Currin v. Presidio Networked Solutions Group, LLC et al
Filing
108
Opinion and Order. The Court GRANTS in part Defendants' Motion (# 88 ) to Compel and Sanction Plaintiff and AWARDS sanctions against Plaintiff as set out herein. The Court DIRECTS the parties to file no later than December 31, 2018, a Joint Sta tus Report regarding resolution of the sanctions issue. If the parties have not reached a resolution by that date, the Court DIRECTS Defendants to file no later than January 14, 2019, a Motion for Attorneys Fees and Costs with supporting documents. Plaintiff's response is due no later than January 28, 2019, when the Court will take under advisement any disputed issues regarding the sanctions award. See attached order for further details. Signed on 10/4/18 by Judge Anna J. Brown. (jy)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
ROBIN CURRIN,
3:16-cv-02177-BR
Plaintiff,
OPINION AND ORDER
v.
PRESIDIO NETWORKED SOLUTIONS
GROUP, LLC, a Delaware Limited
Liability Corporation, and
KRISTINA MAXWELL,
Defendants.
CRAIG A. CRISPIN
ASHLEY A. MARTIN
Crispin Employment Lawyers
1834 S.W. 58th Ave., Suite 200
Portland, OR 97221
(503) 293-5770
Attorneys for Plaintiff
JOHN A. BERG
CODY E. SCHVANEVELDT
Littler Mendelson, P.C.
121 S.W. Morrison St., Suit 900
Portland, OR 97204
(503) 221-0309
Attorneys for Defendants
1 - OPINION AND ORDER
BROWN, Senior Judge.
This matter comes before the Court on the Motion (#88) of
Defendants Presidio Networked Solutions Group, LLC, and Kristina
Maxwell to Compel Discovery and Sanction Plaintiff, the separate
Status Report (#91) filed by Defendants, and the separate Status
Report (#92) filed by Plaintiff.
Because the record is
sufficiently developed to resolve these matters, the Court
concludes oral argument is unnecessary.
For the reasons that follow, the Court GRANTS in part
Defendants’ Motion, imposes sanctions against Plaintiff and in
favor of Defendants and orders counsel for both sides to show
cause why the Court should not also sanction them for their
repeated failures to cooperate to advance this matter within
reasonable deadlines and to confer meaningfully on issues in
dispute.
The Court also sets further deadlines as specified
herein.
BACKGROUND
On November 16, 2016, Plaintiff Robin Currin filed her
Complaint (#1) against various Defendants in which she alleges
employment claims for gender discrimination, retaliation, aiding
and abetting, breach of contract, breach of the covenant of good
faith and fair dealing, and quantum meruit as a result of
Defendant Presidio's termination of Plaintiff's employment.
2 - OPINION AND ORDER
As
part of her claims Plaintiff alleges Presidio wrongfully withheld
from Plaintiff commission payments of over $72,000 that Presidio
owed Plaintiff at the time of her termination.
Plaintiff also
alleges she expected over $203,000 in commissions from work
completed but not yet paid and that Presidio intentionally
terminated Plaintiff to avoid paying her these additional
commissions.
In addition, Plaintiff alleges Defendant Maxwell was an
agent of Presidio who aided and abetted Presidio in violating
Plaintiff’s rights under state law.
On January 17, 2017, Defendants filed their Answers (#8,
#10) to Plaintiff’s Complaint.
On February 24, 2017, Defendants
filed an Amended Answer (#17) to Plaintiff’s Complaint.
In March 2017 Defendants submitted to Plaintiff their first
Request for Production (RFP) of documents.
On March 17, 2017, the Court set case-management deadlines,
including a deadline of July 28, 2017, to complete fact
discovery.
On March 22, 2017, Plaintiff filed a First Amended
Complaint (FAC)(#25) and asserted the same claims as those
alleged in her original Complaint, but she removed all Defendants
except Presidio and Maxwell.
On April 14, 2017, Defendants filed an Answer (#27) to the
FAC and asserted 12 Affirmative Defenses to Plaintiff’s claims.
