Zheludova v. Delta Airlines

Filing 56

ORDER denying defendant's 46 Motion to Dismiss the complaint in this matter. The discovery deadline is extended to 6/27/2013; the dispositive motion deadline is extended to 7/27/2013; the Final Pretrial Conference is rescheduled for 10/17/2013 at 2:00 pm; the Jury Trial is reset to 11/12/2013 at 9:30 am. The Court will reissue a Revised Calendar Order in this matter. Signed by Magistrate Judge Karen L. Litkovitz on 4/16/2013. (art)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

TATIANA ZHELUDOVA,
Plaintiff,

Case No. 1:11-cv-355
Litkovitz, M.J.

vs.
DELTA AIR LINES, INC.,
Defendant.

ORDER

This matter is before the Court on defendant's motion to dismiss plaintiffs complaint
pursuant to Fed. R. Civ. P. 41(b) for failure to prosecute. (Doc. 46). For the reasons set forth
below, defendant's motion is denied.
Plaintiff instituted this lawsuit by filing a complaint against defendant in state court on
May 10, 2011. (Doc. 2). Defendant removed the case to this Court on June 2, 2011. (Doc. 1).
Plaintiff was originally represented by counsel, but her attorney withdrew as counsel in
November 2011. (Doc. 16). Plaintiff retained new counsel, who withdrew in August 2012.
(Doc. 32). Plaintiff proceeded prose in this matter until March 14, 2013, at which time a third
attorney, James Kolenich, Esq., entered his appearance as counsel for plaintiff. (Doc. 52).
Defendant filed its motion to dismiss this lawsuit pursuant to Fed. R. Civ. P. 41(b) on
January 21, 2013, before Mr. Kolenich had entered an appearance for plaintiff. 1 (Doc. 46).
Because the record showed that plaintiff had failed to respond to defendant's discovery requests
and to comply with the Court's Orders, the Court issued an order informing plaintiff that her
failure to timely respond to defendant's motion to dismiss would result in dismissal of this case
pursuant to Rule 41 (b) for failure to prosecute. (Doc. 48). Plaintiff was ordered to respond to

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Defendant's arguments in support of the motion to dismiss for lack of prosecution are set forth in the Court's Order
to Show Cause issued on March 28, 2013. (Doc. 53).

defendant's discovery requests within seven days of the Court's Order and to file a memorandum
in response to defendant's motion to dismiss on or before February 11, 2013. Plaintiff filed a
memorandum in response to the motion to dismiss on February 12, 2013. (Doc. 50). Defendant
filed a reply memorandum, asserting that plaintiff had not adequately explained her failure to
timely produce discovery responses, attend the independent medical examination scheduled in
this matter, or comply with the Scheduling Order established in the case. (Doc. 51).
After the motion to dismiss was fully briefed, on March 14, 2013, Mr. Kolenich entered
his appearance as counsel for plaintiff. (Doc. 52). On March 28, 2013, the Court issued an order
to plaintiff to show cause why this case should not be dismissed for want of prosecution. (Doc.
53). The Court stated that it had found based on its review of the record that plaintiff had not
adequately explained her failure to comply with the Court's orders and to provide discovery in a
timely manner. The Court determined that despite having been repeatedly accommodated by the
Court, plaintiff had delayed these proceedings without justification and had inconvenienced
defendant. The Court informed plaintiff that it would not tolerate any further delays in this
matter but instead would allow her "one final opportunity" to demonstrate that this case should
not be dismissed for lack of prosecution by "setting forth her specific plan for addressing the
omissions outlined in defendant's motion to dismiss and [the Show Cause Order] and for timely
completing all outstanding discovery." (!d. at 4). Plaintiff was advised in the Show Cause
Order:
If plaintiff can successfully demonstrate to the Court that she is willing and able
to take a proactive role in this case and to participate fully in the discovery
process, including by submitting to an independent medical examination and
appearing for a deposition, then the Court will allow this case to proceed. If
plaintiff cannot demonstrate that she is prepared to cooperate fully with defendant
to complete discovery in compliance with the Court's schedule, then this matter
will be dismissed for want of prosecution.
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(!d.).

Plaintiff, through counsel, filed her response to the Order to Show Cause on April 8,
2013.

(Doc. 54).

Mr. Kolenich submitted his declaration with the response.

(Doc. 54-1).

