Baptiste v. National Railroad Passenger Corporation et al
Filing
30
MEMORANDUM OPINION. Signed by Magistrate Judge Charles B. Day on 9/28/2015. (kw2s, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern Division
KAREN BAPTISTE
Plaintiff,
v.
NATIONAL RAILROAD
PASSENGER CORPORATION D/B/A
AMTRAK, et al.,
Defendants.
*
*
*
*
*
*
*
*
*
*
*
*
*****
Civil Action No.: CBD-14-3279
MEMORANDUM OPINION
Before this Court is Defendant National Railroad Passenger Corporation’s Motion for
Involuntary Dismissal and Sanctions for Plaintiff Karen M. Baptiste’s Failure to Respond to
Discovery Requests and Comply with the Court’s Order (ECF No. 25) (“Defendant’s Motion”)
and the opposition thereto. The Court has reviewed Defendant’s Motion, related memoranda,
and applicable law. No hearing is deemed necessary. See Local Rule 105.6 (D. Md.). For the
reasons presented below, the Court GRANTS in part and DENIES in part Defendant’s Motion.
I.
Factual Background
Karen Baptiste (“Plaintiff”) filed her single count First Amended Complaint (“Amended
Complaint”) on October 20, 2014 against the National Railroad Passenger Coporation
(“Defendant”). Pl.’s Am. Compl., ECF No. 4. Plaintiff alleges that Defendant’s negligence
caused her to slip and fall on February 22, 2011 at Union Station in the District of Columbia.
Pl.’s Am. Compl. 2-3. Plaintiff alleges that the train steps and platform were slippery, and that
1
there were no signs or train personnel warning the passengers about the slippery conditions.
Pl.’s Am. Compl. 2. Plaintiff further alleges that there were no handrails. Id.
On December 18, 2014, pursuant to Local Rule 103.9, this Court entered the Scheduling
Order establishing, inter alia, the deadlines and requirements for pretrial proceedings including
discovery. Scheduling Order, ECF No. 14.1
On December 22, 2014, Defendant National Railroad Passenger Corporation’s First
Interrogatories and Requests for Production of Documents (“discovery requests”) were
propounded to Plaintiff. See Def.’s Mot., ECF No. 25-1. Plaintiff did not respond to
Defendant’s discovery requests within 30 days as required under the Federal Rules of Civil
Procedure 33(b)(2) and 34(b)(2)(A). On January 27, 2015, Defendant’s counsel sent an email to
Plaintiff’s counsel requesting that Plaintiff respond to the discovery requests by January 30,
2015. See Def.’s Mot., ECF No. 25-2. On January 29, 2015, having not received a response
from Plaintiff, Defendant left two voice messages for Plaintiff’s counsel, and sent a follow-up
email. See Def.’s Mot., ECF No. 25-3. Plaintiff did not respond to the voice messages or
follow-up email.
On February 18, 2015, Defendant’s counsel spoke with Plaintiff’s counsel over the
phone, and they agreed that Plaintiff would have until February 23, 2015 to respond to the
discovery requests before Defendant would file a motion to compel. Def.’s Mot., ECF No. 25-4.
On February 23, 2015, Defendant’s counsel spoke with Plaintiff’s counsel who was still working
on Plaintiff’s responses. Def.’s Mot. 3. Defendant’s counsel then agreed to allow Plaintiff’s
1
Relevant here are the following deadlines set forth in the Scheduling Order: 1) March 2, 2015: Plaintiff’s
Fed. R. Civ. P. 26(a)(2) expert disclosures; 2) March 30, 2015: Defendant’s Fed. R. Civ. P. 26(a)(2) expert
disclosures; 3) April 20, 2015: Fed. R. Civ. P. 26(e)(2) supplementation of disclosures and responses; 4) May 14,
2015: Completion of discovery and submission of joint status report; 5) June 15, 2015: Dispositive pretrial motions.
2
counsel until the morning of February 24, 2015 to respond to the discovery requests, before
Defendant would file a motion to compel. Plaintiff did not meet the February 24th deadline.