3 - OPINION AND ORDER
On April 28, 2017, the parties filed a Joint Status Report
(#28) regarding the status of discovery and indicated the parties
might need an extension of the existing case-management
deadlines.
On May 4, 2017, the Court directed the parties “to file a
single joint proposal setting forth the parties’ positions
regarding the requested extensions together with counsel’s
certification that the requested extensions are sufficient and
that the parties will not seek additional extensions absent
extraordinary circumstances.”
Order (#29).
On June 27, 2017, the parties filed a joint Motion (#34) to
Extend Pretrial Deadlines and requested the Court to extend to
October 30, 2017, the deadline to complete fact discovery.
Court granted the parties’ request.
The
Order (#35).
On October 6, 2017, however, the parties again jointly
requested to extend the discovery deadline.
Mot. (#39).
On October 11, 2017, the Court granted the parties’ request
and set December 29, 2017, as the new deadline to complete fact
discovery.
Order (#40).
Nevertheless, on November 30, 2017, the
parties jointly requested yet another extension of the discovery
deadline.
Mot. (#41).
On December 7, 2017, the Court granted the parties’ fourth
request to extend the discovery deadline; set a deadline of
January 29, 2018, to complete fact discovery; and again cautioned
4 - OPINION AND ORDER
the parties that “[n]o further extensions will be granted except
under extraordinary circumstances.”
Order (#42).
On January 16, 2018, the parties filed a Joint Status Report
on Fact Discovery (#43) in which they stated:
The parties have diligently and cooperatively pursued
discovery in this case and have been successful in
avoiding discovery disputes. Between the parties, over
12,593 pages of documents have been produced.
The parties also noted they were pursuing mediation, that
Defendants would seek to amend their Answer “to conform to the
evidence” if the matter was not resolved, and that Plaintiff
would request a brief extension of fact discovery to allow a
different attorney to take the lead as counsel for Plaintiff.
On January 23, 2018, Defendants filed a Motion (#44) for
Leave to Amend Answer and Conduct Related Discovery.
Defendants
sought to amend their previous Answer to include additional
affirmative defenses as well as a counterclaim against Plaintiff.
Plaintiff opposed Defendant’s request to add a counterclaim and
simultaneously filed an Unopposed Motion (#47) to Extend Pretrial
Deadlines based on the appointment of Plaintiff’s lead counsel to
the Multnomah County Circuit Court.
On January 25, 2018, the Court extended for the fifth time
the deadline to complete discovery to February 12, 2018.
Order
(#48).
On March 7, 2018, the Court granted Defendants’ Motion to
amend their Answer, and, in light of the expansion of issues in
5 - OPINION AND ORDER
Defendants’ Amended Answer, the Court also extended for the sixth
time the deadline to complete related discovery to June 29, 2018.
Order (#58).
In addition, the Court directed the parties to file
on August 10, 2018, a joint status report and to indicate
“whether any party anticipates filing dispositive motions and, if
so, the factual and legal basis thereof.”
On March 16, 2018, Defendants filed their Amended Answer
(#59), which, as proposed, included additional Affirmative
Defenses and a Counterclaim against Plaintiff for breach of
contract.
On May 25, 2018, before the expiration of the sixth deadline
to complete discovery, Defendants filed a Motion (#63) for
Summary Judgment against some of Plaintiff’s claims and stated
additional dispositive motions “were anticipated” after
completion of discovery.
On June 12, 2018, the Court struck Defendants’ Motion for
Summary Judgment on the grounds that discovery was not complete,
the Motion was premature, and seriatim dispositive motions did
not serve the “just, speedy, and inexpensive” resolution of this
case as required by Federal Rule of Civil Procedure 1.
(#73).
Order
The Court reiterated that the previously set discovery
deadline of June 29, 2018, remained in effect and reminded the
parties of the Court’s requirement to file a joint status report
on August 10, 2018, regarding possible dispositive-motion
6 - OPINION AND ORDER
practice.
