Nuccio v. Dolgencorp LLC

Filing 31

RULING AND ORDER granting 27 Motion to Reopen Case. The Clerk of Court is directed to REOPEN this matter. An in-person status conference is set for 4/4/2018 @ 10:30AM in Courtroom 5. Plaintiff shall appear in person unless he has retained cou nsel. The Clerk of Court is directed to serve this RULING AND ORDER on Plaintiff by certified mail. Receipt # 7004 11600003 2648 6860. Signed by Magistrate Judge Erin Wilder-Doomes on 3/1/2018. (Attachments: # 1 Motion to Compel, # 2 Motion for Extension) (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

SHANNON NUCCIO

CIVIL ACTION

VERSUS

NO. 16-839-EWD

DOLGENCORP, LLC

CONSENT CASE

RULING AND ORDER
Before the court is a Motion to Reopen,1 filed on behalf of Plaintiff, Shannon Nuccio.
Defendant, Dolgencorp, LLC, has opposed the Motion.2 For the reasons that follow, the Motion
to Reopen is GRANTED.
I.

Factual Background

On or about September 12, 2016, Plaintiff, Shannon Nuccio (“Plaintiff”), filed a Petition for
Damages (the “Petition”) in state court seeking damages for injuries sustained when Plaintiff
allegedly tripped and fell in a Dollar General Store in Albany, Louisiana.3
on December 13, 2016 pursuant to 28 U.S.C. § 1332.4

The suit was removed

The parties consented to proceed before

the undersigned magistrate judge,5 and this suit was thereafter referred to the undersigned for all
further proceedings and entry of judgment in accordance with 28 U.S.C. § 636(c).6

1

R. Doc. 27.

2

R. Doc. 30.

3

R. Doc. 1-1.

4

R. Doc. 1.

5

R. Doc. 8.

6

R. Doc. 9.

S. Nuccio - Certified Mail 7004 1160 0003 2648 6680

On September 13, 2017, counsel for Plaintiff filed a Motion to Withdraw Representation
and Counsel of Record for Plaintiff Shannon Nuccio (the “Motion to Withdraw”).7 Per the Motion
to Withdraw, counsel for Plaintiff attested that he had “tried on numerous occasions to contact
plaintiff Shannon Nuccio to no avail.”8

Plaintiff’s counsel additionally asserted that he had sent

notice to Plaintiff that counsel would be filing a Motion to Withdraw via certified mail return
receipt requested, to the address of “44133 Bess Morris Lane, Hammond, Louisiana 70403” (the
“Bess Morris Address”) and that the “green card” had been signed indicating Plaintiff’s receipt of
the letter.9

On September 13, 2017, an Order granting the Motion to Withdraw was entered.10

Following the withdrawal of Plaintiff’s counsel, the court ordered 11 a telephone
conference to take place on October 11, 2017 to discuss the pending Motion for Extension of
Deadlines. 12

The order was sent to Plaintiff by certified mail return receipt requested to the

address listed on PACER, i.e., the Bess Morris Address, and Plaintiff was advised that “failure to
participate in [October 11, 2017] conference may result in dismissal of this action.”13
received notice of delivery receipt on October 11, 2017. 14

The court

Despite receiving the Order via

certified mail, return receipt requested, Plaintiff failed to participate in the telephone conference
as ordered.

7

R. Doc. 16.

R. Doc. 16, p. 1. Plaintiff’s counsel further stated in the Motion to Withdraw that he and his secretary “had tried
on numerous occasions to contact the plaintiff by calling all telephone numbers in our files but all were disconnected
or no longer in service.” R. Doc. 16, p. 1.
8

9

R. Doc. 16, p. 1. R. Doc. 16-1.

10

R. Doc. 19.

11

R. Doc. 21.

12

R. Doc. 20.

13

R. Doc. 21.

14

R. Doc. 24.

2

In light of Plaintiff’s failure to participate in the October 11, 2017 telephone conference as
ordered, the court issued an Order to Show Cause.15 The Order to Show Cause was ordered to be
served on Plaintiff by certified mail return receipt requested at the Bess Morris Address and a show
cause hearing was set for October 25, 2017.

The Order to Show Cause explicitly stated that

“[f]ailure to appear as ordered may result in dismissal of plaintiff’s claims in this matter without
further notice pursuant to Fed. R. Civ. P. 41(b).”16
hearing.

Plaintiff failed to appear for the show cause

Accordingly, the case was dismissed on October 31, 2017 without prejudice for failure

to prosecute under Federal Rule of Civil Procedure 41(b).17

In the Order dismissing the case, the

undersigned also ordered that the Clerk of Court provide the Order of Dismissal to Plaintiff by
certified mail, return receipt requested and provided that the action could be reinstated within thirty
days upon a showing by the Plaintiff of good cause.18
On November 27, 2017, the instant Motion to Reopen was filed by Rebekah Nuccio.

Ms.

