Graney et al v. Mercy Health Services-Iowa Corp

Filing 15

REPORT AND RECOMMENDATIONS recommend 14 Motion to Dismiss be granted and that this case be dismissed with prejudice, with judgment being entered in favor of Defendant Mercy Health Services-Iowa Corp against Plaintiffs Shane Graney and Karry Graney. Objections to R&R due by 10/2/2013. Signed by Magistrate Judge Leonard T Strand on 9/18/2013. (Copy w/nef mailed to pro se plaintiffs) (des)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CENTRAL DIVISION
SHANE GRANEY, Individually and as
Co-Administrator of the Estate of
Zachary Graney, and KARRY GRANEY,
Individually and as Co-Administrator of
the Estate of Zachary Graney,
Plaintiffs,

No. C12-3094-MWB

vs.
MERCY HEALTH SERVICES-IOWA,
CORP., d/b/a Mercy Medical
Center-North Iowa,

REPORT
AND RECOMMENDATION

Defendant.
____________________
INTRODUCTION
This case is before me on defendant’s August 29, 2013, motion (Doc. No. 14) to
dismiss or, alternatively, for other sanctions. Plaintiffs’ resistance was due September
16, 2013. They did not resist. As such, the motion is fully submitted.
PROCEDURAL BACKGROUND
Plaintiffs Shane Graney and Karry Graney, in their individual capacities and as
co-administrators of the estate of Zachary Graney, filed this case on October 22, 2012, in
the Iowa District Court for Cerro Gordo County. Their state court petition, filed pro se
but drafted with the assistance of an attorney,1 describes an incident that occurred on
1

The petition is signed only by the plaintiffs. It includes a statement that it was prepared for them
by an attorney but that the attorney is not representing them in this case. Petition p. 4.

October 22, 2010, when Zachary Graney was 16 years old.

Plaintiffs allege that

Zachary was found unresponsive outside a convenience store and was taken to Mercy
Medical Center – North Iowa in Mason City.

They further allege that after “a delay of

some time,” Zachary was treated in the emergency department but died the following
day “of probable cardiac arrhythmia.”

Petition ¶ 7.

The petition includes claims

against defendant Mercy Health Services-Iowa Corp., d/b/a Mercy Medical Center –
North Iowa (“Mercy”), for wrongful death and loss of parental consortium. Plaintiffs
allege that Mercy and its employees were negligent in the diagnosis, care and treatment
of Zachary.

Id. ¶ 9.

The petition also includes a claim that Mercy violated the

Federal Emergency Medical Treatment and Active Labor Act (EMTALA) by failing to
provide an appropriate medical screening examination for Zachary.

Id. ¶¶ 15-19.

Mercy removed (Doc. No. 1) the case to this court on December 4, 2012, alleging
federal question jurisdiction based on the EMTALA claim. Mercy then filed an answer
(Doc. No. 4) on December 10, 2012. The answer includes Mercy’s denial of liability
and certain affirmative defenses.
After this relatively-normal beginning, this case fell off the tracks quickly. On
May 7, 2013, I entered an order (Doc. No. 7) addressing the parties’ failure to submit a
proposed scheduling order and discovery plan.

I noted that Mercy’s counsel had

submitted documentation of their unsuccessful efforts to confer with plaintiffs about a
proposed order. I then stated:
Under our local rules, the parties “are jointly responsible for
preparing a proposed scheduling order and discovery plan.” See Local
Rule 16(b). Because plaintiffs apparently failed to respond to defendant’s
effort to jointly prepare an order, defendant should have submitted a
proposed order of its own. In short, both sides bear some fault for the
fact that the proposed scheduling order is now long overdue.

