McGuire v. Highmark Holdings et al

Filing 113

REPORT AND RECOMMENDATION: The Magistrate Judge RECOMMENDS that the defendants' motions for sanctions (Doc. Nos. 88 , 97 ) be GRANTED IN PART and DENIED IN PART, that this action be DIMISSED WITH PREJUDICE under Rule 37 and 41(b), and that all other pending motions be TERMINATED. Signed by Magistrate Judge Alistair Newbern on 9/15/2022. (xc: Pro se party by regular mail.) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(kc)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
CASSANDRA McGUIRE,
Plaintiff,

Case No. 3:19-cv-00902

v.
HIGHMARK HOLDINGS et al.,

Judge Eli J. Richardson
Magistrate Judge Alistair E. Newbern

Defendants.
To:

The Honorable Eli J. Richardson, District Judge
REPORT AND RECOMMENDATION
Defendants Highmark Holdings, Enfield Management, Robbie King, and Glenda

Shamwell’s have moved for sanctions to be imposed against pro se and in forma pauperis
Plaintiff Cassandra McGuire. (Doc. Nos. 88, 97.) Specifically, the defendants argue that the Court
should dismiss this action with prejudice under Federal Rules of Civil Procedure 37 and 41(b)
because McGuire has refused to participate in discovery and has violated the Court’s orders to
participate in discovery and to stop filing motions for entry of default against the defendants. (Doc.
Nos. 89, 98.) McGuire has responded in opposition to the defendants’ first motion for sanctions
(Doc. No. 90). For the reasons that follow, the Magistrate Judge will recommend that the
defendants’ motions for sanctions (Doc. Nos. 88, 97) be granted in part and denied in part and that
this action be dismissed with prejudice.
I.

Relevant Background
This action arises out of McGuire’s employment with Enfield, a company that manages
residential properties in Nashville, Tennessee. (Doc. Nos. 1, 29.) Enfield employed McGuire as a
leasing consultant and assistant manager at two properties, Whispering Oaks and Biltmore Place.

Case 3:19-cv-00902 Document 113 Filed 09/15/22 Page 1 of 11 PageID #: 1100

(Doc. Nos. 1, 29.) McGuire alleges that she observed violations of the Fair Housing Act (FHA),
42 U.S.C. §§ 3601–3619, at both properties and that the defendants subsequently terminated her
employment because she reported those violations. (Doc. Nos. 1, 29.) McGuire’s remaining
claims, which are set forth in her second amended complaint (Doc. No. 29), are for retaliation in
violation of the FHA, 42 U.S.C. § 3617, and the Tennessee Human Rights Act (THRA), Tenn.
Code Ann. § 4-21-301. 1 (Doc. Nos. 29, 52, 55.)
On March 2, 2022, the defendants filed a motion for sanctions under Federal Rules of Civil
Procedure 37 and 41(b), arguing that the Court should dismiss this action with prejudice and assess
reasonable costs and attorney’s fees against McGuire because she failed to provide adequate
responses to their first set of interrogatories and requests for production and refused to appear for
her deposition. (Doc. Nos. 88, 89.) The defendants stated that, nearly a year and a half after Enfield
served its discovery requests on McGuire, she still had not provided “full, complete and verified
responses to” Enfield’s first set of interrogatories and “never responded to a single one of”
Enfield’s first set of requests for production. (Doc. No. 89, PageID# 736.) The defendants also
filed an email showing that, five days before the mutually agreed date for her deposition, McGuire
emailed defendants’ counsel stating that her “[d][e]position is cancelled until further notice. Please
do not contact me regarding the matter until you file the correct forms or until it is appealed.”
(Doc. No. 88-4, PageID# 732.) The defendants further stated that McGuire filed a police report
against them and their counsel because of their attempts to communicate with her regarding
discovery. (Doc. No. 89 (citing Doc. No. 87).) McGuire responded in opposition to the defendants’
motion for sanctions, asserting that she had answered the defendants’ interrogatories and arguing

1

The Court dismissed McGuire’s claim brought under Title VII of the Civil Rights Act of
1964. (Doc. Nos. 52, 55.)

