintiff filed her response opposing the motion to
dismiss [136].5 In Plaintiff’s response, she notes that, on August 10, 2015,
Plaintiff’s new counsel emailed all of Plaintiff’s social media account user names
and passwords to Defendant CA, and offered to pay the reasonable attorneys fees
Defendant CA incurred in drafting its Motion to Dismiss, if Defendant CA agreed
to withdraw its Motion to Dismiss. This offer was rejected. ([137.1] at 1). On
August 16, 2015, Plaintiff’s new counsel also emailed to Defendant CA a link to a
Dropbox site containing more than 3,000 pages of un-redacted materials from
Plaintiff’s social media accounts. Plaintiff contends she now is in full compliance
with Magistrate Judge Scofield’s Contempt Order.
Plaintiff argues, in urging that the case not be dismissed, that she was not
warned by Magistrate Judge Scofield that non-compliance with his orders could
result in dismissal. Plaintiff argues she did not act in bad faith or in willful
disobedience, but rather was merely following her original attorney’s instructions.
She argues that dismissal is a sanction of last resort that should be invoked only
4
On August 10, 2015, they filed their notices of appearance. ([126], [127]).
Plaintiff’s original counsel, Jack Rosenberg, remains listed on the docket as lead
attorney in this case.
5
On August 31, 2015, she filed a corrected brief [137.1], with minor
corrections to her original submission.
8
after finding that she willfully and in bad faith refused to engage in discovery,
committed widespread violations of discovery rules and court orders, was warned
of the possibility of dismissal for noncompliance, and only if the Court determines
that no lesser sanction will ensure compliance.
Defendant CA opposes all of Plaintiff’s arguments, and continues to seek
dismissal for Plaintiff’s “extensive pattern of contempt.” (Reply [140] at 2). If the
Court declines to dismiss Plaintiff’s complaint, Defendant CA asks, as alternative
sanctions, that the Court (1) award Defendant CA its attorneys’ fees and expenses
associated with its Motion to Dismiss; (2) allow CA to re-open discovery; (3)
allow CA to take another full deposition of Plaintiff; (4) allow CA to take another
full deposition of any witness previously deposed in the case; (5) allow CA to
depose any other witness identified through Plaintiff’s social media production;
and (6) compel Plaintiff to pay CA’s attorneys’ fees and expenses for the discovery
activities described in items (2) through (5). (Reply at 16).
On October 14, 2015, Magistrate Judge Salinas issued her R&R. In it, she
recommends that Defendant CA’s Motion to Dismiss be denied. The Magistrate
found that:
[w]hile Plaintiff and her original counsel have indisputably
demonstrated willful and repeated disregard for the Federal Rules of
Civil Procedure and the authority of this Court, lesser sanctions than
dismissal do appear—at long last—to have ensured compliance (albeit
9
belated compliance) with this Court’s orders and Plaintiff’s discovery
obligations under the Federal Rules.
(R&R at 16). The Magistrate also indicated that she is “inclined to recommend
granting at least some of the alternative sanctions requested by Defendant CA
in . . . its reply brief,” but deferred her consideration of those sanctions until after
the Court reviews the R&R and rules on the Motion to Dismiss.
On October 28, 2015, Defendant CA filed its objections to the R&R [146]
(“Objections”). Defendant CA argues that the R&R: (i) applied an incorrect legal
standard for dismissal; (ii) omits specific egregious conduct of Plaintiff; and
(iii) does not address Plaintiff’s actual knowledge of the Court’s
December 2, 2014, Order compelling discovery.
II.
LEGAL STANDARDS
A.
Review of a Magistrate Judge’s Report and Recommendation
After conducting a careful and complete review of the findings and
recommendations, a district judge may accept, reject, or modify a magistrate
judge’s report and recommendation. 28 U.S.C. § 636(b)(1); Williams
v. Wainwright, 681 F.2d 732, 732 (11th Cir. 1982) (per curiam). A district judge
“shall make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made.” 28 U.S.C.
