Myers et al v. Doebler's Pennslyvania Hybrids

Filing 41

MEMORANDUM OPINION & ORDER: IT IS ORDERED that Defendant's 33 Motion for Sanctions is GRANTED. A judgment in conformity with this Memorandum Opinion and Order will be file herewith. Signed by Judge Joseph M. Hood on 9/20/2017.(KM)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON

DARRELL L. MYERS and
LUKE MYERS,
Plaintiffs,
v.
DOEBLER’S PENNSYLVANIA
HYBRIDS,
Defendant,
v.
LUKE MYERS,
Counterclaim Defendant.

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Civil Case No.
5:16-cv-024-JMH

MEMORANDUM OPINION AND ORDER

***

This matter is before the Court on Defendant/Counterclaimant

Doebler’s Pennsylvania Hybrid’s (Defendant’s) Motion for Sanctions
[DE

33].

Defendant

requests

the

Court

dismiss

Plaintiff/Counterclaim Defendant Luke Myers and Darrell Myers’
(Plaintiffs’)

claims

against

Myers

Luke

with
on

prejudice,

Defendant’s

grant

default

counterclaim,

judgment

and

order

Plaintiffs and their counsel to pay Defendant the costs it incurred
in litigating the Motion for Sanctions. Plaintiffs responded [DE

37], Defendant replied [DE 38], and the matter is now ripe for
review.

For the reasons stated below, the motion will be granted.
BACKGROUND

The

following

series

of

events

highlights

the

dilatory

actions of Plaintiffs throughout this litigation, and provides
ample justification for the Court’s dismissal of their case.

This

case arises from a contract for the purchase of seed corn from
Defendant.

Plaintiffs allege, among other things, that the seed

corn was defective.

Defendant alleges Plaintiff Luke Myers did

not pay for the seed corn as required under the contract at issue.
Plaintiffs filed this case on December 23, 2015, in Nicholas
Circuit Court, and on January 25, 2016, Defendant removed the case
to federal court pursuant to 28 U.S.C. § 1332.

On February 5,

2016, Defendant filed its Answer and Counterclaim against Luke
Myers [DE 5].

It was at this juncture that Plaintiffs’ failures

began.
Luke Myers’ deadline to Answer or otherwise respond to the
Counterclaim was February 29, 2016.

Defendant moved for entry of

default on the Counterclaim on March 14, 2016 [DE 10].
permitted

late

filing

of

Plaintiffs’

“responses”

The Court
to

the

Counterclaim [DE 17] and denied Defendant’s motion for default.
Plaintiffs’ counsel, however, failed to properly sign the response
on three separate occasions [Des 14, 19, and 20].

After two

directives from the Court to file a properly signed response to

the Counterclaim [DE 18 and 21], Plaintiffs’ counsel finally filed
a properly signed response on September 5, 2016, seven months after
the Counterclaim was brought against his client.
By mid-September 2016, Defendant had still had not received
initial

disclosures

from

Plaintiffs.

Plaintiffs’

answers

to

written discovery, due July 5, 2016, were finally served on August
25,

2016.

According

to

Defendant,

Plaintiffs’

Answers

to

Interrogatories and Responses to Requests for Production were
“extremely and unusually deficient.”

The Court ordered Plaintiffs

to “fully respond” to written discovery by September 15, 2016.
Understandably,

Defendant

requested

additional

time

for

fact

discovery, as it was nearly impossible for Defendant to depose
Plaintiffs by the September 2, 2016, deadline with so little
information about Plaintiffs’ claims.

In an Order dated September

26, 2016, the Magistrate Judge noted a “troubling (and building)
pattern of improper case conduct by Plaintiffs and/or Plaintiffs’
counsel.” [DE 25, p. 1]. The Magistrate Judge granted Defendant’s
request

to

extend

the

discovery

deadlines,

and

ordered

that

Plaintiffs should be deposed by November 23, 2016, and expert
identification and reports from Defendant would be due the same
day.
On November 23, 2016, Defendant was forced to file another
motion for an extension of its fact and expert discovery deadlines
[DE

26]

because

Plaintiffs

still

had

not

provided

initial

disclosures or fully responded to written discovery; Plaintiffs
did not dispute that they had not provided this information [DE
28].

The

Court

ordered

Plaintiffs

to

serve

their

initial

disclosures on Defendant by December 12, 2016, and to serve
complete discovery responses by December 20, 2016 [DE 29].

The

Court noted in that Order that
Plaintiffs have not cooperated with discovery
in this matter and have ignored the Magistrate
Judge’s orders dated August 25, 2016 [DE 18]
and September 26, 2016 [DE 25].
Should
Plaintiffs
and/or
Plaintiffs’
counsel
continue their pattern of improper case
conduct, refusal to obey Court orders and
delay, the Court may dismiss Plaintiffs’
claims pursuant to Fed. R. Civ. P. 37(b)(2) or
41(b).
[DE 29 p. 1-2].
Plaintiffs filed (rather than served, see Rule 5(d)) their
initial disclosures on December 12, 2016. Defendant filed a status
report on January 18, 2017 [DE 31], expressing its frustration in
trying to schedule the depositions of Plaintiffs, as well as the
continued discovery response deficiencies.