2
Case 3:19-cv-00902 Document 113 Filed 09/15/22 Page 2 of 11 PageID #: 1101

that the defendants were in default because they did not file a timely response to her proposed third
amended complaint. (Doc. No. 90.) McGuire did not dispute the defendants’ assertions that she
had not responded to their requests for production, had unilaterally cancelled her deposition, and
had filed a police report against them.
On March 11, 2022, the Court issued an order addressing several pending pleadings and
motions filed by the parties, including McGuire’s proposed third amended complaint (Doc.
No. 62); her motion for an extension of time to respond to the defendants’ discovery requests (Doc.
No. 72); her motions regarding the defendants’ “frivolous defense” against her claims (Doc.
Nos. 66, 68, 73); her objections to the Clerk of Court’s order denying her latest motions for entry
of default (Doc. No. 87); and the defendants’ motions to strike several of McGuire’s filings, revoke
her authorization to proceed in forma pauperis (IFP), and assess attorney’s fees against her (Doc.
Nos. 69, 80, 84). (Doc. No. 91.) The Court found that McGuire’s proposed third amended
complaint was improperly filed, denied her “frivolous defense” motions, and overruled her
objections to the Clerk of Court’s order denying entry of default, explaining why McGuire is not
entitled to default against the defendants in this action. (Id.) The Court further informed McGuire
that she was “required to respond to discovery as provided by the Federal Rules of Civil Procedure
and to comply with all of the requirements of those rules and this Court’s Local Rules if she wants
to pursue her claims.” (Id. at PageID# 757.) The Court granted McGuire’s motion for an extension
of time to respond to the defendants’ discovery requests and ordered that she “must read each
interrogatory or question . . . and either answer the question fully in writing under oath, or make
an appropriate objection explaining why the question will not be answered, all as provided in
accordance with Federal Rule of Civil Procedure 33.” (Id. at PageID# 757–58 (quoting Jackson v.
Dep’t of Hum. Servs., Civ. No. 3:09-0038, 2010 WL 1794121, at *2 (M.D. Tenn. May 5, 2010).)

3
Case 3:19-cv-00902 Document 113 Filed 09/15/22 Page 3 of 11 PageID #: 1102

The Court denied the defendants’ motions to strike, finding “that many of [McGuire’s] filings that
defendants cite, while concerning, may result from McGuire’s misunderstanding of what the
Federal Rules and this Court’s Local Rules require” and that “[t]he Court has now clarified that
McGuire is not entitled to default and must participate in discovery if she wishes to pursue her
claims in this action.” (Id. at PageID# 759, 760.) The Court warned McGuire that, “should [she]
continue to seek default against the defendants, refuse to participate in discovery, or otherwise
unduly hinder the progress of the litigation, the Court may revisit” the propriety of sanctions. (Id.
at PageID# 760.) Specifically, the Court warned McGuire “that, going forward, failure to
participate in discovery or filing of any motion without a proper legal and factual basis may lead
to a recommendation that she be sanctioned by the revocation of her IFP status or, if warranted,
by other sanctions up to and including the dismissal of this action with prejudice.” (Id. at
PageID# 761.)
In the weeks following the Court’s order, McGuire filed a motion to “extend the trial date
indefinitely” “[d]ue to the ongoing conflict and unethical behaviors of the defendants[’] attorneys”
(Doc. No. 92, PageID# 763, ¶ 2); a notice of “issues to be resolved by the courts” asserting that
“the lingering reality of default by untimely answers still weighs heavy in this case” (Doc. No. 93,
PageID# 771, ¶ 1); a motion repeating her assertion that the defendants are in default because they
did not file a timely response to her proposed third amended complaint and arguing that it is “not
the plaintiff[’]s job to provide strict proof, it[’]s the defendants job to provide that” (Doc. No. 94,
PageID# 829, ¶ 11.3); and a motion asking the Court to enter default judgment against the
defendants under Rule 37 as a sanction for their conduct related to rescheduling her deposition
(Doc. No. 95).