§ 636(b)(1). If no party has objected to the report and recommendation, a court
10
conducts only a plain error review of the record. United States v. Slay, 714 F.2d
1093, 1095 (11th Cir. 1983) (per curiam). Because Defendant CA objects to the
R&R, the Court conducts its de novo review. 28 U.S.C. § 636(b)(1).
B.
Dismissal Under Rule 37(b)
Federal Rule of Civil Procedure 37(b) provides that if a party fails to obey a
court order to provide or permit discovery, the court where the action is pending
may issue further just orders, including an order “dismissing the action or
proceeding in whole or in part.” Fed. R. Civ. P. 37(b)(2)(v). “District courts enjoy
substantial discretion in deciding whether and how to impose sanctions under Rule
37.” Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1366 (11th Cir. 1997).
“Dismissal with prejudice is the most severe Rule 37 sanction, but it may be
appropriate when a plaintiff’s recalcitrance is due to willfulness, bad faith or fault.”
Shortz v. City of Tuskegee, Ala., 352 F. App’x 355, 359 (11th Cir. 2009) (internal
quotation marks omitted) (citing Phipps v. Blakeney, 8 F.3d 788, 790 (11th Cir.
1993)). Because “dismissal with prejudice is considered a drastic sanction, a
district court may only implement it as a last resort, when: (1) a party’s failure to
comply . . . is a result of willfulness or bad faith; and (2) the district court finds that
lesser sanctions would not suffice.” Id. (citing Malautea v. Suzuki Motor Co.,
Ltd., 987 F.2d 1536, 1542 (11th Cir. 1993)).
11
C.
Dismissal Under Rule 41(b)
Federal Rule of Civil Procedure 41(b) provides that if a plaintiff fails to
comply with a court order or the Federal Rules, a defendant may move to dismiss
the action or any claim against it. Fed. R. Civ. P. 41(b). Whether to dismiss a
complaint under Rule 41(b) “is a matter committed to the district court’s
discretion.” Equity Lifestyle Props., Inc. v. Fla. Mowing and Landscape Serv.,
Inc., 556 F.3d 1232, 1240 n.14 (11th Cir. 2009).
As under Rule 37, “[b]ecause dismissal with prejudice is a drastic remedy, it
is appropriate only where there is a clear record of delay or willful contempt and
lesser sanctions would be insufficient.” Jones v. Lockheed Martin Corp., ––– F.
App’x –––, –––, 2016 WL 75413, at *1 (11th Cir. Jan. 7, 2016) (per curiam)
(citing Kilgo v. Ricks, 983 F.2d 189, 192 (11th Cir. 1993)). “Dismissal with
prejudice is appropriate ‘where a party, as distinct from counsel, is culpable’ for
the failure to comply.” Id. (quoting Betty K Agencies, Ltd. v. M/V Monada, 432
F.3d 1333, 1338 (11th Cir. 2005)). “It is generally not an abuse of discretion for a
district court to dismiss a suit for disregard of an order if the litigant was warned
and still failed to comply.” Id. (citing Moon v. Newsome, 863 F.2d 835, 837 (11th
Cir. 1989)).
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III.
DISCUSSION
The Magistrate Judge, after a thorough review of the parties’ arguments and
the record, found, albeit reluctantly, that the drastic sanction of dismissal was not
warranted under Rules 37(b) or 41(b). (See R&R at 15-16). The Magistrate noted
that it appears that lesser sanctions “have ensured compliance . . . with this Court’s
orders and Plaintiff’s discovery obligations under the Federal Rules.” (Id. at 16).
The Magistrate also noted that “Plaintiff has retained new counsel and appears
(finally) to have provided the information from her social media accounts that
Magistrate Judge Scofield ordered her to provide in his . . . Contempt Order.”
(Id.).
