Register v. Mix Bros Tank Services, Inc. et al

Filing 23

ORDER AND REASONS granting 15 Motion for Sanctions. IT IS FURTHER ORDERED that Defendants Mix Bros. Tank Services, Inc. and Dave Morrison are awarded attorneys fees in connection with the Motion for Sanctions (R. Doc. 15) to be paid by both the Pl aintiffs' attorney as well as the Plaintiffs. IT IS FURTHER ORDERED that the Defendants shall file a motion to fix attorney fees into the record by June 20, 2017, as per instructed herein. Any opposition to the fee application shall be filed no later than June 27, 2017. The motion shall be set for hearing on July 5, 2017, to be heard without oral argument. Signed by Magistrate Judge Karen Wells Roby on 6/15/2017. (cg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
KELLIE REGISTER, ET AL

CIVIL ACTION

VERSUS

NO:

MIX BROS TANK SERVICES, INC., ET AL

SECTION: “F” (4)

17-290

ORDER AND REASONS
Before the Court is a Motion for Sanctions (R. Doc. 15) filed by Defendants Mix Bros.
Tank Services, Inc. (“Mix Bros.”) and Dave Morrison (“Morrison”) (collectively “Defendants”)
seeking an order from the Court sanctioning Plaintiffs Kellie Register (“Register”) and her minor
daughter T.R. (“T.R.”) (collectively “Plaintiffs”) for failing to obey the Court’s prior order (R.
Doc. 13). The motion was submitted on June 7, 2017 and heard with oral argument on June 14,
2017. For the following reasons, the motion is GRANTED.
I.

Background
This action was removed from the 29th Judicial District Court for the Parish of St. Charles

on January 11, 2017. R. Doc. 1. The Plaintiffs allege that Register was employed by Mix Bros.
for approximately eight years and was permitted to have T.R. accompany her to work during
summer vacation. R. Doc. 1-1, p. 2. On or about June 1, 2016, while the Plaintiffs where located
at the offices of Mix Bros, Defendant John Kenny (“Kenny”) threw a snap pop, which is a small
pyrotechnic object, at T.R. The snap pop exploded near T.R.’s face and caused her fear of harm to
her body. Id. at p. 3. At the time, both Kenny and Morrison laughed at T.R.’s reaction. The
following day, Register confronted Morrision about the incident; however, Morrison allegedly
insulted the Plaintiffs in response and ordered them to leave. Id. Register did not return to work

the next day after informing Morrison that she could not return because of emotional distress,
anxiety, and concern for her daughter. Id. Register was allegedly terminated thereafter. Id.
The Plaintiffs also alleged that Morrison sexually assaulted Register in May 2016 when he
approached her and made non-consensual contact while placing and removing a stack of papers
from Register’s chest. Id.
Finally, Plaintiffs also allege that Register has a documented history of anxiety, depression,
and related mental health issues which were frequently triggered by Morrison screaming in the
office and insulting women. Id. at p. 4. Plaintiffs further allege that Register respectfully requested
accommodations from Morrison, but that she was denied any accommodation and further
subjected to abuse and harassment until her termination. Id. Plaintiffs also state that Register
complained about Morrison to another immediate supervisor as well as personnel in Mix Bros.’s
Canada office, but no remedial action was taken. Id. For all the foregoing, the Plaintiffs have
asserted claims against the Defendants for negligence, violations of the Family Medical Leave Act,
sexual harassment, and a host other state and federal law claims.
At this time, the Defendants have filed a Motion for Sanctions seeking to have the Plaintiffs
sanctioned for failing to obey a discovery order issued by this Court. R. Doc. 15. On May 23, 2017,
the undersigned issued an order to the Plaintiffs to respond to the Defendants’ First Sets of
Interrogatories and First Sets of Requests for Production of Documents no later than ten days from
the issuance of that order. R. Doc. 13, p. 4. At this time, the Defendants state that the Plaintiffs
have responded only with inadequate responses to the First Set of Interrogatories to Plaintiff Kellie
Register, but have not responded to the First Set of Requests for Production of Documents to both
Plaintiffs nor the First Set of Interrogatories to Plaintiff T.R. R. Doc. 15-1, p. 2. As such, the

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Defendants seek sanctions under Federal Rule of Civil Procedure 37, including dismissal and an
award of attorneys’ fees. R. Doc. 15, p. 1.
II.

