Hathaway et al v. City of Memphis et al
ORDER granting 59 Motion to Dismiss for Lack of Prosecution; granting in part and denying in part 61 Motion to Withdraw as Attorney.. Signed by Judge Samuel H. Mays, Jr on 12/27/2016. (Mays, Samuel)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
LAQUITA HATHAWAY and DARRELL
ANDERSON, JR., a minor, by and
through his Natural Mother and
Legal Guardian, LAQUITA
CITY OF MEMPHIS, OFFICER GUY
HENDREE, OFFICER CHRIS MILLER,
OFFICER DARNELL BRIDGEFORTH,
OFFICER JOHN BARRETT, OFFICER
JOHN DOE, OFFICER JANE DOE,
ALL IN THEIR INDIVIDUAL AND
OFFICIAL CAPACITIES, and CHIEF
TONY ARMSTRONG, IN HIS
Before the Court are two motions.
On December 1, 2016,
Defendants City of Memphis, Chris Miller, Guy Hendree, Darnell
Motion to Dismiss.
(Defs.’ Jt. Mot. to Dismiss and Mem. in
Supp., ECF No. 59 (“Second Mot. to Dismiss”).)
On December 12,
Defendants’ Joint Motion to Dismiss.
to Dismiss Resp.”).)
(ECF No. 60 (“Second Mot.
On December 12, 2016, Plaintiffs’ counsel filed a Motion to
Withdraw as Counsel.
(ECF No. 61 (“Second Mot. to Withdraw”).)
Dismiss is GRANTED with prejudice.
The only remaining claim in
intentional and/or negligent infliction of emotional distress.
The Second Motion to Withdraw is GRANTED as to Hathaway and
DENIED as to Anderson.
On July 18, 2013, Plaintiffs filed their original complaint
in the Circuit Court of Shelby County, Tennessee.
No. 1-3 (“Compl.”).)
The Complaint alleges that on or about
July 2, 2013, Memphis Police Department officers Guy Hendree,
“Defendant Officers”), while responding to a domestic dispute,
without probable cause, in violation of the Fourth Amendment to
the U.S. Constitution.
(Id. at PageID 16–19.)
and/or negligent infliction of emotional distress, negligence,
assault and battery, and false arrest/false imprisonment.
at PageID 19–22.)
case to this Court.
On September 4, 2013, Defendants removed the
(Notice of Removal of Civil Action, ECF No.
On October 27, 2015, Defendant Officers filed a motion to
dismiss pursuant to Rule 12(b)(6) for failure to state a claim
upon which relief can be granted.1
(Def. Officers’ Mot. to
The Court entered an amended scheduling order on March 15,
(Am. Scheduling Order, ECF No. 39.)
Under the amended
scheduling order, the deadline for completing all discovery was
October 14, 2016.
depositions of Defendant Officers on June 23, 2016.
Deps., ECF No. 40.)
On May 10, 2016, Defendant Officers filed a
notice to take Hathaway’s deposition on June 29, 2016.
to Take Dep. of Pl., ECF No. 41.)
On June 7, 2016, Plaintiffs’
counsel notified defense counsel that he had “lost communication
with [his] client.”
(Def. Officers’ Mot. for Sanctions ¶ 11,
(Id. ¶ 12.)
On June 13, 2016, Plaintiffs’ counsel filed a Motion to
Withdraw as Counsel and Assert Lien.
(ECF No. 42 (“First Mot.
The motion stated, inter alia, that “Plaintiff
[sic] has lost contact with her counsel and has not responded to
numerous attempts to reach her by mail, phone, and text.”
On July 12, 2016, the Court entered an order granting in
part the First Motion to Dismiss.
First Mot. to Dismiss”).)
(Order, ECF No. 43 (“Order on
The order dismissed the claim that
claims of false arrest and unlawful detention.
(Id. at 14.)
also dismissed Plaintiffs’ claims of excessive force, assault,
and battery to the extent those claims relied on events before
or during Hathaway’s arrest.
