Lethiot v. Werner Shipping Company et al

Filing 95

MEMORANDUM OPINION AND ORDER by Magistrate Judge Colin H. Lindsay. Motion for Sanctions (DN 80 ) is granted in part and denied in part as set forth. Motion to Strike (DN 88 ) is denied. Parties to comply with deadlines as set forth. cc: Counsel(JAC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
CIVIL ACTION NO. 3:14-CV-488-CRS

SHAD LETHIOT,

Plaintiff,

v.
JB HUNT SHIPPING, a/k/a J.B. Hunt Transport, Inc.

Defendant.

MEMORANDUM OPINION AND ORDER
This case was scheduled for a settlement conference on March 9, 2017 at 10:00 a.m.
That morning, rather than go forward with a settlement conference, the Court convened a hearing
regarding possible violations of its settlement conference order (DN 66 (“Settlement Conference
Order”)). Based on the information conveyed at the hearing, the Court cancelled the settlement
conference.1 In a post-hearing order, the Court stated that “any party may file a motion for
sanctions” for violation of the Settlement Conference Order. (DN 79 at 1.)
Plaintiff Shad Lethiot (“Lethiot”) filed a motion for sanctions (DN 80) against Defendant
JB Hunt Shipping, a/k/a J.B. Hunt Transport, Inc. (“JB Hunt”) and Intervening Plaintiff Family
Dollar Stores, Inc. (“Family Dollar”). JB Hunt filed a response (DN 82), and Lethiot replied
(DN 86). Family Dollar also filed a response (DN 87), and Lethiot filed a motion to strike the
response as untimely (DN 88). For the following reasons, the Court will grant in part and deny
in part the motion for sanctions and deny the motion to strike.
BACKGROUND
At the time of the incident underlying this action, Lethiot was employed by Family
Dollar as a store manager. (DN 1-1 at 2.) On October 1, 2012, in the course of unloading store
merchandise from a truck owned by JB Hunt, Lethiot slipped and fell, sustaining serious injuries.
1

By subsequent order (DN 83), the settlement conference was rescheduled for July 25, 2017.

(Id. at 2-3.) Lethiot alleges that the ground was wet with rain, that a bottle of liquid soap fell to
the ground and spilled, causing a slick surface to form, that a piece of cardboard landed on top of
that slick surface, and that he slipped on the cardboard. (Id. at 3.)
1. The Settlement Conference Order
On November 29, 2016, the Court entered the Settlement Conference Order, scheduling a
settlement conference for March 9, 2017. The first page of the Settlement Conference Order
directs counsel to review the entire order and notifies parties that failure to comply with the order
may lead to the imposition of sanctions. It provides as follows:
COUNSEL SHALL REVIEW THE ENTIRETY OF THIS COURT ORDER.
COUNSEL SHALL FURTHER SEND A COPY OF THE ORDER AND
DISCUSS THE ORDER IN DETAIL WITH HIS OR HER CLIENT(S), AS
WELL AS ANY PERSONS REQUIRED TO ATTEND THE
SETTLEMENT CONFERENCE (DISCUSSED IN PART II, BELOW).
ANYONE WHO FAILS TO COMPLY WITH ANY PROVISION OF THIS
COURT ORDER MAY BE SUBJECT TO THE FULL RANGE OF
SANCTIONS AUTHORIZED BY LAW.
(DN 66 at 1.)
Section II of the Settlement Conference Order sets forth the individuals whose presence
is required at the settlement conference.
The following individuals shall be present in person at the settlement conference.
1.
Lead counsel. Counsel who will actually try the case shall attend in
person.
2.
Each natural person party. Each natural person shall attend in person,
regardless of his or her settlement position and/or whether he or she is covered by
an applicable insurance policy or otherwise indemnified.
3.
Each entity party. Each entity party (e.g., corporation, LLC, government,
etc.) shall attend in person through an authorized party representative regardless
of its settlement position and/or whether it is covered by an applicable insurance
policy or otherwise indemnified.
2

The party representative must have full settlement authority. The party
representative must be fully authorized to approve a settlement and must have the
authority to change the party’s valuation of the case and the party’s settlement
posture during the course of the settlement conference. A party violates this
Order by, among other things, sending to the settlement conference a
representative who has a “cap” or limit to his or her authority, or who requires
consultation with or permission from anyone not present in person at the
settlement conference to make or respond to an offer or demand. See Lockhart v.
Patel, 115 F.R.D. 44 (E.D. Ky. 1987). A representative who must “call the home
office” for permission to accept an offer does not have full settlement authority
within the meaning of this Order.
4.
Insurance carrier representative, if applicable.
An authorized
representative of any insurance carrier which may be liable for all or part of a
possible judgment shall attend in person. See Fed. R. Civ. P. 26(a)(1)(iv).
The insurance carrier representative must have full settlement authority. The
insurance carrier representative must be fully authorized to approve a settlement
and must have the authority to change the insurer’s valuation of the case and the
carrier’s settlement posture during the course of the settlement conference. A
party and/or insurance carrier violates this Order by sending to the settlement
conference an insurance carrier representative who has a “cap” or limit to his or
her authority, or who requires consultation with or permission from anyone not
present in person at the settlement conference to make or respond to an offer or
demand. See Lockhart v. Patel, 115 F.R.D. 44 (E.D. Ky. 1987). A representative
who must “call the home office” for permission to accept an offer does not have
full settlement authority within the meaning of this Order.
(Id. at 2.)
Section IV of the Settlement Conference Order provides a mechanism for parties to
request a variance from the order’s requirements. It provides as follows:
3.
Variance from this Order. If any party believes that special circumstances
justify a variance from any aspect of this Order, counsel for that party must
contact the Magistrate Judge’s Chambers no later than fourteen (14) days before
the date of the scheduled settlement conference to request such a variance. The
Magistrate Judge will only grant a variance upon a showing of specific facts
constituting exceptional circumstances. No such variance will be effective until it
has been approved by the Court.
(Id. at 4.)

