M.J. v. Washington University in St. Louis Physicians et al

Filing 80

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that Defendants Washington University in St. Louis Physicians, Washington University School of Medicine, Washington University Medical Center, Mark Wrighton, Larry Shapiro, James P. Crane, Clay M. Semenkovi ch, Michael A. Kass, Neill M. Wright and Patricia Fishers Motion for Sanctions and Dismissal 65 and Defendant Barnes-Jewish Hospital's Motion for Joinder in University Defendants' Motion for Sanctions and Dismissal 68 are GRANTED. Plain tiff's claims are dismissed with prejudice. IT IS FURTHER ORDERED that Plaintiff's Verified Response to the Court's Memorandum and Order of January 3, 2013; Plaintiff's Motion for the Court to Reconsider in Light of New Evidence of the Need for a Stay of All Proceedings 69 is DENIED. Signed by District Judge John A. Ross on 3/4/13. (LAH)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

M.J.,

)
)
Plaintiff,
)
)
vs.
)
)
WASHINGTON UNIVERSITY IN ST. LOUIS )
PHYSICIANS, et al.
)
)
Defendants.
)

Case No. 4:12CV341 JAR

MEMORANDUM AND ORDER
This matter is before the Court on Defendants Washington University in St. Louis
Physicians, Washington University School of Medicine, Washington University Medical Center,
Mark Wrighton, Larry Shapiro, James P. Crane, Clay M. Semenkovich, Michael A. Kass, Neill M.
Wright and Patricia Fisher’s Motion for Sanctions and Dismissal (“Motion for Sanctions and
Dismissal”; ECF No. 65)1, Defendant Barnes-Jewish Hospital’s Motion for Joinder in University
Defendants’ Motion for Sanctions and Dismissal (ECF No. 68), and Plaintiff’s Verified Response
to the Court’s Memorandum and Order of January 3, 2013; Plaintiff’s Motion for the Court to
Reconsider in Light of New Evidence of the Need for a Stay of All Proceedings (“Motion for
Reconsideration”; ECF No. 69). These matters are fully briefed and ready for disposition.
BACKGROUND
On or around February 24, 2012, this case was removed from the Circuit Court of the City
of St. Louis. (ECF No. 7). In his Petition, Plaintiff alleged claims for Defamation (Count I),

1

The Court refers to these defendants as the “University Defendants.”

Conspiracy to Deny Medical Care (Count II), Violation of Privacy (Count III), and Punitive
Damages (Count IV).2
On May 11, 2012, a hearing was held on Plaintiff’s counsel’s motion for leave to withdraw.
(ECF No. 26). Plaintiff attended in person and, with the agreement of Plaintiff, the Court granted
Plaintiff’s counsel’s motion for leave to withdraw. (ECF No. 30).

Further, at the request of

Plaintiff, the Court stayed this action for sixty days to allow Plaintiff to obtain new counsel. (Id.).
Thereafter, Plaintiff requested a further extension of the stay, and the Court granted an additional
forty-five day stay of the action. (ECF No. 37).
The Court lifted the stay in this case on September 7, 2012. (ECF No. 49). The Court
directed the parties to submit a joint scheduling plan (“JSP”) by October 1, 2012, but Plaintiff did
not participate in discussions with Defendants regarding the same and Defendants filed the JSP
unilaterally. (Motion for Sanctions and Dismissal, ¶¶4-5). On October 25, 2012, the University
Defendants served on Plaintiff their first set of interrogatories, first request for production of
documents, and first requests for admissions. (ECF No. 65-3).3 On October 29, 2012, the Court
issued a Case Management Order in this case. (ECF No. 57). The Court ordered the parties to make
their Rule 26(a)(1) disclosures no later than November 1, 2012. (Id.). Having learned that Plaintiff
did not make his Rule 26(a)(1) disclosures, the Court again ordered Plaintiff to provide his Rule
26(a)(1) disclosures on November 8, 2012. (ECF No. 59). In its January 3, 2013 Order, the Court
noted that Plaintiff had still not provided his Rule 26(a)(1) disclosures or responded to Defendants’
discovery requests in contravention of the Court’s Orders. (ECF No. 64). The Court ordered

2

The Court notes that there are two claims identified as “Count IV” for Punitive Damages.