Defendant CA objects to the R&R, arguing that the Magistrate “applies a
hybrid legal standard” to the Motion to Dismiss by “combining the dismissal
standards under Rules 37(b) and 41(b).” (Obj. at 6). Defendant CA argues that the
Magistrate Judge misapplied the Rule 37(b) dismissal standard when she required,
as a condition of dismissal, a finding that lesser sanctions did not, or would not,
ensure compliance. (See Obj. at 11). Defendant CA’s interpretation of Rule 37(b)
is not well-founded. It is well-settled that “before dismissing a lawsuit pursuant to
either Rule 37 or 41, a district court must first find (1) the plaintiff’s failure to
comply with [the] relevant order was willful or in bad faith; and (2) lesser
13
sanctions would not suffice.” Doye v. Colvin, 378 F. App’x 926, 928 (11th Cir.
2010) (emphasis added) (citing Wouters v. Martin Cty., Fla., 9 F.3d 924, 933-34
(11th Cir. 1993) (reversing Rule 37(b) dismissal); Goforth v. Owens, 766 F.2d
1533, 1535 (11th Cir. 1985) (discussing prerequisites to a Rule 41(b) dismissal)).
The Magistrate applied the proper legal standard.
Defendant CA next argues that the R&R “incorrectly concludes that lesser
sanctions ultimately ensured Plaintiff’s compliance with the Court’s orders and the
Federal Rules of Civil Procedure.” (Obj. at 9). It argues that Plaintiff complied
with her obligations only after Defendant CA filed its Motion to Dismiss. (Id.).
“[T]he insufficiency of the lesser sanctions is further reflected by Plaintiff’s
continued conduct,” which includes that “Plaintiff has not supplemented her
Interrogatory responses to identify the witnesses she concealed.” (Id.). Here,
Plaintiff’s effort to comply with her discovery obligations is linked to the retention
of her lawyers. Plaintiff complied with her discovery obligations the day after
notices of appearance were filed by her new counsel. Out from under Rosenberg’s
influence and now advised by different lawyers, the implication is she now is
aware of what is required of her in this litigation.
Assuming, for a moment, that the Motion to Dismiss was what urged
Plaintiff to comply with the Court’s orders, dismissal still is warranted only where
14
“the district court finds that lesser sanctions would not suffice.” Shortz, 352
F. App’x at 359 (emphasis added). Whatever the motivation for Plaintiff’s
compliance, it appears that Plaintiff and her new counsel are now attempting to
comply fully with the Court’s orders.
Defendant CA continues with its laundry list of reasons for dismissal. It
claims that the R&R “omits specific egregious conduct of Plaintiff.” (Obj. at 12).
For example, the R&R “does not mention that the Social Media
Documents . . . included evidence of Plaintiff’s obstruction of discovery through
witness tampering and intentional concealment of witnesses[,]” and the R&R omits
that Plaintiff refused to “comply with the Court’s [December 2, 2014,] Order
despite receiving a copy of it at her deposition.” (Id. at 12-13).
It offers arguments of “obstruction of discovery through witness tampering,”
stating that the production of social media documents included a May 2012
conversation with Marcellus Walton, in which Plaintiff instructs him that “if [he]
talk[ed] to anyone from lenox . . . and they ask about [her] or anything don’t say
you’ve talked to [her].” (Reply at 12). This conversation, which took place almost
two years before this action was filed, is irrelevant to Plaintiff’s compliance with
the Federal Rules or with the Court’s orders.
15
Defendant CA next argues that the delayed production of the social media
documents revealed that Plaintiff has, for over a year, concealed the identity of
potential witnesses to this case. (Obj. at 15). Even if true, this information does
not change the Court’s analysis. Plaintiff was sanctioned for her past failure to
comply with the Federal Rules and the Court’s orders, which includes the conduct
of which Defendant CA now complains. Plaintiff also faces the prospect of
additional sanctions and remedies requested by Defendant CA.
