Rowe v. C.R. Bard, Inc., et al

Filing 50

ORDER DENYING MOTION TO COMPEL by Magistrate Judge Kirtan Khalsa. Defendants' Motion to Compel and for Sanctions and for Entry of Order to Show Cause (Doc. 47) is denied. (kmt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
JOSEPH ROWE,
Plaintiff,
v.

Civ. No. 15-173 WJ/KK

C.R. BARD, INC. et al.,
Defendants.
ORDER DENYING MOTION TO COMPEL
THIS MATTER comes before the Court on Defendants’ Motion to Compel and for
Sanctions and for Entry of Order to Show Cause (Doc. 47), filed January 15, 2020. Plaintiff filed
a response in opposition to the motion on January 29, 2020. (Doc. 49.) The Court, having
reviewed the pleadings, the record, and the relevant law, being otherwise fully advised, and for the
reasons set forth below, FINDS that the motion is not well taken and should be DENIED.
In August 2015, this case was transferred to the United States District Court for the District
of Arizona for coordinated or consolidated pretrial proceedings in the multidistrict litigation
entitled In re: Bard IVC Filters Products Liability Litigation, MDL No. 2641. (Doc. 26 at 1, 3,
4.) The District of Arizona did not remand the case to this District until September 2019, after the
coordinated or consolidated pretrial proceedings had been completed. (Doc. 27 at 1.) This Court
then entered a scheduling order in which, inter alia, it ordered Plaintiff to produce a completed
fact sheet to Defendants by November 14, 2019. (Doc. 40 at 1.) However, Plaintiff did not
produce the required fact sheet to Defendants until January 28, 2020, after multiple requests by
defense counsel and after this motion was filed. (Doc. 47 at 2-3; Doc. 49 at 3.)
According to Plaintiff’s counsel, Plaintiff did not timely produce the required fact sheet
because, from October 2019 to mid-January 2020, he was homeless except for brief hospital stays

to treat a chronic illness, had no access to mail, a phone, or the internet, and was unable to maintain
consistent contact with his attorneys or receive or return documents. (Doc. 49 at 2-3.) Plaintiff
reestablished contact with his counsel after entering an inpatient care program on or about January
16, 2020, and produced the required discovery to Defendants less than two weeks later. (Id.)
In their motion, Defendants ask the Court to compel Plaintiff to produce the required fact
sheet within five business days of the Court’s ruling on their motion. (Doc. 47 at 4.) The Court
will deny this portion of Defendants’ motion as moot, because Plaintiff has produced the fact sheet
to Defendants. (Doc. 49 at 2-3.)
Defendants also ask the Court to sanction Plaintiff for failing to timely produce the required
discovery by ordering him to pay Defendants’ reasonable expenses incurred in bringing this
motion. (Doc. 47 at 4.) Pursuant to Federal Rule of Civil Procedure 37, if a party fails to obey an
order to provide or permit discovery, the Court must generally require that party and/or its counsel
to pay the opposing party’s reasonable expenses caused by the failure. Fed. R. Civ. P. 37(b)(2)(C).
However, the Court should not require the disobedient party and/or its counsel to pay the opposing
party’s expenses if the failure to obey the Court’s discovery order was “substantially justified or
other circumstances make an award of expenses unjust.” Id.
Here, the Court finds that Plaintiff’s recent homelessness and hospital stays would make it
unjust for the Court to award expenses against Plaintiff personally. The Court further finds that
Plaintiff’s counsel’s attempts to contact his client, obtain the required discovery, and produce it to
Defendants were reasonable and appropriate, and thus that an award of expenses against counsel
would be unjust as well. The Court therefore declines to order Plaintiff or his counsel to pay
Defendants’ reasonable expenses incurred in bringing this motion to compel.

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Finally, Defendants ask the Court to sanction Plaintiff for failing to timely produce the
required discovery and to otherwise prosecute his case by ordering him to show cause why his
case should not be dismissed with prejudice.

(Doc. 47 at 4); see, e.g., Fed. R. Civ. P.

37(b)(2)(A)(v) (court may dismiss action in whole or in part as sanction for failing to obey
discovery order). Before dismissing a case as a sanction for a discovery violation or for failure to
prosecute the case, courts should generally consider the following factors:
(1) the degree of actual prejudice to the other party; (2) the amount of interference
with the judicial process; (3) the litigant’s culpability; (4) whether the court warned
the party in advance that dismissal would be a likely sanction for noncompliance;
and[,] (5) the efficacy of lesser sanctions.
Ecclesiastes 9:10-11-12, Inc. v. LMC Holding Co., 497 F.3d 1135, 1143 (10th Cir. 2007); Gripe v.
City of Enid, 312 F.3d 1184, 1188 (10th Cir. 2002); Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th
Cir. 1992). “[D]ismissal is warranted when the aggravating factors outweigh the judicial system’s
strong predisposition to resolve cases on their merits.” Ecclesiastes 9:10-11-12, Inc., 497 F.3d at
1143.

“[D]ismissal represents an extreme sanction,” Ehrenhaus, 965 F.2d at 920, and “is

appropriate only in cases of willful misconduct.” Conkle v. Potter, 352 F.3d 1333, 1337 (10th Cir.
2003) (internal quotation marks omitted).
In the present matter, the Court concludes that it would be inappropriate to impose the
extreme sanction of dismissal against Plaintiff for failing to timely provide Defendants with a
completed fact sheet. First, any actual prejudice to Defendants, and any interference with the
judicial process, have been relatively mild. Defendants now have the required discovery; casespecific fact discovery does not close until October 29, 2020; and, trial has not yet been scheduled.
(Doc. 40 at 1.) Particularly in the context of a case that has been pending since 2015 through no
fault of Plaintiff’s, these factors weigh against the sanction of dismissal.

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Second, Plaintiff has not on this occasion acted willfully in failing to timely produce the
required discovery to Defendants. Rather, it appears that inadvertent homelessness and health
issues prevented him from doing so. Plaintiff’s present lack of willfulness also weighs against
dismissing his claims against Defendants. Conkle, 352 F.3d at 1337.
Finally, the Court has not yet warned Plaintiff that dismissal is a likely sanction for failing
to timely produce the required discovery; and to date, no lesser sanctions have been tried and found
ineffective. See id. Thus, these factors also weigh against entering a dismissal against Plaintiff.
In short, at present, all of the Ehrenhaus factors weigh against imposing the sanction of dismissal
against Plaintiff for failing to timely produce the required discovery, and the Court will therefore
deny Defendants’ motion for such relief. However, Plaintiff is cautioned that continued failures
to timely produce discovery and/or comply with this Court’s Orders may result in sanctions, up to
and including dismissal of this action with prejudice.
IT IS THEREFORE ORDERED that Defendants’ Motion to Compel and for Sanctions and
for Entry of Order to Show Cause (Doc. 47) is DENIED.
IT IS SO ORDERED.

______________________________________
KIRTAN KHALSA
UNITED STATES MAGISTRATE JUDGE

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