Carden v. City of Knoxville, Tennessee et al (TV3)
Filing
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MEMORANDUM AND ORDER granting in part and denying in part 55 Motion for Sanctions. Signed by Magistrate Judge H Bruce Guyton on 2/28/18. (JBR)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
BRANDON T. CARDEN, individually and as
next of kin of the decedent,
Plaintiff,
v.
DAVID GERLACH, individually,
Defendant.
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No. 3:15-CV-314-TAV-HBG
MEMORANDUM AND ORDER
This case is before the undersigned pursuant to 28 U.S.C. § 636, the Rules of this Court,
and the referral Order [Doc. 62] of the Chief District Judge.
Now before the Court is Defendant David Gerlach’s Motion for Sanctions [Doc. 55]. The
parties appeared telephonically before the Court on February 16, 2018, for a motion hearing.
Attorney Richard Brooks appeared on behalf of Plaintiff. Attorneys Jerome Melson and John
Kiser appeared on behalf of Defendant Gerlach. Accordingly, for the reasons further stated below,
the Court GRANTS IN PART AND DENIES IN PART Defendant’s Motion [Doc. 55].
I.
POSITIONS OF THE PARTIES
In his Motion [Doc. 55], Defendant Gerlach moves for entry of an order dismissing this
action as a sanction due to Plaintiff’s failure to cooperate in discovery and for violation of the
Court’s December 22, 2017 Order. Defendant argues that he served Plaintiff with written
discovery on October 19, 2017, which sought, among other matters, computation of Plaintiff’s
damages. Defendant asserts that information regarding the computation of damages was not
provided in Plaintiff’s initial disclosures. Defendant submits that Plaintiff provided his deposition
on November 20, 2017, and acknowledged that he had not yet provided responses to the written
discovery. In December 2017, defense counsel inquired about the status of written discovery
multiple times. Defendant states that on December 21, the parties participated in a telephonic
conference with the undersigned regarding the outstanding discovery. Defendant states that the
undersigned ordered Plaintiff to respond to the discovery requests by January 5, 2018. Defendant
continues that Plaintiff emailed his responses on January 4, 2018, but that Plaintiff did not sign his
discovery responses and that his responses were not under oath in clear violation of the express
language in Federal Rule of Civil Procedure 33. Further, Defendant submits that Plaintiff failed
to provide any information in response to Interrogatories 16 and 17, which seek disclosure of the
computation of each category of damages. Defendant asserts that dismissal is appropriate given
Plaintiff’s repeated failures to cooperate in discovery and for his failure to comply with the Court’s
December 22 Order.
In response [Doc. 60], Plaintiff states that he and his counsel have had difficulty
communicating because he (Plaintiff) did not have a cell phone until January 5, 2018. He asserts
that Defendant’s requested sanction of dismissal is excessive. He explains that his responses to
discovery were not willfully intended to be evasive and incomplete and that when he answered, “I
don’t know,” he was following the direction given by defense counsel during his deposition.
Plaintiff argues that Defendant does not explain how he will be prejudiced. Plaintiff asserts that
he was given notice in the Court’s December 22 Order that discovery abuses could lead to
sanctions, including dismissal, but other than the Court’s statement, less drastic sanctions have not
been imposed or ordered. Plaintiff argues that less severe sanctions would be adequate to impress
the importance of timely communications and participating in the case going forward. Further,
Plaintiff states that a copy of the verification was emailed to Defendant on January 26, 2018.
Plaintiff explains that computation of damages in this case is challenging and that it is very difficult
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to put a price on someone’s life. Plaintiff argues that he does not have concrete knowledge of his
father’s work history.
Defendant filed a Reply [Doc. 61], asserting that Plaintiff’s verification page was served
on January 26, 2018, and was ineffective because it was served three weeks passed the Court’s
deadline for responding to discovery. Further, Defendant argues that Plaintiff may not avoid his
obligation to disclose information regarding the computation of his alleged damages merely
because he does not know such information. In addition, Defendant asserts that the four factors
applicable to requests for dismissal under Rule 37(b) overwhelmingly support dismissal of this
case.
II.
ANALYSIS
By way of background, on December 21, 2017, the parties appeared telephonically before
the Court over a discovery dispute. During the telephonic hearing, the parties agreed that Plaintiff
would provide his responses to all outstanding discovery requests on or before January 5, 2018.
Per the parties’ agreement, the Court ordered as follows:
Accordingly, the Court ORDERS Plaintiff to respond to
Defendants’ discovery requests on or before January 5, 2018, and
to respond to Defendants’ Motions for Summary Judgment on or
before January 12, 2018. The Court grants the Defendants leave
to move for sanctions if Plaintiff fails to respond to their outstanding
discovery requests by the January 5 deadline. The Court hereby
ADMONISHES the Plaintiff that future discovery abuses that
approach the magnitude of the previous failure may lead to
sanctions, up to and including dismissal of this case. See Fed. R.
Civ. P. 37(b)(2)(A)(i)-(vii). 1
During the February 16 hearing, Defendant argued that the most significant issue is that
Plaintiff did not disclose any calculation with respect to damages until recently. Defendant stated
that a few days prior to the hearing, Plaintiff sent him a life expectancy table, but such information
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Defendant City of Knoxville was dismissed per stipulation [Doc. 59].