On June 14, 2018, Defendants sought a seventh extension of
the discovery deadline and filed an unopposed Motion (#74) to
Extend Deadline for Third-Party Discovery Motions.
On June 15, 2017, Defendants filed a Motion (#78) to Compel
Plaintiff’s Answer to Interrogatory.
On June 19, 2018, the Court granted Defendants’ Motion (#74)
and set July 6, 2018, as the deadline to complete third-party
discovery.
Order (#81).
On June 28, 2018, the Court denied Defendants’ Motion (#78)
to Compel Plaintiff’s Answer to Interrogatory, but the Court
allowed Defendants to reopen Plaintiff’s deposition for the
limited purpose of asking follow-up questions regarding
Plaintiff’s earlier Response.
The Court, therefore, also
extended for the eighth time the deadline to complete fact
discovery to July 31, 2018.
Order (#86).
On July 31, 2018, Defendants filed their pending Motion
(#88) to Compel Discovery and Sanction Plaintiff.
On August 10,
2018, the parties each filed a Status Report (#91, #92).
On
August 15, 2018, Plaintiff filed a Response (#93) to Defendants’
pending Motion.
On September 4, 2018, Defendants filed a Motion (#96) for
Leave to Amend Motion to Sanction Plaintiff or, in the
Alternative, File a Reply Brief.
7 - OPINION AND ORDER
On September 10, 2018, however,
Plaintiff filed a Response (#101) to Defendants’ Motion
indicating she did not oppose Defendants’ request to amend their
earlier Motion.
The Court notes the parties could have reached
that same position if they had conferred meaningfully before
Defendants filed their Motion (#96).
On September 11, 2018, the Court granted in part Defendants’
Motion for Leave to Amend and allowed Defendants to file a
supplemental brief in support of their Motion for Sanctions.
Order (#103).
On September 17, 2018, Defendants filed their Supplemental
Memo (#104) in support of the Motion for Sanctions, and on
September 24, 2018, Plaintiff filed a Supplemental Response
(#106) in opposition when the Court took Defendants’ Motion under
advisement.
With more than 100 filings in this matter that has been
pending for nearly two years but still has not advanced to the
completion of fact discovery, the Court concludes the record is
sufficiently developed to resolve a majority of the pending
discovery and case-management issues without oral argument.
STANDARDS
A federal court is vested with the authority to sanction
litigants for discovery abuses pursuant to both the Federal Rules
of Civil Procedure and the court’s inherent power to prevent
8 - OPINION AND ORDER
abuse of the judicial process.
U.S. 32, 44-46 (1991).
See Chambers v. NASCO, Inc., 501
See also Aloe Vera of Am., Inc. v. United
States, 376 F.3d 960, 964-65 (9th Cir.2004)).
When a party fails
to comply with a discovery order, Federal Rule of Civil Procedure
37(b)(2) authorizes the court to impose a range of sanctions,
including viewing facts as established against the violating
party, precluding evidence, dismissing the action, or entering
default judgment.
The decision to impose sanctions lies within
the sound discretion of the court regardless whether sanctions
are imposed under the Federal Rules of Civil Procedure or
pursuant to a court's inherent power.
See Lasar v. Ford Motor
Co., 399 F.3d 1101, 1109-14 (9th Cir. 2005)(reviewing sanctions
imposed under the court's inherent power).
The court has "broad discretion in fashioning sanctions."
Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1065 n.8 (9th
Cir. 2007)(citing Leon v. IDX Sys. Corp., 464 F.3d 951, 961 (9th
Cir. 2006), and Ritchie v. United States, 451 F.3d 1019, 1026
(9th Cir. 2006)).
DISCUSSION
I.
Defendants’ Motion to Compel and Sanction Plaintiff
A.
Background
As noted, after numerous discovery extensions, the
Court set a firm and final deadline of July 31, 2018, for the
9 - OPINION AND ORDER
parties to complete all fact discovery.