4
Case 3:19-cv-00902 Document 113 Filed 09/15/22 Page 4 of 11 PageID #: 1103

The defendants filed a renewed motion for sanctions, arguing that McGuire had failed to
amend her responses to their interrogatories, refused to respond to their requests for production,
refused to appear for an in-person deposition, and continued to seek entry of default against them
in violation of the Court’s March 11, 2022 order. (Doc. Nos. 97, 98.) In support, the defendants
attached copies of their correspondence with McGuire about her interrogatory responses, the
defendants’ requests for production, and rescheduling her deposition. (Doc. Nos. 97-1–97-4.)
McGuire did not file a response in opposition to the defendants’ renewed motion for sanctions;
instead, she filed a motion for default judgment under Rule 55(b) (Doc. No. 100) and two motions
for sanctions asking the Court to enter default judgment against the defendants (Doc. Nos. 108,
109). The defendants’ responded in opposition to McGuire’s motions, reiterating their arguments
that the Court should dismiss this action under Rules 37 and 41(b) as a sanction for McGuire’s
continued refusal to cooperate in discovery and obey the Court’s orders. (Doc. Nos. 101, 110.)
McGuire filed replies in support of her motions, arguing that her third amended complaint was
properly filed, that she has complied with the Federal Rules of Civil Procedure regarding
discovery, and that her motions for default are supported by law. (Doc. Nos. 107, 112.)
II.

Legal Standard
Federal Rules of Civil Procedure 37 and 41(b) provide district courts with express power
to dismiss a complaint. Fed. R. Civ. P. 37(b)(2)(A)(v), 41(b). Rule 37 authorizes a court to dismiss
a lawsuit “[i]f a party . . . fails to obey an order to provide or permit discovery,” Fed. R. Civ.
P. 37(b)(2)(A), or otherwise fails to cooperate in discovery, including failing to respond to

interrogatories and failing to appear for the party’s own deposition, Fed. R. Civ. P. 37(d)(1)(A)(i)–
(ii), (d)(3). Dismissal under Rule 37 “accomplishes the dual purpose of punishing the offending
party and deterring similar litigants from misconduct in the future.” Freeland v. Amigo, 103 F.3d
1271, 1277 (6th Cir. 1997). Rule 41(b) “confers on district courts the authority to dismiss an action
5
Case 3:19-cv-00902 Document 113 Filed 09/15/22 Page 5 of 11 PageID #: 1104

