Griffin v. Wright Medical Technology, Inc. et al

Filing 40

MEMORANDUM OPINION (c/m to Plaintiff 1/8/20 sat). Signed by Judge Deborah K. Chasanow on 1/8/2020. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
MARK GRIFFIN
:
v.

:

Civil Action No. DKC 18-1959

:
WRIGHT MEDICAL TECHNOLOGY, INC.
:
MEMORANDUM OPINION
Presently

pending

and

ready

for

resolution

are

(1)

Defendant’s motion to compel Plaintiff to respond to discovery
requests which was filed by Defendant Wright Medical Technology,
Inc. (“WMT”) on August 28, 2019 (ECF No. 21), and (2) Defendant’s
motion to dismiss as a sanction for failure to provide discovery.
(ECF No. 34).
WMT’s

first

motion

claimed

Plaintiff’s responses to:
documents;

2)

the

it

had

not

received

1) the first request for production of

first

interrogatories;

authorization signed by Plaintiff.
to

that

provide

and

3)

a

HIPAA

The motion sought an order

directing

Plaintiff

responses

to

the

discovery

requests.

The second motion argues that Plaintiff’s failure to

provide the requested discovery responses amounts to a failure to
prosecute and is a basis for dismissal.

(ECF No. 34).

I.

Background
This multi-district product liability action was remanded

from the United States District Court for the Northern District of
Georgia in June, 2018.

(ECF No. 4).

Counsel for Defendant Robert

Hopkins moved for the pro hac admission of co-counsel Dana Ash and
Anne Gruner on July 16.

(ECF Nos. 7, 8, and 9).

Counsel for

Plaintiff Jonathan Beiser moved for the pro hac appearance of
Charles R. Houssiere III on August 6. (ECF No. 12).

The court

convened a scheduling telephone conference with counsel on August
29 and, based on their discussions, issued a scheduling order with
a discovery period of a little over a year.
Plaintiff’s

initial

complaint

named

(ECF No. 16).

both

Wright

While
Medical

Technology, Inc. and Wright Medical Group, Inc. as defendants, on
September 26, 2018, Plaintiff filed an amended complaint, naming
only Wright Medical Technology, Inc. as a defendant.
17).
to

(ECF No.

Accordingly, the clerk will be directed to amend the docket

reflect

that

Wright

Medical

Group,

Inc.

is

no

longer

a

defendant.
Plaintiff’s pro hac counsel Charles Houssiere, III filed a
motion to withdraw as counsel on August 6, 2019.

(ECF No. 19).

Defendant filed a joint motion with Plaintiff to extend the
discovery period (ECF No. 20) and a motion to compel Plaintiff to
respond to discovery requests (ECF No. 21) on August 28, 2019.
The joint motion to extend the discovery period stated that
2

Plaintiff had not responded to discovery requests and argued that
an extension of the discovery period was needed 1) to allow
Plaintiff to determine if he intended to pursue this case and, if
so, 2) to find counsel, and 3) to enable the parties to complete
discovery.

The motion was granted and fact discovery was extended

to December 2, 2019.

(ECF No. 23).

Having received no response

in opposition, the court granted Mr. Houssiere’s motion to withdraw
as unopposed on August 29, 2019.

(ECF No. 22).

Plaintiff’s remaining attorney, Jonathan Beiser, moved to
withdraw on September 17, 2019, stating that he participated in
this case only as local counsel and that his practice does not
handle products liability cases.

(ECF No. 24).

Plaintiff filed

an opposition on September 30, 2019 (ECF No. 27) and Mr. Beiser
filed a reply on October 9, 2019 (ECF No. 28).

The court granted

Mr. Beiser’s motion to withdraw on October 11, 2019 and advised
Plaintiff that the case would proceed with himself acting as his
own attorney (pro se) until new counsel enters an appearance on
his behalf.

(ECF Nos. 29, 30).

WMT filed correspondence requesting the court to rule on its
motion to compel on October 15, 2019.

(ECF No. 31).

The court,

recognizing Plaintiff’s pro se status, provided Plaintiff until
November 8 to respond to the discovery requests.

(ECF No. 32).

Plaintiff filed a motion for an extension of time to respond
to discovery requests on November 6, 2019.
3

(ECF No. 33).

WMT

filed a motion to dismiss on November 13, 2019, arguing that
Plaintiff’s failure to provide the requested discovery responses
amounts to a failure to prosecute and is a basis for dismissal.
(ECF No. 34).

The Clerk issued a notice to Plaintiff on November

13 advising him of his right to file a response to WMT’s motion to
dismiss within seventeen (17) days.
WMT

filed

November 20,

a

2019

motion
(ECF

to

No.

(ECF No. 35).

extend
36)

the

which

discovery

the

court

period

on

granted

on

November 21, extending the discovery period to April 2, 2020. (ECF
No. 37).
Plaintiff’s motion seeking an extension of time to respond to
discovery requests was granted on November 22 and Plaintiff was
provided a final extension – until December 23, 2019, to respond
to discovery requests.

(ECF No. 38).

WMT filed correspondence on December 31, 2019, requesting the
court to rule on its motion to dismiss, reporting that to date
Plaintiff has not responded to the discovery requests, to the
pending motion to compel, or to the pending motion to dismiss.
(ECF No. 39).
II.