Defendant CA’s argument that Plaintiff was aware of the December 2, 2014,
Order, also does not change the Court’s analysis. Defendant CA’s final argument
for dismissal is the Magistrate erred because she “d[id] not consider Plaintiff’s
actual knowledge of the contents and requirements of the [December 2, 2014,
Order] or her false representations to the Court.” (Obj. at 18). Plaintiff’s actual
knowledge of the December 2, 2014, Order is only one consideration in
determining whether to grant dismissal with prejudice under Rule 41(b). See M/V
Monada, 432 F.3d at 1338 (holding that dismissal with prejudice is “thought to be
more appropriate in a case where a party, as distinct from counsel, is culpable”).
To impose the “extreme sanction” of dismissal with prejudice, the Court must
“specifically find[] that lesser sanctions would not suffice.” Id. The Court,
considering all of Defendant CA’s arguments in isolation and in the aggregate,
16
concludes, given Plaintiff’s and her new counsel’s compliance with the Court’s
orders and their obligations under the Federal Rules, that lesser sanctions would
suffice in this case.6 Upon de novo review, the Court overrules Defendant CA’s
objection to the Magistrate Judge’s recommendation that this case not be
dismissed, because lesser sanctions are the appropriate remedy—the same
conclusion reached by Judge Salinas. Defendant CA’s Motion to Dismiss is
denied.7
Although the Court concludes this action should not now be dismissed, the
record of Plaintiff and her previous counsel’s conduct is disturbing. They have
impeded the litigation of this case, evaded the discovery obligations necessary to
reach a fair and just resolution, caused Defendant CA to bear expense it should not
have to bear, and otherwise impeded the administration of justice. For this
6
Even if the Court found that lesser sanctions would not suffice, such a
finding would merely allow the Court the discretion to dismiss the action with
prejudice. The Court is not required to grant the relief Defendant CA seeks. See
Equity Lifestyle Props., 556 F.3d at 1240 n.14 (whether to dismiss a complaint
under Rule 41(b) “is a matter committed to the district court’s discretion”);
Chudasama, 123 F.3d at 1366 (“District courts enjoy substantial discretion in
deciding whether and how to impose sanctions under Rule 37.”). Under these
circumstances, the Court, in its discretion, would deny Defendant CA’s Motion to
Dismiss.
7
The Court admonishes Plaintiff that any further violation of the Federal
Rules, the Local Rules of this Court, or the Court’s orders by her or her counsel
may result in dismissal of this action.
17
conduct, there must be a sanction and this sanction must be timely imposed and
timely enforced. Plaintiff, on June 26, 2015, was ordered to pay Defendant CA’s
attorney’s fees and expenses incurred in moving for contempt and sanctions.
([105]). The sanction was imposed on Plaintiff and Rosenberg. Neither Plaintiff
nor Rosenberg paid these amounts, electing instead to file several motions for
reconsideration. The R&R now suggests additional sanctions based on Plaintiff’s
and Rosenberg’s conduct in causing the processing of this case to be protracted and
unnecessary expenses incurred. It is time for these sanctions to be specifically
imposed as it is time for the sanctions to be paid. To do so, a sanction compliance
process shall be put into place. The process is as follows:
1.
Defendant CA shall, on or before February 1, 2016, file with the
Court and serve on Plaintiff and her counsel, including specifically
Rosenberg, the attorneys’ fees and expenses it incurred to prosecute
its Motion for Contempt and Sanctions. The submissions shall
include a description of each service performed by each time keeper,
the time required to perform each service, and the billing rate of the
person who performed the service. A detailed list of expenses also
shall be submitted. Plaintiff and her counsel shall file, on or before
18
February 5, 2016, their response, if any, to the description of
attorneys’ fees and expenses.
2.