for failure of a plaintiff to prosecute the claim or to comply with the Rules or any order of the
court.” Schafer v. City of Defiance Police Dep’t, 529 F.3d 731, 736 (6th Cir. 2008) (citing Knoll
v. AT&T, 176 F.3d 359, 362–63 (6th Cir. 1999)). Dismissal under Rule 41(b) is a tool for district
courts to manage their dockets and avoid unnecessary burdens on opposing parties and the
judiciary. See id. (quoting Knoll, 176 F.3d at 363).
Courts look to four factors for guidance when determining whether dismissal under Rule 37
or 41(b) is appropriate: (1) the willfulness, bad faith, or fault of the plaintiff; (2) whether the
defendant has been prejudiced by the plaintiff’s conduct; (3) whether the plaintiff was warned that
failure to cooperate could lead to dismissal; and (4) the availability and appropriateness of other,
less drastic sanctions. Knoll, 176 F.3d at 363 (citing Stough v. Mayville Cmty. Sch., 138 F.3d 612,
615 (6th Cir. 1998)); Universal Health Grp. v. Allstate Ins. Co., 703 F.3d 953, 956 (6th Cir. 2013).
Under Sixth Circuit precedent, “none of the factors is outcome dispositive,” but “a case is properly
dismissed by the district court where there is a clear record of delay or contumacious conduct.”
Knoll, 176 F.3d at 363. (citing Carter v. City of Memphis, 636 F.2d 159, 161 (6th Cir. 1980));
Universal Health Grp., 703 F.3d at 956 (“Although no one factor is dispositive, dismissal is proper
if the record demonstrates delay or contumacious conduct.” (quoting United States v. Reyes, 307
F.3d 451, 458 (6th Cir. 2002))); see also Muncy v. G.C.R., Inc., 110 F. App’x 552, 555 (6th Cir.
2004) (finding that dismissal with prejudice “is justifiable in any case in which ‘there is a clear
record of delay or contumacious conduct on the part of the plaintiff’” (quoting Mulbah v. Detroit
Bd. of Educ., 261 F.3d 586, 591 (6th Cir. 2001))).
The Sixth Circuit reviews a district court’s dismissal of an action under Rule 37 or 41(b)
for abuse of discretion. See Schafer, 529 F.3d at 736 (affording district courts “‘substantial
discretion” with respect to Rule 41(b) dismissals (quoting Knoll, 176 F.3d at 363)); Universal

6
Case 3:19-cv-00902 Document 113 Filed 09/15/22 Page 6 of 11 PageID #: 1105

Health Grp., 703 F.3d at 955 (reviewing district court’s dismissal under Rule 37(b)(2) “for an
abuse of discretion”).
III.

Analysis
Dismissal of this action with prejudice is appropriate under Rule 37 and 41(b) because
consideration of the four relevant factors shows a record of delay and contumacious conduct by
McGuire.
A.

Bad Faith, Willfulness, or Fault

A plaintiff’s actions demonstrate bad faith, willfulness, or fault where they “‘display either
an intent to thwart judicial proceedings or a reckless disregard for the effect of [plaintiff’s] conduct
on those proceedings.’” Wu v. T.W. Wang, Inc., 420 F.3d 641, 643 (6th Cir. 2005) (quoting
Mulbah, 261 F.3d at 591). McGuire has engaged in multiple acts that fall under this definition.
The record shows that McGuire has continued to seek default judgment against the defendants
repeatedly (Doc. Nos. 92–95, 100, 108, 109) despite this Court’s orders finding that she is not
entitled to it, explaining that finding to her, and warning her that continuing to seek default could
result in sanctions (Doc. Nos. 50, 86, 91). Despite receiving an extension of time to supplement
her inadequate responses to the defendants’ discovery requests and being instructed by the Court
and the defendants that her interrogatory responses must be provided under oath in accordance
with Rule 33 (Doc. Nos. 91, 97-2), McGuire simply returned her original unsworn interrogatory
responses to the defendants (Doc. No. 93-1). McGuire has not responded to the defendants’
requests for production, and McGuire has not agreed to a rescheduled date for the defendants to
take the deposition that she cancelled unilaterally.
McGuire’s continued motions for default and her repeated refusals to cooperate in
discovery demonstrate bad faith, willfulness, or fault for purposes of Rule 37 and 41(b). See, e.g.,
Collins v. Waste Mgmt. of Ky. Holdings, Inc., Civ. No. 06-175, 2008 WL 2794661, at *4 (E.D.
7
Case 3:19-cv-00902 Document 113 Filed 09/15/22 Page 7 of 11 PageID #: 1106

Ky. July 18, 2008) (finding that plaintiff’s repeated disregard of court’s orders demonstrated
“willfulness, bad faith, and fault under the first factor [of the Rule 41(b) analysis] because
Plaintiff’s conduct can only be interpreted either as an intent to thwart the proceedings of this case
or a reckless disregard for the effect of his conduct on the case”); Dickey v. Chagrin Tavern LLC,
No. 1:21-CV-00733, 2022 WL 597260, at *3 (N.D. Ohio Feb. 28, 2022) (finding that pro se
plaintiff’s repeated refusal to participate in discovery, including failure to respond to discovery
requests and to schedule a deposition, weighed in favor of Rule 37 dismissal). This factor therefore
weighs in favor of dismissal.
B.