On February, 25, 2015, Defendant filed Local Rule 104.7 Certificate of Efforts to
Resolve Discovery Dispute. See ECF No. 18. Also on this date, Defendant filed Defendant’s
Motion to Compel Plaintiff to Respond to Defendant’s First Interrogatories and Requests for
Production of Documents (“Motion to Compel”). See ECF No. 19. Plaintiff did not file an
opposition to Defendant’s Motion to Compel.
On April 30, 2015, this Court granted Defendant’s Motion to Compel, and ordered that
Plaintiff had waived all objections to Defendant’s discovery requests. See Paperless Order, ECF
No. 24. The Court further ordered Plaintiff to produce all responsive discovery within five (5)
business days from the entry of the order2 (“April Order”). Id. Plaintiff failed to comply with
the April Order. On May 8, 2015, two days after the deadline set by the Court, Defendant filed
Defendant’s Motion seeking to dismiss Plaintiff’s Amended Complaint with prejudice. See ECF
No. 25. On May 19, 2015, Plaintiff belatedly provided answers to Defendant’s discovery
requests. Def.’s Reply 1. Also belatedly, Plaintiff filed an opposition to Defendant’s Motion on
May 27, 2015. See ECF No. 28. Defendant filed a reply on June 15, 2015. See ECF No. 29.
In its motion, Defendant argues that pursuant to Rule 37(b)(2)(A) and/or Rule 41(b) of
the Federal Rules of Civil Procedure, the Court should dismiss Plaintiff’s Amended Complaint
with prejudice. Def.’s Mot. 4. Defendant argues that Plaintiff’s failure to respond to
Defendant’s discovery requests, her failure to respond to Defendant’s Motion to Compel, and her
failure to comply with the April Order, demonstrate bad faith and prejudice to Defendant. Def.’s
Mot. 3-4. Further, Defendant requests that under Rule 37, the Court award it reasonable
2
Plaintiff had until May 6, 2015 to comply with the Court’s order.
3
expenses incurred, including attorneys’ fees and costs associated with Defendant’s Motion, and
the Motion to Compel. Def.’s Mot. 4.
In her opposition, Plaintiff argues it has been difficult for her attorneys to obtain
Plaintiff’s medical records from three different jurisdictions. Pl.’s Opp’n 3. Plaintiff’s attorneys
state that although they have made every effort to comply with the Court’s order, they have been
unable to do so. Id. Plaintiff further states that on April 10, 2015, she complied with
Defendant’s counsel’s request that she execute twenty (20) authorization forms, directing her
medical providers to provide Defendant with their complete files. Pl.’s Opp’n 3. Plaintiff
further states that on May 15, 2015, she was finally able to produce medical records for all her
health care providers, except the medical records from two new physicians in Kentucky.3 Id.
Plaintiff also states that she provided Defendant with all Tricare “Explanation of Benefits”
reports for the out-of-system treatments she received in 2011 and 2012. Id. Plaintiff asks the
Court not to sanction her because her attorneys have not intentionally disregarded the April
Order, and also because Defendant has not been prejudiced. Pl.’s Opp’n 3-4.
In its reply, Defendant argues that Plaintiff acted in bad faith by not facilitating her
counsel’s efforts to respond to the discovery requests, and by failing to explain why she did not
respond to interrogatories for approximately four (4) months. Def.’s Reply 2. Defendant further
argues that Plaintiff’s failure to respond to Defendant’s discovery requests until after the close of
discovery has “grossly prejudiced” its ability to defend this case. Def.’s Reply 3. Defendant
also argues that it has incurred significant expenses due to Plaintiff’s actions. Id. Lastly,
Defendant argues that on May 19, 2015, after the close of discovery, in her interrogatory
answers, Plaintiff identified medical doctors she intends to call as experts, yet prior to this date,
3
Plaintiff’s counsel indicates that the medical records from Kentucky have been requested and will be
provided to Defendant as soon as they are received. Pl.’s Opp’n 3.
4
Plaintiff had not filed any Rule 26(a)(2) disclosures or identified her expert witnesses, or
provided any written reports for any identified experts as required under Rule 26(a)(2)(B).