On September 15, 2016, the Court entered an order that, in
relevant part, denied the First Motion to Withdraw.
Plaintiffs’ counsel to withdraw from representing Hathaway and
Anderson because of Hathaway’s conduct would strip both Hathaway
and Anderson, her minor son, of representation.
(Id. at 4–5.)
[Plaintiffs’ counsel’s] inability to reach Plaintiffs affects
consider appropriate relief.”
(Id. at 6 n.3.)
On September 20, 2016, Defendant Officers filed a notice to
take Hathaway’s deposition on September 27, 2016.
Take Dep. of Pl., ECF No. 46.)
Hathaway did not appear for the
(See, e.g., Dep. of Laquita Hathaway, ECF No. 50-
On October 12, 2016, Defendant Officers filed a Motion for
Sanctions Under Rule 37(d)(3).
(ECF No. 50 (“Sanctions Mot.”).)
deposition, the Officers asked that “Plaintiff be sanctioned and
that her case be dismissed . . . as she has abandoned her cause
referred the Sanctions Motion to United States Magistrate Judge
Diane K. Vescovo.
(Order of Reference, ECF No. 52.)
25, 2016, Plaintiffs filed a response to the Sanctions Motion.
(Pl.’s [sic] Resp. Opposing Def. Officer’s [sic] Mot. to Dismiss
and Mem. in Opp’n, ECF No. 53.)
On November 4, 2016, the Magistrate Judge entered an Order
Granting in Part and Denying in Part Defendant Officers’ Motion
for Sanctions under Rule 37.
(ECF No. 54 (“Sanctions Order”).)
The order denied the Sanctions Motion as to Defendant Officers’
request for a dismissal of Plaintiffs’ case.
(Id. at 8.)
Officers $131.40 within fourteen days.
Nothing in the
record suggests that Hathaway has made that payment.
On November 15, 2016, Plaintiffs’ counsel filed a Motion
represented that “Hathaway has lost contact with her counsel and
has not responded to numerous attempts to reach her by mail,
phone, and text,” and that, “[b]ased on information and belief
[Hathaway] still resides in Memphis, Tennessee but can not be
(Id. ¶ 1.)
Plaintiffs’ counsel also represented that
he “has hired a private investigator to locate” Hathaway and
Anderson, but “[t]o date, only [Anderson] has been located as
not . . .
(Id. ¶ 2.)
The Court held a status conference on November 23, 2016.
(Order 1, ECF No. 58.)
At that conference, the Court held in
The Court set a deadline of December 2, 2016 for any
motions to dismiss, and a deadline of December 26, 2016 for any
appointment of a guardian ad litem for Anderson.
On December 1, 2016, Defendants filed the Second Motion to
On December 12, 2016, Plaintiffs’ counsel filed the
Plaintiffs’ counsel filed the Second Motion to Withdraw.
U.S.C. § 1983.
(See Compl. at PageID 17–18; Order on First Mot.
to Dismiss 14.)
The Court has federal-question jurisdiction
under 28 U.S.C. § 1331.
The Court has supplemental jurisdiction
§ 1367 because they derive from a “common nucleus of operative
fact” with the federal-law claims.
See 28 U.S.C. § 1367; United
Mine Workers of Am. v. Gibbs, 383 U.S. 715, 725 (1966).
III. Standard of Review
Second Motion to Dismiss
Defendants’ Motion to Dismiss invokes Rules 37(d)(3) and
37(b)(2)(A)(i)–(vi) and seeks dismissal of “[Hathaway’s] case.”
(Second Mot. to Dismiss 5.)2
Under Rule 37(d)(1)(A), a court
may, on motion, order sanctions if “a party . . . fails, after
being served with proper notice, to appear for that person’s
include any of the orders listed in Rule 37(b)(2)(A)(i)–(vi).”
That list includes “dismissing the action or proceeding in whole
The Second Motion to Dismiss repeatedly refers to “Plaintiff
Hathaway” and makes no representations about Anderson.