3

BJC notes that it did not serve discovery in this case because it did not want to overburden
Plaintiff, who was proceeding pro se. (ECF No. 68). Instead, BJC intended to review Plaintiff’s
responses to the University Defendants’ discovery. Nevertheless, BJC contends that it has never
received Plaintiff’s Rule 26(a)(1) disclosures.
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Plaintiff to comply with the Court’s Case Management Order and other Orders, or he would face
sanction, including possible dismissal of his claims. (Id.). On January 4, 2013, counsel for the
University Defendants sent Plaintiff a letter asking him to provide his Rule 26(a)(1) disclosures by
January 18, 2013, or the University Defendants would seek dismissal of Plaintiff’s claims. (ECF
No. 65-6). Plaintiff refused to accept this letter. (ECF No. 65-7).
On January 23, 2013, the University Defendants filed their Motion for Sanctions and
Dismissal. (ECF No. 65). On January 24, 2013, Defendant Barnes-Jewish Hospital (“BJC”) moved
to join in the University Defendants’ Motion for Sanctions and Dismissal. (ECF No. 68). Plaintiff
has responded to the Motion for Sanctions and Dismissal and also filed the Motion for
Reconsideration.4
DISCUSSION
In the Motion, the University Defendants assert that this Court should dismiss Plaintiff’s
claims because he has disobeyed Court orders. Specifically, Plaintiff failed to submit or participate
in the submission of the JSP, has not provided his Rule 26(a)(1) disclosures, or responded to the first
set of interrogatories, first request for production of documents, and first requests for admissions
directed towards him. On January 3, 2013, the Court ordered Plaintiff to respond to discovery
requests and notified him that, if he failed to do so, that he would face sanctions, including possible
dismissal. (ECF No. 64). Plaintiff, however, still has not provided any discovery responses.
District courts have inherent power to dismiss a case for failure to prosecute. Miller v.
Benson, 51 F.3d 166, 168 (8th Cir.1995)(citing Sterling v. United States, 985 F.2d 411, 412 (8th
Cir.1993)). The Eighth Circuit has found that “[a]n action may be dismissed pursuant to Rule 41(b)

4

In addition, Plaintiff filed a Response to Defendants’ Reply Memorandum in Support of
Defendants Washington University School of Medicine ... Motion for Sanctions and Dismissal (ECF
No. 79), which is essentially a sur-reply. Although Plaintiff did not seek leave to file the sur-reply,
the Court will consider it.
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if a plaintiff has failed to comply with any order of the court.” Aziz v. Wright, 34 F.3d 587, 589 (8th
Cir.1994). Federal Rule 41(b) provides that “[i]f the plaintiff fails to prosecute or comply with ...
a court order, a defendant may move to dismiss the action or any claim against it.” “Dismissals with
prejudice are drastic and extremely harsh sanctions. Cases should be dismissed with prejudice only
where the plaintiff has intentionally delayed the action or where the plaintiff has consistently and
willfully failed to prosecute his [or her] claim.” Miller, 51 F.3d at 168 (quoting Sterling, 985 F.2d
at 412). See also Arnold v. ADT Sec. Servs., Inc., 627 F.3d 716, 722 (8th Cir.2010) (affirming a
Rule 41(b) dismissal where plaintiff acted with a “persistent pattern of delay and failure to comply”
with court orders, and court had previously “attempted to address plaintiff’s conduct through less
severe sanctions and warned plaintiff of possibility of dismissal”). In order for a court to dismiss a
plaintiff’s claims for failure to prosecute, the court “need only find that [the] litigant acted
deliberately rather than accidentally, and need not find bad faith.” Hutchins v. A.G. Edwards &
Sons, Inc., 116 F.3d 1256, 1260 (8th Cir.1997).
Here, the Court finds ample evidence that Plaintiff deliberately has failed to prosecute his
claims. Plaintiff has been warned by the Court that his failure to participate in discovery could result
in dismissal. (ECF No. 64). Plaintiff, however, has chosen not to obey the Court’s orders and
provide discovery. Rather than prosecuting his case, Plaintiff has engaged in a series of dilatory
tactics. Plaintiff continues to file lengthy and detailed motions re-arguing his request for a long-term
(27 week) stay of this case. (ECF No. 54, 60, 61).5