Only two business days
before that deadline expired, however, Plaintiff produced 556
pages of discovery to Defendants at 5:17 p.m., Friday, July 27,
2018.
Moreover, on August 28, 2018, after Defendants’ Motion to
Compel and Sanction Plaintiff was fully briefed, Plaintiff
produced an additional 16,000 text messages related to this
matter.
Defendants contend Plaintiff’s last-minute production
of this discovery is “highly” prejudicial because the discovery
is directly relevant to Plaintiff’s claims and should have been
produced in response to Defendants’ written discovery requests
15 months earlier in March 2017.
Defendants also argue Plaintiff
has obstructed discovery; failed to provide complete disclosures,
including false and evasive deposition testimony; and prejudiced
Defendants by the concealment of the recently-produced evidence
that Defendants contend is directly relevant to Presidio’s
prosecution of its Counterclaim and Defendants’ defense against
Plaintiff’s claims.
Defendants emphasize they have expended
significant time and expense as a result of Plaintiff’s conduct
and her late production of documents.
Moreover, Defendants
maintain this additional discovery necessitates the reopening of
discovery, establishes Plaintiff “surreptitiously violated her
restrictive covenants and diverted business from Presidio,” and
shows Plaintiff “intentionally retained Presidio’s laptop and its
10 - OPINION AND ORDER
sensitive contents” despite Plaintiff’s claim that she “did not
even realize she had the material in her possession.”
In their Motion Defendants ask the Court for the
following relief:
(1) to extend once again the fact-discovery
period for an additional three months; (2) to allow a forensic
examination of all personal email accounts and electronic devices
used by Plaintiff since January 1, 2015; (3) to direct Plaintiff
to make a full production of documents responsive to Request for
Production (RFP) Nos. 1, 2, 4, and 29 of its March 10, 2017 RFP
and No. 51 of its November 21, 2017, RFP; (4) to allow the
reopening of Plaintiff’s deposition without limitation; (5) to
allow the re-opening of third-party depositions of Shannon
Vanderford, Goran Ognjenovic, and Andy Caldwell; and (6) to allow
the re-issuing of subpoenas for documents and Rule 30(b)(6)
depositions of third-parties Zones and Dell EMC.
Defendants also
seek sanctions against Plaintiff for the costs and attorneys’
fees they incurred for (1) the filing of the earlier Motion (#44)
to Amend Answer and Conduct Related Discovery in January 2018;
(2) the filing of this Motion to Compel; (3) the previous
subpoenas related to negotiations with Zones and Dell EMC; (4)
any additional depositions of third parties and Plaintiff that
the Court permits; and (5) the forensic examination of
Plaintiff’s electronic devices and accounts.
In response Plaintiff asserts she has acted in good
11 - OPINION AND ORDER
faith by previously producing nearly 3,500 pages of documents
Defendants sought.
In particular, Plaintiff emphasizes part of
the late-produced documents in July 2018 were emails from her
personal email account that were sent to her attorney in an
electronic file in response to Defendants’ first RFP in March
2017, but that email with the attached electronic file was
apparently blocked by her attorney’s email network firewall and
security programming.
As a result, Plaintiff’s counsel was
unaware the file existed, and, therefore, counsel did not produce
the emails in the electronic file.
Plaintiff also contends she
did not learn the earlier electronic file had not been received
by her attorney and produced to Defendants until Defendants
informed Plaintiff’s counsel that Defendants had obtained records
from third-party Zones that included email exchanges between
Plaintiff and Vanderford that were part of that electronic file
and that Plaintiff had not produced to Defendants.
Plaintiff
states she again attempted to retrieve the emails from her
account, but she was unable to do so.
Ultimately an IT
specialist manually downloaded these emails on July 25, 2018, and
provided them to Defendants.
Plaintiff also concedes she did not disclose to
Defendants the electronic contents of a telephone that she used
during the time relevant to this case, but Plaintiff seeks to
excuse this “oversight” because she gave this telephone to the
12 - OPINION AND ORDER
attorney previously handling this matter, who placed it in the
law firm’s safe where it was subsequently discovered.