Court construes the Second Motion to Dismiss as seeking
dismissal of Hathaway’s remaining claims, and not Anderson’s
37(d)(3), “the court must require the party failing to act, the
attorney advising that party, or both to pay the reasonable
circumstances make an award of expenses unjust.”
Imposing sanctions is within the Court’s discretion.
e.g., S. Wabash Commc’ns, Ltd. v. Union Cty. Broad. Co., 69 F.
App’x 285, 292 (6th Cir. 2003).
To consider dismissal as a
discovery sanction, courts look to four factors: “‘(1) whether
the party’s failure is due to willfulness, bad faith, or fault;
party’s conduct; (3) whether the [plaintiff] was warned that
failure to cooperate could lead to dismissal; and (4) whether
dismissal was ordered.’”
United States v. Reyes, 307 F.3d 451,
458 (6th Cir. 2002) (quoting Knoll v. Am. Tel. & Tel. Co., 176
merits . . . .”
Reese Corp. v. Rieger, 201 B.R. 902, 904 (E.D.
Mich. 1996) (citing Meade v. Grubbs, 841 F.2d 1512, 1520 n.7
(10th Cir. 1988)).
Second Motion to Withdraw
(Second Mot. to Withdraw 1.)
withdrawal issues are committed to the court’s discretion[.]”
Brandon v. Blech, 560 F.3d 536, 537 (6th Cir. 2009).
In relevant part, Tennessee Rule of Professional Conduct
1.16(b) states that, “[e]xcept as stated in paragraph (c), a
if . . .
withdrawal can be accomplished without material adverse effect
on the interests of the client[.]”
Under Tennessee Rule of
applicable law requiring notice to or permission of a tribunal
when terminating a representation.
When ordered to do so by a
tribunal, a lawyer shall continue representation notwithstanding
good cause for terminating the representation.”
Second Motion to Dismiss
considers the Reyes factors.
When considering willfulness, bad
faith, or fault, “the burden of showing that a failure to comply
with . . .
willfullness or bad faith, rests with the individual against
whom sanctions are sought.”
Laukus v. Rio Brands, Inc., 292
F.R.D. 485, 509 (citing Reyes, 307 F.3d at 458).
dismissal with prejudice, the Sixth Circuit has held that the
willfulness factor is satisfied only if there is “a clear record
of delay or contumacious conduct.”
Freeland v. Amigo, 103 F.3d
1271, 1277 (6th Cir. 1997) (citing Carter v. City of Memphis,
636 F.2d 161 (6th Cir. 1980)).
Such a record exists where a
conduct on those proceedings.’”
Shavers v. Bergh, 516 F. App’x
568, 570 (6th Cir. 2013) (quoting Schafer v. City of Defiance
Police Dep’t, 529 F.3d 731, 737 (6th Cir. 2008)).
showing as to why she did not appear at her noticed depositions.
She has not contacted her attorney since at least June 2016
(Mot. to Withdraw ¶ 1; see also Second Mot. to Withdraw ¶ 1),
Her behavior demonstrates a reckless disregard for
the effect of her conduct on these proceedings.
There is a
clear record of delay and contumacious conduct.
Defendants have been prejudiced.
Defendants’ counsel has
“‘waste[d] time, money, and effort in support of cooperation
which [Hathaway] was legally obligated to provide.’”
529 F.3d at 737 (quoting Harmon v. CSX Transp., Inc., 110 F.3d
364, 368 (6th Cir. 1997)) (alteration in Schafer).
remaining claims include excessive force, assault, and battery.
Hathaway’s deposition is important discovery to which Defendants
Several district courts in this Circuit have
found prejudice where a plaintiff failed to appear for a noticed
See, e.g., Vance v. Sec’y, U.S. Dep’t of Veterans
Affairs, 289 F.R.D. 254, 257 (S.D. Ohio 2013); Powell v. Cont’l
Cas. Co., No. 1:09–cv–710, 2010 WL 5576057, at *2 (S.D. Ohio
Nov. 16, 2010); Robinson v. Burnett, No. 1:07-CV-668, 2009 WL
80274, at *4 (W.D. Mich. Jan. 9, 2009).