5

As further example of such dilatory conduct, Plaintiff filed a motion to clarify wherein he
claimed that the Court had granted his stay, even after the Court clearly and unequivocally lifted the
stay in this case. (ECF No. 58).
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Along the same lines, Plaintiff’s Motion for Reconsideration again makes the same
arguments regarding Plaintiff’s physical health and requests a 27 week stay of this action.6 Plaintiff,
however, does not identify when he will be able to prosecute his case or indicate that he will obtain
counsel. Plaintiff is not indigent and it remains unclear to the Court as to why he has not hired
counsel to litigate his claims. Thus, Plaintiff’s Motion for Reconsideration raises no new arguments
but only serves to delay litigation and attempt to distract the Court from Plaintiff’s failure to comply
with its Orders and prosecute his case. For these reasons, the Court denies Plaintiff’s Motion for
Reconsideration.
Finally, the Court notes that Plaintiff has demonstrated that he is capable of litigating this
case. Plaintiff has filed several requests for a stay and strongly opposed the Motion for Sanctions
and Dismissal. See Pace v. The Wellpoint Companies, Inc., 4:07CV1851CDP, 2008 WL 1995345,
at *2 (E.D. Mo. May 6, 2008)(“Plaintiff’s counsel has continued to file documents in other matters
in this district during this time frame, so there can be no argument that he was somehow
incapacitated.”). If Plaintiff spent as much time litigating his case and providing the Court-ordered
discovery as he did filing duplicative and frivolous motions, then this case would be much further
along and this Order would not be necessary. In fact, Plaintiff asserted that he spent over 70 hours
in the past month preparing his 9-page, single spaced opposition to the University Defendants’
Motion and his 12-page, single spaced Motion to Reconsider. (Plaintiff’s Response to Defendants’
Motion for Sanctions and Dismissal (“Response”), ECF No. 76, pp. 5-6, Motion for
Reconsideration, p. 2, n.4).

6

In their Memorandum in Support of their Motion for Sanctions and Dismissal, the
University Defendants note that Plaintiff has engaged in this type of protracted litigation in other
cases. (ECF No. 66, p. 10; Reply, pp. 1-2); see, e.g., Ronollo v. Jacobs, 775 S.W.2d 121, 125 (Mo.
1989)(affirming summary judgment after the trial court stayed the action for four months, even
though Jacobs requested an additional two month continuance for health reasons); Jacobs v.
McDaniel, No. 23CV305-6614 (Jefferson County Cir. Ct. Mar. 9, 2009).
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Based upon the foregoing, the Court finds that Plaintiff has failed to litigate his claims and
he should be sanctioned under Rule 41(b). The Court holds that Plaintiff has exhibited a “persistent
pattern of delay, and has deliberately failed to comply with this Court’s Orders.” Steelman v. Sonic
Drive-In of Salem, Missouri, LLC, 4:12CV00312 ERW, 2013 WL 239146, at *2 (E.D. Mo. Jan. 22,
2013). The Court, therefore, grants Defendants’ Motion for Sanctions and Dismissal. Id.
Accordingly,
IT IS HEREBY ORDERED that Defendants Washington University in St. Louis
Physicians, Washington University School of Medicine, Washington University Medical Center,
Mark Wrighton, Larry Shapiro, James P. Crane, Clay M. Semenkovich, Michael A. Kass, Neill M.
Wright and Patricia Fisher’s Motion for Sanctions and Dismissal [65] and Defendant Barnes-Jewish
Hospital’s Motion for Joinder in University Defendants’ Motion for Sanctions and Dismissal [68]
are GRANTED. Plaintiff’s claims are dismissed with prejudice.
IT IS FURTHER ORDERED that Plaintiff’s Verified Response to the Court’s
Memorandum and Order of January 3, 2013; Plaintiff’s Motion for the Court to Reconsider in Light
of New Evidence of the Need for a Stay of All Proceedings [69] is DENIED.

Dated this 4th day of March, 2013.

JOHN A. ROSS
UNITED STATES DISTRICT JUDGE

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