According
to Plaintiff, it was not until issues arose regarding the
existence of other communications not produced for Defendants
that the location and contents of this telephone were
“rediscovered.”
Plaintiff asserts the telephone was unencrypted
on August 13, 2018, and she produced the contents to Defendants,
including 16,000 text messages, on August 28, 2018.
The Court notes Plaintiff does not object to reopening
discovery for an additional 60 days and to reopening Plaintiff’s
deposition, but Plaintiff requests her deposition to be limited
to issues related to the recent production of documents and
related communications.
Finally, Plaintiff contends sanctions against her are
not appropriate because despite these numerous “oversights” she
has acted in good faith and attempted to comply with Defendants’
discovery requests.
Moreover, Plaintiff argues Defendants’
characterization of what the most recently produced emails and
text messages indicate is speculative and inaccurate.
For
example, Defendants contend the emails show Plaintiff violated
the nonsolicitation clause of her employment contract, but
Plaintiff argues the emails merely reflect she was being actively
recruited by another company and she was responding to them.
13 - OPINION AND ORDER
B.
Analysis
In recent months the parties have demonstrated
escalating and highly contentious behavior.
From the Court’s
perspective there seems to have been little cooperative effort
between the parties to focus the issues and to move this case
forward.
Despite the parties’ earlier assurances that they were
working together and notwithstanding the Court's repeated
reminders to the parties to work together to meet deadlines, it
has been necessary for the Court to grant the parties numerous
extensions of time (eight to date) to complete fact discovery.
As noted, this case is nearly two years old, and again the
parties are in conflict over discovery and seek yet another time
extension to complete fact discovery.
The Court primarily attributes this extraordinary
number of discovery extensions to the parties’ repeated failures
to work cooperatively and to confer meaningfully.
A recent
example of counsel’s obvious failure to communicate meaningfully
as required by LR 7-1(a) is the lack of any direct communication
between them regarding Defendants’ Motion for Leave to Amend the
Motion to Compel.
The record reflects defense counsel, in
anticipation of their Motion, left a voicemail message in an
attempt to begin to confer with Plaintiff’s counsel.
Although
Plaintiff’s counsel later responded to defense counsel by email
stating Plaintiff did not oppose the Motion, Defendants,
14 - OPINION AND ORDER
nevertheless, filed their Motion for Leave and inexplicably
certified they “made a good faith effort by telephone to resolve
the issues” when it is evident that the parties did not
meaningfully confer.
In any event, in response to the merits of Defendants’
sanctions Motion, Plaintiff emphasizes she provided her attorney
in March 2017 with an electronic file of documents from her
personal email account responsive to Defendants’ March 2017 RFP.
As noted, it appears Plaintiff’s counsel did not actually receive
that file because it was blocked by the firewall for counsel’s
email system.
Nevertheless, there is not any evidence that
Plaintiff made any effort to confirm that the file was, in fact,
received and reviewed by her attorney.
Similarly, Plaintiff’s
counsel failed to verify that they had obtained all responsive
documents from Plaintiff.
As a result of this lack of basic
communication between counsel and client, Plaintiff’s counsel
responded “no such documents exist” to one of Defendants’ March
2017 RFP’s for documents related to sales activities that
Plaintiff had engaged in since June 2015 with current or former
customers of Presidio when, in fact, numerous responsive
documents did exist and were in the possession and control of
Plaintiff and her counsel.
At a minimum, Plaintiff should have
known such a response was inaccurate since such documents were,
in fact, part of the electronic email file that Plaintiff said
15 - OPINION AND ORDER
she had earlier sent to her counsel.
Similarly, Plaintiff “forgot” she had another telephone
that she had given to her previous attorney that also contained
discoverable communications from the relevant time.
The Court notes Plaintiff has the burden and duty of
production of all materials related to her claims against the
Defendants even without a formal request for discovery.
Civ. P. 26(a)(1)(A)(ii).
Fed. R.