Prejudice

The Sixth Circuit has held that “[a] defendant is prejudiced by a plaintiff’s dilatory conduct
if the defendant is ‘required to waste time, money, and effort in pursuit of cooperation which [the
plaintiff] was legally obligated to provide.’” Carpenter v. City of Flint, 723 F.3d 700, 707 (6th Cir.
2013) (second alteration in original) (quoting Harmon v. CSX Transp., Inc., 110 F.3d 364, 368
(6th Cir. 1997)); see also Schafer, 529 F.3d at 739 (same). Such prejudice typically arises in the
discovery context. See, e.g., Harmon, 110 F.3d at 368 (finding prejudice where plaintiff failed to
respond to defendant’s interrogatories and a related motion to compel); Wright v. City of
Germantown, No. 11-02607, 2013 WL 1729105, at *2 (W.D. Tenn. Apr. 22, 2013) (finding
prejudice where defendant “expended time and money pursuing [plaintiff’s] required initial
disclosures and deposition testimony”). Notably, time and effort spent on “typical steps in the early
stages of litigation[,]” such as answering a complaint or filing pretrial motions to advance the
defendant’s position, are not actions “necessitated by any lack of cooperation” and therefore do
not weigh in favor of dismissal for failure to prosecute. Schafer, 529 F.3d at 739. The Sixth Circuit
explained in Schafer v. City of Defiance Police Department that “[i]f such efforts . . . [were] alone
sufficient to establish prejudice,” for the purpose of Rule 41(b), “then every defendant who
8
Case 3:19-cv-00902 Document 113 Filed 09/15/22 Page 8 of 11 PageID #: 1107

answers a complaint and responds even minimally to a lawsuit would be able to claim prejudice[,]”
a “result [that] would defy common sense.” Id. at 740.
Here, the record shows that the defendants repeatedly contacted McGuire over the course
of nearly two years to help facilitate her discovery responses and to schedule her deposition,
prepared for McGuire’s deposition before she cancelled it a few days before it was set to be held,
and have had to defend against McGuire’s repeated motions for default. The Court finds that the
defendants have been prejudiced by McGuire’s conduct and that the second factor weighs in favor
of dismissal. See Carpenter, 723 F.3d at 707; Harmon, 110 F.3d at 368.
C.

Prior Notice

Whether a party was warned that failure to cooperate could lead to dismissal “is a ‘key
consideration’” in the analysis under Rule 37 and 41(b). Schafer, 529 F.3d at 740 (quoting Stough,
138 F.3d at 615); Alley v. Vital One Health Plan, No. 2:15-cv-00035, 2016 WL 616346, at *3
(M.D. Tenn. Feb. 16, 2016) (finding that prior notice “is a key consideration” under Rule 37). The
Court warned McGuire that her “failure to participate in discovery or filing of any motion without
a proper legal and factual basis may lead to a recommendation that she be sanctioned by . . . the
dismissal of this action with prejudice” in its March 11, 2022 order. (Doc. No. 91, PageID# 761.)
The third factor therefore weighs in favor of dismissal.
D.

