Hathaway et al v. City of Memphis et al

Filing 63

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
WESTERN DIVISION

LAQUITA HATHAWAY and DARRELL
ANDERSON, JR., a minor, by and
through his Natural Mother and
Legal Guardian, LAQUITA
HATHAWAY,
Plaintiffs,
v.
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
OFFICIAL CAPACITY,
Defendants.

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No. 13-02688

ORDER

Before the Court are two motions.

On December 1, 2016,

Defendants City of Memphis, Chris Miller, Guy Hendree, Darnell
Bridgeforth,

and

John

Motion to Dismiss.

Barrett

(“Defendants”)

filed

a

Joint

(Defs.’ Jt. Mot. to Dismiss and Mem. in

Supp., ECF No. 59 (“Second Mot. to Dismiss”).)

On December 12,

2016,

in

Plaintiffs’

counsel

filed

a

Defendants’ Joint Motion to Dismiss.
to Dismiss Resp.”).)

Response

Support

of

(ECF No. 60 (“Second Mot.

On December 12, 2016, Plaintiffs’ counsel filed a Motion to
Withdraw as Counsel.
For

the

(ECF No. 61 (“Second Mot. to Withdraw”).)

reasons

discussed

below,

Dismiss is GRANTED with prejudice.
the

case

is

Plaintiff

Darrell

the

Second

Motion

to

The only remaining claim in
Anderson,

Jr.’s

claim

for

intentional and/or negligent infliction of emotional distress.
The Second Motion to Withdraw is GRANTED as to Hathaway and
DENIED as to Anderson.
I.

Background

On July 18, 2013, Plaintiffs filed their original complaint
in the Circuit Court of Shelby County, Tennessee.
No. 1-3 (“Compl.”).)

(Compl., ECF

The Complaint alleges that on or about

July 2, 2013, Memphis Police Department officers Guy Hendree,
Chris

Miller,

Darnell

Bridgeworth,

and

John

Barrett

(the

“Defendant Officers”), while responding to a domestic dispute,
used

excessive

force

and

arrested

Plaintiff

Laquita

Hathaway

without probable cause, in violation of the Fourth Amendment to
the U.S. Constitution.
allege

state-law

(Id. at PageID 16–19.)

claims

against

Defendants

Plaintiffs also
for

intentional

and/or negligent infliction of emotional distress, negligence,
assault and battery, and false arrest/false imprisonment.
at PageID 19–22.)
case to this Court.

(Id.

On September 4, 2013, Defendants removed the
(Notice of Removal of Civil Action, ECF No.

1.)
2

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
Dismiss

and

Mem.

in

Supp.,

ECF

(Def. Officers’ Mot. to
No.

20

(“First

Mot.

to

Dismiss”).)
The Court entered an amended scheduling order on March 15,
2016.

(Am. Scheduling Order, ECF No. 39.)

Under the amended

scheduling order, the deadline for completing all discovery was
October 14, 2016.
On

May

9,

(Id.)
2016,

Plaintiffs

filed

a

notice

to

depositions of Defendant Officers on June 23, 2016.
Deps., ECF No. 40.)

take

the

(Notice of

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.)

(Notice

On June 7, 2016, Plaintiffs’

counsel notified defense counsel that he had “lost communication
with [his] client.”
ECF

No.

50

cancelled.

(“Mot.

(Def. Officers’ Mot. for Sanctions ¶ 11,
for

Sanctions”).)

The

depositions

were

(Id. ¶ 12.)

On June 13, 2016, Plaintiffs’ counsel filed a Motion to
Withdraw as Counsel and Assert Lien.
to Withdraw”).)

1

References
Procedure.

to

(ECF No. 42 (“First Mot.

The motion stated, inter alia, that “Plaintiff

“Rules”

are

to

3

the

Federal

Rules

of

Civil

[sic] has lost contact with her counsel and has not responded to
numerous attempts to reach her by mail, phone, and text.”

(Id.

¶ 1.)
On July 12, 2016, the Court entered an order granting in
part the First Motion to Dismiss.
First Mot. to Dismiss”).)
Hathaway

was

arrested

(Order, ECF No. 43 (“Order on

The order dismissed the claim that

without

probable

cause

claims of false arrest and unlawful detention.

and

Plaintiffs’

(Id. at 14.)

It

also dismissed Plaintiffs’ claims of excessive force, assault,
and battery to the extent those claims relied on events before
or during Hathaway’s arrest.

(Id.)

On September 15, 2016, the Court entered an order that, in
relevant part, denied the First Motion to Withdraw.
Mot.

to

Withdraw

(“Withdrawal

as

Counsel

Order”).)

and

The

Assert

order

Lien,

stated

(Order on

ECF

that

No.

44

allowing

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.)

The

proceeds,

order

also

stated

that,

“[a]s

the

case

if

[Plaintiffs’ counsel’s] inability to reach Plaintiffs affects
the

parties’

ability

to

proceed

consider appropriate relief.”

to

trial,

the

Court

will

(Id. at 6 n.3.)