Standard of Review
“Federal Rule of Civil Procedure 37(b)(2) empowers a district court to impose ‘just’

sanctions on parties who disobey a discovery order.” F.D.I.C. v. Conner, 20 F.3d 1376, 1380 (5th
Cir. 1994). While this power is “considerable,” it is “not unlimited,” and the Court must exercise
“discretion in fashioning appropriate penalties for those who disobey” discovery orders. Id. (citing
Chilcutt v. United States, 4 F.3d 1313, 1320 (5th Cir. 1993)).
Under Rule 37(b)(2), the Court “may issue further just orders” including:
(i) directing that the matters embraced in the order or other designated facts be taken
as established for purposes of the action, as the prevailing party claims; (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 order except an order to submit to a physical or mental
examination.
Fed. R. Civ. P. 37(b)(2)(A). Additionally, the Court “must order the disobedient party, the attorney
advising that party, or both to pay the reasonable expenses, including attorney's fees, caused by
the failure, unless the failure was substantially justified or other circumstances make an award of
expenses unjust.” Fed. R. Civ. P. 37(b)(2)(C).
III.

Analysis
Here, the Defendants have filed a motion requesting that the Court sanction the Plaintiffs

for failing to comply with the Court’s prior discovery order. R. Doc. 15. In particular, the
Defendants seek either the dismissal of the instant action or other appropriate action, including
attorneys’ fees. R. Doc. 15-1, p. 5.

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At the outset, the Court notes that the Plaintiffs’ failed to respond to the First Set of
Requests for Production of Documents to both Plaintiffs and the First Set of Interrogatories to
Plaintiff T.R. by the deadline impose by the Court. This failure to respond is in direct violation of
this Court’s May 23, 2017 order issued pursuant to Federal Rule of Civil Procedure 37(a). R. Doc.
13. Therefore Court has the authority to sanction the Plaintiffs. Fed. R. Civ. P. 37(b)(2)(A).
While the Defendants seek a dismissal of the instant action as a result of the Plaintiffs’
failure to cooperate in discovery, “[t]he draconian sanction of dismissal is reserved exclusively for
contumacious and continuing discovery misconduct.” Childs v. Lexington Ins. Co., No. 08-4509,
2009 WL 1941346 at *1 (E.D. La. July 1, 2009); F.D.I.C., 20 F.3d at 1381 (internal citations and
quotations omitted) (“Because the law favors the resolution of legal claims on the merits and
because dismissal is a severe sanction that implicates due process, we have previously deemed
dismissal with prejudice to be a draconian remedy and a remedy of last resort.”). The Fifth Circuit
has articulated a number of considerations in determining if dismissal is appropriate, including: (i)
“‘if the refusal to comply results from willfulness or bad faith and is accompanied by a clear record
of delay or contumacious conduct;’” (ii) whether the violation is the fault of the client rather than
the attorney; (iii) whether the misconduct substantially prejudices the other party; and (iv) if some
less drastic sanction can substantially achieve the desired effect. F.D.I.C., 20 F.3d at 1380-81
(quoting Coane v. Ferrara Pan Candy Co., 898 F.2d 1030, 1032 (5th Cir. 1990)).
During oral argument, after hearing from the Plaintiffs’ attorney concerning his difficulties
responding to discovery as a result of time-issues on his part as well as apparently some difficulties
obtaining information from the Plaintiffs, the Court determined that the severe sanction of
dismissal would be inappropriate and premature at this time. Rather, the Court finds that an award

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of attorneys’ fees associated with the instant motion for sanctions to be appropriate. Further, the
Court orders both the attorney as well as the Plaintiffs to pay those fees.
IV.

Conclusion
Accordingly,
IT IS ORDERED that Defendants Mix Bros. Tank Services, Inc. and Dave Morrison’s

Motion for Sanctions (R. Doc. 15) is GRANTED.
IT IS FURTHER ORDERED that Defendants Mix Bros. Tank Services, Inc. and Dave
Morrison are awarded attorneys fees in connection with the Motion for Sanctions (R. Doc. 15) to
be paid by both the Plaintiffs’ attorney as well as the Plaintiffs.
IT IS FURTHER ORDERED that the Defendants shall file a motion to fix attorney fees
into the record by June 20, 2017, along with: (1) an affidavit attesting to its attorney’s education,
background, skills and experience; (2) sufficient evidence of rates charged in similar cases by other
local attorneys with similar experience, skill and reputation and; (3) the documentation required
by Local Rule 54.2. Any opposition to the fee application shall be filed no later than June 27,
2017. The motion shall be set for hearing on July 5, 2017, to be heard without oral argument.

New Orleans, Louisiana, this 15th day of June 2017.

KAREN WELLS ROBY
UNITED STATES MAGISTRATE JUDGE

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