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Based on the foregoing:
1.
The pro se plaintiffs shall confer by telephone with counsel
for defendant for the purpose of preparing a joint proposed scheduling
order and discovery plan pursuant to Local Rule 16(a). Because plaintiffs
are proceeding without counsel, and because defendant is the party that
removed the case to this court, counsel for defendant shall make good faith
efforts to arrange that telephone conference no later than May 21, 2013.
2.
Counsel for defendant shall submit a proposed scheduling
order and discovery plan for my review on or before May 24, 2013. That
document should be accompanied by a cover letter indicating whether it is
being submitted jointly, based on a conference with plaintiffs, or
unilaterally due to plaintiffs’ failure to confer.
3.
Plaintiffs are advised that they must follow this court’s rules,
even though they are not represented by counsel. This includes both the
court’s local rules and the Federal Rules of Civil Procedure. These rules
may
be
accessed
on
the
court’s
website,
located
at
http://www.iand.uscourts.gov/e-web/home.nsf/home.
Among other
things, this means plaintiffs must participate in the discovery process. It
appears they are not off to a good start. If they do not comply with this
court’s rules, they will be subject to sanctions up to and including the
dismissal of this case.
Doc. No. 7 at 1-2. On May 23, 2013, I entered the following order (Doc. No. 8):
Pursuant to my order of May 7, 2013 (Doc. No. 7), counsel for
defendant has submitted a proposed scheduling order and discovery plan for
this case. Counsel also submitted a cover letter and attachments showing
their repeated efforts to confer with the pro se plaintiffs about the
preparation of that document. Unfortunately, it seems that the plaintiffs did
nothing to comply with their obligation to confer.
I have reviewed defendant’s proposed scheduling order and
discovery plan and find that it is reasonable and appropriate. As such, I
have approved the document and will file it to establish a schedule for this
case and trigger the setting of a trial date. However, plaintiffs’ ongoing
failure to respond to defendant’s counsel does not give me much hope that
the case will ever get to trial.
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In my last order, I attempted to explain to the plaintiffs the
importance of following this court’s rules and orders. They obviously felt
strongly enough about their case to file a lawsuit in the first place.
However, there is more to a lawsuit than simply filing it, waiting a long
time, and then having a trial. They will never get to trial unless they
immediately begin complying with the court’s rules and orders.
For starters, that will include a careful review of the scheduling order
for this case. It includes critical deadlines that are coming fast. If
plaintiffs do not comply with those deadlines, or with their other obligations,
defendant will have the right to file a motion requesting sanctions. Those
sanctions could, and probably would, include the dismissal of this case. As
such, if plaintiffs want to take this case to trial, they must immediately
review the scheduling order and take action to follow it.
Doc. No. 8 at 1-2. On that same date, I entered the scheduling order and discovery
plan (Doc. No. 9) in the form proposed by Mercy. That order established June 3,
2013, as plaintiffs’ deadline for disclosing expert witnesses, and September 1, 2013, as
Mercy’s deadline for disclosing its experts. Doc. No. 9 at 1.
On July 15, 2013, Mercy filed a motion (Doc. No. 12) to compel discovery.
Mercy explained that it had served interrogatories and document requests several months
earlier.

While plaintiff Shane Graney had served answers to some interrogatories,

plaintiff Karry Graney had provided no answers. Mercy also noted that the plaintiffs
had not served responses to any document requests and had not produced any requested
documents.

In addition, Mercy stated that the plaintiffs had not yet disclosed any

information about their expert witnesses, although their deadline for doing so had
expired several weeks earlier. Mercy documented its various unsuccessful efforts to
discuss these issues with plaintiffs. The motion requested entry of an order compelling
production of the missing information.

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Plaintiffs did not resist Mercy’s motion. On August 15, 2013, I entered an order
(Doc. No. 13) granting the motion. I used that order to warn plaintiffs, again, that they
were perilously close to having their case dismissed due to their inaction. I ordered
them to produce all of the required information by August 28, 2013, and wrote:
All of this information should have been provided long ago. If plaintiffs do
not comply with this order, defendant will be free to file a motion for
sanctions up to and including the dismissal of this case.
To be perfectly clear, this means that if the plaintiffs want this case to
go to trial, they must get busy and provide the information listed above by
August 28, 2013. If they do not do what this order requires, this case is
almost-certainly going to be dismissed. If this case is dismissed, it is very
likely that the plaintiffs will be barred from ever again trying to assert claims
for damages based on the events described in their petition.
Doc. No. 13 at 2.
Mercy filed its present motion on August 29, 2013, the day after the deadline
established by my most-recent order. Mercy states that the plaintiffs have not identified
any experts or produced any of the other information required by my August 15, 2013,
order. Mercy requests dismissal of this action as a sanction for plaintiffs’ failure to
engage in discovery and failure to comply with this court’s orders. As noted above, and
consistent with past practice, plaintiffs have not filed a response to Mercy’s motion.
ANALYSIS
Federal Rule of Civil Procedure 37(b)(2)(A) provides that the court may impose
sanctions for discovery violations, including dismissal of the action in whole or in part.
Dismissal with prejudice is “an extreme sanction that should be used only in cases of
willful disobedience of a court order or where a litigant exhibits a pattern of intentional
delay.”

