Graney et al v. Mercy Health Services-Iowa Corp

Filing 16

MEMORANDUM OPINION AND ORDER Accepting 15 Report and Recommendations which grants 14 Motion to Dismiss Or, Alternatively, For Other Sanctions With An Extension Of Mercy's Expert Designation Deadline. This case is dismissed with prejudice. Judgment is entered in favor or defendant Mercy and against the plaintiffs. Signed by Judge Mark W Bennett on 10/23/2013. Order/NEF mailed to pro se plaintiffs. (src)

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,
No. C 12-3094-MWB
Plaintiffs,
vs.
MERCY HEALTH SERVICES–IOWA,
CORP., d/b/a Mercy Medical Center–
North Iowa,

MEMORANDUM OPINION AND
ORDER ADOPTING REPORT AND
RECOMMENDATION FOR
DISMISSAL

Defendant.
___________________________
This case—alleging wrongful death, loss of parental consortium, and failure to
provide an appropriate medical screening examination of the plaintiff’s sixteen-year-old
son, resulting in his death from probable cardiac arrhythmia—is before me on the
September 18, 2013, Report And Recommendation (docket no. 15) by United States
Magistrate Judge Leonard T. Strand.

In his Report And Recommendation, Judge

Strand recommends that defendant Mercy’s unresisted August 29, 2013, Motion To
Dismiss Or, Alternatively, For Other Sanctions With An Extension Of Mercy’s Expert
Designation Deadline (docket no. 14) be granted, that this case be dismissed with
prejudice, and that judgment be entered in favor of defendant Mercy and against the
plaintiffs. Judge Strand so recommends in light of the plaintiffs’ persistent failure to
respond to motions, discovery requests, statuory-, rule-, and court-imposed deadlines,
and court orders. No timely objections to the Report And Recommendation have been
filed, nor have the plaintiffs requested additional time to file any objections.

The applicable statute, 28 U.S.C. § 636(b)(1), provides for de novo review by
the district judge of a magistrate judge’s report and recommendation only when
objections are made, as follows:
A judge of the court shall make a de novo determination of
those portions of the report or specified proposed findings or
recommendations to which objection is made. A judge of
the court may accept, reject, or modify, in whole or in part,
the findings or recommendations made by the magistrate
judge. The judge may also receive further evidence or
recommit the matter to the magistrate judge with
instructions.
28 U.S.C. § 636(b)(1) (2006); see FED. R. CIV. P. 72(b) (stating identical
requirements); N.D. IA. L.R. 72, 72.1 (allowing the referral of dispositive matters to a
magistrate judge but not articulating any standards to review the magistrate judge’s
report and recommendation). This statutory standard does not preclude review by the
district court in other circumstances, see Thomas v. Arn, 474 U.S. 140, 154 (1985),
and the Eighth Circuit Court of Appeals has indicated that a district court should review
the portions of a magistrate judge’s report and recommendation to which no objections
have been made under a “clearly erroneous” standard of review.

See Grinder v.

Gammon, 73 F.3d 793, 795 (8th Cir. 1996) (noting that, when no objections are filed
and the time for filing objections has expired, “[the district court judge] would only
have to review the findings of the magistrate judge for clear error”); Taylor v. Farrier,
910 F.2d 518, 520 (8th Cir. 1990) (noting that the advisory committee’s note to FED.
R. CIV. P. 72(b) indicates “when no timely objection is filed the court need only satisfy
itself that there is no clear error on the face of the record”). Review for clear error,
even when no objections have been made, is also consistent with “retention by the
district court of substantial control over the ultimate disposition of matters referred to a
magistrate.” Belk v. Purkett, 15 F.3d 803, 816 (8th Cir. 1994).
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The Eighth Circuit Court of Appeals has not explained precisely what “clear
error” review means in this context. In other contexts, however, the Supreme Court
has stated that the “foremost” principle under this standard of review “is that ‘[a]
finding is “clearly erroneous” when although there is evidence to support it, the
reviewing court on the entire evidence is left with the definite and firm conviction that a
mistake has been committed.’” Anderson v. City of Bessemer City, 470 U.S. 564, 573
74 (1985) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).
Reviewing Judge Strand’s Report And Recommendation with these standards in
mind, I find no error, clear or otherwise, in his recommended disposition. As the
Eighth Circuit Court of Appeals has explained,
A district court may dismiss with prejudice a cause of action
“for failure of a plaintiff to prosecute or comply with these
rules or any court order.” Fed.R.Civ.P. 41(b). “Despite the
breadth of this language, however, we have recognized that
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)). A plaintiff need not
have acted in bad faith, but the district court must find that
the plaintiff “acted intentionally as opposed to accidentally
or involuntarily.” Id. “A district court should weigh its need
to advance its burdened docket against the consequence of
irrevocably extinguishing the litigant's claim and consider
whether a less severe sanction could remedy the effect of the
litigant's transgressions on the court and the resulting
prejudice to the opposing party.” Id. (citation omitted).
Arnold v. ADT Sec. Servics., Inc., 627 F.3d 716, 722 (8th Cir. 2010).
Furthermore, dismissal may be a sanction for violations of discovery orders,
within the scope of Rule 37 of the Federal Rules of Civil Procedure. Sentis Group,
Inc., Coral Group, Inc. v. Shell Oil Co., 559 F.3d 888, 899 (8th Cir. 2009). “To
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justify a sanction of dismissal, Rule 37 requires: ‘(1) an order compelling discovery,
(2) a willful violation of that order, and (3) prejudice to the other party.’” Id. (quoting
Schoffstall v. Henderson, 223 F.3d 818, 823 (8th Cir. 2000)). Because “[t]he sanction
of dismissal is among the harshest of sanctions, and there is a strong policy favoring a
trial on the merits and against depriving a party of his day in court,” the Eighth Circuit
Court of Appeals has observed that “the district court’s discretion [to impose discovery
sanctions] narrows as the severity of the sanction or remedy it elects increases.” Id. at
898-99 (internal quotation marks and citations omitted).