It appears to the Court that both
Plaintiff and her counsel have demonstrated over time an
unfortunate lack of diligence to ensure that all responsive
documents were provided to Defendants in response to their formal
discovery requests.
Moreover, the last-minute production of
volumes of relevant material after numerous extensions of time to
complete fact discovery has obviously prejudiced Defendants’
ability to defend the claims asserted against them and to
prosecute their Counterclaim on the current, already-extended
case-management schedule.
The Court notes Plaintiff argues the fact that she
ultimately produced emails and text messages after she learned
they had not been produced negates any conclusion that she
engaged in purposeful misconduct.
On this record, however, the
Court concludes the irresponsible inattention of Plaintiff and/or
her counsel toward Plaintiff’s obligation to provide complete
discovery of materials of which she was fully aware are
16 - OPINION AND ORDER
“tantamount to bad faith.”
See Fink v. Gomez, 239 F.3d 989, 994
(9th Cir. 2001).
The Court, therefore, concludes Defendants’ Motion to
Compel should be granted in part, case-management deadlines must
again be extended as a result, and an award of sanctions is
warranted as follows:
1.
The Court directs Plaintiff, to the extent not already
produced, to produce no later than October 31, 2018, all
responsive documents related to the Samsung Galaxy telephone and
all of her email accounts, including Gmail, AOL, and LinkedIn.
2.
The Court directs Plaintiff, to the extent not already
produced, to make a full production no later than October 31,
2018, of all documents responsive to Defendants’ Request for
Production Nos. 1, 2, 4, and 29 of its March 10, 2017, RFP and
No. 51 of its November 21, 2017, RFP.
3.
The Court directs Plaintiff and her counsel to file no
later than October 31, 2018, personal certifications that they
have made full production of all responsive documents specified
in paragraphs 1 and 2 above.
4.
The Court allows Defendants to conduct additional third-
party discovery as requested and directs such discovery to be
completed no later than December 7, 2018.
5.
The Court allows Defendants to reopen and to take
Plaintiff’s deposition for up to an additional eight hours.
17 - OPINION AND ORDER
In
light of Plaintiff's incomplete discovery responses to date,
however, the Court does not limit the subject matter of this
additional deposition only to questions regarding the recent
production of documents, and Defendants may inquire as to any
relevant matters.
Plaintiff’s re-opened deposition must be
completed no later than December 7, 2018.
If the parties
anticipate the Court should be available to rule on deposition
objections in real time, they should schedule this deposition to
occur at the
Mark O. Hatfield United States Courthouse at a time when the
undersigned is personally available to make such rulings.
6.
The Court allows Defendants to conduct a forensic
examination of Plaintiff’s electronic devices, but denies
Defendants’ request for expenses for that analysis because
Defendants would have done so in any event had Plaintiff produced
the devices in a timely manner.
7.
The Court sets a deadline of December 31, 2018, for the
parties to complete all additional fact discovery.
Any fact
discovery motions must be filed only after full conferral and
no later than December 10, 2018, and a response to any such
motion must be filed within seven calendar days of the initiating
motion.
In light of the fact that the filing party must fully
confer with the opposing party and, therefore, will know the
opponent's position before filing a discovery motion, no reply is
18 - OPINION AND ORDER
permitted.
Also, in light of the numerous discovery delays to
date, the Court will not permit any extension of these deadlines.
8.
The Court awards Defendants sanctions against Plaintiff
for the reasonable attorneys’ fees and costs that Defendants have
incurred related to the following:
the reopening of Plaintiff’s
deposition; the attorneys’ fees for the filing of Defendants’
current Motion (#88) to Compel, Motion (#96) to Amend, and
Supplemental Memo (#104); and the additional time and expense
associated with the additional subpoenas and depositions of the
third-party witnesses (Vanderford, Ognjenovic, Caldwell, Zones,
and Dell EMC).
The Court directs the parties to attempt to
negotiate the amount of these fees and costs after discovery is
complete.