3

2. The Hearing
On March 9, 2017, Lethiot and his counsel, S. Coy Travis (“Travis”) appeared in person
for the settlement conference. Counsel Thomas Donkin (“Donkin”) appeared for Family Dollar.
A party representative for JB Hunt, Erin Campbell (“Campbell”), appeared with counsel Michael
Hammond (“Hammond”). Attorney Robert Florio (“Florio”), who is Lethiot’s former counsel in
this matter and asserts that he holds an attorney’s lien, also appeared. Shortly after these
individuals arrived, the Court convened a hearing due to its concerns regarding potential
violations of the Settlement Conference Order. The hearing was conducted on the record and an
official transcript was produced (DN 84).
During the hearing, the following information relevant to the motion for sanctions was
elucidated on the record:


Information Regarding Lethiot:






Lethiot and his current counsel, Travis, do not believe that there are any Medicaid liens in
existence that relate to this action. Florio, Lethiot’s former counsel, stated on the record
that he requested a conditional lien letter from Medicaid, but he never received one.
Travis stated that he has not received a conditional lien letter from Medicaid, and he did
not find one in the case file that he inherited from Florio. (Id. at 8-14.)
Lethiot drove to the courthouse in Louisville, Kentucky from his home near Carbondale,
Illinois, a drive of approximately four-and-a-half hours. Lethiot had to stop multiple
times during the drive because of pain which he ascribes to the injuries he sustained in
the fall described above. He drove to Louisville the night before the settlement
conference, stayed in a hotel, and had a hotel room booked for the night of the settlement
conference. (Id. at 52-53.)

Information Regarding JB Hunt:


Hammond, JB Hunt’s counsel, confirmed on the record that he read the entirety of the
Settlement Conference Order, forwarded the Order to his client, Campbell, and asked her
to review it. He did not recall whether he and Campbell discussed the Order. Campbell
stated that she did discuss the Order with Hammond. (Id. at 14-15.)

4



Hammond stated that JB Hunt has an insurance policy that might apply to this case, but
he believed that the self-insured retention (“SIR”) amount exceeds the amount for which
JB Hunt believes it would settle this case (or pay in damages). Therefore, Hammond
believed that “the insurance would not apply” for purposes of settling the case. (Id. at
15.)



Hammond stated that he did not recall whether JB Hunt, in the course of making initial
disclosures or in discovery, disclosed or produced the insurance policy, including the
declarations page and any SIR, to Lethiot’s counsel. He stated that JB Hunt would
supplement its disclosures or responses if required. (Id. at 33-34.)



Later in the hearing, Travis informed the Court that in JB Hunt’s March 6, 2015
responses to Lethiot’s discovery requests, JB Hunt stated that it is self-insured; it did not
mention that it was self-insured only to a certain amount and insured by a third party
above that amount.2 (Id. at 31-32.)



Hammond acknowledged that JB Hunt needed to supplement its response to the
insurance-related interrogatory. He stated that late in the previous week or on the date of
the settlement conference, he received additional document production from both Lethiot
and Family Dollar. He stated that until he reviewed the documents produced that day, he
could not say whether the information contained therein would lead him to change his
valuation of the case. (Id. at 34, 41-42.)



Hammond agreed that based on the language of Rule 26(a)(1), JB Hunt’s relevancy
objection to producing insurance-related information was “utterly baseless.” (Id. at 35-36
(quoting Fed. R. Civ. P. 26(a)(1)(iv) (“A party must, without awaiting a discovery
request, provide to the other parties [ . . . ] any insurance agreement under which an
insurance business may be liable to satisfy all or part of a possible judgment in the action
or to indemnify or reimburse for payments made to satisfy the judgment.”).)3



Hammond and Campbell each stated that Campbell had “full settlement authority” within
the meaning of the Settlement Conference Order (DN 66 at 2). Campbell stated that there
was no settlement figure above which she could not settle the case without getting
approval from someone else. (DN 84 at 18.)

2

In addition, in response to an interrogatory seeking information regarding any applicable insurance policy
or agreement, the policy limits, and related information, JB Hunt objected to providing such information on the
bases of irrelevance, inadmissibility, and the interrogatory not being reasonably calculated to lead to the discovery
of admissible evidence. (DN 84 at 32-33; see DN 80-1 at 3-4 (“Objection, the interrogatory seeks information
which is irrelevant, inadmissible, and not reasonably calculated to lead to the discovery of any relevant or admissible
evidence. Without waiving this objection, Defendant states that it is self[-]insured for the damages allegedly
sustained herein.”).)
3

JB Hunt’s previous counsel completed and served the Rule 26 initial disclosures. Hammond signed the
written discovery responses. (DN 84 at 40-41.)

5





As of the date of the settlement conference, neither Lethiot nor Family Dollar knew the
amount at which JB Hunt’s SIR would be exhausted and the insurance carrier would
become involved. (Id. at 39-40.)



JB Hunt did not contact chambers to request a variance from the Settlement Conference
Order. The Court did not grant a variance from the Order. (Id. at 19-20.)





Hammond agreed that there is an insurance carrier for JB Hunt that falls within the
Settlement Conference Order language describing insurance carriers that must attend the
settlement conference. (DN 84 at 18-19; DN 66 at 2-3 (“An authorized representative of
any insurance company which may be liable for all or part of a possible judgment shall
attend in person.”).) No insurance carrier representative appeared for the settlement
conference. (DN 84 at 19.)

Hammond acknowledged the Settlement Conference Order language that provides,
“Anyone who fails to comply with any provision of this court order may be subject to the
full range of sanctions authorized by law.” (Id. at 21.)

Information Regarding Family Dollar:


Donkin, Family Dollar’s counsel, confirmed on the record that he read the entirety of the
Settlement Conference Order, forwarded the Order to his client, specifically newlyappointed risk manager Ryan Johnson (“Johnson”) and Johnson’s assistant. He stated
that he and Johnson discussed the Order during a telephone conference the week before
the settlement conference. (DN 84 at 21.)



Donkin stated that he is aware of the Settlement Conference Order language that
provides, “Anyone who fails to comply with any provision of this court order may be
subject to the full range of sanctions authorized by law.” (Id. at 22.)



Donkin stated that there is an insurance carrier involved in this case as it relates to Family
Dollar. He stated that the third-party administrator is Sedgwick CMS, and that he did not
know who the insurance carrier is. (Id. at 22.) Donkin acknowledged that no insurance
carrier representative was present for the settlement conference. (Id. at 26.)



Donkin stated that Family Dollar is the decision-maker as to whether to settle its claim
and for what amount. (Id. at 22-23.)



Donkin acknowledged that he did not have the authority to change his client’s valuation
of the case and his client’s settlement posture during the course of the settlement
conference. (Id. at 27 (discussing DN 66 at 2).) There was a dollar figure above or
below which Donkin was not authorized to settle the case without approval from
Johnson, whose office is in Richmond, Virginia. (DN 84 at 23, 27.)