Def.’s Reply 1-2. For these reasons, Defendant asks the Court to dismiss Plaintiff’s Amended
Complaint, or in the alternative, to strike Plaintiff’s fact and expert witnesses, and extend
Defendant’s deadline to file dispositive motions until September 1, 2015, so that Defendant may
conclude discovery, depose Plaintiff and evaluate appropriate dispositive motions. Def.’s Reply
3. Defendant also requests leave to supplement its previously filed Rule 26(a)(2) disclosures, in
light of Plaintiff’s late discovery responses. Id.
II.
Standard of Review
Under Rules 37(b), and 41(b), courts have the authority to dismiss a case when a party
fails to comply with a court order. See Fed. R. Civ. P. 37(b), and 41(b); Ballard v. Carlson, 882
F.2d 93, 95 (4th Cir. 1989). Under Rule 37(b), the court may “dismiss the action or proceeding
in whole or in part” if a party “fails to obey an order to provide or permit discovery.” Fed. R.
Civ. P. 37(b)(2)(A)(v). Under Rule 41(b), the court may dismiss an action “[i]f the plaintiff fails
to prosecute or to comply with . . . a court order.” Fed. R. Civ. P. 41(b). The extreme sanction
of dismissal, however, is reserved for the most flagrant cases, “where the party’s noncompliance
represents bad faith and callous disregard for the authority of the district court and the Rules.”
Mut. Fed. Sav. & Loan Ass’n v. Richards & Assocs., Inc., 872 F. 2d 88, 92 (4th Cir. 1989).
Before ordering dismissal as a sanction under Rule 37(b), the court applies a four-factor
test and considers: (1) [w]hether the non-complying party acted in bad faith; (2) the amount of
prejudice that noncompliance caused the adversary; (3) the need for deterrence of the particular
sort of non-compliance; and (4) whether less drastic sanctions would have been effective. See
Woodard-Charity v. Kaiser Found. Health Plan of the Mid-Atl. States, Inc., No. 11-3555, 2013
5
WL 3863935, at *2 (D. Md. July 23, 2013); Mut. Fed. Sav. & Loan Ass’n, 872 F.2d at 92.
Before ordering dismissal as a sanction under Rule 41(b), the court must consider four similar
factors: (1) the plaintiff's degree of personal responsibility; (2) the amount of prejudice caused
the defendant; (3) a history of deliberately proceeding in a dilatory fashion; and (4) the
effectiveness of sanctions less drastic than dismissal. Ballard, 882 F.2d at 95. The Court can
combine the two tests to determine whether dismissal is appropriate under Rules 37(b) and 41(b),
because the legal standards for dismissal under both rules are “virtually the same.” See
Woodard-Charity, 2013 WL 3863935, at *2-3 (citing Taylor v. Fresh Fields Markets, Inc., No.
94-0055-C, 1996 WL 403787, at *2 (W.D. Va June 27, 1996)); Carter v. Univ. of W. Va. Sys.,
Bd. of Trustees, No. 93-1905, 1994 WL 192031, at *2 (4th Cir. May 16, 1994). Another factor
that the court must consider is whether it has explicitly and clearly warned the party facing the
sanction about the possibility of dismissal under Rules 37 and 41. See Sadler v. Dimensions
Health Corp., 178 F.R.D. 56, 59 (D. Md. 1998) (“. . . [D]istrict courts must precede dismissal
with an ‘explicit and clear’ threat to a party that failure to meet certain conditions could result in
dismissal of the party's case with prejudice.”) (citing Hathcock v. Navistar Int'l Transp. Corp., 53
F.3d 36, 40-41 (4th Cir.1995)); Choice Hotels Int'l, Inc. v. Goodwin & Boone, 11 F.3d 469, 471
n. 2. (4th Cir.1993).
III.
Analysis
A. Defendant’s motion for dismissal of Plaintiff’s Amended Complaint is
denied.
After applying the four-factor tests of Woodward-Charity and Ballard, the Court
concludes that it will not dismiss Plaintiff’s Amended Complaint. Under the first factor of both
tests, the Court finds that although Plaintiff’s conduct in this case was not exemplary and should
be admonished; there is no evidence of bad faith. “Bad faith has been found where, for example,
6
a party has failed to comply with [multiple court orders], failed entirely to comply with the
opposing party’s discovery requests, or failed ‘even [to] attempt to obtain and produce [any]
requested documents.’” See Fisher v. Fisher, No. WDQ–11–1038, 2012 WL 2873951, at*3 (D.