If the parties are not able to reach agreement as to
these amounts, the Court will determine them in a litigated
proceeding for which Plaintiff will also be required to pay
Defendants’ reasonable costs and attorneys’ fees.
9.
The Court directs the parties to file no later than
December 31, 2018, a Joint Status Report regarding the
negotiation of these sanction issues.
If a resolution is not
reached by that date, the Court directs Defendants to file
no later than January 14, 2019, a Motion for Attorneys’ Fees and
Costs and supporting documents.
Plaintiff’s response is due
no later than January 28, 2019.
No reply is permitted, and the
Court will take under advisement any disputed issues regarding
19 - OPINION AND ORDER
this sanctions award as of January 28, 2019.
II.
Status Report Regarding Dispositive Motions
As noted, on June 12, 2018, the Court directed the parties
to file a “joint” status report on August 10, 2018, regarding
their intent to file any dispositive motions.
Instead the
parties each filed a separate Status Report on August 10, 2018.
A.
Failure to File Joint Status Report
At 10:30 p.m., August 10, 2018, Defendants filed a
Status Report (#91), and at 10:48 p.m., August 10, 2018,
Plaintiff filed a Status Report (#92).
Defendants contend Plaintiff agreed during conferral
that she would file the joint status report, but, according to
Defendants, as of 9:00 p.m., August 10, 2018, Plaintiff had not
submitted her position statement for Defendants’ review so
Defendants filed their “joint report” alone.
Plaintiff has not
offered any explanation as to why she did not provide her
position statement to Defendants before filing her status report.
This is yet another example of the lack of good-faith cooperation
and last-minute “scrambling” by the parties.
As noted, the Court has repeatedly directed the parties
in this matter to confer meaningfully and to file various joint
reports reflecting the status of this matter.
Such joint filings
obviously would require the parties to make a timely and goodfaith effort to confer as to each side’s position sufficiently
20 - OPINION AND ORDER
before the deadline for filing the joint statement.
Although the
“filing deadline” for submitting documents to the Court is
11:59 p.m. on the day the document is due pursuant to LR 5-3(b),
the conferral process must necessarily occur well before any such
deadline and usually should occur during normal business hours.
On this record the Court holds counsel for each side
accountable for the parties’ repeated failures to cooperate in
order to meet various deadlines in this matter as well as their
most recent failure to file a meaningful joint status report.
Accordingly, the Court directs counsel for each side to show
cause as to why the Court should not direct counsel for each side
to pay $1,500.00 per side (a cost that counsel must not charge to
their clients) to the Campaign for Equal Justice as a modest,
monetary sanction for their repeated failures described herein.
The Court directs counsel to confer as to this show-cause order
and to file no later than October 18, 2018, a joint status report
as to their respective positions regarding this proposed
additional sanction.
On receipt thereof, the Court will provide
counsel with additional direction.
B.
Filing of Dispositive Motions
Finally, Defendants state they intend to file a
dispositive motion against all of Plaintiff’s employment claims
(discriminatory termination, retaliatory discharge, gender
discrimination, gender harassment) and all of Plaintiff’s
21 - OPINION AND ORDER
contract claims on the same grounds asserted in Defendants’
earlier Motion for Summary Judgment, and Defendants state they
also intend to challenge the “miscellaneous contract-based claims
excluded from” that previous Motion.
Defendants contend their
motion will be based on their position that there is not a
genuine dispute of material fact; that each of Plaintiff’s claims
fail as a matter of law; that Plaintiff does not have any factual
support for any of her claims; and that summary judgment is the
most “just, speedy, and inexpensive” means to resolve this case.
Plaintiff reports she does not intend to file any
dispositive motions, continues to assert there are numerous
factual disputes between the parties that would preclude summary
judgment as to any of Plaintiff’s claims, and asserts Defendants’
characterization of the evidence does not support a motion for
summary judgment.
As noted, Defendants previously filed a Motion for
Summary Judgment on May 25, 2018, when discovery was not yet
complete and before the parties had filed a joint statement of
agreed facts that the Court requires as a foundation for
dispositive-motion practice.