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



Donkin did not believe Johnson was available by phone on the date of the settlement
conference. Donkin told Johnson that he need not be available. Donkin believed that
Johnson was at a Family Dollar office but not in his personal office. (Id. at 27-28.)




It was Johnson’s own decision not to attend the settlement conference. That decision was
consistent with Donkin’s advice “based on [Donkin’s] interpretation of the order.” (Id. at
24.) Donkin interpreted the Settlement Conference Order to provide that Johnson could
authorize Donkin to attend the settlement conference on behalf of Family Dollar. (Id. at
25.)

Family Dollar did not contact chambers to request a variance from the Settlement
Conference Order. The Court did not grant a variance from the Order. (Id. at 23-24.)

Ability to Proceed with Settlement Conference:


Lethiot’s position was that, based on the information brought forth during the hearing, it
would be “practically impossible” to settle the case on that date. (DN 84 at 37-38.)



JB Hunt’s position was that it would be difficult to settle the case that day because of the
recently-produced discovery from Lethiot and Family Dollar, and the possible impact of
that discovery on JB Hunt’s valuation of the case. (Id. at 41-43.)



Donkin acknowledged that Family Dollar’s production was “incredibly late,” which he
blamed in large part on his firm having taken over the case from another firm. Some
documents were still missing. Travis also acknowledged that he served late discovery
responses, including medical treatment records that were not disclosed previously. (Id. at
44-45.) However, Family Dollar took the position that it would be fruitful for everyone
to remain and attempt to conduct settlement negotiations, as it would allow the parties to
get an idea of each other’s positions. (Id. at 44.)



The Court concluded that it would not be fruitful to go forward with a settlement
conference on that date. First, it would be inefficient due to uncertainty about a number
of discovery-related matters. Second, it would not be an effective use of the Court’s
resources and those of the attorneys and parties present. Finally, the Court wished to
avoid during the settlement conference any perception of prejudice to JB Hunt and/or
Family Dollar based on the discussion with the Court of their violations of the Settlement
Conference Order. (Id. at 47-50.)
3. Briefing on the Motion for Sanctions
In his motion for sanctions (DN 80), Lethiot provides a summary of the March 9, 2017

hearing. Lethiot’s summary is consistent with the Court’s review of the transcript and the above

7

list setting forth the information elucidated at the hearing. Lethiot argues that both JB Hunt and
Family Dollar violated the Settlement Conference Order willfully and in bad faith.
First, Lethiot argues that JB Hunt violated the Settlement Conference Order by failing to
bring to the settlement conference a representative of its insurance carrier and failing to disclose
to Lethiot the existence of any insurance carrier. Lethiot argues that JB Hunt did not include
such information in its initial disclosures, in violation of Rule 26. (DN 80 at 10.) He further
argues that in response to Lethiot’s interrogatory on the matter -- which Lethiot served some two
years before the settlement conference -- JB Hunt raised a baseless relevancy objection and then
answered in a way that indicated that there was no insurance policy applicable to this case. (Id.)
Second, Lethiot argues that Family Dollar violated the Settlement Conference order by sending
only Donkin, who had a cap on his authority and had no power to revalue the case in the course
of the settlement conference. (Id. at 11-12.)
Lethiot asks the Court to sanction both JB Hunt and Family Dollar for what he describes
as willful or egregious violations of the Settlement Conference Order. He suggests that the Court
strike JB Hunt’s answer and enter default judgment against it for its failure -- for years -- to
disclose the existence of an insurance carrier which may be liable for satisfaction of a judgment
in this case. (Id. at 12.) Lethiot asks the Court to dismiss, with prejudice, Family Dollar’s
intervening complaint. (Id. at 13.) Alternatively, Lethiot proposes an order that would prohibit
JB Hunt from opposing Lethiot’s claim for injury, as to liability, damages, or both, or to preclude
JB Hunt from supporting numerous defenses. (Id.) He also asks that the Court preclude Family
Dollar from offering support for its claim that it had a lien against any personal recovery by
Lethiot from JB Hunt by virtue of any workers’ compensation benefits paid or payable to

8

Lethiot. (Id.) As another option, Lethiot proposes designating certain facts as established, such
as JB Hunt’s liability for Lethiot’s injury, leaving damages as the issue for trial. (Id.) Finally,
Lethiot asks that JB Hunt and Family Dollar be compelled to reimburse him for his travel
expenses (including car rental, gas, hotel stay, and food) and for his attorney’s fees and expenses
incurred in relation to the settlement conference. (Id. at 14.)
JB Hunt states that its failure to bring an insurance company representative to the
settlement conference “occurred because of the good faith (although erroneous) belief that any
settlement proceeds would be paid by JB Hunt rather than an insurer,” a “belief that was fostered
by the failure of [Lethiot] and Family Dollar” to comply with Rule 26 or timely answer
discovery requests. (DN 82 at 7.) JB Hunt argues that neither Lethiot nor Family Dollar
produced in their initial disclosures a computation of each category of damages claimed or the
materials on which such computation was based.

(Id. at 1-2 (citing Fed. R. Civ. P.

26(a)(1)(A)(iii)).) It also argues that neither of the other parties has supplemented discovery
responses regarding “the apparent completion of medical treatment by [Lethiot] at the conclusion
of the workers’ compensation action.” (Id. at 2.) JB Hunt points out that on the morning of the
settlement conference, Family Dollar provided it with over 1,000 pages of responsive documents
related to medical treatment and expenses, and Lethiot provided documents related to workers’
compensation. (Id.) JB Hunt argues that Lethiot and Family Dollar’s actions violated Rule 26
and the Court’s original scheduling order (DN 12) and made it impossible for JB Hunt to
accurately value the case and determine whether it would be covered by JB Hunt’s SIR or its
insurer. (DN 82 at 4.) JB Hunt points out that its counsel sent two letters -- in January 2017 and
February 2017 -- to Lethiot’s counsel, requesting that Lethiot respond to its discovery requests
9

and noting that JB Hunt needed the responses in order to prepare for the settlement conference.
(DN 82-4.)