Analysis
A party is obligated to respond to written discovery requests

in a timely fashion.

Fed.R.Civ.P. 37(d) provides:

If a party or an officer, director, or
managing agent of a party or a person
designated under Rule 30(b)(6) or 31(a) to
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testify on behalf of a party fails (1) to
appear before the officer who is to take the
deposition, after being served with a proper
notice, or (2) to serve answers or objections
to interrogatories submitted under Rule 33,
after proper service of the interrogatories,
or (3) to serve a written response to a request
for inspection submitted under Rule 34, after
proper service of the request, the court in
which the action is pending on motion may make
such orders in regard to the failure as are
just, and among others it may take any action
authorized under subparagraphs (A), (B), and
(C) of subdivision (b)(2) of this rule.
The possible sanctions include:
(A) An order that the matters regarding which
the order was made or any other designated
facts shall be taken to be established for the
purposes of the action in accordance with the
claim of the party obtaining the order;
(B) An order refusing to allow the disobedient
party to support or oppose designated claims
or defenses, or prohibiting that party from
introducing designated matters in evidence;
(C) An order striking out pleadings or parts
thereof, or staying further proceedings until
the order is obeyed, or dismissing the action
or proceeding or any part thereof, or
rendering a judgment by default against the
disobedient party[.]
Furthermore, a party’s failure to obey an order to provide or
permit discovery may also result in dismissal of an action.
v. Amatex Corp., 769 F.2d 996, 999 (4th Cir. 1985).

Rabb

The drastic

sanction of dismissal may not be imposed except in the most
compelling circumstances.

In determining the proper sanction, a

district court applies a four-factor test:

5

(1) whether the noncomplying party acted in
bad faith; (2) the amount of prejudice his
noncompliance caused his adversary, which
necessarily includes an inquiry into the
materiality of the evidence he failed to
produce; (3) the need for deterrence of the
particular sort of noncompliance; and (4) the
effectiveness of less drastic sanctions.
Such an evaluation will insure that only the
most
flagrant
case,
where
the
party’s
noncompliance represents bad faith and callous
disregard for the authority of the district
court and the Rules, will result in the
extreme sanction of dismissal or judgment by
default.
In such cases, not only does the
noncomplying party jeopardize his or her
adversary’s case by such indifference, but to
ignore such bold challenges to the district
court’s power would encourage other litigants
to flirt with similar misconduct.
Mutual Federal Sav. and Loan Ass’n v. Richards & Associates, Inc.,
872 F.2d 88, 92 (4th Cir. 1989) (internal citations omitted).
Although
situations,

not

Judge

strictly

applicable

Hollander

recently

in

discovery

stated

with

failure

regard

Fed.R.Civ.P. 41(b):
In order to evaluate whether dismissal under Rule
41(b) for failure to prosecute is appropriate, the
Fourth Circuit has articulated a four-factor test:
a court must consider: “(1) the plaintiff’s degree
of personal responsibility; (2) the amount of
prejudice caused the defendant; (3) the presence of
a drawn out history of deliberately proceeding in
a dilatory fashion; and (4) the effectiveness of
sanctions less drastic than dismissal.” Hillig v.
Comm'r of Internal Revenue, 916 F.2d 171, 174 (4th
Cir. 1990). The Fourth Circuit has said: “While the
power to dismiss clearly lies with the district
courts, it is appropriately exercised only with
restraint. ‘Against the power to prevent delays
must be weighed the sound public policy of deciding
6

to

cases on their merits.’” Dove v. CODESCO, 569 F.2d
807, 810 (4th Cir. 1978) (citation omitted).
Therefore, only “the most flagrant case, where the
party’s noncompliance represents bad faith and
callous disregard for the authority of the district
court and the Rules, [should] result in the extreme
sanction of dismissal or judgment by default.” Mut.
Fed. Sav. & Loan Ass'n v. Richards & Assocs., Inc.,
872 F.2d 88, 92 (4th Cir. 1989).
O’Briant v. GAF Corp., No. CV ELH-18-2457, 2019 WL 5625761, at *5
(D. Md. Oct. 31, 2019).
The United States Court of Appeals for the Fourth Circuit
“require[s] district courts ‘to provide explicit and clear notice
when they intend to dismiss the plaintiff’s action with prejudice’
as a sanction for misconduct.”

Okpala v. Computer Sciences Corp.,

CSC, 585 Fed. Appx. 298 (4th Cir. 2014) (citing Choice Hotels Int’l,
v. Goodwin & Boone, 11 F.3d 469, 471-72 (4th Cir. 1993)).

Although

Plaintiff has repeatedly been directed to respond to the discovery
requests, the motion to compel was not granted explicitly, nor was
he clearly warned that dismissal would follow his failure to
comply.

Thus, at present the motion to compel will be granted,

but the motion to dismiss will be denied without prejudice.

Mr.

Wright will be ordered to comply with the discovery requests no
later than January 29, 2020.

He is forewarned, moreover, that

failure to respond will result in dismissal of the case.

/s/
DEBORAH K. CHASANOW
United States District Judge
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