Humphrey et al v. Comoletti et al

Filing 83

Judge Allison D. Burroughs: MEMORANDUM AND ORDER entered. Accordingly, Defendants motion [ECF No. 80 ] is GRANTED and Plaintiffs complaint is DISMISSED with prejudice. SO ORDERED. (McDonagh, Christina)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
FRED HUMPHREY, et al.,
Plaintiffs,
v.
JEFFREY COMOLETTI, et al.,
Defendants.

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Civil Action No. 15-cv-14170-ADB

MEMORANDUM AND ORDER
BURROUGHS, D.J.
Now pending before the Court is Defendants’ motion to dismiss the complaint due to
Plaintiff’s failure to prosecute the action or comply with Court orders. [ECF No. 80]. For the
reasons stated herein, the motion is GRANTED and the case is DISMISSED.
I.

BACKGROUND
On April 30, 2018, the Court issued a Memorandum and Order [ECF No. 82] on

Plaintiff’s former attorneys’ motion to withdraw from the representation, and provided the
following summary of this case as it relates to Plaintiff’s failure to communicate with his counsel
and to otherwise litigate his claims:
Plaintiff initiated this action on December 18, 2015. [ECF No. 1]. Motions to
dismiss were filed in April and May 2016, after which Plaintiff filed a motion to
amend the complaint that the Court allowed. [ECF No. 35]. After a second round
of motions to dismiss, on March 31, 2017, the Court dismissed certain of the
pending claims and all other plaintiffs from the case. [ECF No. 54]. The Court then
held a scheduling conference on September 11, 2017, and issued a scheduling order,
which set a deadline for fact discovery to be completed by May 31, 2018. [ECF
Nos. 67, 68].
On December 8, 2017, Defendant Comoletti filed a letter motion to compel Plaintiff
to provide written discovery responses to interrogatories and requests for
production that were served on October 2, 2017. [ECF No. 71]. Plaintiff’s counsel

informed Comoletti that the discovery responses were delayed because Plaintiff
was out-of-state and his father was on dialysis. Id. Comoletti agreed to extend the
discovery response deadline to December 6, 2017. When Plaintiff failed to provide
discovery responses by that date, Plaintiff’s counsel reported that they were unable
to reach Plaintiff for two weeks and could not provide a date for serving discovery
responses. Id. After the Court scheduled a hearing on the letter motion, the parties
agreed to further extend the deadline until January 9, 2018. [ECF Nos. 72, 75]. The
Court cancelled the hearing in accordance with the parties’ stipulated extension.
[ECF No. 76].
Although Plaintiff eventually provided his discovery responses, on March 6, 2018,
Comoletti filed a second letter motion to compel Plaintiff to appear for his duly
noticed deposition. [ECF No. 77]. Comoletti reported that counsel for all parties
had agreed to schedule the deposition for March 7, 2018, and that the deposition
was properly noticed on February 2, 2018. Id. Plaintiff’s counsel informed
Comoletti on the morning of March 6, 2018 that Plaintiff now lives in Wisconsin
and has not communicated with his counsel in several weeks. Id.
On March 22, 2018, the [C]ourt ordered Plaintiff to either (1) be deposed by April
20, 2018 or arrange an extension of this deadline; or (2) show cause by that date as
to why he had not done so. [ECF No. 78]. The Court’s Order further stated that
failure to comply with the Order may result in sanctions, including, but not limited
to, dismissal of Plaintiff’s case in its entirety. Id.
Prior to the April 20th deadline, Plaintiff’s counsel filed [a motion] to withdraw,
citing an irreconcilable breakdown in the attorney-client relationship. [ECF No.
79]. As stated in the motion, Plaintiff’s counsel made the following recent
communications to their client:
1. Email to Plaintiff on February 2, 2018;
2. Email to Plaintiff on February 23, 2018;
3. Email to Plaintiff on February 27, 2018;
4. Email to Plaintiff on March 1, 2018;
5. Telephone call to Plaintiff on March 4, 2018;
6. Email to Plaintiff on March 4, 2018;
7. Telephone call to Plaintiff on March 5, 2018;
8. Email to Plaintiff on March 5, 2018;
9. Email to Plaintiff on March 8, 2018;
10. Priority Mail (delivery confirmed) to Plaintiff on March 8, 2018;
11. Telephone call to Plaintiff on March 14, 2018 at 5:40 P.M.;
12. Email to Plaintiff on March 14, 2018;
13. Email to Plaintiff on March 22, 2018;
14. Priority Mail (delivery confirmed) to Plaintiff on March 22, 2018; and
15. Email to Plaintiff on March 30, 2018.