Additionally, JB Hunt argues that Lethiot has failed to produce information

regarding any existing liens. (DN 82 at 5.)
Lethiot filed a reply (DN 86). Lethiot argues that he produced all that Rule 26 requires,
and more, citing and attaching as an exhibit his responses to JB Hunt’s written discovery
requests. (Id. at 2-3 (citing DN 86-1).) Lethiot states that in 2014, he provided JB Hunt with
releases allowing it to obtain information related to his medical expenses, his workers’
compensation claim, and his past employment, including earned wages. (DN 86 at 4.) Lethiot
argues that the only element of damages left unresolved in 2014 was pain and suffering, which is
a subjective and changing amount. (Id.) Lethiot states that while his counsel takes responsibility
for the delay in production of discovery responses, the delay did not cause JB Hunt any
prejudice, arguing that with the exception of an objection to two discovery requests for
exceeding the acceptable number of interrogatories, he responded in full to JB Hunt’s
supplemental discovery requests, including information regarding health insurance benefits for
which Lethiot did not qualify and the seeming absence of a Medicaid lien. (Id. at 6-7.) Lethiot
argues that JB Hunt’s position is merely an attempt to justify its own violations of the Settlement
Conference Order by slinging mud at Lethiot.
Family Dollar also filed a response to the motion for sanctions (DN 87). Family Dollar
acknowledges that it is “woefully behind” in responding to discovery requests. (Id. at 1.) It
states that this case, along with a number of other cases, came to current counsel from another
attorney and that current counsel merely received a box containing thousands of pages of
unsorted documents and no mention of the March 9, 2017 settlement conference. (Id.) Family
10

Dollar argues that the sanctions that Lethiot seeks far exceed the value of any injury to him as a
result of the failed settlement conference. (Id. at 1-2.) Family Dollar argues that whereas the
purpose of sanctions is to deter future “litigation abuse,” imposition of the sanctions that Lethiot
seeks would be the equivalent of a plaintiff’s verdict. (Id. at 2.) Family Dollar asks the Court to
deny the motion for sanctions because all of the parties were unprepared for the settlement
conference, and allow them to start anew with a rescheduled settlement conference. Rather than
file a reply, Lethiot filed a motion to strike Family Dollar’s response for untimeliness (DN 88).
The motion to strike is addressed in the Discussion section below.
DISCUSSION
1. The Motion to Strike
In his motion to strike Family Dollar’s response, Lethiot argues that without seeking
leave of Court, Family Dollar filed the response four days after the deadline for responses to the
motion for sanctions. (DN 88 at 1.) Lethiot is correct that Family Dollar’s response was
untimely. Local Rule 7.1(c) provides that responses must be filed within 21 days of service of
the motion. LR 7.1(c). The Rule further provides that failure to timely respond to a motion may
be grounds for granting the motion. Id. The motion for sanctions was filed on March 17, 2017.
Responses to that motion were required to be filed no later than Friday, April 7, 2017. Family
Dollar’s response was filed on Tuesday, April 11, 2017, four days after the deadline. Family
Dollar did not seek leave of Court to file its response beyond the deadline.
Notwithstanding the foregoing, the Court will deny the motion to strike. While the fourday delay is perplexing in the context of this case, in which the tardiness comes from a party that
had already admitted violating a Court order and that was facing a motion for sanctions, the
11

delay is immaterial under the circumstances.

The substantive portion of Family Dollar’s

response is less than two pages in length and provides little new information. Lethiot could have
filed a reply -- or tendered a reply with his motion to strike -- but he did not. This suggests that
Lethiot did not believe the response merited a reply. The four-day delay did not cause any
prejudice to Lethiot or lead to any delay for or inefficient use of resources by the Court.
Accordingly, the Court denies the motion to strike (DN 88).
2. The Motion for Sanctions
a. Legal Standard
Under Rule 16 of the Federal Rules of Civil Procedure, the Court may order a “party or
its representative [to] be present or reasonably available by other means to consider possible
settlement.” Fed. R. Civ. P. 16(c)(1). A district court does not abuse its authority in ordering a
corporate representative to attend a settlement conference in person. G. Heileman Brewing Co.,
Inc. v. Joseph Oat Corp., 871 F.2d 648, 655 (7th Cir. 1989) (en banc); see also In re Atlantic
Pipe Corp., 304 F.3d 135, 143 (1st Cir. 2002); U.S. v. Glens Falls Newspapers, Inc., 160 F.3d
853, 856 (2nd Cir. 1998); In Re Novak, 932 F.2d 1397, 1407 (11th Cir. 1991); cf. In re LaMarre,
494 F.2d 753, 756 (6th Cir. 1974) (holding that a district court does not abuse its discretion in
compelling a claims manager to attend a pretrial conference); but see In re Stone, 986 F.2d 898
903 (5th Cir. 1993) (holding that a district court abuses its discretion in invoking inherent
authority to require attendance at settlement conference).
If a party fails to obey a pretrial order, such as an order to attend a settlement conference,
or to appear at a pretrial conference, the Court may, upon the motion of a party or sua sponte,

12

sanction that party. Fed. R. Civ. P. 16(f)(1)(A)-(C). Potential sanctions for failing to obey a
pretrial order or failing to appear at a pretrial conference include:
(ii) prohibiting the disobedient party from supporting or opposing designated
claims or defenses, or from introducing designated matters in evidence;
(iii) striking pleadings in whole or in part;
(iv) staying further proceedings until the order is obeyed;
(v) dismissing the action or proceeding in whole or in part;
(vi) rendering a default judgment against the disobedient party; or
(vii) treating as contempt of court the failure to obey any pretrial order except an
order to submit to a physical or mental examination.
Fed. R. Civ. P. 16(f)(1) (cross-referencing available sanctions under Fed. R. Civ. P.
37(b)(2)(A)(ii)-(vii)). Further, “[i]nstead of or in addition to any other sanction, the court must
order the party, its attorney, or both to pay the reasonable expenses -- including attorney’s fees -incurred because of any noncompliance with this rule, unless the noncompliance was
substantially justified or other circumstances make an award of expenses unjust.” Fed. R. Civ. P.
16(f)(2).
b. JB Hunt Violated the Settlement Conference Order.
Lethiot argues that JB Hunt violated the Settlement Conference Order by failing to
disclose to him the existence of an insurance carrier and by failing to bring a representative of its
insurance carrier to the settlement conference. The Settlement Conference Order states that an
“authorized representative of any insurance carrier which may be liable for all or part of a
possible judgment shall attend in person.” (DN 66 at 2 (citing Fed. R. Civ. P. 26(a)(1)(iv)).) In
this case, JB Hunt concedes that its insurance carrier did not attend the settlement conference.
(DN 84 at 15, 19.) Additionally, at the March 9, 2017 hearing, JB Hunt’s counsel acknowledged
that JB Hunt needed to supplement its answer to Lethiot’s interrogatory regarding its applicable
insurance policy or policies. (Id. at 32-33.) In an on-the-record discussion with the Court,
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Hammond agreed that his client should have produced information regarding insurance in its
initial disclosures and in response to Lethiot’s discovery requests, and that JB Hunt’s relevancy
objection to Lethiot’s interrogatory was “utterly baseless.” (Id. at 32-33, 35-36.) Further, JB
Hunt concedes that as of the date of the settlement conference, neither Lethiot nor Family Dollar
knew the amount at which JB Hunt’s SIR would be exhausted and the insurance carrier would
become involved. (Id. at 39-40.) Finally, as JB Hunt also acknowledges, it did not seek or
receive a variance from the Settlement Conference Order’s requirements. (Id. at 19-20.) Based
on the foregoing, the Court finds that JB Hunt violated Part II, Paragraph 4 of the Settlement
Conference Order. (DN 66 at 2-3.)
c. Family Dollar Violated the Settlement Conference Order.
Lethiot argues that Family Dollar violated the Settlement Conference Order by failing to
bring a party representative to the settlement conference.

