O'Carroll v. Hancock Bank of Louisiana et al

Filing 37

ORDER: That pltfs motion for leave to respond to motion to dismiss 33 is DENIED AS MOOT. FURTHER ORDERED that defts motion for leave to file a reply to pltfs opposition to defts renewed motion to dismiss 35 is GRANTED; FURTHER ORDERED that defts motion to dismiss 29 is DENIED. FURTHER ORDERED that pltfs motion to deny motion to dismiss and motion to deny motion to dismiss and to dismiss sanctions due to the fact that interrogatories were answered and submitted to deft 34 and 36 are D ENIED. FURTHER ORDERED that the discovery deadlines are extended as follows: 1. Defts shall have 14 days to take the deposition of pltf, and pltf shall make herself available for her deposition within the next 14 days or her case will be dismissed. 2. Dispositive motion deadline is extended to 1/14/2013. Signed by Chief Judge Brian A. Jackson on 11/30/2012. (JDL)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
JENNIFER M. O'CARROLL

CIVIL ACTION

VERSUS

NUMBER 11-640-BAJ-DLD

HANCOCK BANK, ET AL
ORDER
This matter is before the Court on a motion to dismiss filed by defendants, Hancock
Bank and Joy Ross (rec. doc. 29). Plaintiff filed motions to deny defendants’ motion to
dismiss and to dismiss sanctions due to the fact that interrogatories were answered and
submitted to defendant (rec. docs. 34 and 36), which the Court will construe as oppositions
to the motion to dismiss.1 Additionally, defendants have filed a motion for leave to file a
reply brief, which was considered in connection with the motion to dismiss (rec. doc. 35).
Discussion
Plaintiff filed this lawsuit on July 27, 2011, alleging employment discrimination under
the Americans with Disabilities Act, the Genetic Information Nondiscrimination Act, and the
Family Medical Leave Act. The discovery deadline expired on September 14, 2012 (rec.
doc. 21). During the course of the discovery period, defendants have filed and the Court has
granted two motions to compel discovery, both of which ordered plaintiff to respond to
defendants’ first set of interrogatories and first set of request for production of documents,

1

Plaintiff’s opposition to the motion to dismiss was due on November 8, 2012 (rec. doc. 32). On
November 9, 2012, plaintiff’s counsel filed a motion for leave to respond to motion to dismiss (rec. doc. 33).
Plaintiff’s counsel represents that he owns a home in Maryland and as a result of Superstorm Sandy, was forced
to travel out of town to Maryland to secure his home and to assist his family members who were affected by the
storm. Plaintiff’s counsel further represents that he has only recently returned home and requests an extension
of time until November 11, 2012, to file a response to defendants’ motion to dismiss. The Court notes that
plaintiff’s counsel filed a motion to deny defendants’ motion to dismiss and to dismiss sanctions and
memorandum in support on November 12, 2012 (rec. docs. 34 and 36), which the Court will construe as
oppositions to defendants’ motion to dismiss. Thus, this motion is now moot.

and one of which also awarded defendants their attorneys’ fees and costs associated with
filing the second motion to compel (rec. docs. 14 and 24). The order granting the second
motion to compel gave plaintiff until September 26, 2012, to answer defendants’ discovery
and pay fees and costs. Id. The order further stated that “failure to comply with this Order
shall result in additional sanctions, up to and including additional attorney’s fees and costs,
and a recommendation of dismissal for failure to prosecute and failure to comply with this
Court’s Orders.” Id.
Plaintiff failed to respond to defendants’ outstanding discovery by September 26,
2012; therefore, defendants filed a motion to dismiss this matter. Defendants argue that
plaintiff has failed to comply with the Court’s previous discovery orders by not timely
responding to discovery and has failed to participate in discovery by not appearing at her
deposition, which defendants noticed for September 7, 2012.