Appropriateness of Other Sanctions

The defendants request that the Court dismiss this action with prejudice and order McGuire
to reimburse their reasonable costs and attorney’s fees. (Doc. Nos. 89, 98.) The harsh sanction of
dismissal with prejudice is appropriate here. When “[p]resented with a record of sufficiently
egregious conduct, . . . a district court has not abused its discretion by ordering dismissal as the
first and only sanction.” Harmon, 110 F.3d at 369; see also Williams v. Select Specialty Hosp.
Nashville, Inc., Civ. No. 3:08-1007, 2010 WL 93103, at *3 (M.D. Tenn. Jan. 7, 2010) (adopting
9
Case 3:19-cv-00902 Document 113 Filed 09/15/22 Page 9 of 11 PageID #: 1108

report and recommendation and dismissing action “with prejudice due to the plaintiffs’ willfulness
and fault in failing to engage in discovery and in disregarding the Court’s orders” “and the needless
expenditure of resources by both the Court and the defendant caused by the plaintiffs’ conduct”).
McGuire has prevented this litigation from moving forward by refusing to provide full sworn
responses to the defendants’ discovery requests despite ample time and this Court’s order that she
do so. She readily admits that she has refused to appear for a deposition and has taken the
egregiously improper step of filing police reports against the defendants and their counsel for
trying to obtain the discovery responses to which they were entitled. And, throughout, she has
continued to file motions seeking default judgment against the defendants despite the Court’s
orders informing her that there is no legal or factual basis to support it. McGuire’s willful
frustration of the defendants’ attempts to defend against her claims and her disregard for the
Court’s orders and the progress of the litigation demonstrate that dismissal with prejudice is
appropriate.
The additional sanction of awarding defendants their costs and attorney’s fees is not
warranted. Dismissal of this action with prejudice under Rules 37 and 41(b) is sufficient to address
McGuire’s dilatory conduct. Although the Federal Rules of Civil Procedure require that a party
who is sanctioned for failure to obey a discovery or other pretrial order pay the reasonable
expenses, including attorney’s fees, caused by that failure, the rules create an exception if the
failure “was substantially justified or other circumstances make an award of expenses unjust.” Fed.
R. Civ. P. 16(f)(2), 37(b)(2)(C), (d)(3). Because McGuire proceeds in forma pauperis based on
her demonstrated lack of financial resources (Doc. Nos. 2, 8), the Court finds that a further
financial would be unjust and likely futile. See, e.g., Gonzalez v. Jones, No. 2:15-cv-2448, 2021
WL 307564, at *7 (E.D. Cal. Jan. 29, 2021) (finding that “award of attorney’s fees and monetary

10
Case 3:19-cv-00902 Document 113 Filed 09/15/22 Page 10 of 11 PageID #: 1109

sanctions” against pro se and in forma pauperis plaintiff “would be manifestly unjust—not to
mention uncollectable”), report and recommendation adopted by 2021 WL 1060234 (E.D. Cal.
Mar. 18, 2021); Sullivan v. Martin Sprocket & Gear, Inc., No. 1:08-CV-02324, 2009 WL
10670644, at *2 (N.D. Ga. Apr. 3, 2009) (finding that award of costs and attorney’s fees against
pro se and in forma pauperis plaintiff would be unjust).
IV.

Recommendation
Considering the above four factors, the Magistrate Judge RECOMMENDS that the
defendants’ motions for sanctions (Doc. Nos. 88, 97) be GRANTED IN PART and DENIED IN

PART, that this action be DIMISSED WITH PREJUDICE under Rule 37 and 41(b), and that all
other pending motions be TERMINATED.
Any party has fourteen days after being served with this Report and Recommendation to
file specific written objections. Failure to file specific objections within fourteen days of receipt
of this report and recommendation can constitute a waiver of appeal of the matters decided.
Thomas v. Arn, 474 U.S. 140, 155 (1985); Cowherd v. Million, 380 F.3d 909, 912 (6th Cir. 2004).
A party who opposes any objections that are filed may file a response within fourteen days after
being served with the objections. Fed. R. Civ. P. 72(b)(2).
Entered this 15th day of September, 2022.

____________________________________
ALISTAIR E. NEWBERN
United States Magistrate Judge

11
Case 3:19-cv-00902 Document 113 Filed 09/15/22 Page 11 of 11 PageID #: 1110