On September 20, 2016, Defendant Officers filed a notice to
take Hathaway’s deposition on September 27, 2016.
4

(Notice to

Take Dep. of Pl., ECF No. 46.)
deposition.

Hathaway did not appear for the

(See, e.g., Dep. of Laquita Hathaway, ECF No. 50-

1.)
On October 12, 2016, Defendant Officers filed a Motion for
Sanctions Under Rule 37(d)(3).
Because

Hathaway

had

not

(ECF No. 50 (“Sanctions Mot.”).)

appeared

for

her

properly

noticed

deposition, the Officers asked that “Plaintiff be sanctioned and
that her case be dismissed . . . as she has abandoned her cause
of

action.”

(Id.

¶

18.)

On

October

13,

2016,

the

Court

referred the Sanctions Motion to United States Magistrate Judge
Diane K. Vescovo.

(Order of Reference, ECF No. 52.)

On October

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.
Magistrate

granted

Officers’

request

reasonable
deposition.

the

expenses
(Id.)

Motion

that

for

Hathaway

related

to

Hathaway

was

5

Sanctions
pay

(Id. at 8.)
as

to

Defendant

Hathaway’s
ordered

Defendant
Officers’

September
to

pay

The

2016

Defendant

Officers $131.40 within fourteen days.

(Id.)

Nothing in the

record suggests that Hathaway has made that payment.
On November 15, 2016, Plaintiffs’ counsel filed a Motion
for

Status

Conference.

(ECF

No.

55.)

Plaintiffs’

counsel

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
found.”

(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
well

[as]

Hathaway.”

an

adult

relative

of

[Anderson]

who

is

not . . .

(Id. ¶ 2.)

The Court held a status conference on November 23, 2016.
(Order 1, ECF No. 58.)
abeyance
(Id.)

the

deadlines

At that conference, the Court held in
set

in

the

Amended

Scheduling

Order.

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.

(Id.)

On December 1, 2016, Defendants filed the Second Motion to
Dismiss.
Second

On December 12, 2016, Plaintiffs’ counsel filed the

Motion

to

Dismiss

Response.

On

December

12,

Plaintiffs’ counsel filed the Second Motion to Withdraw.

6

2016,

II.

Jurisdiction

Plaintiffs’
U.S.C. § 1983.

remaining

include

violations

of

42

(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.
over

claims

Plaintiffs’

The Court has supplemental jurisdiction

remaining

state-law

claims

under

28

U.S.C.

§ 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
A.

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
deposition.”

Rule

37(d)(3)

states

that

the

sanctions

“may

include any of the orders listed in Rule 37(b)(2)(A)(i)–(vi).”
That list includes “dismissing the action or proceeding in whole

2

The Second Motion to Dismiss repeatedly refers to “Plaintiff
Hathaway” and makes no representations about Anderson.
The
Court construes the Second Motion to Dismiss as seeking
dismissal of Hathaway’s remaining claims, and not Anderson’s
remaining claim.

7

or

in

part.”

Fed.

R.

Civ.

P.

37(b)(2)(A)(v).

Under

Rule

37(d)(3), “the court must require the party failing to act, the
attorney advising that party, or both to pay the reasonable
expenses,
unless

including

the

attorney’s

failure

was

fees,

caused

substantially

by

the

justified

failure,
or

other

circumstances make an award of expenses unjust.”
Imposing sanctions is within the Court’s discretion.

See,

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;
(2)

whether

the

adversary

was

prejudiced

by

the

dismissed

party’s conduct; (3) whether the [plaintiff] was warned that
failure to cooperate could lead to dismissal; and (4) whether
less

drastic

sanctions

dismissal was ordered.’”

were

imposed

or

considered

before

United States v. Reyes, 307 F.3d 451,

458 (6th Cir. 2002) (quoting Knoll v. Am. Tel. & Tel. Co., 176
F.3d

359,

“[o]nly
system’s

363

when

(6th
the

strong

merits . . . .”

Cir.

1999)).

aggravating

Dismissal

factors

predisposition

to

is

outweigh
resolve

appropriate

the

cases

judicial
on

the

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)).

8

B.
In
requests

the

Second Motion to Withdraw
Second

Motion

“permission

Plaintiff [sic].”

to

to

Withdraw,

withdraw

as

Plaintiffs’

Counsel

of

(Second Mot. to Withdraw 1.)

counsel

Record

for

“[A]ttorney

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
lawyer

may

withdraw

from

representing

a

client

if . . .

withdrawal can be accomplished without material adverse effect
on the interests of the client[.]”
Professional

Conduct

1.16(c),

Under Tennessee Rule of

“[a]

lawyer

must

comply

with

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.”
IV.

Analysis
A.

In

Second Motion to Dismiss

deciding

the

Second

considers the Reyes factors.

Motion

to

Dismiss,

the

Court

When considering willfulness, bad

faith, or fault, “the burden of showing that a failure to comply
with . . .

discovery

requests

was

due

to

inability,

not

willfullness or bad faith, rests with the individual against
whom sanctions are sought.”