Md. July 12, 2012); see also Robertson v. DECO Sec., Inc., No. 09-3093, 2010 WL 3781951, at
*4 (D. Md. Sept. 22, 2010) (finding that plaintiff acted in bad faith by failing to comply with two
court orders compelling her response to interrogatories and requests for documents). The Court
finds that Plaintiff failed to timely respond to Defendant’s discovery requests, and failed to
communicate with Defendant about the reasons for her lack of response. Although these failures
are serious, they do not rise to the level of bad faith. Although Plaintiff failed to comply with the
April Order, there is no evidence here of repeated failures to comply with multiple court orders.
Moreover, Plaintiff did not fail entirely to comply with the discovery requests since Plaintiff,
albeit belatedly, produced the requested documents.
Under the second factor, the Court finds that although Plaintiff’s conduct was
aggravating and frustrating to Defendant and in complete disregard of a court order, it does not
rise to the level of prejudice. “[P]rejudice has been found where a party’s repeated refusals to
comply with discovery requests prevented the opposing party from ‘defend[ing] against claims,
facts, and witnesses.’” See Fisher, 2012 WL 2873951, at*4 (citing U.S. v. One Tract of Real
Prop., No. 95–1282, 1997 WL 71719, at *3 (4th Cir. Feb. 20, 1997)). In this case, although
Plaintiff took approximately five (5) months4 to respond to Defendant’s discovery requests, a
conduct that should not go unsanctioned, eventually Plaintiff provided discovery responses,
allowing Defendant to defend against claims, facts and witnesses.
4
Defendant served the discovery requests on December 22, 2014, and Plaintiff responded nearly five
months later on May 19, 2015.
7
The third factor Woodward-Charity requires the Court to consider -- the need for
deterrence -- does not weigh in favor of dismissal. “[T]he need for deterrence is high where, for
example, the disobedient party has ‘not just dragged [its] feet in discovery or been slow to
produce responses,’ but has ‘willfully and consistently stood in complete defiance of the Federal
Rules’ and has ‘failed to comply in any way with’ court orders.” See Fisher, 2012 WL 2873951,
at*4 (citing Plant v. Merrifield Town Ctr. Ltd. P’ship, No. 1:08cv374, 2009 WL 6082878, at *6
(E.D. Va. Dec. 23, 2009). In this case, although Plaintiff dragged her feet and was slow to
respond to Defendant’s discovery requests, the Court cannot find that Plaintiff willfully and
consistently stood in complete defiance of the Federal Rules. Plaintiff responded to the
discovery requests even if untimely. Similarly, the third factor the Court must consider in
evaluating whether to dismiss the case under Rule 41(b) and the Ballard decision, does not
weigh in favor of dismissal. The Court finds no evidence of Plaintiff’s drawn out history of
deliberately proceeding in a dilatory fashion.
The fourth factor, the effectiveness of lesser sanctions, also weighs against dismissal
because the Court finds that sanctions less severe than dismissal would be effective in this case.
Rule 37(b)(2)(A)(i)-(vii) recites permissible sanctions. In addition, “[t]he Fourth Circuit has
recognized [that] lesser sanctions can include any court orders that clearly contemplate
punishment for noncompliance and that pursue subsequent conformity.” PVD Plast Mould
Indus, Ltd. v. Polymer Grp., Inc., No. 2:98–2929–23, 2001 WL 1867801, at *12 (D.S.C. Feb. 1,
2001) (citing Anderson v. Found. for Adv., Educ. & Emp't of Amer. Indians, 155 F.3d 500, 505
(4th Cir.1998)). The Fourth Circuit has in fact “encouraged trial courts” to consider imposing
less severe sanctions, such as awards of costs and attorneys’ fees, to ensure that the
noncompliant party had “fair warning.” Steigerwald v. Bradley, 229 F. Supp. 2d 445, 449 (D.
