Wang Anderson v. The State of Nebraska et al
Filing
668
ORDER - that Plaintiff's request for an extension of time to respond to the Motion to Strike and for Sanctions (Filing No. 667 ) is denied. FINDINGS AND RECOMMENDATION to Chief United States District Court Judge John Gerrard that the Motions to Strike and for Sanctions (Filing No. 661 ) be granted and that this action be dismissed with prejudice. Ordered by Magistrate Judge Susan M. Bazis. (LKO)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
CATHERINE YANG WANG ANDERSON,
Plaintiff,
vs.
4:17CV3073
ORDER AND
FINDINGS AND RECOMMENDATION
THE STATE OF NEBRASKA, COUNTY OF
DOUGLAS, NEBRASKA DEPARTMENT OF
HEALTH
AND
HUMAN
SERVICES,
NEBRASKA FAMILIES COLLABORATIVE,
MARK GENTILE, BRENDA WHEELER,
CHAD A. MILLER, JENNIFER WHITE,
DEANNA "NINA" SHELLER, SARA
SMITH, EVAN WINANS, NICOLE PAUL,
ANNA RICHARDSON, DAVID NEWELL,
ANNE PETZEL, JENNIFER RICHEY, CARLA
HEATHERSHAW-RISKO,
PAPILLION
LAVISTA
COMMUNITY
SCHOOLS,
CHRISTIAN
HERITAGE
CHILDREN'S
HOME, JOHN DOES 1-15, DANIEL LITTLE,
PROJECT HARMONY, LISA A. JOHNSON,
SUZANNE HANEY, M.D.; and MELISSA
NANCE,,
Defendants.
This matter is before the Court on Defendants State of Nebraska, Nebraska Department of
Health and Human Services (“DHHS”), Carla Heathershaw-Risko (“Heathershaw-Risko”) and
Jennifer White’s (“White”) (collectively, “Defendants”) Motion to Strike and for Sanctions (Filing
No. 661). Defendants request that this action be dismissed with prejudice and that Plaintiff’s
Federal Rule of Civil Procedure 26 disclosures be stricken for failure to comply with the Federal
Rules of Civil Procedure.
For the reasons explained below, the undersigned will recommend that the motion be
granted and that this action be dismissed with prejudice.
BACKGROUND
Plaintiff filed this action on June 16, 2017, alleging nine causes of action against numerous
defendants. (Filing No. 1.) At the time suit was filed, Plaintiff was represented by counsel.
Plaintiff’s counsel sought leave to withdraw as counsel on August 13, 2019 (Filing No. 573) and
the Court granted leave on August 14, 2019 (Filing No. 574). Since that date, Plaintiff has been
proceeding pro se.
On September 5, 2019, several parties, including Plaintiff, requested an extension of time
to file Rule 26 disclosures. (Filing No. 593.) The requests were granted, and the deadline was
extended to September 19, 2019. (Filing No. 594.) On September 19, 2019, Plaintiff filed another
motion requesting an extension of time to provide Rule 26 disclosures. (Filing No. 598.) The
Court granted this request in the Final Progression Order. (Filing No. 602.) The Court gave
Plaintiff until October 24, 2019 to serve Rule 26 disclosures.
On October 28, 2019, the Court granted Plaintiff another extension of time to provide Rule
26 disclosures and extended the deadline to November 27, 2019. (Filing No. 606.) On November
27, 2019, Plaintiff filed a “Notice of Serving and Initial Disclosures,” which stated: “asking all of
the defendants as my witnesses.” (Filing No. 619.) On December 18, 2019, Defendants Douglas
County, Mark Gentile (“Gentile”), Chad Miller (“Miller”), and Brenda Wheeler (“Wheeler”) filed
a motion to compel Plaintiff to serve Rule 26 disclosures. (Filing No. 621.) On December 23,
2019, the Court granted the motion to compel and ordered Plaintiff to provide Rule 26 disclosures
by December 30, 2019. (Filing No. 622.)
On January 3, 2020, Douglas County, Gentile, Miller, and Wheeler filed a Motion to Show
Cause (Filing No. 624) stating Plaintiff had not provided Rule 26 disclosures as ordered by the
Court. They also claimed Plaintiff had not responded to their written discovery. On January 6,
2020, the Court ordered Plaintiff to show cause why she had not: (1) complied with the Federal
Rules of Civil Procedure and Court rules; (2) complied with the orders of this Court; and (3)
responded to written discovery. (Filing No. 626.) The order advised Plaintiff that non-compliance
could result in a recommendation that the case be dismissed.