This factor favors
Hathaway has been warned that failure to cooperate could
“[Hathaway’s] failure to comply with discovery or the court’s
orders could lead to other sanctions including dismissal of her
order, Hathaway has not resumed communications with her attorney
or shown that she would sit for a deposition.
She has failed to
pay the reasonable expenses specified in the Sanctions Order.
counsel’s] inability to reach Plaintiffs affects the parties’
ability to proceed to trial, the Court will consider appropriate
(Withdrawal Order 6 n.3.)
Hathaway has been warned of
the potential consequences of failing to cooperate.
warnings, given that she has avoided her counsel for months.
Hathaway’s counsel represents that he has left messages with
Hathaway, but the content of those messages is unclear.
with her attorney for at least six months.
(Mot. to Withdraw
¶ 1; see also Second Mot. to Withdraw ¶ 1.)
A party’s failure
counsel does not nullify that notice.
The Sanctions Order imposed lesser sanctions on
factor favors dismissal.
The Reyes factors favor dismissal.
The parties disagree
Defendants request dismissal “with prejudice.”
(Mot. to Dismiss
Plaintiff’s counsel states that, “in an effort to protect
the claims of [Anderson], a minor,” the Court should sanction
(Second Mot. to Dismiss Resp. ¶ 2 (emphasis removed).)
First, given Hathaway’s lengthy and reckless
(“Dismissal . . . with prejudice is appropriate in light of the
plaintiffs’ lack of interest in the action, the hardship it
would cause the defendant to face the prospect of defending a
future action based on allegations which it has attempted to
defend against in this action, the impasse in discovery caused
by the plaintiffs’ refusal to participate in discovery, and the
needless expenditure of resources by both the Court and the
dismissed with prejudice.
Anderson’s sole remaining claim is
distress, based on the allegation that he observed the Defendant
Withdrawal Order 5.)
Anderson can pursue that claim even if
Hathaway’s claims are dismissed.
remaining claims are DISMISSED with prejudice.
The only claim
remaining in the case is Anderson’s claim for intentional and/or
negligent infliction of emotional distress.
Second Motion to Withdraw
The Second Motion to Withdraw, like the first, represents
that Hathaway “has lost contact with her counsel of record,
failing to respond to the numerous attempts to reach her by
mail, phone, and text.”
(Second Mot. to Withdraw ¶ 1.)
Second Motion to Withdraw represents that Anderson “was located
but will not speak with” Plaintiffs’ counsel.
(Id. ¶ 2.)
Plaintiffs’ counsel to withdraw from representing Hathaway would
not cause a material adverse effect on Hathaway’s interests.
The Court has not dismissed Anderson’s claim.
Plaintiffs’ counsel to withdraw from representing Anderson would
cause a material adverse effect on Anderson’s interests.
minor, Anderson cannot proceed with his claims pro se.
e.g., Fed. R. Civ. P. 17(c)(2).
Under Federal Rule of Procedure
17(c)(2), “[t]he court must appoint a guardian ad litem—or issue
person who is unrepresented in an action.”
If the Court allowed
Plaintiffs’ counsel to withdraw from representing Anderson, the
Plaintiffs’ counsel may not withdraw from representing Anderson.
The Second Motion to Withdraw is GRANTED as to Hathaway and
DENIED as to Anderson.
The Second Motion to Dismiss is GRANTED with prejudice as
to Hathaway’s claims.
The only remaining claim is Anderson’s
claim for intentional and/or negligent infliction of emotional
Hathaway and DENIED as to Anderson.
So ordered this 27th day of December, 2016.
/s/ Samuel H. Mays, Jr.
SAMUEL H. MAYS, JR.
UNITED STATES DISTRICT JUDGE
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