Adams v. Yates Services Nissan

Filing 26

REPORT AND RECOMMENDATION: The Court respectfully RECOMMENDS that the Defendant's motion (Docket Entry No. 19) to dismiss be GRANTED and this action be DISMISSED with prejudice. Signed by Magistrate Judge Barbara D. Holmes on 3/28/2016. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(eh) Modified on 3/29/2016 (eh).

IN THE UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
TONIA Y. ADAMS

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v.
YATES SERVICES NISSAN

TO:

NO. 3:15-0490

Honorable Aleta A. Trauger, District Judge

REPORT AND RECOMMENDATION
By Order entered May 8, 2015 (Docket Entry No. 2), the Court referred this action to the
Magistrate Judge to enter a scheduling order, to dispose or recommend disposition of any pretrial
motions under 28 U.S.C. §§ 636(b)(1)(A) and (B), and to conduct further proceedings, if necessary,
under Rule 72(b) of the Federal Rules of Civil Procedure, and the Local Rules of Court.
Presently pending before the Court is Defendant’s motion to dismiss (Docket Entry No. 19).
For the reasons set out below, the Court recommends that the motion be granted and this action be
dismissed.

I. BACKGROUND
Plaintiff Tonia Y. Adams (“Adams”), a resident of Hermitage, Tennessee, filed this lawsuit
pro se and in forma pauperis on April 27, 2015, seeking relief under Title VII of the Civil Rights Act
of 1964, , based on allegations of unlawful workplace discrimination. The named defendant is Yates
Services Nissan (“Nissan”), her former employer. Defendant promptly answered the complaint, and
a scheduling order was entered on August 13, 2015 (Docket Entry No. 10), setting out deadlines for

pretrial proceedings in the action, including a deadline of December 10, 2015, for the completion
of discovery.
On November 9, 2015, Defendant filed a motion to compel Plaintiff to respond to written
discovery request, asserting that Plaintiff has been completely non-responsive to written discovery
requests that had been served on Plaintiff in August 2015, and to two attempts by Defendant’s
counsel to informally resolve the matter. Plaintiff did not make any filing in response to the motion,
and, by Order entered December 2, 2015 (“December 2, 2015 Order”), the Court granted the motion
to compel and specifically directed that:
by December 21, 2015, Plaintiff shall serve upon Defendant her responses to
Defendant’s first set of interrogatories and first requests for production of documents.
Plaintiff is warned that her failure to comply with this Order may result in the
imposition of sanctions against her, which may include a recommendation for
dismissal of the action.
See Docket Entry No. 17 (underlining in original). In addition to the directive to Plaintiff that she
respond to discovery requests, the Court also denied Defendant’s requests for reasonable expenses
and attorneys’ fees and extended the deadline for the completion of discovery to January 25, 2016.
Id.
On December 28, 2015, Defendant filed the pending motion seeking to dismiss this action
under Rules 37(b), 37(d), and 41(b) of the Federal Rules of Civil Procedure. Defendant asserts that
1) Plaintiff failed to comply the Court’s directive that she respond to Defendant’s outstanding written
discovery requests, and 2) failed to appear at her deposition that was scheduled and noticed on
December 3, 2015. See Docket Entry Nos. 19 and 20. Defendant states that Plaintiff did not contact
Defendant’s counsel prior to the date of her scheduled deposition that she could not appear at the

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deposition, did not contact Defendant’s counsel after the date the deposition was scheduled, and has
not contacted Defendant’s counsel in any manner since filing her complaint.
By Order entered January 5, 2016 (Docket Entry No. 21), the Court directed Plaintiff to
respond to the motion to dismiss by January 25, 2016. On the day of her deadline to respond,
Plaintiff filed an opposition to the motion in which she states that she has two children that were
having medical issues, including surgery, and that she has been “unable to handle the stress of this
case and their issues.” See Docket Entry No. 25. She requests “an extension so I can start this
process fresh. I am more able to comply and go forth with the process now that they have/are
receiving medical care.” Id.

II. CONCLUSIONS
Rule 37(b) of the Federal Rule of Civil Procedure provides that the Court may make such
orders "as are just" when a party fails to obey an order to provide discovery. Sanctions are set forth
in Rule 37(b)(2) and include the sanction of “dismissing the action or proceeding in whole or in
part.” Rule 37(b)(2)(A)(v). Further, Rule 37(d)(1)(A)(i) permits the Court to assess sanctions
against a party for a failure to attend a properly noticed deposition. These sanctions may include any
of the sanctions listed in Rule 37(b)(2)(A)(i)-(vi). Rule 16(f)(1) also provides that “on motion or on
its own, the Court may issue any just orders, including those authorized by Rule 37(b)(2)(A)(ii)-(vii),
if a party ... (C) fails to obey a scheduling or other pretrial order .”1