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is too late. Defendant argued that it received this table weeks after the deadline for discovery had
passed. Defendant argued that Plaintiff failed to participate in discovery, the lack of participation
was willful, Plaintiff has already been warned by the Court, and Defendant is prejudiced by
Plaintiff’s actions.
Plaintiff responded that he lost his father and that he lives in Knoxville, but his counsel
does not. Plaintiff stated that he did not have a strong relationship with his father, so he has to rely
on a life expectancy table for a figure with respect to damages. He continued that he does not have
any taxes for his father and that he did not retain an economist because an economist could not
provide an estimate of damages. Defendant replied that Plaintiff knew that there were no taxes
and that Defendant only received the life expectancy table two days ago, which was after the
discovery deadline.
Federal Rule of Civil Procedure 37 governs the use of sanctions with respect to discovery
failures. Rule 37(b)(2) provides as follows:
(A) For Not Obeying a Discovery Order. If a party or a party's
officer, director, or managing agent--or a witness designated
under Rule 30(b)(6) or 31(a)(4)--fails to obey an order to
provide or permit discovery, including an order under Rule
26(f), 35, or 37(a), the court where the action is pending may
issue further just orders. They may include the following:
(i)
directing that the matters embraced in the order or other
designated facts be taken as established for purposes of the
action, as the prevailing party claims;
(ii)
prohibiting the disobedient party from supporting or
opposing designated claims or defenses, or from
introducing designated matters in evidence;
(iii) striking pleadings in whole or in part;
(iv) staying further proceedings until the order is obeyed;
(v)
dismissing the action or proceeding in whole or in part;
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(vi) rendering a default judgment against the disobedient party;
or
(vii) treating as contempt of court the failure to obey any order
except an order to submit to a physical or mental
examination.
Fed. R. Civ. P. 37(b)(2).
As mentioned above, the Court ordered Plaintiff to respond to discovery on or before
January 5, 2018. The Court has reviewed the discovery responses and finds that they are deficient.
For instance, Defendant emphasizes Plaintiff’s responses to Interrogatories 16 and 17.
Specifically, Interrogatories 16 and 17 request as follows:
16. Please provide a specific and detailed computation of each
category and/or subset of damages Plaintiff seeks in association with
Mr. Carden’s claimed injuries as is alleged in paragraph 61 of the
Complaint.
17. Please provide a specific and detailed computation of each
category and/or subset of damages Plaintiff seeks in association with
Plaintiff’s claimed injuries as is alleged in paragraph 62 of the
Complaint.
Plaintiff responded to both Interrogatories, “I don’t know.” [Doc. 55-5]. The Court finds
Plaintiff’s responses deficient and that sanctions are warranted given the Court’s previous
admonishment. While the Court finds that sanctions are appropriate, the Court does not find that
Plaintiff’s deficiencies warrant dismissal. See United Coin Meter Co. v. Seaboard Coastline
R.R., 705 F.2d 839, 845 (6th Cir. 1983) (“Judgment by default is a drastic step which should be
resorted to only in the most extreme cases.”). While Defendant asserts that Plaintiff did not sign
his discovery responses until later in violation of Rule 33, the Court finds that Plaintiff’s
untimeliness does not warrant dismissal.
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In making this finding, the Court has considered the following four factors: (1) whether
the party's failure is due to willfulness, bad faith, or fault; (2) whether the adversary was prejudiced
by the dismissed party's conduct; (3) whether the dismissed party was warned that failure to
cooperate could lead to dismissal; and (4) whether less drastic sanctions were imposed or
considered before dismissal was ordered.” Universal Health Grp. v. Allstate Ins. Co., 703 F.3d
953, 956 (6th Cir. 2013) (citing United States v. Reyes, 307 F.3d 451, 458 (6th Cir. 2002)). The
Court does not find that the above factors compel dismissal. The Court observes that factor two
weighs in favor of dismissing this action. As mentioned above, the undersigned has already
warned Plaintiff that future discovery abuses may lead to sanctions, including dismissal. Further,
the Court agrees, as Defendant emphasized in his filings, he is entitled to know the computation
of damages before proceeding to trial and Plaintiff’s failure to timely provide the computation of
damages prejudices Defendant. The Court’s sanction below, however, eliminates such prejudice
to Defendant. With respect to willfulness, bad faith or fault, the Court observes that Plaintiff
provided the responses by the discovery deadline, although they were deficient. In any event, the
Court has considered the fourth factor and finds that there are less drastic sanctions that are
appropriate in this case and are proportional to Plaintiff’s deficiencies.
Accordingly, the Court finds and ORDERS that Plaintiff may not submit or rely on any
evidence, information, or documents to support his allegations in this case that were not timely
provided to Defendant, including the life expectancy table that was only recently provided. See
Fed. R. Civ. P. 37(b)(2)(A)(ii). This life expectancy table was not provided by the Court’s January
5 deadline and was provided beyond the discovery deadline in this case.
The Court observes that the trial in this case is set for April 23, 2018. Receiving new
information is prejudicial to Defendant given that the discovery deadline has expired.
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III.
CONCLUSION
Accordingly, for the reasons set forth above, Defendant’s Motion for Sanctions [Doc. 55]
is GRANTED IN PART AND DENIED IN PART.
IT IS SO ORDERED.
ENTER:
United States Magistrate Judge
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