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[ECF No. 79 at 1 2]. Through January 2018, Plaintiff primarily and regularly
communicated with his counsel using the email address to which the
communications listed above were sent. Id. at 2. The last actual communication
between counsel and Plaintiff occurred on January 29, 2018. Plaintiff also contacted
counsel once on March 14, 2018 at 10:04 A.M. and left a telephone message with
counsel’s secretary. Id. As shown in the communications listed above, counsel
returned Plaintiff’s call on the same day and made several follow-on attempts to
reach him.
In the letter sent by email and Priority Mail on March 22, 2018, counsel informed
Plaintiff that a failure to communicate with counsel by April 10, 2018, in advance
of the April 20th deadline to be deposed, would result in the filing of a motion to
withdraw. Id. Counsel filed the motion to withdraw on April 13, 2018. [ECF No.
79]. The April 20th deadline for Plaintiff to be deposed, arrange an extension, or
show cause also expired, which seemingly prompted Defendants to file their motion
to dismiss. [ECF No. 79].
[ECF No. 82]. The Court granted the attorneys’ motion to withdraw due to the complete
breakdown in communications with their client. To allow Plaintiff “a final opportunity to
continue litigating this case,” however, the Court also granted Plaintiff additional time to respond
to the instant motion to dismiss [ECF No. 81]. The Court further instructed that “Plaintiff shall
obtain new counsel to represent him in this matter or file a notice to appear pro se by May 21,
2018 and he shall respond to the motion to dismiss by June 4, 2018. A failure to comply with . . .
the May 21 or June 4 deadlines . . . will result in the dismissal of Plaintiff’s case in its entirety.
See Fed. R. Civ. P. 37(b)(2)(A) and Fed. R. Civ. P. 37(d).” Plaintiff did not obtain new counsel
or file a notice to appear pro se by May 21 and did not respond to the motion to dismiss by June
4.
II.

DISCUSSION
Federal Rules of Civil Procedure 37(b)(2)(A) and 37(d) set forth the sanctions that a court

may impose for a party’s failure to obey a discovery order or to appear for his or her own
deposition. These sanctions include, among other things, dismissing the action. Fed. R. Civ. P.
37(b)(2)(A). “A district court has wide discretion in choosing sanctions for discovery violations.”

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Samaan v. St. Joseph Hosp., 670 F.3d 21, 36 (1st Cir. 2012). “In determining the appropriate
sanction, if any, a court should ‘consider the totality of events and then choose from the broad
universe of available sanctions in an effort to fit the punishment to the severity and
circumstances of the violation.’” United States v. Pfizer, Inc., 188 F. Supp. 3d 122, 136 (D.
Mass. 2016) (quoting Young v. Gordon, 330 F.3d 76, 81 (1st Cir. 2003)). Further, under Fed. R.
Civ. P. 41(b), a defendant may also move to dismiss an action for the plaintiff’s failure to
prosecute. This rule reinforces the “inherent power of trial courts to dismiss cases for want of
prosecution or disregard of judicial orders . . . .” Chamorro v. Puerto Rican Cars, Inc., 304 F.3d
1, 4 (1st Cir. 2002). Courts should only impose this severe sanction where the plaintiff’s conduct
is “extreme.” Id. “[E]xtreme misconduct comes in many shapes and forms, ranging from
protracted foot-dragging to defiance of court orders to ignoring warnings to other aggravating
circumstances.” Id. at 4 5.
Here, Plaintiff’s complaint is subject to dismissal pursuant to Federal Rules of Civil
Procedure 37(b)(2)(A), 37(d), and 41(b), given his failure to obey court orders, appear for his
deposition, or to do much of anything to otherwise advance this case. Although a severe
sanction, dismissal is warranted in the context of Plaintiff’s persistent failure to prosecute his
case. He failed to respond to or comply with the Court’s March 22 order to be deposed, arrange
an extension, or show cause, despite the Court’s notice that failure to do so may result in
sanctions, including dismissal of Plaintiff’s case in its entirety. [ECF No. 78]. The Court again
warned Plaintiff in its April 30 order that failure to obtain counsel or file a notice to appear pro
se by May 21, 2018 and to respond to the motion to dismiss by June 4, 2018 “will result in the
dismissal of Plaintiff’s case in its entirety.” [ECF No. 82]. Plaintiff did not retain counsel, file a
notice to appear pro se, or respond to the motion to dismiss by the court-ordered deadlines.

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Although “dismissal orders typically are measures of last resort, reserved for extreme
cases,” Torres-Vargas v. Pereira, 431 F.3d 389, 393 (1st Cir. 2005), Plaintiff has failed to timely
respond to discovery, has violated two court orders which provided notice that noncompliance
could or would result in dismissal of the case, and has ceased all communication with his now
former counsel. Because of Plaintiff’s failure to prosecute, fact discovery has now closed without
Plaintiff appearing for his properly noticed deposition. [ECF No. 68]. Given the lack of
responsiveness to his former counsel’s communications and this Court’s orders, which provided
numerous opportunities for Plaintiff to reengage in this matter, lesser sanctions than dismissal
would be inadequate and dismissal as a measure of last resort is warranted. See Serra-Lugo v.
Consortium-Las Marias, 271 F.3d 5, 6 (1st Cir. 2001) (“[D]istrict court was well within its
discretion in dismissing the case after repeated violations of its orders and after having warned
plaintiff of the consequences of non-compliance.”); Young, 330 F.3d at 81 (“[D]isobedience of
court orders is inimical to the orderly administration of justice and, in and of itself, can constitute
extreme misconduct.”).
Accordingly, Defendants’ motion [ECF No. 80] is GRANTED and Plaintiff’s complaint
is DISMISSED with prejudice.
SO ORDERED.
June 5, 2018

/s/ Allison D. Burroughs
ALLISON D. BURROUGHS
U.S. DISTRICT JUDGE

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