Plaintiff argues that the extreme sanction of dismissal is not warranted given her difficulties with
communicating in the English language2 and with retaining an attorney in this case.

Mr.

Kolenich explains in the declaration the steps he has taken to move this case forward. Counsel
states he has met with plaintiff and she has signed a contingency fee contract, he has arranged to
assist plaintiff in traveling to an independent medical examination and depositions, and he has
obtained documents relevant to the case from plaintiff. Mr. Kolenich also states that he sent an
email to counsel for defendant inquiring about plans for proceeding with the case, but he
received no response. Plaintiff requests 75 days after the Court rules on the Show Cause Order
to: (1) schedule and appear for an independent medical examination, (2) properly respond to
written discovery requests, (3) appear for her deposition, (4) execute medical release forms, (5)
issue discovery requests, and (6) conduct no more than two depositions. (Doc. 54 at 3).
Fed. R. Civ. P. 41(b) states, in pertinent part: "If the plaintiff fails to prosecute or to
comply with these rules or a court order, a defendant may move to dismiss the action or any
claim against it. ..."

District courts have this power to dismiss civil actions for want of

prosecution to "manage their own affairs so as to achieve the orderly and expeditious disposition
of cases." Link v. Wabash R.R., 370 U.S. 626, 630-631 (1962). See also Jourdan v. Jabe, 951
F.2d 108, 109-10 (6th Cir. 1991). Dismissing a case for failure to prosecute "is a harsh sanction
which the court should order only in extreme situations showing a 'clear record of delay or

2

Plaintiff is a Russian immigrant. (Doc. 54 at 1).
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contumacious conduct by the plaintiff."' Stough v. Mayville Community Schools, 138 F.3d 612,
614-15 (6th Cir. 1998) (citing Carver v. Bunch, 946 F.2d 451, 454 (6th Cir. 1991) (quoting

Carter v. City of Memphis, Tenn., 636 F.2d 159, 161 (6th Cir. 1980)). Before a party's case is
dismissed pursuant to Rule 41(b), the Court must consider the following four factors: (1) whether
the party's failure to cooperate is due to willfulness, bad faith, or fault; (2) whether the adversary
has been prejudiced by the party's failure to cooperate; (3) whether the party has been warned
that her failure to cooperate could lead to dismissal of the lawsuit; and (4) whether the Court has
considered or imposed less drastic sanctions against the party. !d. at 615.
Here, the factors to be considered weigh against dismissing plaintiffs case. First, while
plaintiffs conduct has been dilatory, it is not apparent that plaintiff has willfully delayed the
proceedings. Second, plaintiffs dilatory conduct and failure to fully cooperate in the discovery
process has caused inconvenience to defendant, but the record does not show that defendant has
been clearly prejudiced by plaintiffs conduct. Finally, the Court gave plaintiff an opportunity to
set forth her plan for completing discovery before the Court took the drastic step of dismissing
this lawsuit, and plaintiff has filed a response that explains in sufficient detail the specific steps
she and her attorney have taken and plan to pursue from this point forward to complete discovery
in a timely manner. After reviewing plaintiffs response, the Court is satisfied that plaintiff
intends to cooperate fully in the discovery process and to comply with all Court deadlines in this
case in the future. The Court therefore finds that the extreme sanction of dismissal pursuant to
Fed. R. Civ. P. 41(b) is not warranted under the circumstances presented, particularly as the
Court has not previously considered or imposed any less severe sanctions on plaintiff.
Accordingly, the Court will not dismiss plaintiffs case for failure to prosecute. The
Court will extend the discovery deadline by 75 days, which is sufficient time to allow the parties
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to: (1) obtain medical release forms and the relevant medical records; (2) schedule an
independent medical examination, (3) complete written discovery, and (4) take any necessary
depositions.

The dispositive motion deadline will be extended 30 days past the discovery

deadline.
For the foregoing reasons, defendant's motion to dismiss the complaint pursuant to Fed.
R. Civ. P. 41(b) for failure to prosecute (Doc. 46) is DENIED.

The discovery deadline is

extended to June 27, 2013. The dispositive motion deadline is extended to July 27, 2013. The
final pretrial conference is rescheduled for October 17, 2013 at 2:00 p.m., and the jury trial is
reset to November 12, 2013 at 9:30a.m. The Court will issue a Revised Calendar Order.
IT IS SO ORDERED.

Date:

'-!;/(, U3

Karen L. Litkovitz
United States District Judge

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