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Although it is not necessary to rely upon Rule 41(b) in this case, Rule 41(b) permits the Court
to dismiss an action upon a showing of a clear record of delay, contumacious conduct, or failure to
prosecute by a plaintiff. See Carter v. City of Memphis, Tennessee, 636 F.2d 159, 161 (6th Cir.
1980).
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The imposition of sanctions and the type of sanctions imposed are matters within the sound
discretion of the Court based on the facts of each particular case. See National Hockey League v.
Metropolitan Hockey Club, 427 U.S. 639 (1976); Regional Refuse Sys. v. Inland Reclamation Co.,
842 F.2d 150, 154 (6th Cir. 1988). Factors to be considered in determining whether the sanction of
dismissal is appropriate include: (1) whether there is willfulness, bad faith, or fault on the part of the
party in failing to cooperate in discovery; (2) whether the adversary was prejudiced by the opposing
party’s failure to cooperate in discovery; (3) whether the non-cooperative party was warned that
failure to cooperate could lead to dismissal; and (4) whether less drastic sanctions are appropriate.
Taylor v. Medtronics, Inc., 861 F.2d 980, 987 (6th Cir. 1988); Regional Refuse Sys., supra.
In the instant case, Plaintiff failed to respond to Defendant’s written discovery requests and
further failed to respond to Defendant’s motion to compel. Her unexplained actions were initially
addressed via an order from the Court compelling her to respond to the outstanding discovery
requests. In light of her pro se status, a very specific directive was given to Plaintiff that she needed
to respond by a date certain and that her failure to comply could result in the imposition of sanctions
against her, including a recommendation for dismissal of the action. The Court’s directive and
warning apparently had no effect on Plaintiff. Despite being given a very specific directive by the
Court regarding her obligation with respect to the Defendant’s discovery requests and despite an
explicit Order from the Court compelling her to provide responses to the Defendant’s discovery
requests by a date certain, Plaintiff failed to take any action in response to the Court’s directive and
has yet to respond to Defendant’s written discovery requests, which were served upon her nearly
seven months ago. Plaintiff has also failed to appear for her scheduled and noticed deposition.

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The Court finds that Plaintiff’s actions in this case present a clear record of dilatory conduct
with respect to discovery and the orders of the Court, which warrants the sanction of dismissal. See
Harmon v. CSX Transp., Inc., 110 F.3d 364, 368 (6th Cir. 1997). Plaintiff’s explanation that her
conduct was the result of her need to deal with her childrens’ medical issues and her own level of
stress does not excuse her fault in this matter. Plaintiff’s filing on January 25, 2016, was the first
time these matters were raised by her. At no point in the preceding several months did Plaintiff alert
either Defendant or the Court to these matters, nor did Plaintiff seek an extension of time to respond
to discovery, despite having numerous opportunities to do so. Because of Plaintiff’s dilatory
conduct, this case is essentially in the same posture as it was when it was filed nearly a year ago, and
the Defendant has been prejudiced by 1) being unable to timely resolve the claims brought against
it, and 2) being required to file motions and expend unnecessary funds because of the need to address
discovery issues caused by Plaintiff’s conduct. See Alley v. Vital One Health Plan, 2016 WL 616346
at *2 (M.D. Tenn. Feb. 16, 2016) (Sharp, J.) (“The second Rule 37(b) factor is met when a defendant
‘waste[s] time, money, and effort in pursuit of cooperation which [a plaintiff] was legally obligated
to provide.’” citing Wright v. City of Germantown, Tenn., 2013 WL 1729105 at *2 (W.D. Tenn.
Apr. 22, 2013). Plaintiff was clearly warned about the consequence of her failure to comply with
the motion to compel. Finally, there is no less drastic sanction that is appropriate. The Court has
already extended the discovery deadlines in this action, has already attempted to provide Plaintiff
with guidance through an order to compel, and has already declined, in light of Plaintiff’s in forma
pauperis status, to require the payment of expenses and attorneys’ fees to Defendant as a sanction
for Plaintiff’s failure to cooperate with discovery.

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Although the Court recognizes Plaintiff’s status as a pro se litigant, proceeding pro se does
not relieve a litigant from the basic obligations required of all parties with respect to discovery and
compliance with the orders of the Court. See Jourdan v. Jabe, 951 F.2d 108, 110 (6th Cir. 1991) (the
relaxed pleading standards for pro se litigants do not apply to “readily comprehended court
deadlines”); Davis v. Bilbrey, 2012 WL 2947587 (M.D. Tenn. July 19, 2012) (Haynes, J.) (pro se
plaintiff’s failure to respond to discovery requests and adhere to court imposed deadlines warranted
sanction of dismissal); Hanners v. Jones, 2007 WL 2710694 (M.D. Tenn. Sept. 13, 2007) (Nixon,
J.) (same). While the Court is sensitive to the personal issues described by Plaintiff, she has
exhibited an unwillingness to prosecute the action in the normal fashion and has attempted to explain
her actions only when her back is against the wall. Dismissal of the action with prejudice is
appropriate in light of Plaintiff’s fault, the prejudice caused to Defendant by Plaintiff's refusal to
participate in discovery, and the needless expenditure of resources by both the Court and Defendant
because of Plaintiff’s conduct. This Court is flooded with actively litigated lawsuits that require the
time and attention of the Court. The Court need not bend over backwards to accommodate parties
who believe that they are free to litigate upon their own terms.

RECOMMENDATION
Accordingly, the Court respectfully RECOMMENDS that the Defendant’s motion (Docket
Entry No. 19) to dismiss be GRANTED and this action be DISMISSED with prejudice.
ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of
Court within fourteen (14) days of receipt of this notice and must state with particularity the specific
portions of this Report and Recommendation to which objection is made. Failure to file written
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objections within the specified time can be deemed a waiver of the right to appeal the District Court's
Order regarding the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466,
88 L.Ed.2d 435 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

Respectfully submitted,

BARBARA D. HOLMES
United States Magistrate Judge

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