Defendant CA shall, on or before February 1, 2016, specify the
sanctions it requests as a sanction for Plaintiff’s filing of the motions
for reconsideration, and for filing its Motion to Dismiss. A request for
attorneys’ fees and expenses shall provide the information described
in Paragraph 1 above.
3.
Discovery in this case will be extended to allow Defendant CA to
conduct additional discovery. Defendant CA’s discovery is extended
up to and including April 1, 2016. During this period Defendant CA
may depose Plaintiff for up to five (5) hours. It also may conduct
additional depositions for the time allowed by Rule 30 of the Federal
Rules of Civil Procedure. It may depose witnesses previously
deposed for up to three (3) hours.
4.
Defendant CA may request to be paid its reasonable attorneys’ fees
and expenses for the discovery allowed in Paragraph 3 above, not to
exceed $10,000. Defendant CA’s request for attorneys’ fees and
expenses should contain the same information described in Paragraph
1 above.
19
5.
The Magistrate Judge shall promptly assess attorneys’ fees and
expenses against Plaintiff and Rosenberg relating to the Motion for
Contempt and Sanctions. The assessment shall make a specific
assessment against Plaintiff and against Rosenberg. Plaintiff and
Rosenberg shall pay such assessment into the Registry of the Court
within five (5) calendar days after the assessment is entered on the
docket in this case. Failure to pay the required amounts into the
Registry of the Court will result in the dismissal of this action.
6.
If Defendant CA seeks to be paid its attorneys’ fees and expenses as a
sanction related to Plaintiff’s motions for reconsideration and its
Motion to Dismiss, or for the additional discovery allowed to be
conducted under Paragraph 3 above, the Magistrate Judge shall
promptly assess attorneys’ fees and expenses against Plaintiff and
Rosenberg. The assessment shall make a specific assessment against
Plaintiff and Rosenberg. Plaintiff and Rosenberg shall pay such
assessment into the Registry of the Court within five (5) calendar days
after the assessment is entered on the docket in this case. Failure to
pay the required amounts into the Registry of the Court will result in
the dismissal of this action.
20
This alternative sanction is what is required to address Plaintiff’s and
Rosenberg’s intentional failures to comply with the rules governing discovery and
the Orders of this Court.
IV.
CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Defendant CentraArchy Restaurant
Management Company’s Objections [146] are OVERRULED.
IT IS FURTHER ORDERED that Magistrate Judge Catherine M.
Salinas’s Non-Final Report and Recommendation [141] is ADOPTED AS
MODIFIED in this Order.
IT IS FURTHER ORDERED that Defendant CA’s Motion to Dismiss
Plaintiff Amy L. Anderson’s Complaint [122] is DENIED.
IT IS FURTHER ORDERED that Defendant CA shall file, on or before
February 1, 2016, with the Court and serve on Plaintiff and her counsel, including
specifically Rosenberg, the attorneys’ fees and expenses it incurred to prosecute its
Motion for Contempt and Sanctions. Plaintiff shall have up to and including
February 5, 2016, to file a response. The response, if filed, is limited to eight (8)
pages.
21
IT IS FURTHER ORDERED that Defendant CA shall, on or before
February 1, 2016, specify the sanctions it requests as a sanction for Plaintiff’s
filing of the motions for reconsideration, and for filing its Motion to Dismiss.
IT IS FURTHER ORDERED that discovery in this case is extended, up to
and including April 1, 2016, to allow Defendant CA to conduct additional
discovery.
IT IS FURTHER ORDERED that Plaintiff and Rosenberg shall pay any
assessment for attorneys’ fees and expenses entered against them within five (5)
calendar days after the assessment is entered on the docket in this case. Plaintiff
and Rosenberg are ADMONISHED that failure to pay the required amounts into
the Registry of the Court will result in dismissal of this action.
SO ORDERED this 26th day of January, 2016.
_______________________________
WILLIAM S. DUFFEY, JR.
UNITED STATES DISTRICT JUDGE
22
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