8
Md. 2002) (citing Hathcock v. Navistar Int’l Transp. Corp., 53 F.3d 36, 41 (4th Cir. 1995)). The
Court acknowledges that it imposed a lesser sanction in this case when, after granting
Defendant’s Motion to Compel, it ordered that Plaintiff had waived objections, under Rule
33(b)(4) of the Federal Rules of Civil Procedure and Local Rule 104.6, to Defendant’s discovery
requests. See ECF No. 24. The Court further acknowledges that this sanction did not cause
Plaintiff to respond immediately to Defendant’s discovery requests. Instead, Plaintiff submitted
an untimely response5 and in the meantime, Defendant’s Motion was filed. However, even if
Plaintiff’s response was untimely or in reaction to Defendant’s Motion, the Court cannot
conclude that lesser sanctions were not effective. Moreover, the Court has not imposed costs and
attorneys’ fees as sanctions in this case. Cf. Steigerwald, 229 F. Supp. 2d at 449 (where the court
found that no lesser sanction would be effective because the court had awarded discovery costs
earlier in the litigation, “with no apparent impact on the noncompliant party”). Finally, another
factor that weighs against dismissal is that the Court did not issue an explicit and clear warning
indicating that Plaintiff’s conduct could terminate in dismissal of the Amended Complaint.
B. Defendant’s request to strike Plaintiff’s fact and expert witnesses is denied.
Defendant requests that if the Court does not dismiss Plaintiff’s case, in the alternative,
the Court should strike Plaintiff’s fact and expert witnesses due to the late disclosures. Def.’s
Reply in Supp. 3. Under Rule 37(c)(1), “[i]f a party fails to provide information or identify a
witness as required by Rule 26(a) or (e),” that party cannot “use that information or witness to
supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially
justified or is harmless.” Fed. R. Civ. P. 37(c)(1). Courts have broad discretion, under Rule
37(c)(1), to remedy violations of Rule 26(a). Silicon Knights, Inc. v. Epic Games, Inc., No. 5:07-
5
As a result of the April Order, May 6, 2015 was the due date for Plaintiff’s response to Defendant’s
discovery requests. Plaintiff submitted her response on May 19, 2015.
9
CV-275-D, 2012 WL 1596722, at *2 (E.D.N.C. May 7, 2012). “The language of Rule 37(c)(1)
provides two exceptions to the general rule excluding evidence that a party seeks to offer but has
failed to properly disclose: (1) when the failure to disclose is ‘substantially justified,’ and (2)
when the nondisclosure is ‘harmless.’” Wilkins v. Montgomery, 751 F.3d 214, 222 (4th Cir.
2014). To determine whether these exceptions apply, courts could consider the following
factors:
(1) the surprise to the party against whom the evidence would be offered;
(2) the ability of that party to cure the surprise;
(3) the extent to which allowing the evidence would disrupt the trial;
(4) the importance of the evidence; and
(5) the nondisclosing party's explanation for its failure to disclose the evidence.
Southern States Rack & Fixture, Inc. v. Sherwin–Williams Co., 318 F.3d 592, 597 (4th Cir.
2003). “[The first four factors]—surprise to the opposing party, ability to cure that surprise,
disruption of the trial, and importance of the evidence—relate mainly to the harmlessness
exception, while the remaining factor—explanation for the nondisclosure—relates primarily to
the substantial justification exception.” Id. The Court is not required, however, to take these
factors into account as it decides whether to impose sanctions under Rule 37(c). Wilkins, 751
F.3d at 222. Instead, the Court “should be guided by” these factors. Southern States, 318 F.3d at
597. Nonetheless, the burden of establishing these factors lies with the non-disclosing party, in
this case, Plaintiff. See Wilkins, 751 F.3d at 222 (4th Cir. 2014).
Using the factors as guidance, the Court concludes that although Plaintiff did not have a
substantial justification for her failure to submit Rule 26(a)(2) expert disclosures by the March 2,
2015 deadline, this failure was harmless. First, since Defendant is now in possession of
Plaintiff’s expert disclosures, and is aware of how Plaintiff intends to use those experts, the
element of surprise is nonexistent. Second, even if there was a surprise, Defendant has the
10
ability to cure this surprise by deposing the experts. Third, allowing Plaintiff to use her experts
will not disrupt the trial, because the trial date has not been set and the threat of disruption is de
minimis at this stage. As to the fourth factor, it is clear that Plaintiff’s expert disclosures are of
paramount importance to establish the extent of Plaintiff’s injuries, causes, treatments and the
alleged damages. After applying the first four factors, the Court concludes that Plaintiff’s failure
to timely disclose the experts is harmless.