Although ordered to do

so on December 5, 2016 [DE 29], Plaintiffs failed to file a status
report on the progress of discovery, or to join in Defendant’s
report.

Accordingly, the Court considers the information in

Defendant’s Status Report on Discovery [DE 31] uncontroverted.
By February 2017, Defendant reached the end of its proverbial
“rope” and filed the instant Motion for Sanctions [DE 33].

In it,

Defendant alleges Plaintiffs’ inaction “amount[s] to failure to
prosecute” sufficient to warrant dismissal pursuant to Fed. R.
Civ. P. 41(b).

Defendant argues Plaintiffs’ failure to comply

with the Court’s Orders and Federal Rules 26, 33, 24, 30, and 37
also warrants dismissal pursuant to Rule 41(b) as well as Rule
37(b)(2)(A)(ii)(v)(which

provides

for

sanctions,

including

dismissal, for a party not complying a discovery rule).

At the

time of the Motion for Sanctions, Plaintiffs still had not provided
complete, substantive answers to Defendant’s written discovery; a
fact which Plaintiffs do not dispute [DE 37].

Plaintiffs stated

in their Response to the Motion for Sanctions that they have
“attempted to submit . . . all potentially relevant items of
discovery”

but

could

not

do

so

to

Defendant’s

satisfaction.

Importantly, but perhaps unsurprisingly, Plaintiffs had to request
an extension of time in which to respond to the Motion for
Sanctions [see DE 35].

Plaintiffs claim their “insufficiencies”

were due, at least in part, to the poor health of counsel’s mother,
the health problems of Luke Myers, and, later, the poor health of
Darrell Myers.
ANALYSIS
While the Court is mindful of personal and health-related
situations

that

litigation,

the

sometimes
fact

temporarily

remains

that

impede

Plaintiffs

the

progress

instituted

of

this

action and it is their responsibility to prosecute their case and

participate in discovery in a meaningful manner.

This case has

been pending for approximately 20 months with almost no forward
momentum because of Plaintiffs’ and/or their counsel’s failures.
There are four factors to consider in determining whether a
party’s actions warrant dismissal:
(1) whether the party's failure to
cooperate
in
discovery
is
due
to
willfulness, bad faith, or fault; (2)
“whether the adversary was prejudiced by
the
dismissed
party's
failure
to
cooperate in discovery”; (3) “whether the
dismissed party was warned that failure
to cooperate could lead to dismissal”;
and (4) “whether less drastic sanctions
were
imposed
or
considered
before
dismissal was ordered.”
Harmon v. CSX Transp., Inc., 110 F.3d 364, 366–67 (6th Cir.
1997)(quoting Regional Refuse Sys., Inc. v. Inland Reclamation
Co., 842 F.2d 150, 153-55 (6th Cir. 1988).

The Court agrees with

Defendant that all four factors are met in this case.
(1)

Failure to cooperate in discovery due to willfulness,
bad faith, or fault.

Plaintiffs have had an abundance of time to comply with the
Federal

Rules

of

Civil

Procedure

and

this

Court’s

Orders.

Plaintiffs initiated this case and then claimed to have very
little, if any, information that could be made available to
Defendant about Plaintiffs’ claims, and therefore were unable to
properly

engage

in

the

discovery

process.

To

the

extent

Plaintiffs’ counsel’s inaction due to his mother’s illness or other

personal problems caused delay in this litigation, the Court
reminds counsel he has a duty “to act with reasonable diligence
and

promptness.”

KY

Sup.Ct.Rules,

Rule

3.130(1.3).

Notwithstanding, the Court recognizes the general principal that
“dismissal of an action for an attorney's failure to comply is a
harsh sanction which the court should order only in extreme
situations showing ‘a clear record of delay or contumacious conduct
by the plaintiff.’”

Carter v. City of Memphis, Tenn., 636 F.2d

159, 161 (6th Cir. 1980) (quoting Silas v. Sears, Roebuck & Co.,
Inc. 586 F.2d 382, 385 (5th Cir. 1978)).

In this case, however,

it is clear that the client also bears responsibility in the delays
and failures permeating the record.1
“For a plaintiff's actions to be motivated by bad faith,
willfulness, or fault, his conduct must display either an intent
to thwart judicial proceedings or a reckless disregard for the
effect of [his] conduct on those proceedings.”

Wu v. T.W. Wang,

Inc., 420 F.3d 641, 643 (6th Cir. 2005)(citation and quotation
marks omitted).