Hunt v. City of Minneapolis, 203 F.3d 524, 527 (8th Cir. 2000) (citing

Hutchins v. A.G. Edwards & Sons, Inc., 116 F.3d 1256, 1260 (8th Cir. 1997)).
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Dismissal can “be considered as a sanction only if there is: (1) an order compelling
discovery; (2) a willful violation of that order; and (3) prejudice to the other party.”
Keefer v. Provident Life and Acc. Ins. Co., 238 F.3d 937, 940 (8th Cir. 2000) (citing
Schoffstall v. Henderson, 223 F.3d 818, 823 (8th Cir. 2000)). The Eighth Circuit
Court of Appeals will “more closely scrutinize dismissal imposed as a discovery sanction
because the opportunity to be heard is a litigant's most precious right and should
sparingly be denied.” Id. at 940–41 (internal quotation marks and citation omitted).
Here, there was an order compelling discovery.

Specifically, my order of

August 15, 2013, compelled production of expert witness information and other,
long-overdue discovery information. It is undisputed that plaintiffs did not comply with
that order. Nor did they even attempt compliance or, at least, seek additional time to
comply. Under the circumstances, and in light of plaintiffs’ other actions (or inactions)
since Mercy removed this case to this court, I find that this violation was willful.2
Plaintiffs did not resist Mercy’s motion to compel. Nor did they resist Mercy’s pending
motion to dismiss. They have offered no explanation or excuse for their failure to
comply with even the most-basic discovery and procedural requirements.
While I recognize that the plaintiffs are proceeding without the benefit of counsel,
their pro se status is not a valid excuse.

See, e.g., Farnsworth v. Kansas City, Mo.,

863 F.2d 33, 34 (8th Cir. 1988) (per curiam) (pro se litigants are not excused from
complying with court orders). My prior orders in this case included my best efforts to
2

For example, and as described in detail above, plaintiffs failed to comply with their obligation to
confer with defense counsel to prepare a proposed scheduling order and discovery plan, despite
being advised of that obligation by my order (Doc. No. 7) of May 7, 2013. They then violated
the scheduling order (Doc. No. 9) by failing to disclose expert witness information on or before
June 3, 2013. This repeated failure to comply with the rules of civil procedure or any order of
this court provides additional grounds for dismissal beyond discovery violations. See Fed. R.
Civ. P. 41(b) (stating that a defendant may move to dismiss an action based on plaintiff’s failure
to prosecute or comply with the rules of civil procedure or a court order and that such a dismissal
operates as an adjudication on the merits.).
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provide plain-language guidance about what plaintiffs were required to do in order to
prevent the dismissal of this case. I told them how to locate the applicable rules of
procedure (Doc. No. 7 at 2) and repeatedly warned them that this case would be
dismissed unless they immediately started taking required action.

Id., see also Doc.

No. 8 at 1-2; Doc. No. 13 at 1-2. Plaintiffs may have been able to save this case if they
would have at least tried to comply. I find that their failure to make even a flawed, but
good faith, attempt to comply with the basic obligations of being federal court litigants
was a conscious decision by plaintiffs to ignore this court’s orders and abandon this case.
I further find that Mercy has suffered prejudice as a result of plaintiffs’ violations.
Mercy served written discovery requests on plaintiffs early in this case.
12 at Exs. B-D.

