Wang Anderson v. The State of Nebraska et al

Filing 675

MEMORANDUM AND ORDER - The plaintiff's objection (filing 670 ) is overruled. The Magistrate Judge's findings and recommendation (filing 668 ) are adopted. The State Defendant's motion to strike and for sanctions (filing 661 ) is gra nted. The plaintiff's claims against the State of Nebraska, the Nebraska Department of Health and Human Services, Jennifer White, and Carla Heathershaw-Risko are dismissed with prejudice, and they are terminated as parties. A separate judgment will be entered. Ordered by Chief Judge John M. Gerrard. (LKO)

4:17-cv-03073-JMG-SMB Doc # 675 Filed: 07/21/20 Page 1 of 3 - Page ID # 5220

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
CATHERINE YANG WANG
ANDERSON,
4:17-CV-3073
Plaintiff,
vs.

MEMORANDUM AND ORDER

THE STATE OF NEBRASKA, et al.,
Defendants.
This matter is before the Court on the plaintiff's objection (filing 670) to
the

Magistrate

Judge's

findings

and

recommendation

(filing

668)

recommending that the Court grant the State Defendant's motion (filing 661)
to strike and for sanctions, and dismiss the plaintiff's claims against them. The
plaintiff, through her newly-returned counsel, contends that dismissal is too
harsh a sanction because she is now willing and able to provide discovery. See
filing 670.
The Court recognizes that dismissal as a discovery sanction is to be
rarely employed, "because the opportunity to be heard is a litigant's most
precious right and should be sparingly denied." Keefer v. Provident Life & Acc.
Ins. Co., 238 F.3d 937, 940-41 (8th Cir. 2000) (quotations omitted). Fairness
requires the Court to consider whether a lesser sanction is available or
appropriate. Id.
But for the reasons persuasively explained by the Magistrate Judge, see
filing 668, a lesser sanction would not be appropriate here. The burden imposed
on the defendants by this intractable and (until now) interminable litigation is
already unreasonable. Forcing the defendants to spend their time and
resources trying fruitlessly to obtain even the most basic discovery during the

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10-month hiatus created by the plaintiff's decision to discharge her lawyer is
not something the Court is prepared to just let slide. The plaintiff's election to
rehire the same lawyer she fired, just as the clock was almost literally striking
midnight, does not expunge that conduct. 1 (Nor, given the Court's experience
with this case and its previous observations regarding the conduct of this
litigation, is it particularly reassuring.)
Nor would a lesser sanction suffice. While a variety of sanctions are
generally available to deal with a contumacious litigant, see Fed. R. Civ. P.
37(b)(2)(A), none of those sanctions (except dismissal) are appropriate given
the plaintiff's procedural posture in this case. It would be unfair to the few
remaining defendants to make them bear the burden of this litigation solely
because everyone else made it to the exit before counsel reappeared. It it is
apparent from the plaintiff's pro se filings that she is unable to pay a monetary
sanction.2 And as the Eighth Circuit has explained, "[a]dverse parties are not
obligated to expend time and money pursuing legitimate motions for sanctions
only to have courts allow last minute rescues. Courts cannot be willing
participants in such improper uses of discovery mechanisms." Keefer, 238 F.3d
at 941 n.6. Counsel's reappearance at 6 pm on the final day to object to the

1

The Court is cognizant of the need to consider whether the plaintiff's conduct was willful or

in bad faith. See Bergstrom v. Frascone, 744 F.3d 571, 576 (8th Cir. 2014). That's a
complicated call in this case, because of the plaintiff's apparent inability to proceed without
counsel. But the Court is comfortable concluding that because the plaintiff voluntarily
decided to discharge her counsel, her subsequent noncompliance was at least willful, even if
"bad faith" is harder to find.
2

Nor could the Court, in good conscience, impose a monetary sanction. A full examination of

the record will support the Court's belief that dismissal now, without further protracting this
litigation, isn't truly a disservice to the plaintiff (even if she doesn't know it).

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4:17-cv-03073-JMG-SMB Doc # 675 Filed: 07/21/20 Page 3 of 3 - Page ID # 5222

findings and recommendation was only a few hours from being literally as lastminute as such things get. It was still "too little, too late." See id.
IT IS ORDERED:
1.

The plaintiff's objection (filing 670) is overruled.

2.

The Magistrate Judge's findings and recommendation (filing
668) are adopted.

3.

The State Defendant's motion to strike and for sanctions
(filing 661) is granted.

4.

The plaintiff's claims against the State of Nebraska, the
Nebraska Department of Health and Human Services,
Jennifer

White,

and

Carla

Heathershaw-Risko

are

dismissed with prejudice, and they are terminated as
parties.
5.

A separate judgment will be entered.

Dated this 21st day of July, 2020.
BY THE COURT:

John M. Gerrard
Chief United States District Judge

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