Plaintiffs’ and/or their counsel’s failures in

1

 Plaintiff’s [sic] Response to Defendant/Counterclaim Plaintiff’s Second Motion
to Continue Certain Discovery Deadlines, DE 28 at p. 1-2: “because of
Plaintiff’s lack of record-keeping in business as demonstrated herein, the
Responses to Discovery are currently insufficient so as to hinder their
participation in this matter . . . As a result, Plaintiffs are in need of
further time to straighten out any and all discovery issues facing Plaintiffs
in this litigation, including but not limited to confusion as to Plaintiff’s
identities that the respective counsel are dealing with . . . Plaintiffs are
completely remorseful of and accept responsibility for the needed Court
intervention herein.”

this

case

have

been

consistent,

extreme,

and

inexcusable,

including failing to answer the Counterclaim timely, repeatedly
failing to sign a pleading, failing to comply with the timelines
in the Court’s Orders of August 25, 2016, September 26, 2016, and
December 5, 2016, failing to file a status report when ordered,
and even having to request an extension of time to respond to the
instant motion for sanctions.

Failures this consistent, extreme,

and inexcusable are, at a minimum, reckless disregard for the
effect of their actions on this proceeding, and appear to the
undersigned to be willful noncompliance with the Federal Rules and
this Court’s orders.
(2)

Prejudice

to

the

adversary

caused

by

failure

to

cooperate in discovery.
Defendant has undoubtedly been prejudiced by Plaintiffs’
refusal to abide by court orders and the Federal Rules in this
matter.

Most obviously, Defendant was forced to file this motion.

Defendant also filed the following motions due to Plaintiffs’
failure to prosecute this case, defend the counterclaim, and
meaningfully participate in discovery: (1) Motion for Entry of
Default [DE 10]; (2) Motion to Continue [DE 24]; and (3) Motion to
Continue [DE 26].
in

this

case

In fact, most of the documents Defendant filed

relate

to

Plaintiffs’

inaction

and

refusal

participate in discovery in a timely and meaningful manner.

to

“[A]

defendant is prejudiced by the plaintiff's conduct where the

defendant

waste[d]

cooperation

which

time,
[the

money,

plaintiff]

and

effort

was

in

legally

pursuit

of

obligated

to

provide.”

Schafer v. City of Defiance Police Dept., 529 F.3d 731,

737

Cir.

(6th

2008)(citations

and

quotation

marks

omitted).

Defendant necessarily incurred legal fees and expended time and
resources in an attempt to defend the case brought by Plaintiffs
against them, only to have Plaintiffs’ delays thwart resolution of
the case.
(3)

Warnings provided to the dismissed party.

The

Court

previously

warned

Plaintiffs

they

could

be

sanctioned, including dismissal of their case, if they continued
on their “troubling (and building) pattern of improper case conduct
by Plaintiffs and/or Plaintiffs’ counsel.”

[DE 25, p. 1 and DE

29, p. 1-2].
(4)

Possibility of less drastic sanctions.

It has become clear that Plaintiffs do not intend to comply
with Court orders despite repeated promises they will do so.

The

Sixth Circuit has held that dismissal with prejudice is warranted
as a sanction for “delay . . . accomplished with disregard for
[the opposing party’s] persistent requests and with contempt for
an order of the Court.”
368 (6th Cir. 2013).

Harmon v. CSX Tansp., Inc., 110 F.3d 364,

The Court has considered lesser sanctions,

but in light of the consistent non-compliance of Plaintiffs, it
appears unlikely lesser sanctions would have any effect on their

conduct in this litigation.

Furthermore, sanctions less than

dismissal would continue to prejudice Defendant by dragging on a
case that Plaintiffs have shown they are disinclined to pursue
earnestly.
The same failure to participate in this suit by Plaintiffs
that warrants dismissal of their claims also warrants default
judgment on Defendant’s counterclaim pursuant to Fed. R. Civ. P.
37(b)(2)(A)(vi).
Finally, Defendant requests the Court award attorney’s fees
expended in filing the Motion for Sanctions pursuant to Fed. R.
Civ. P. 37(b)(2)(C).

It is obvious that Defendant exhausted all

other possible options, short of requesting sanctions, in an effort
to resolve the issues with Plaintiffs’ delays in the case.

The

record reflects Defendant’s counsel corresponded with Plaintiffs’
counsel, imploring him to serve initial disclosures and discovery
answers [DE 31, Ex. 1-6], agreed to extend the discovery deadlines
[DE. 24 and 26], and participated in a telephonic conference with
the Magistrate Judge in which the issues of delay were raised [DE
18].

Because Defendant had exhausted its options and was forced

to file the Motion for Sanctions, and because its motion is with
merit and well-taken, and pursuant to Rule 37(b)(2)(C), the Court
will order Plaintiffs to pay Defendant’s attorney’s fees incurred
in filing the instant motion.

CONCLUSION
Accordingly, for the reasons stated herein and the Court
being otherwise sufficiently advised, IT IS ORDERED that
Defendant’s motion for sanctions is GRANTED.

A judgment in

conformity with this Memorandum Opinion and Order will be filed
herewith.
This 20th day of September, 2017.