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On January 22, 2020, Plaintiff filed a response to the show cause order. (Filing No. 631.)
Plaintiff stated she had submitted Rule 26 disclosures by the deadline. She also claimed she was
searching for an attorney to represent her and was not aware she needed to request an extension of
time to respond to written discovery. Plaintiff requested that she be given a 30-day extension of
her deadline to respond to written discovery.
On January 24, 2020, the undersigned ordered Plaintiff to respond to the written discovery
and provide supplemental Rule 26 disclosures in full compliance with the Federal Rules of Civil
Procedure. (Filing No. 632.) Plaintiff was given until February 7, 2020 to do so. Plaintiff was
advised that failure to comply would result in a recommendation that the case be dismissed. The
Court further advised that no extensions of the February 7 deadline would be given without a
substantial showing of good cause.
On February 7, 2020, Plaintiff filed a “Motion to Compel”1 indicating she had re-served
initial disclosures. (Filing No. 635.) She also asked the Court to compel the defendants to provide
complete responses to her written discovery. Plaintiff stated she had found inconsistencies and
blank pages in the defendants’ document production. She also stated certain defendants refused
to provide documents and/or had not responded. She asked that she be given until fourteen days
following the defendants’ document production to provide her own discovery responses.
On February 10, 2020, Defendants Christian Heritage Children’s Home (“Heritage”) and
Project Harmony filed a Motion to Strike and for Sanctions (Filing No. 636), requesting that
Plaintiff’s initial disclosures be stricken and that this suit be dismissed due to Plaintiff’s failure to
engage in discovery. Heritage and Project Harmony argued Plaintiff’s supplemental Rule 26
disclosures were deficient because Plaintiff did not (1) identify any individuals at either Heritage
or Project Harmony whom she alleges to have discoverable information that she may use to support
her claims; (2) identify any subjects of information upon which she believes any individual (named
or unnamed) with Heritage or Project Harmony will testify in support of her claims; (3) identify
any documents or tangible things that she may use to support her claims; (4) provide a computation
of any damages; or (5) sign her initial disclosures to certify that they are complete.
Plaintiff incorrectly filed this document as a “statement” on the Court’s electronic filing system. She did not submit
a brief with her “Motion to Compel.”
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3
On February 11, 2020, Defendants Daniel Little (“Little”), Melissa Nance (“Nance”),
Nebraska Families Collaborative (“NFC”), David Newell (“Newell”), Nicole Paul (“Paul”), Anne
Petzel (“Petzel”), Anna Richardson (“Richardson”), Jennifer Richey (“Rickey”), Deanna Sheller
(“Sheller”), Sara Smith (“Smith”), and Evan Winans (“Winans”) filed a brief in opposition to
Plaintiff’s Motion to Compel (Filing No. 635), stating Plaintiff failed to confer before filing her
motion. (Filing No. 642.) On that date, these defendants also filed a Motion to Strike and for
Sanctions (Filing No. 644), arguing Plaintiff’s supplemental Rule 26 disclosures should be stricken
and that this action be dismissed.
On February 11, 2020, Douglas County, Gentile, Miller, and Wheeler also filed a Motion
to Strike and for Sanctions (Filing No. 639) requesting that Plaintiff’s supplemental initial
disclosures be stricken and that this action be dismissed with prejudice due to Plaintiff’s failure to
comply with the Court’s January 24, 2020 order. They joined in the motion filed by Heritage and
Project Harmony.
On February 14, 2020, Douglas County, Gentile, Miller, and Wheeler filed a brief in
opposition to Plaintiff’s Motion to Compel. (Filing No. 646.) The brief stated Plaintiff failed to
comply with the Court’s January 24, 2020 order because she had not responded to a single
discovery request. They requested in their brief that Plaintiff’s case be dismissed pursuant to either
Federal Rule of Civil Procedure 37(b)(2)(A)(iii), (v), or (vi), or Rule 41(b).
On February 19, 2020, Defendant Suzanne Haney (“Haney”) joined in the other
defendants’ motions (Filing No. 648). On February 28, 2020, Defendant Papillion LaVista
Community Schools filed a Motion to Strike and for Sanctions (Filing No. 650), also requesting
that Plaintiff’s initial disclosures be stricken and that the Complaint be dismissed. The motion
indicated that Plaintiff had not responded to discovery served by Papillion-LaVista Community
Schools on December 30, 2019.
The undersigned issued a Findings and Recommendation on May 12, 2020 (Filing No.