Defendants also asserted in that
Motion that they intended to file additional dispositive motions
after discovery was complete.
As noted, the Court concluded it
was not in the interests of judicial economy to allow seriatim
22 - OPINION AND ORDER
dispositive motions based on incomplete discovery, and,
accordingly, the Court struck Defendants’ original Motion as
premature.
Moreover, even though this case has been pending nearly
two years, discovery still has not been completed, Plaintiff has
only recently produced hundreds of additional pages of discovery
to Defendants, and Plaintiff’s own deposition together with the
depositions of several third-parties will be re-opened.
In the
face of such incomplete discovery, Defendants, nevertheless,
contend there is not any genuine dispute of material fact
regarding any of Plaintiff’s claims or Defendants’ Counterclaims.
The Court, however, finds that assertion difficult to accept in
light of the fact that Defendants are still insisting on more
discovery in response to Plaintiff’s most recent productions.
The Court, therefore, continues to conclude that dispositivemotion practice is, at best, premature at this time.
Accordingly, in the exercise of its case-management
discretion, the Court DENIES as premature Defendants’ request to
file a motion for summary judgment regarding either Plaintiff’s
Claims or their own Counterclaims.
Instead the Court directs the
parties to file no later than January 4, 2019, a single joint
status report that addresses each of the issues as noted below.
23 - OPINION AND ORDER
CONCLUSION
For the reasons stated, the Court GRANTS in part Defendants’
Motion (#88) to Compel and Sanction Plaintiff and AWARDS
sanctions against Plaintiff as set out herein.
The Court DIRECTS
the parties to file no later than December 31, 2018, a Joint
Status Report regarding resolution of the sanctions issue.
If
the parties have not reached a resolution by that date, the Court
DIRECTS Defendants to file no later than January 14, 2019, a
Motion for Attorneys’ Fees and Costs with supporting documents.
Plaintiff’s response is due no later than January 28, 2019, when
the Court will take under advisement any disputed issues
regarding the sanctions award.
On this record the Court holds counsel for each side
accountable for the parties’ repeated failure to cooperate in
order to meet various deadlines in this matter as well as their
most recent failure to file a meaningful joint status report.
Accordingly, the Court DIRECTS counsel for each side to show
cause as to why the Court should not direct counsel for each side
to pay $1,500.00 per side (a cost that counsel must not charge to
their clients) to the Campaign for Equal Justice as a modest,
monetary sanction for their repeated failures as described
herein.
The Court directs counsel to confer as to this show-
cause order and to file no later than October 18, 2018, a joint
status report as to their respective positions regarding this
24 - OPINION AND ORDER
proposed additional sanction.
On receipt thereof, the Court will
provide counsel with additional direction.
The Court also sets the following firm case-management
deadlines:
All fact discovery must be completed no later than
December 31, 2018; discovery motions, if any, must be filed no
later than December 10, 2018; and any responses to discovery
motions are due within seven calendar days of the initiating
motion.
Finally, the Court DIRECTS the parties to file no later than
January 4, 2019, a Joint Status Report that (1) confirms the
completion of discovery; (2) addresses whether the ends of
justice warrant the parties engaging in dispositive-motion
practice at that time and, if so, the particular grounds on which
such motions would be warranted in light of the requirements of
Federal Rule of Civil Procedure 1 for the “just, speedy, and
inexpensive” resolution of such matters; (3) reports whether any
expert-witness discovery is warranted and, if so, provides a
jointly-proposed schedule to complete it; and (4) recommends a
mutually agreeable date for a jury trial to commence in May 2019
(including the parties’ estimation of the length of the trial).
25 - OPINION AND ORDER
On receipt of the Joint Status Report, the Court will set a
scheduling conference to set final case-management deadlines.
IT IS SO ORDERED.
DATED this 4th day of October, 2018.
/s/ Anna J. Brown
_________________________________
ANNA J. BROWN
United States Senior District Judge
26 - OPINION AND ORDER
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