Cox v. Gurba et al

Filing 47

MEMORANDUM AND ORDER granting 44 plaintiff's Motion to Dismiss. Signed by District Judge J. Thomas Marten on 11/8/2012. (mss)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

Tony Cox,
Plaintiff,
vs.

Case No. 11-2680-JTM

Danny M. Gurba, M.D. et al.,
Defendants.

MEMORANDUM AND ORDER

This matter is before the court on the Motion to Dismiss Without Prejudice of the
plaintiff Tony Cox (Dkt. 44), which comes after the defendants have sought and obtained
an Order (Dkt. 35) granting their motion to compel the production of certain discovery
responses. That Order directed Cox to submit the required discovery responses and
executed medical records authorizations by a date certain. After Cox failed to respond, the
defendants filed a Motion for Sanctions (Dkt. 36).
The plaintiff’s subsequent motion to dismiss stresses the recent health problems of
his counsel. The plaintiff also agrees that “upon re-filing he will provide the defendants
with those documents which have been collected and ... updated responses to the
interrogatories and other discovery requests,” and that he “will voluntarily produce his

documents and supplement his discovery responses prior to or contemporaneously
re-filing.” (Dkt. 44, at 4, 5).
The defendants express sympathy or those problems, and do not oppose the
dismissal under the circumstances of the case, but suggest that the court attach certain
conditions to the dismissal. The plaintiff has filed no pleading indicating opposition to the
specified conditions. (Dkt. 45, at 2-3).
In light of all the circumstances of the case, the court in its discretion, hereby
dismisses this action without prejudice, subject to the requirement and directive that:
1. In the event the action is re-filed, plaintiff will produce within ten days a fully
executed medical authorization permitting ex parte communications with
plaintiff’s treating health care providers.
2. In the event the action is re-filed, plaintiff will respond to any currently
outstanding and unanswered discovery requests to the extent this issue remains
a concern.
3. The dismissal shall be at the cost of the filing fee previously incurred and paid
by plaintiff.
IT IS SO ORDERED this 8th day of November, 2012, that the plaintiff’s Motion to
Dismiss (Dkt. 44) is granted as provided herein.

s/ J. Thomas Marten
J. THOMAS MARTEN, JUDGE

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