Instead, he argues, only Family

Dollar’s attorney was in attendance, and the attorney’s settlement authority was capped; he was
not able to revalue the case in the course of the settlement conference without the approval of a
Family Dollar employee who was not present.
The Settlement Conference Order requires Family Dollar, as an entity party, to “attend in
person through an authorized party representative.” (DN 66 at 2 (emphasis added).) In the next
paragraph, the Settlement Conference Order twice reiterates the requirement of sending a party
representative. (See, e.g., id. (“The party representative must have full settlement authority.
The party representative must be fully authorized to approve a settlement and must have the
authority to change the party’s valuation of the case and the party’s settlement posture . . . .”).)
A party representative is an individual who is employed by the entity party. See, e.g., Heileman,
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871 F.3d at 653 (“In our view, ‘authority to settle’ . . . means that the ‘corporate representative’
attending the pretrial conference was required to hold a position within the corporate entity
allowing him to speak definitively and to commit the corporation to a particular position in the
litigation.”).
Donkin stated on the record on March 9, 2017 that he interpreted the Settlement
Conference Order to provide that Family Dollar could authorize him to attend the settlement
conference on its behalf, and that the party representative who otherwise would have attended,
Johnson, decided not to attend the conference consistent with Donkin’s advice. (DN 84 at 25,
27.) Further, Donkin acknowledged that he did not have authority to change Family Dollar’s
valuation of the case and its settlement posture during the course of the settlement conference.
(Id. at 22-23.) He could not settle the case for a dollar figure below a certain amount without
approval from Johnson, who he believed was at Family Dollar’s offices in Richmond, Virginia,
but not available by phone on the date of the settlement conference. (Id. at 23, 27, 28.) Further,
as Family Dollar acknowledged at the hearing, it did not seek or receive a variance from the
Settlement Conference Order. (Id. at 23-24.)
An entity party’s attorney is not a party representative. This should be clear as a matter
of common sense and from the structure of the Settlement Conference Order, which provides in
separate paragraphs that a party’s lead counsel and a party representative (among others) shall
attend. (See DN 66 at 2.) The Court requires the attendance of a party representative for several
reasons, including to ensure that the party’s interests are represented. Even the most zealous
legal advocate is not vested in the outcome of a settlement conference in the same way that an
employee of the entity would be. Moreover, it is critical for a party representative to attend so
15

that he or she may change the party’s valuation of the case and settlement posture during the
course of the settlement conference. This cannot be accomplished by an attorney who is not
employed by the entity party. The inadequacy of an attorney-in-place-of-party-representative
arrangement is clear from this case. Donkin’s settlement authority was capped; he did not have
authority to change Family Dollar’s valuation of the case during the course of the settlement
conference without calling the home office; and the person whose approval he would have
required was -- by Donkin’s own statement on the record -- unavailable by phone on the date of
the settlement conference. Moreover, Family Dollar owed it to its former employee, Lethiot,
who suffered life-long serious injury, and for whom traveling to the settlement conference
caused physical pain and monetary expense, to send a party representative, an actual employee of
Family Dollar.
Additionally, as is set forth above in relation to JB Hunt, the Settlement Conference
Order provides that an “authorized representative of any insurance carrier which may be liable
for all or part of a possible judgment shall attend in person.” (DN 66 at 2 (citing Fed. R. Civ. P.
26(a)(1)(iv)).) During the March 9, 2017 hearing, Donkin conceded that there is an insurance
carrier related to Family Dollar’s role in this action, and that no insurance carrier representative
was present for the settlement conference. (DN 84 at 22, 24.) He stated that the third-party
administrator on the applicable policy is Sedgwick CMS, and that he did not know who the
insurance carrier is. (Id. at 22.) Neither a representative of Sedgwick CMS nor a representative
of the as yet unidentified carrier appeared for the settlement conference. In its response to the
motion for sanctions (DN 87), Family Dollar does not address the nonappearance of an insurance
carrier representative.
16

Perhaps most baffling, Donkin stated on the record that after reviewing the Settlement
Conference Order, he advised Family Dollar that it need not send a party representative and that
he did not seek to have a representative of Sedgwick CMS attend.4 The Court is at a loss as to
how the language of the Settlement Conference Order could be clearer regarding whose
attendance is required. Donkin’s interpretation of the Order is indefensible in light of the plain
language of the Order. It is worth noting that during the March 9, 2017 hearing, Donkin stated
that Family Dollar, not the insurance carrier, is the decision-maker regarding settlement of this
case. Nevertheless, even accepting that statement as true, Family Dollar could have sought a
variance from the Settlement Conference Order’s requirement that an insurance carrier
representative attend. It did not do so. If counsel has any questions or confusion regarding the
Settlement Conference Order, the Order itself provides a mechanism to seek a variance -- or
simply ask for clarification -- as to its terms. Instead, in this case, Family Dollar substituted its
own judgment for that of the Court.
Based on the foregoing, the Court finds that Family Dollar violated Part II, Paragraph 3
of the Settlement Conference Order, regarding entity party representatives, as well as Part II,
Paragraph 4, regarding insurance carrier representatives. (DN 66 at 2-3.)
d. Imposition of Sanctions Against JB Hunt
Having concluded herein that JB Hunt violated the Settlement Conference Order, the
issue now before the Court is whether it should sanction JB Hunt for its conduct. Both at the
March 9, 2017 hearing and in its response to the motion for sanctions, JB Hunt argued that it
could not effectively value the case because both Lethiot and Family Dollar failed to make

4

Further, it appears to the Court that Donkin did not even attempt to determine the identity of the relevant
insurance carrier.

