Wang Anderson v. The State of Nebraska et al

Filing 674

ORDER - that Plaintiff's Motion to Allow Plaintiff's Amended Rule 26(a) Disclosures and to Allow Service on Remaining Defendants Out of Time (Filing No. 671 ) is denied. Ordered by Magistrate Judge Susan M. Bazis. (Copy e-mailed to pro se party)(LKO)

4:17-cv-03073-JMG-SMB Doc # 674 Filed: 07/20/20 Page 1 of 4 - Page ID # 5216

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

CATHERINE YANG WANG ANDERSON,

Plaintiff,

vs.

4:17CV3073

ORDER

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&QUOT 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 Plaintiff’s Motion to Allow Plaintiff’s Amended Rule
26(a) Disclosures and to Allow Service on Remaining Defendants Out of Time. (Filing No. 671.)
The motion will be denied.

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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 on August 13, 2019 (Filing No. 573) and the Court
granted leave on August 14, 2019 (Filing No. 574). Plaintiff then began proceeding pro se.
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 Plaintiff’s
claims against certain defendants be dismissed with prejudice. The undersigned determined
dismissal was warranted due to Plaintiff’s failure to comply with Court orders, produce discovery,
and provide Federal Rule of Civil Procedure 26 disclosures in full compliance with the Federal
Rules of Civil Procedure. The undersigned also found Plaintiff’s failure to comply with a Court
order was willful and intentional. The undersigned concluded that given Plaintiff’s history of noncompliance with court orders and the Federal Rules of Civil Procedure, imposition of a sanction
less than dismissal would be futile.

Chief Judge Gerrard adopted the Findings and Recommendation on May 27, 2020 (Filing
No. 659) and dismissed Plaintiff’s claims against Defendants Douglas County, Nebraska Families
Collaborative, Mark Gentile, Brenda Wheeler, Chad Miller, Deanna Sheller, Sara Smith, Evan
Winans, Nicole Paul, Anna Richardson, David Newell, Anne Petzel, Jennifer Richey, Papillion
LaVista Community Schools, Christian Heritage Children’s Home, Daniel Little, Project
Harmony, Suzanne Haney, and Melissa Nance with prejudice. Chief 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, Nebraska Department of Health and
Human Services (“DHHS”), Carla Heathershaw-Risko (“Heathershaw-Risko”), and Jennifer
White (“White”) (collectively, “Defendants”) filed a Motion to Strike and for Sanctions (Filing
No. 661) requesting that the Court strike Plaintiff’s Rule 26 disclosures and dismiss this action
against them with prejudice, as the Court had already done for other defendants.

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The undersigned entered a Findings and Recommendation on June 15, 2020,
recommending that the Motion to Strike and for Sanctions be granted and that Plaintiff’s claims
against Defendants be dismissed with prejudice. (Filing No. 668.) The undersigned found Plaintiff
still had not provided Rule 26 disclosures in compliance with the Federal Rules of Civil Procedure.
The undersigned noted that Plaintiff had been given multiple opportunities to provide proper Rule
26 disclosures, but despite repeated opportunities and the Court’s order directing her to comply
with the Federal Rules of Civil Procedure, she failed to provide proper disclosures. The
undersigned again concluded that given Plaintiff’s history of non-compliance with the Court’s
orders and Federal Rules of Civil Procedure, imposition of a sanction less severe than dismissal
with prejudice would be futile.
On June 9, 2020, after Plaintiff failed to show cause why her claims against John Does 115 and Johnson should not be dismissed, Chief Judge Gerrard dismissed Plaintiff’s claims against
these defendants without prejudice. (Filing No. 666.) Chief Judge Gerrard found that service of
process on Johnson was deficient and that there was no reason to believe that, three years into this
case, the John Doe defendants would ever be identified or served with process. Chief Judge
Gerrard also stated that Plaintiff’s need to retain new counsel did not justify further delay in the
progression of this case.
On June 26, 2020, Plaintiff retained her previous counsel to resume her representation in
this proceeding. (Filing No. 671.) On June 29, 2020, through counsel, Plaintiff filed an objection
to the undersigned’s May 28, 2020 Findings and Recommendation, arguing dismissal with
prejudice is too severe a sanction for Plaintiff’s transgressions and that Plaintiff has now retained
counsel so imposition of a sanction less than dismissal with prejudice would not be futile. Plaintiff
also filed the instant motion for permission to make amended Rule 26(a)(1) disclosures and to
serve the amended disclosures out of time.
DISCUSSION
Plaintiff contends good cause exists for her to serve amended Rule 26 disclosures because
she retained counsel. Plaintiff represents that her amended Rule 26 disclosures were provided to
Defendants’ counsel on June 29, 2020—the day she filed this motion.

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Other than pointing to her recent retention of counsel, Plaintiff has presented no reason
why amendment of her disclosures and service out of time should be permitted. This action was
filed on June 16, 2017. Following multiple extensions of time, the deadline for Plaintiff’s initial
disclosures was November 27, 2019. (Filing No. 606.) Yet, as of June 28, 2020, Plaintiff had not
provided proper disclosures. Plaintiff’s argument in support of her motion does not justify or
provide good cause for amendment and service out of time. Plaintiff’s decision to retain counsel
at this late point in the proceedings does not excuse her past transgressions, nor does it change the
prejudice sustained by Defendants due to Plaintiff’s failure to diligently pursue this lawsuit.
The undersigned has already recommended that this action be dismissed with prejudice
due to Plaintiff’s failure to comply with court orders and provide proper Rule 26 disclosures. The
undersigned finds no reason to reconsider this recommendation. The undersigned continues to
believe dismissal with prejudice is warranted due to her lack of diligence and the prejudice, in the
form of needless expense and time expenditure, sustained by Defendants on account of Plaintiff’s
continued delay of this litigation. Given the undersigned’s recommendation of dismissal, there is
no reason for Plaintiff to serve amended disclosures.
Accordingly,
IT IS ORDERED that Plaintiff’s Motion to Allow Plaintiff’s Amended Rule 26(a)
Disclosures and to Allow Service on Remaining Defendants Out of Time (Filing No. 671) is
denied.
Dated this 20th day of July, 2020.
BY THE COURT:
s/ Susan M. Bazis
United States Magistrate Judge

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