Consequently, although a

district court need not impose the least onerous sanction for discovery failures, fairness
requires it to consider whether a lesser sanction is available or appropriate before
dismissing a case with prejudice. Keefer v. Provident Life and Accident Ins. Co., 238
F.3d 937, 941 (8th Cir. 2000). The sanction of dismissal for failure to respond to
discovery may be appropriate when the sanctioned party ignored numerous warnings by
the district court of the consequences of failure to comply. Id. “[A] court may find
willful disobedience sufficient to support dismissal when a party employs stall tactics
and disregards court orders.” In re O’Brien, 351 F.3d 832, 836 (8th Cir. 2003) (citing
Schoffstall, 223 F.3d 824).
Judge Strand noted that the plaintiffs are prosecuting this action pro se, although
their original state-court petition was drafted with the assistance of an attorney. Report
And Recommendation at 1 & n.2. Pro se litigants are not excused from complying
with court orders, Farnsworth v. Kansas City, Mo., 863 F.2d 33, 34 (8th Cir. 1988)
(per curiam), or procedural law, see Brown v. Frey, 806 F.2d 801, 803-04 (8th Cir.
1986).
Judge Strand’s recommendation for dismissal as a sanction for failure to
participate in discovery and for failure to obey court orders is fully warranted here.
Judge Strand set out in detail the plaintiffs’ history of failing to respond to discovery
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requests, motions, deadlines, and court orders. Indeed, the plaintiffs have done the
nearest thing to nothing since this action was filed and removed to this federal court as
it is possible to get, which has resulted in a complete failure to prosecute this action.
Judge Strand also detailed his various warnings to the plaintiffs both that discovery and
compliance with court orders was required and that the consequences for failing to
participate in discovery or to comply with court orders could—indeed, he warned, were
likely to—result in dismissal with prejudice and the loss of the opportunity to pursue
their claims in the future. I note that Judge Strand made every effort to cast these
warnings in plain English, not legalese that might have obscured the seriousness of the
plaintiffs’ failings or the consequences of continued failings. On this record, Judge
Strand’s finding that the plaintiffs’ repeated failings were willful is entirely justified.
Judge Strand’s finding that defendant Mercy has been prejudiced by the plaintiffs’
failure to consult on scheduling matters, respond to discovery requests, or respond to
motions and orders also is not clearly erroneous, but well supported by the record,
where the plaintiffs’ conduct has made Mercy’s attempts at discovery and to prepare to
defend the case all but impossible. Judge Strand also considered the appropriateness
and the likely effectiveness of lesser sanctions and did not clearly err by concluding that
lesser sanctions are not warranted, in light of the plaintiffs’ repeated failures to respond
to orders and warnings.
Like Judge Strand, I find that “[i]t is very unfortunate that this case has reached
this point,” that “[c]ases should be decided on their merits,” and that the “[p]laintiffs
brought this case after suffering an unthinkable loss.” Report And Recommendation at
8. Nevertheless, this is the sort of extreme case in which the plaintiffs’ complete
failure to prosecute the action, follow court orders, respond to motions and deadlines,
or comply with discovery requests warrant the harsh sanction of dismissal.

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THEREFORE, I hereby adopt the September 18, 2013, Report And
Recommendation (docket no. 15) by United States Magistrate Judge Leonard T. Strand;
grant defendant Mercy’s unresisted August 29, 2013, Motion To Dismiss Or,
Alternatively, For Other Sanctions With An Extension Of Mercy’s Expert Designation
Deadline (docket no. 14); dismiss this case with prejudice; and direct that judgment
be entered in favor of defendant Mercy and against the plaintiffs.
IT IS SO ORDERED.
DATED this 23rd day of October, 2013.

______________________________________
MARK W. BENNETT
U.S. DISTRICT COURT JUDGE
NORTHERN DISTRICT OF IOWA

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