See Doc. No.

While plaintiff Shane Graney provided some answers to basic

interrogatories, plaintiff Karry Graney did not.
document requests or produced any documents.

Neither plaintiff has responded to

Moreover, and despite the fact that this

case includes allegations that Mercy was negligent in its diagnosis, care and treatment of
Zachary Graney, plaintiffs have never provided any information concerning expert
witness testimony. With discovery scheduled to close in less than one month (Doc. No.
9), there is no doubt that Mercy has been prejudiced in its ability to defend this case and
prepare for trial.
I have considered the possibility of imposing sanctions that are less-severe than
dismissal with prejudice. Mercy has indicated that if dismissal is not warranted, for
some reason, then – at minimum – plaintiffs should be precluded from using expert
testimony and should be ordered to pay the costs and attorney fees incurred in attempting
to obtain discovery. Doc. No. 14 at 3. I find that plaintiffs’ complete and total lack of
action precludes imposition of a less-severe sanction. If they had made any effort over
the past several months to do something – anything – to advance this case and comply
with court orders, then I would have been inclined to impose a sanction other than
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dismissal. It is one thing for a pro se party to attempt compliance and come up short.
It is another thing entirely for any party, pro se or otherwise, to simply ignore court
orders. I find that no purpose would be served by entering an order that imposes a
lesser sanction.

Such an order would necessarily require the establishment of yet

another deadline for plaintiffs to take curative action – a deadline that would again be
ignored.3
It is very unfortunate that this case has reached this point. Cases should be
decided on their merits. Plaintiffs brought this case after suffering an unthinkable loss.
As I noted almost four months ago: “They obviously felt strongly enough about their
case to file a lawsuit in the first place.” Doc. No. 8 at 1. However, it is now clear
that plaintiffs have decided to abandon this case. They had many chances to take action
but did not do so. While dismissal is an extreme sanction, I find that it is warranted
under the circumstances present here. As such, I will recommend entry of an order
dismissing this action with prejudice and entering judgment against plaintiffs.
Conclusion and Recommendation
For the reasons discussed above, I RESPECTFULLY RECOMMEND that
Mercy’s unresisted August 29, 2013, motion (Doc. No. 14) to dismiss or, alternatively,
for other sanctions, be granted, and that this case be dismissed with prejudice, with
judgment being entered in favor of Mercy and against the plaintiffs.
3

Moreover, an order precluding plaintiffs from presenting expert witness testimony at trial
would, under Iowa law, likely result in the ultimate entry of summary judgment with regard to all
claims except, perhaps, the federal EMTALA claim. See, e.g., Graeve v. Cherny, 580 N.W.2d
800, 801 (Iowa 1998) (“Expert testimony is ordinarily required in medical malpractice cases in
order to establish a prima facie case of negligence.”). Expert testimony may not be necessary if
the issues relevant to liability are within the common understanding of a typical juror. Thompson
v. Embassy Rehab. and Care Center, 604 N.W.2d 643, 646 (Iowa 2000) (citing Schlader v.
Interstate Power Co., 591 N.W.2d 10, 14 (Iowa 1999)). Based on the limited information in the
current record, I do not believe plaintiffs’ claims of negligent diagnosis, care and treatment would
fall within this “no expert needed” category.
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Objections to this Report and Recommendation in accordance with 28 U.S.C.
' 636(b)(1) and Fed. R. Civ. P. 72(b) must be filed within fourteen (14) days of the
service of a copy of this Report and Recommendation. Objections must specify the
parts of the Report and Recommendation to which objections are made, as well as the
parts of the record forming the basis for the objections.

See Fed. R. Civ. P. 72.

Failure to object to the Report and Recommendation waives the right to de novo review
by the district court of any portion of the Report and Recommendation as well as the
right to appeal from the findings of fact contained therein. United States v. Wise, 588
F.3d 531, 537 n.5 (8th Cir. 2009).
IT IS SO ORDERED.
DATED this 18th day of September, 2013.

________________________________
LEONARD T. STRAND
UNITED STATES MAGISTRATE JUDGE

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