658) recommending to Chief United States District Court Judge John Gerrard that the defendants’
motions to strike and for sanctions (Filing Nos. 636, 639, 644, 648, 650) be granted and that this
action be dismissed with prejudice.
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On May 27, 2020, Plaintiff filed an untimely motion requesting an extension of time to
respond the undersigned’s Findings and Recommendation. (Filing No. 660.) Judge Gerrard
denied Plaintiff’s motion, finding Plaintiff had not shown excusable neglect for her failure to file
a timely motion to extend and that Plaintiff’s lack of counsel did not justify further delay in this
case. (Filing No. 664.)
Chief Judge Gerrard adopted the undersigned’s Findings and Recommendation on May 27,
2020 (Filing No. 659) and dismissed Plaintiff’s claims against Douglas County, NFC, Gentile,
Wheeler, Miller, Sheller, Smith, Winans, Paul, Richardson, Newell, Petzel, Richey, Papillion
LaVista Community Schools, Heritage, Little, Project Harmony, Haney and Nance with prejudice.
Judge Gerrard further ordered Plaintiff to show cause, on or before June 8, 2020, why her claims
against Defendants John Does 1-15 and Lisa A. Johnson (“Johnson”) should not be dismissed
pursuant to Federal Rule of Civil Procedure 4(m).
On May 28, 2020, Defendants State of Nebraska, DHHS, Heathershaw-Risko, and White
filed the instant Motion to Strike and for Sanctions (Filing No. 661) requesting that the Court strike
Plaintiff’s purported initial disclosures and dismiss this action against them, as the Court had
already done for other defendants.
On June 8, 2020, Plaintiff filed a motion requesting additional time to show cause why her
claims against John Does 1-15 and Johnson should not be dismissed. (Filing No. 665.) As grounds
for the extension, Plaintiff cited her need for an attorney to represent her in this case. On June 9,
2020, Judge Gerrard entered an order (Filing No. 666) denying Plaintiff’s motion to extend and
dismissing Plaintiff’s claims against John Does 1-15 and Johnson without prejudice. Judge
Gerrard found that Plaintiff’s need to hire counsel did not justify further delay in the progression
of this case.
On June 11, 2020, Plaintiff filed a motion requesting an extension of time to respond to the
pending Motion to Strike and for Sanctions. (Filing No. 667.)
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DISCUSSION
In their Motion to Strike and for Sanctions, Defendants argue this action should be
dismissed with prejudice due to Plaintiff’s failure to provide adequate Rule 26 as ordered by the
Court on January 24, 2020.
Dismissal may be ordered under Federal Rule of Civil Procedure 41(b) “[i]f the plaintiff
fails to prosecute or to comply with these rules or a court order.” Fed. R. Civ. P. 41(b). Unless
otherwise specified, a dismissal under Rule 41(b) operates as an adjudication on the merits. Fed.
R. Civ. P. 41(b). “[W]hat constitutes a failure to prosecute is not fixed by settled rules, but depends
on the particular facts and circumstances in a case.” Navarro v. Chief of Police, Des Moines, Iowa,
523 F.2d 214, 217 (8th Cir. 1975).
“Dismissal with prejudice is an extreme sanction and should be used only in cases of willful
disobedience of a court order or continued or persistent failure to prosecute a complaint.” Givens
v. A.H. Robins Co., Inc., 751 F.2d 261, 263 (8th Cir. 1984). “Although dismissal with prejudice
is a severe sanction, the court may impose such a sanction where the plaintiff has engaged in a
pattern of intentional delay.” First Gen. Resources Co. v. Elton Leather Corp, 958 F.2d 204, 206
(8th Cir. 1992). “A plaintiff need not have acted in bad faith, but the district court must find that
the plaintiff acted intentionally as opposed to accidentally or involuntarily.” Arnold v. ADT
Security Services, Inc., 627 F.3d 716, 722 (8th Cir. 2010) (quotation omitted). Dismissal for failure
to prosecute is left to the district court’s discretion. Navarro, 523 F.2d at 216-17.