17

adequate Rule 26(a) initial disclosures or respond in full to JB Hunt’s discovery requests prior to
the date of the settlement conference. JB Hunt contends that without the ability to review a full
production of materials regarding Lethiot and Family Dollar’s computation of damages claimed
or Lethiot’s medical and workers’ compensation records, it was unable to value the case prior to
the settlement conference, and therefore, it could not determine in advance of the conference
whether a representative of its insurance carrier should be present. The Court notes that JB
Hunt’s counsel contacted Lethiot’s counsel to request discovery responses, specifically stating
that JB Hunt needed the responses in order to prepare for the settlement conference. (See DN 82
at 4-5; DN 82-4.) In reply, Lethiot argues that JB Hunt’s position is mere mud-slinging. Lethiot
states that while he did produce certain documents on the date of the settlement conference, prior
to that, he adhered to his Rule 26 obligations, responded in full to JB Hunt’s written discovery
requests -- with the exception of two objections for exceeding the allowable number of
interrogatories -- and he provided JB Hunt with releases to allow it to obtain his medical,
employment, and workers’ compensation records. (DN 86 at 2-4.)
JB Hunt violated a crucial provision of the Settlement Conference Order -- the
requirement that an insurance carrier representative attend the settlement conference. Moreover,
JB Hunt failed to provide either Lethiot or Family Dollar with information to which they were
entitled regarding JB Hunt’s insurance coverage.

Under these circumstances, the Court

concludes that JB Hunt’s conduct warrants the imposition of sanctions. An award of sanctions is
in accord with other orders of this Court. See, e.g., Ivan Ware & Son, Inc. v. Delta Aliraq, Inc.,
Civil Action No. 3:10-CV-484-CRS-CHL, 2016 WL 8064365, at *6 (W.D. Ky. Dec. 5, 2016),
report and recommendation adopted, Civil Action No. 3:10-CV-00484-CRS, 2017 WL 379459
18

(W.D. Ky. Jan. 26, 2017) (recommending sanctions of $2,500 against individual defendant for
failing to appear at a settlement conference); Holly v. UPS Supply Chain Solutions, Inc., Civil
Action No. 3:13-cv-980-DJH-CHL, 2015 WL 4776904, at *3-*4 (W.D. Ky. Aug. 12, 2015)
(overruling objections to sanctions imposed on defendants for sending corporate representative
without requisite settlement authority to a settlement conference).
Moreover, Lethiot exerted significant effort to prepare for and attend the settlement
conference in person. Lethiot suffers from lasting, painful injuries, which he alleges stem from
the accident underlying this case. He drove to the courthouse in Louisville, Kentucky, from his
home near Carbondale, Illinois, in order to participate in the settlement conference. In the course
of a drive of at least four-and-a-half hours, Lethiot was forced to stop his vehicle multiple times
because of pain. In addition, Lethiot paid for a hotel room in Louisville for the night before the
settlement conference and, because he was uncertain how long the settlement conference would
last, he also reserved a hotel room for the night following the settlement conference. Despite this
physical pain and financial expenditure, Lethiot was left to go home without any progress toward
resolving this case.

He will have to do it all over again when the settlement conference

reconvenes. Additionally, Lethiot’s counsel prepared for the settlement conference, set aside
time to attend the conference, and spent a meaningful portion of his day attending the would-be
conference and participating in the hearing. In short, both Lethiot and his attorney, Travis, were
present for and prepared to participate in the settlement conference. To say that Lethiot was
prejudiced when the Court had to cancel the settlement conference due to JB Hunt and Family
Dollar’s conduct would be an understatement.

19

The Court agrees with Lethiot that JB Hunt’s response to the motion for sanctions is too
little, too late. At the March 9, 2017 hearing, JB Hunt’s counsel appeared to take responsibility
for his failures with respect to the insurance carrier. By contrast, JB Hunt’s written response
(DN 82) would have the Court believe that Lethiot and Family Dollar’s discovery-related
failures were solely responsible for the failed settlement conference. One need only review the
hearing transcript to see that this argument is out of touch with reality. Lethiot argues credibly in
his reply that he complied with his Rule 26 initial disclosure obligations, responded to JB Hunt’s
discovery requests, and provided releases to allow JB Hunt to obtain information regarding his
medical expenses, workers’ compensation claim, and past employment. To the extent that some
question remains regarding the amount of claimed pain and suffering damages, Lethiot argues
reasonably that such a figure is subjective and may change over time.

Lethiot’s counsel

responded candidly to the Court’s questions at the March 9, 2017 hearing, even volunteering
information regarding his client’s discovery responses when not specifically asked by the Court.
This candor continues in Lethiot’s motion for sanctions and reply. The Court finds that Lethiot’s
current counsel has endeavored to fully answer JB Hunt’s questions regarding the existence of
any Medicaid lien and any other insurance benefits that Lethiot may have received. Finally, the
Court notes that if JB Hunt believed that it had insufficient information from Lethiot (or Family
Dollar) to prepare for the March 9, 2017 settlement conference, it could -- and should -- have
brought this to the Court’s attention. It did not do so. Accordingly, the Court had no reason to
believe, prior to that date, that discovery-related issues might exist that could impede the parties’
ability to settle the case. Based on the foregoing, the Court rejects JB Hunt’s argument that
Lethiot’s conduct militates against the imposition of sanctions.
20

e. Imposition of Sanctions Against Family Dollar
Having concluded herein that Family Dollar violated the Settlement Conference Order,
the Court must also determine whether it should sanction Family Dollar for its conduct. Perhaps
refreshingly, both during the March 9, 2017 hearing and in its belatedly-filed response, Family
Dollar admitted its failures to bring a party representative or an insurance carrier representative
to the settlement conference.

Family Dollar also admitted being “woefully behind” in

responding to discovery requests. Despite these admissions, Family Dollar argues that sanctions
would be inappropriate based on Lethiot’s own failure to fully prepare for the settlement
conference. It also blames its original counsel for failing to maintain an organized file, which, it
says, led to its inadequate preparation for the settlement conference. (DN 87 at 1.)
Family Dollar’s arguments are even easier to dismiss than JB Hunt’s arguments. As is
discussed above, while Lethiot conceded that he produced certain materials on the eve of the
settlement conference, such delay pales in comparison to Family Dollar’s conduct. Family
Dollar violated the Settlement Conference Order in two significant ways.