Laukus v. Rio Brands, Inc., 292
9

F.R.D. 485, 509 (citing Reyes, 307 F.3d at 458).

To justify

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)).
plaintiff

displays

proceedings

or

a

“‘either
reckless

an

Such a record exists where a
intent

disregard

conduct on those proceedings.’”

to

for

thwart

the

judicial

effect

of

his

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)).
This

factor

supports

dismissal.

Hathaway

has

made

no

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),
and

there

Hathaway.

is

no

showing

as

to

why.

The

burden

lies

with

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.’”

Schafer,

529 F.3d at 737 (quoting Harmon v. CSX Transp., Inc., 110 F.3d
364, 368 (6th Cir. 1997)) (alteration in Schafer).
10

Hathaway’s

remaining claims include excessive force, assault, and battery.
Hathaway’s deposition is important discovery to which Defendants
are entitled.

Several district courts in this Circuit have

found prejudice where a plaintiff failed to appear for a noticed
deposition.

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

dismissal.
Hathaway has been warned that failure to cooperate could
lead

to

dismissal.

The

Sanctions

Order

warned

that

“[Hathaway’s] failure to comply with discovery or the court’s
orders could lead to other sanctions including dismissal of her
complaint.”

(Sanctions

Order

8.)

Since

the

entry

of

that

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.
The

Court’s

Withdrawal

Order

stated

that,

“if

[Plaintiffs’

counsel’s] inability to reach Plaintiffs affects the parties’
ability to proceed to trial, the Court will consider appropriate
relief.”

(Withdrawal Order 6 n.3.)

Hathaway has been warned of

the potential consequences of failing to cooperate.
favors dismissal.
11

This factor

It

is

unclear

whether

Hathaway

received

the

Court’s

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.
to

Withdraw

undisputed,

¶

1;

Second

however,

that

Mot.

to

Hathaway

Withdraw
has

¶

failed

1.)
to

(Mot.
It

is

communicate

with her attorney for at least six months.

(Mot. to Withdraw

¶ 1; see also Second Mot. to Withdraw ¶ 1.)

A party’s failure

to

avail

herself

of

judicially

provided

notice

made

to

her

counsel does not nullify that notice.
Less-drastic

alternatives

to

dismissal

would

be

insufficient.

The Sanctions Order imposed lesser sanctions on

Hathaway,

those

and

sanctions

have

been

ineffective.

This

factor favors dismissal.
The Reyes factors favor dismissal.
about

whether

the

dismissal

should

The parties disagree
be

Defendants request dismissal “with prejudice.”
5.)

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
Hathaway

“in

the

form

of

a

dismissal

without

prejudice.”

(Second Mot. to Dismiss Resp. ¶ 2 (emphasis removed).)
Dismissal

of

Hathaway’s

claims

with

prejudice

is

appropriate here.

First, given Hathaway’s lengthy and reckless

disregard

effect

of

the

of

her
12

conduct

on

this

litigation,

dismissal
Williams

with
v.

3:08-1007,

prejudice

Select
2010

is

the

Specialty

WL

93103,

proper

remedy.

Hosp.-Nashville,

at

*3

(M.D.

Tenn.

See,

Inc.,
Jan.

e.g.,

No.
7,

CIV.
2010)

(“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
defendant

caused

Anderson’s

by

claims

the

can

plaintiffs'

be

dismissed with prejudice.
for

intentional

and/or

pursued

conduct.”).

even

if

Second,

Hathaway’s

are

Anderson’s sole remaining claim is
negligent

infliction

of

emotional

distress, based on the allegation that he observed the Defendant
Officers

physically

Withdrawal Order 5.)

harming

his

mother.

(Compl.

¶¶

34–35;

Anderson can pursue that claim even if

Hathaway’s claims are dismissed.
The

Second

Motion

to

Dismiss

is

GRANTED.

remaining claims are DISMISSED with prejudice.

Hathaway’s

The only claim

remaining in the case is Anderson’s claim for intentional and/or
negligent infliction of emotional distress.

13

B.

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.)

The

Second Motion to Withdraw represents that Anderson “was located
but will not speak with” Plaintiffs’ counsel.
The

Court

is

dismissing

Hathaway’s

(Id. ¶ 2.)
claims.

Allowing

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.

Allowing

Plaintiffs’ counsel to withdraw from representing Anderson would
cause a material adverse effect on Anderson’s interests.

As a

minor, Anderson cannot proceed with his claims pro se.

See,

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
another

appropriate

order—to

protect

a

person who is unrepresented in an action.”

minor

or

incompetent

If the Court allowed

Plaintiffs’ counsel to withdraw from representing Anderson, the
Court

would

have

to

secure

alternative

representation.

Plaintiffs’ counsel may not withdraw from representing Anderson.
The Second Motion to Withdraw is GRANTED as to Hathaway and
DENIED as to Anderson.

14

V.

Conclusion

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
distress.

The

Second

Motion

to

Withdraw

is

GRANTED

as

to

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

15