Having carefully considered the matter, the undersigned will recommend that this action
be dismissed with prejudice. The Court ordered Plaintiff to provide Rule 26 disclosures in full
compliance with the Federal Rules of Civil Procedure2 due to the deficiencies of her earlier
2
Under Federal Rule of Civil Procedure 26(a)(1), a party must, without awaiting a discovery request, provide to the
other parties: (1) the name and, if known, address and telephone number of each individual likely to have discoverable
information, along with the subjects of that information, that the disclosing party may use to support its claims or
defenses, unless the use would be solely for impeachment; (2) a copy, or a description by category and location, of all
documents, electronically stored information, and tangible things that the disclosing party has in its possession,
custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment; (3)
a computation of each category of damages claimed by the disclosing party, who must also make available for
inspection and copying as under Federal Rule of Civil Procedure 34 the documents or other evidentiary material,
unless privileged or protected from disclosure, on which each computation is based, including materials bearing on
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disclosures. To date, Plaintiff has not done so. Plaintiff’s supplemental disclosures do not provide
the information required by Rule 26. For example, Plaintiff’s supplemental disclosures do not
identify any documents or tangible things that she may use to support her claims, nor do they
provide a computation of damages. (Filing No. 637-3.) Although the supplemental disclosures
name individuals, they do not identify the subjects of information possessed by those individuals.
Also, with the exception of one address, the only contact information provided for individuals
identified in the disclosures are those of the attorneys involved in the case. Moreover, the
supplemental disclosures are not signed and thus do not certify that they are correct and complete.
“Although pro se pleadings are to be construed liberally, pro se litigants are not excused from
failing to comply with substantive and procedural law.” Burgs v. Sissel, 745 F.2d 526, 528 (8th
Cir. 1984).
Plaintiff was advised that failure to provide disclosures complying with Rule 26 would
result in a recommendation that the case be dismissed.
Plaintiff has been given multiple
opportunities to provide proper Rule 26 disclosures. She was given three extensions of time to
prepare disclosures and then given a chance to cure deficiencies in her disclosures. Despite these
extensions, repeated opportunities, and the Court’s order directing her to comply with the Federal
Rules of Civil Procedure, she has failed to provide proper disclosures.
Given Plaintiff’s history of non-compliance with the Court’s orders and Federal Rules of
Civil Procedure, the undersigned is confident that imposition of a sanction less severe than
dismissal would be futile. The undersigned does not anticipate Plaintiff will comply with future
Court orders or other litigation obligations. Moreover, Plaintiff’s failure to diligently pursue this
lawsuit has prejudiced Defendants. This case was filed nearly three years ago. However, Plaintiff
has still not provided proper Rule 26 disclosures. Plaintiff’s failure to diligently pursue this lawsuit
has not only caused delay but has also caused Defendants to incur needless costs to cause Plaintiff
the nature and extent of injuries suffered; and (4) for inspection and copying as under Federal Rule of Civil Procedure
34 any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible
judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment. Fed. R. Civ. P.
26(a)(1). Rule 26(g)(1) further requires that parties sign all disclosures made under Rule 26(a)(1) to certify that the
disclosures and correct and complete as of the time they are made. Fed. R. Civ. P. 26(g)(1).
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to follow her litigation obligations. The undersigned concludes that a sanction less severe than
dismissal would not remedy the effect of the prejudice on Defendants.
Plaintiff requested an extension of time to respond to this Motion to Strike and for
Sanctions. (Filing No. 667.) Plaintiff relies on her lack of counsel as a basis for seeking the
extension. Plaintiff apparently has been in search of counsel since at least September 2019. (Filing
No. 600.) Plaintiff cannot continue to cite her lack of counsel for her failure to comply with the
orders of this Court and Federal Rules of Civil Procedure. As Judge Gerrard found in his order
denying Plaintiff’s motion for extension of time to object to the Findings and Recommendation,
“[e]quity does not permit, much less require, this case to be interminably maintained in suspended
animation waiting for something the Court has no reason to believe will ever happen.” (Filing No.
664.) Plaintiff has given no indication that her search for counsel is nearing completion or will
even ever occur. Plaintiff has been given numerous extensions of time and there is no good cause
to delay this case any longer.
Accordingly,
IT IS ORDERED that Plaintiff’s request for an extension of time to respond to the Motion
to Strike and for Sanctions (Filing No. 667) is denied.
IT IS HEREBY RECOMMENDED to Chief United States District Court Judge John
Gerrard that the Motions to Strike and for Sanctions (Filing No. 661) be granted and that this action
be dismissed with prejudice.
Dated this15th day of June, 2020.
BY THE COURT:
s/ Susan M. Bazis
United States Magistrate Judge
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ADMONITION
A party may object to a magistrate judge’s order by filing an objection within fourteen (14)
days after being served with a copy of the findings and recommendation. Failure to timely object
may constitute a waiver of any objection.
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