Nuccio states that she has power of attorney for Plaintiff and provides an explanation of Plaintiff’s
failure to participate in the October 11, 2017 telephone conference (“a series of unfortunate events
… left him without a phone”) and of Plaintiff’s failure to appear at the October 25, 2017 show
cause hearing (he was “arrested and detained in the Livingston Parish Detention Center on October
18, 2017.”).19

15

R. Doc. 23. Certified mail # 7004 1160 0003 2648 1449.

16

R. Doc. 23.

17

R. Doc. 25.

18

R. Doc. 25.

19

R. Doc. 27.

3

Defendant filed an Opposition to Plaintiff’s Motion to Re-Open Case.20

The basis for the

opposition is essentially that the Motion to Reopen does not provide sufficient explanation to
constitute good cause to reopen the case.

Alternatively, if the case is reopened, Defendant

requests that the Court reconsider the order denying defendant’s Motion to Compel and Motion
for Extension of Deadlines21 and prays for reasonable fees and expenses associated with having
to file the Motion to Compel.
II.

Law and Analysis
In this case, the Order of Dismissal provides that the action can be reinstated within thirty

days upon a showing of good cause by Plaintiff.22

It is undisputed that the Motion to Reopen

was filed less than thirty (30) days after the Order of Dismissal was entered. The only question
then is whether the Motion to Reopen provides sufficient justification to reopen the case.
Although Defendant is correct that there are multiple instances in the record of this matter where
Plaintiff has failed to comply with the obligations imposed by the Federal Rules of Civil Procedure
and by order of this court, termination of cases, even for failure to comply with court orders, is not
generally favored.

See e.g., Lear Siegler Services, Inc. v. Ensil Intern’l Corp., Civil No. SA-05-

CA-679-XR, 2011 WL 13174951, at 6 (W.D. Tex. March 15, 2011)(“To support the severe
sanction, such as striking pleadings, staying proceedings, rendering default or dismissal of claims
or counterclaims, for violating a court rule or order regarding discovery, the Fifth Circuit requires
a finding that the party’s failure to comply with the court’s order was undertaken in bad faith or

20

R. Doc. 30.

21

R. Docs. 15 and 20. The Motion to Compel and Motion for Extension were denied in the Order of Dismissal as
moot. R. Doc. 25.
22

R. Doc. 25.

4

was willful. Severe sanctions are imposed only when the party’s conduct has substantially
prejudiced the opposing party.

If a lesser sanction would provide adequate deterrence, it should

be imposed instead of a more sever sanction.”)

Although arising in the context of violations of a

court’s discovery orders, the reasoning of Lear is persuasive.
Defendant filed a Motion to Compel on August 15, 2017. At that time, Plaintiff was still
represented by counsel and had not provided timely responses to discovery requests propounded
by Defendant.23

Shortly thereafter, Plaintiff’s counsel filed a motion seeking to withdraw from

representation.

The Motion to Withdraw Representation and Counsel of Record for Plaintiff

Shannon Nuccio, states that counsel “tried on numerous occasions to contact Plaintiff Shannon
Nuccio to no avail.”
Discovery propounded by the defendant in this matter was mailed
to the plaintiff with no response. After the time delays passed for
answering, undersigned counsel and his secretary tried on numerous
occasions to contact the plaintiff by calling all telephone numbers in
our files but all were disconnected or no longer in service.24
Plaintiff’s counsel was permitted to withdraw and thus began the undersigned’s efforts to obtain
Plaintiff’s participation in this case.

Although an order was issued setting a telephone

conference,25 which Plaintiff failed to attend, and a show cause hearing,26 which plaintiff failed
to attend, and both orders indicated that failure to participate could result in dismissal, the court
finds that the Motion to Reopen establishes good cause for those failures, particularly in light of

23

R. Doc. 15.

24

R. Doc. 16.

25

R. Doc. 21.

26

R. Doc. 23.

5

the fact that such a harsh sanction would not be favored, where, as here, a plausible explanation
has been provided for the failure to comply with the court’s orders.
Accordingly,
IT IS HEREBY ORDERED that the Motion to Reopen Case27 is GRANTED.
IT IS FURTHER ORDERED that the Clerk of Court is directed to REOPEN this matter.
IT IS FURTHER ORDERED that an in-person status conference is scheduled in this
matter for April 4, 2018 at the United States District Court, 777 Florida Boulevard, Baton Rouge,
LA in courtroom 5 at 10:30 a.m.

Plaintiff shall appear in person at the status conference

unless he has retained counsel prior to that date who has enrolled in this case.

Plaintiff (or his

enrolled counsel) and counsel for defendant shall be prepared to discuss the outstanding discovery
responses that were the subject of Defendant’s Motion to Compel28 (a copy of the Motion to
Compel is attached). They shall also be prepared to discuss Defendant’s request for an extension
of certain deadlines in this matter29 (a copy of Defendant’s Motion for Extension of Discovery
and Deadline for Dispositive and Daubert Motions is attached).
IT IS FURTHER ORDERED that the Clerk of Court is directed to serve this Ruling and
Order on Plaintiff by certified mail, return receipt requested at the address on PACER.
Signed in Baton Rouge, Louisiana, on March 1, 2018.

S
ERIN WILDER-DOOMES
UNITED STATES MAGISTRATE JUDGE

27

R. Doc. 27.

28

R. Doc. 15.

29

R. Doc. 20.

6