Plaintiff did not timely

respond to defendants’ motion to dismiss. Instead, plaintiff requested an extension of time
until November 8, 2012, to file a response to defendants’ motion to dismiss based on
representations by plaintiff’s counsel that Hurricane Isaac caused damaged to his home and
an interruption of his law practice, which was granted (rec. doc. 32). Again, plaintiff did not
timely respond, and on November 9, 2012, plaintiff requested an extension of time until
November 11, 2012, to file a response to the motion to dismiss based on representations
by plaintiff’s counsel that Superstorm Sandy caused damage to his home in Maryland and
that he was forced to travel to Maryland to secure his home and to make arrangements for
his family members during the storm (rec. doc. 33).
Ultimately, plaintiff filed an opposition to the motion to dismiss on November 12,
2012, in the form of a motion and requested that the sanctions previously awarded be

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dismissed due to the fact that plaintiff responded to defendants’ first set of interrogatories
(rec. docs. 34 and 36). Plaintiff’s counsel further argues that he has not intentionally
delayed or refused to participate in discovery as he had no knowledge of the September 7,
2012, deposition notice of plaintiff’s deposition as it was scheduled for the week after
Hurricane Isaac, which caused damage to his law practice and forced him to relocate to a
new office. Additionally, plaintiff’s counsel suggests that the deposition notice may have
been mailed to the address of his former office; therefore, he would not have received the
notice.2
The record is clear that plaintiff has had an ample opportunity to conduct discovery
and to respond to the discovery propounded by defendants. Plaintiff represents in her
memorandum that she has responded to defendants’ interrogatories. It is unclear, however,
at this time whether plaintiff has fully responded to defendants’ interrogatories and to what
extent, if any, she has responded to defendants’ first request for production of documents.
Defendants have failed to identify the specific deficiencies in plaintiff’s discovery responses
in their reply memorandum. The fact that plaintiff has partially produced discovery in
response to an order compelling production does not support the dismissal of a previous
award of discovery sanctions. Additionally, the Court reminds the parties that although the
discovery deadline has expired, they have a continuing duty pursuant to Fed. R. Civ. P. Rule
26(e) to supplement their discovery responses.
2

On October 25, 2012, plaintiff’s counsel was ordered to update his address with the Court within 14
days. It appears that plaintiff’s counsel has updated his address as the address reflected on the docket sheet
is the address referenced as his current address in his motion to deny motion to dismiss (rec. docs. 34 and 36).
The Court notes, however, that the address reflected on the docket sheet (607 St. Charles, Suite 300, New
Orleans, Louisiana, 70130) is different from the address reflected in the signature block of plaintiff’s motion (603
St. Joseph Street, New Orleans, Louisiana, 70130). All parties are reminded of their continuing obligation to
apprise the court of any address change pursuant to Rule 11.1M of the Uniform Local Rules of the Middle
District of Louisiana.

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With respect to plaintiff’s deposition, plaintiff’s counsel has offered at least some
explanation for why plaintiff did not appear at her deposition, and considering those facts,
the Court will allow a brief extension of the discovery period to allow defendants to depose
plaintiff. Accordingly,
IT IS ORDERED that plaintiff’s motion for leave to respond to motion to dismiss (rec.
doc. 33) is DENIED AS MOOT.
IT IS FURTHER ORDERED that defendants’ motion for leave to file a reply to
plaintiff’s opposition to defendants’ renewed motion to dismiss (rec. doc. 35) is GRANTED;
IT IS FURTHER ORDERED that defendants’ motion to dismiss (rec. doc. 29) is
DENIED.
IT IS FURTHER ORDERED that plaintiff’s motion to deny motion to dismiss and
motion to deny motion to dismiss and to dismiss sanctions due to the fact that interrogatories
were answered and submitted to defendant (rec. docs. 34 and 36) are DENIED.
IT IS FURTHER ORDERED that the discovery deadlines are extended as follows:
1.

Defendants shall have fourteen (14) days to take the deposition of
plaintiff, and plaintiff shall make herself available for her deposition
within the next fourteen (14) days or her case will be dismissed.

2.

Dispositive motion deadline is extended to January 14, 2013.

Baton Rouge, Louisiana, November 30, 2012.

BRIAN A. JACKSON, CHIEF JUDGE
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

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