The Court finds, however, that Plaintiff did not offer a legitimate explanation for her
untimely compliance with the March 2, 2015 expert disclosure deadline. Plaintiff’s counsel
explained that they encountered difficulties in obtaining Plaintiff’s medical records from three
different jurisdictions, and that although they made every effort to comply with the April Order,
they were unable to do so. Pl.’s Opp’n 3. The Court finds that Plaintiff has not carried her
burden as to this factor, and that Plaintiff has not offered a substantial justification for her
untimely compliance with the expert disclosure deadline. Defendant’s request to strike
Plaintiff’s fact and expert witnesses is therefore denied, because the Court concludes that
although Plaintiff did not offer a substantial justification for her untimely compliance with expert
disclosure deadlines, her actions were harmless.
C. Defendant’s request to extend the deadline for dispositive motions until
September 1, 2015 is granted.
The Court finds that there is good cause to extend Defendant’s deadline to file dispositive
motions. In its reply, Defendant requests that if Plaintiff’s case is not dismissed, in the
alternative, the Court should extend Defendant’s deadline to file dispositive motions, so that it
may conclude discovery, depose Plaintiff and evaluate appropriate dispositive motions. Def.’s
Reply in Supp. 3. The Scheduling Order for this case provides that “the schedule will not be
changed except for good cause.” Scheduling Order 1, ECF No. 14. In this case, there is good
11
cause to extend the deadline because Plaintiff filed untimely responses to Defendant’s discovery
requests and Plaintiff also filed untimely expert disclosures. Accordingly, counsel shall confer
and submit, within fifteen (15) days, a proposed Amended Scheduling Order addressing the
deadlines affected by Defendant’s Motion.
D. Defendant’s request for leave to supplement its previously filed Rule 26(a)(2)
disclosures is granted.
Defendant further seeks leave to supplement its previously filed Rule 26(a)(2)
disclosures. Def.’s Reply in Supp. 3. This request is granted because Plaintiff filed untimely
responses to Defendant’s discovery requests and untimely expert disclosures.
E. Defendant’s request for reasonable attorney’s fees and costs associated with
the preparation of Defendant’s Motion is granted.
Under Rule 37(b)(2)(C), if a party fails to comply with a court order, “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.” See Fed. R. Civ. P.
37(b)(2)(C). “A party satisfies the ‘substantially justified’ standard ‘if there is a genuine dispute
as to proper resolution or if a reasonable person could think that the failure to produce discovery
is correct, that is, if it has a reasonable basis in law and fact.’” Woodard–Charity, 2013 WL
3863935, at *5 (citing Decision Insights, Inc. v. Sentia Grp., Inc., 311 Fed. App’x 586, 599 (4th
Cir. 2009)). “Courts have concluded that ‘substantial justification’ could include making
meritorious objections to requested discovery, or even engaging in a legitimate dispute over the
sequence of discovery.” Kemp v. Harris, 263 F.R.D. 293, 296-97 (D. Md. 2009) (citations
omitted).
12
The Court finds that Plaintiff has not offered a substantial justification for her lack of
compliance with the April Order. The Court further finds that there are no other circumstances
making an award of expenses unjust. Defendant is permitted to submit a bill of costs and
attorney's fees related to Defendant’s Motion. Defendant’s submission must be received within
fourteen (14) days of this Order, and within fourteen (14) days thereafter, Plaintiff may file a
response. Plaintiff’s response shall be limited to: (1) objecting to the amount of fees and/or their
reasonableness, and/or (2) providing a factual basis on which the Court may find that the
imposition of attorney's fees would be unfair.
F. Conclusion
For the foregoing reasons, the Court GRANTS in part and DENIES in part Defendant’s
Motion.
September 28, 2015
/s/
Charles B. Day
United States Magistrate Judge
CBD/yv
13
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?