In short, the

Settlement Conference Order required Family Dollar to bring a party representative and an
insurance carrier representative to the settlement conference.

Family Dollar did neither.

Incredibly, Family Dollar’s attorney advised it that this was acceptable. The same attorney could
not even identify the missing insurance carrier.

Family Dollar’s conduct was egregious.

Lethiot’s -- or JB Hunt’s -- actions do not justify or somehow override Family Dollar’s conduct.
To decline to impose sanctions based on this position would undermine the effect of an order of
this Court.

21

Finally, the Court notes once again that neither Family Dollar nor JB Hunt sought a
variance from the Settlement Conference Order or moved for the continuation of the settlement
conference. If either of those parties believed that a settlement conference would not be fruitful
due to another party’s conduct, it could have filed a motion to continue or sought an ex parte
conference with the Court to discuss the relevant issue(s). Instead, both Family Dollar and JB
Hunt chose to attend the settlement conference from significantly unprepared postures. Based on
the foregoing, the Court will impose sanctions on Family Dollar.
f. Type of Sanctions
Rule 16(f) of the Federal Rules of Civil Procedure permits the Court to impose a full
range of sanctions for a violation of a pretrial order or failure to appear for a pretrial conference.
See Fed. R. Civ. P. 16(f)(1)(A)-(C), 37(b)(2)(A)(ii)-(vii). In this case, Lethiot asks the Court to
impose draconian sanctions on JB Hunt and Family Dollar: he requests that the Court strike JB
Hunt’s answer and enter default judgment against it, as well as dismiss with prejudice Family
Dollar’s intervening complaint. (DN 80 at 12-13.) Lethiot also provides less severe suggestions,
including designating certain facts, such as JB Hunt’s liability for his injuries, as established or
prohibiting JB Hunt or Family Dollar from supporting their defenses and claims, respectively.
(Id. at 13.) Finally, Lethiot asks that the Court compel JB Hunt and Family Dollar to reimburse
him for his travel expenses and attorney’s fees and expenses incurred in relation to the settlement
conference. (Id. at 14.)
As is discussed at length herein, the Settlement Conference Order clearly puts the parties
on notice that failure to comply with its provisions may subject them to the full range of
sanctions authorized by law. (DN 66 at 1.) Moreover, the Settlement Conference Order twice
22

cites Lockhart v. Patel, 115 F.R.D. 44 (E.D. Ky. 1987). (DN 66 at 2, 3.) In Lockhart, the district
court struck a defendant’s pleadings and declared him in default following his insurance carrier’s
failure to send an appropriate representative to a settlement conference. Lockart, 115 F.R.D. at
45; see also Empire Inc. v. Wal-Mart Stores, Inc., 188 F.R.D. 478 (E.D. Ky. 1999) (awarding
plaintiff attorney’s fees and sanctioning Wal-Mart for $5,071 due to its “unilateral[]
determin[ation] that it would not be necessary to have a representative present and informed the
Court of this decision”). Through the lens of Lockhart and the clear language of the Settlement
Conference Order, entry of default against JB Hunt or dismissal with prejudice of Family
Dollar’s intervening complaint would not be out of bounds.
It seems clear from the hearing transcript that all parties have -- to varying degrees -failed to satisfy their initial disclosure and/or discovery obligations. However, counsel for JB
Hunt and Family Dollar spoke candidly at the March 9, 2017 hearing, taking responsibility for
their Settlement Conference Order violations and discovery shortcomings (notwithstanding JB
Hunt having taken a different tack in its response to the motion for sanctions). JB Hunt and
Family Dollar have also taken actions since the date of the failed settlement conference that
signify to the Court their understanding of their wrongdoing and desire to participate in the
renewed settlement conference (set for July 25, 2017) as contemplated by the Settlement
Conference Order. For example, Family Dollar notified the Court that it served supplemental
discovery responses (DN 94). Additionally, both JB Hunt and Family Dollar have sought and
received variances from the Court for purposes of the renewed settlement conference. (See DN
89, 91.)

23

Based on the foregoing, as well as Lethiot’s production of a large number of discovery
materials just before the settlement conference, the Court cannot find that the most extreme
sanctions are appropriate in this case. Unlike in other cases in which entry of default has been
deemed appropriate, in this case, there is no history of noncompliance with court orders or
failure to make scheduled appearances.

By contrast, in Ivan Ware, the undersigned

recommended striking answers of certain defendants and rendering default judgment against
them for failure to attend a settlement conference. Ivan Ware 2016 WL 8064365 at *4-5. This
recommendation was based in part on the defendants’ failure to appear for pretrial conferences,
including a settlement conference, but also as a result of repeated failures to obey court orders.
Id.

The undersigned declined to recommend the same sanction against another individual

defendant who failed to attend the settlement conference and instead sent his attorney to
represent his interests; the Court found that such sanction would be disproportionate to the
violation of failing to appear. Id. at *6.
JB Hunt and Family Dollar’s conduct in this case is more similar to the conduct of the
defendant in Holly. In that case, the defendant brought a corporate representative with a specific
monetary cap on her authority. The Court found that an award to plaintiff of his attorney’s fees,
costs, and expenses in relation to preparing for and participating in the settlement conference was
appropriate and justified. Holly, Civil Action No. 3:13-cv-980-DJH-CHL (W.D. Ky. Mar. 27,
2015), ECF No. 38 objections overruled 2015 WL 4776904 (W.D. Ky. Aug. 12, 2015). Based
on the foregoing, the Court finds that while JB Hunt and Family Dollar were neglectful and
violated the Settlement Conference Order, entry of default judgment, dismissal of the intervening
complaint, or findings that would eliminate or limit JB Hunt and Family Dollar’s ability to
24

pursue their defenses and claims, respectively, would be disproportionate to their offenses under
the particular circumstances of this case.
Rule 16(f) mandates that, “[i]nstead of or in addition to any other sanction, the court must
order the party, its attorney, or both to pay the reasonable expenses -- including attorney’s fees -incurred because of any noncompliance with this rule, unless the noncompliance was
substantially justified or other circumstances make an award of expenses unjust.” Fed. R. Civ. P.
16(f)(2) (emphasis added). The Court finds that it must order JB Hunt and Family Dollar to
reimburse Lethiot for his reasonable expenses, including attorney’s fees, associated with the
failed settlement conference set for March 9, 2017. The Court further finds that JB Hunt and
Family Dollar’s noncompliance with the Settlement Conference Order was not substantially
justified and that no other circumstances in this case would make an award unjust. The Court
rejects JB Hunt’s argument that Lethiot’s discovery-related delays were the cause of or excused
its failure to bring an insurance carrier representative to the settlement conference. As is
discussed at length in this opinion, JB Hunt clearly violated the terms of the Settlement
Conference Order; further, it did not seek a variance from that order. Indeed, JB Hunt’s conduct
in relation to the settlement conference was consistent with its failure throughout this litigation to
provide Lethiot and Family Dollar with basic information regarding its insurance coverage,
thereby impairing their ability to fully prepare for the settlement conference. Similarly, the
Court rejects Family Dollar’s argument that the Court should disregard its two serious violations
of the Settlement Conference Order because the other parties also erred, and simply move on
with the rescheduled settlement conference. To do this would be to condone Family Dollar’s

25

cavalier violations of the Order and would not serve to deter similar conduct in the future of this
or any other case.
Before concluding, the Court takes this opportunity to address a problem that is arising
all too frequently in settlement conferences before this Court: a lack of sufficient authority.
Settlement conferences provide litigants with an opportunity to meet face-to-face in an attempt to
resolve their dispute and avoid the heavy costs of proceeding to trial. Additionally, settlement
conferences consume a great deal of the Court’s time. When parties approach a settlement
conference in good faith, with all of the necessary interests represented, it is a worthy and
valuable use of the Court’s time. When, as here, parties disregard the orders of the Court, they
waste precious Court resources. The Court often devotes the majority of or an entire day to
conducting a settlement conference, and it is not unusual for the Court to continue facilitating
settlement discussions after that date, or, if necessary, schedule a second conference. Even
before a settlement conference convenes, the Court and its staff prepare extensively, scheduling,
reviewing confidential settlement statements, researching legal issues, and managing logistics.
Similarly, the parties spend a substantial amount of time preparing, drafting confidential
statements, gathering information to support claims for damages or defenses, and the like.
Because of the intense investment of time by the parties and the Court, it is imperative that the
proper parties -- armed with sufficient authority -- attend the settlement conference.
Accordingly, the Court will order JB Hunt and Family Dollar to reimburse Lethiot for his
expenses incurred in relation to the March 9, 2017 would-be settlement conference, including
Lethiot’s travel expenses and his attorney’s fees and expenses incurred in preparation for the
settlement conference, the events of March 9, 2017, and the preparation of the motion for
26

sanctions (DN 80) and reply to JB Hunt’s response (DN 86). The order for reimbursement will
not cover counsel’s preparation of the motion to strike Family Dollar’s response (DN 88), as that
motion is denied herein. Lethiot shall file an itemized account of counsel’s time and expenses,
as well as Lethiot’s travel expenses, including any receipts.5 JB Hunt and Family Dollar shall
each be responsible for reimbursing Lethiot for one-half of that amount.
ORDER
Accordingly, IT IS HEREBY ORDERED as follows:
A. Lethiot’s motion for sanctions (DN 80) is GRANTED IN PART and DENIED IN PART.
1. The motion for sanctions (DN 80) is GRANTED insofar as it requests reimbursement
of Lethiot’s reasonable expenses, including attorney’s fees, incurred in relation to the
settlement conference set for March 9, 2017.

IT IS FURTHER ORDERED as

follows:
i.

No later than July 31, 2017, Lethiot shall FILE AN ITEMIZATION,
reflecting attorney’s fees, costs, and expenses (including Lethiot’s travel
expenses) incurred in preparation for the settlement conference, the events in
the courthouse on March 9, 2017, and the preparation of the motion for
sanctions (DN 80) and reply to JB Hunt’s response (DN 86).

ii.

No later than August 14, 2017, JB Hunt and Family Dollar shall
REIMBURSE Lethiot for his attorney’s fees, costs, and expenses as set forth

5

In the interest of expediency, the Court suggests that Lethiot’s counsel review two recent opinions of this
Court in order to ascertain the type of information and level of detail that he should include in his itemization. See
Shields v. Golden Corral Corp., Civ. Action No. 3:15-cv-371-DJH DN 34 (June 12, 2017) (memorandum opinion
and order granting in part plaintiff’s motion for sanctions); Pogue v. Northwestern Mut. Life Ins. Co., 2017 U.S.
Dist. LEXIS 62226 (W.D. Ky. Apr. 24, 2017) (memorandum opinion and order overruling in part plaintiff’s
objections to defendant’s motion for attorney’s fees).

27

in the itemization. JB Hunt and Family Dollar shall each be responsible for
ONE-HALF of the total amount. Payment shall be made in such form as is
specified by Lethiot’s counsel.
iii.

JB Hunt and/or Family Dollar MAY file objections to Lethiot’s itemization.
Any such objections shall be filed no later than August 14, 2017 and shall
address ONLY THE REASONABLENESS of the amount sought by Lethiot.
In the event that objections are filed, the PAYMENT DATE of August 14,
2017 shall be STAYED pending resolution of the objections. In the event that
no objections are filed, then no later than August 16, 2017, JB Hunt and
Family Dollar shall file certifications of payment to Lethiot.

2. The motion for sanctions (DN 80) is DENIED insofar as it requests any other
sanctions of JB Hunt or Family Dollar for their actions in conjunction with the
settlement conference set for March 9, 2017.
B. IT IS FURTHER ORDERED that JB Hunt shall SUPPLEMENT ITS INITIAL
DISCLOSURES and DISCOVERY RESPONSES with respect to the insurance carrier issue
no later than August 8, 2017. By the same date, JB Hunt shall also FILE A STATUS
REPORT regarding its compliance with this portion of the order.
C. IT IS FURTHER ORDERED that no later than August 8, 2017, Family Dollar AND
Lethiot shall FILE SEPARATE STATUS REPORTS regarding the status of their discovery
responses, specifically indicating whether any discovery responses remain outstanding.
D. The parties are reminded of the full extent of sanctions available under Rules 16(f) and 37(b)
for failure to comply with a pretrial order.
28

E. Finally, IT IS ORDERED that Lethiot’s motion to strike (DN 88) is DENIED.

July 17, 2017

Colin Lindsay, MagistrateJudge
United States District Court

cc: Counsel of record

29