Jones v. University of Memphis et al
Filing
196
ORDER granting in part and denying in part 124 Motion for Sanctions; adopting 149 Report and Recommendation. Signed by Judge Jon Phipps McCalla on 9/12/16. (McCalla, Jon)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
GINA JONES,
Plaintiff,
v.
UNIVERSITY OF MEMPHIS, and
TENNESSEE BOARD OF REGENTS,
Defendants.
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No. 15-cv-02148-JPM-cgc
ORDER AFFIRMING ORDER GRANTING MOTION FOR SANCTIONS AND ADOPTING
THE REPORT AND RECOMMENDATION
Before the Court is the Magistrate Judge’s Order Denying
Plaintiff’s Motion to Set Aside Order Granting Motion to Compel,
filed August 9, 2016. (ECF No. 148.)
In the Order, the
Magistrate Judge denied Plaintiff’s Motion (ECF No. 134) to set
aside the Magistrate Judge’s Order Granting Defendants’ Motion
to Compel (ECF No. 108).
Also before the Court is the Report
and Recommendation filed by Magistrate Judge Claxton on August
9, 2016.
(ECF No. 149.)
In the Report and Recommendation, the
Magistrate Judge recommends that Defendants’ July 28, 2016
Motion for Sanctions (ECF No. 124) be “granted in part and
denied in part.”
(Id. at 1.)
On August 23, 2016, Plaintiff timely filed the “Plaintiff’s
Appeal and Objections to the Magistrate Judge’s Order Denying
Plaintiff’s Motion to Set Aside (Doc. No. 148) and Order
Granting Motion for Sanctions (Doc No. 149).”1
(ECF No. 175.)
On September 6, 2016, Defendants filed “Defendants’ Reply in
Response and Opposition to Plaintiff’s Appeal and Objections to
Magistrate Judge’s Order Denying Plaintiff’s Motion to Set Aside
(ECF # 148) and Order (sic) Granting Motion for Sanctions (ECF #
149).”2
I.
(ECF No. 189.)
BACKGROUND
On
March
2,
2015,
Plaintiff
filed
a
Complaint
against
Defendants Tennessee Board of Regents and University of Memphis.
(ECF No. 1.)
Amend/Correct
On July 6, 2015, Plaintiff filed a Motion to
Complaint.
(ECF
No.
22.)
Plaintiff
filed
a
revised proposed Amended Complaint on August 25, 2015, seeking
to add Mary Tucker as a Defendant; add claims under 42 U.S.C. §§
1981,
1983,
and
1985;
and
Rehabilitation Act claims.
to
revise
(ECF No. 36.)
her
existing
ADA
and
On September 8, 2015,
the Court entered an Order granting Plaintiff’s Motion to Amend
as to the revision of her ADA and Rehabilitation Act claims and
1
Document Number 149 in the Electronic Filing Docket is not an Order
Granting Motion for Sanctions but rather the Magistrate Judge’s Report and
Recommendation; therefore, the Court construes Plaintiff’s filing as both an
Appeal of the Magistrate Judge’s Order (ECF No. 148) and Objections to the
Report and Recommendation (ECF No. 149).
2
Defendants filed a timely response to Plaintiff’s objections to the
Magistrate Judge’s Report and Recommendation. See Fed. R. Civ. P. 72(b)(2).
Federal Rule of Civil Procedure 72(a), however, does not provide for a reply
to an appeal of a magistrate judge’s non-dispositive order. See Fed. R. Civ.
P. 72(a). Defendants’ Reply cannot be alternatively construed as objections
to the Magistrate Judge’s Order as the Reply was filed more than 14 days
after the Order was entered. See id. As a result, the Court is not required
to consider the portion of Defendants’ Reply that responds to Plaintiff’s
objections to the Magistrate Judge’s Order (ECF No. 148).
2
the removal of her negligence claim, and denying Plaintiff’s
Motion to Amend as to all other amendments.
(ECF No. 39.)3
Plaintiff filed an Amended Complaint on October 7, 2015 (ECF No.
47), a second revised Amended Complaint on November 5, 2015 (ECF
No. 54), a third Amended Complaint on November 20, 2015 (ECF No.
59), and a fourth Amended Complaint on December 1, 2015 (ECF No.
62).
On December 7, 2015, the Court entered an Order Granting
Leave to Amend and Denying as Moot Motion to Strike and Dismiss,
stating that the Plaintiff’s Fourth Amended Complaint appears to
comply
with
the
Court’s
September
30,
2015
Order,
granting
Plaintiff’s request for leave to amend, and holding that the
Fourth
Amended
complaints.
A.
Complaint
supersedes
Plaintiff’s
previous
(ECF No. 65.)
Magistrate Judge Claxton’s Order Denying Plaintiff’s Motion
to Set Aside
On
June
27,
2016,
Defendants
filed
a
Motion
to
Compel
Overdue Discovery from Plaintiff (ECF No. 101), which the Court
referred
103).
to
the
Magistrate
Judge
for
Determination
(ECF
No.
Plaintiff did not file a response to the motion and the
Magistrate Judge entered an Order Granting Defendants’ Motion to
Compel on July 13, 2016 (ECF No. 108).
On August 2, 2016,
Plaintiff filed a Motion to Set Aside Order Granting Motion to
3
On September 30, 2015, the Court filed an Amended Order, in which the
Court ordered Plaintiff to file an Amended Complaint in accordance with the
Order. (ECF No. 44.)
3
Compel.
(ECF No. 134.)
On August 3, 2016, Defendants filed a
Response in opposition.
(ECF No. 139.)
On August 8, 2016,
Magistrate Judge Claxton held a hearing on the Motion to Set
Aside.
(Min. Entry, ECF No. 147.)
An Order Denying Plaintiff’s
Motion to Set Aside Order Granting Motion to Compel was entered
on
August
9,
2016.
(ECF
No.
148.)
On
August
23,
2016,
Plaintiff timely appealed the Magistrate Judge’s Order to this
Court.
(ECF No. 175.)
On September 6, 2016, Defendants filed a
Reply in opposition to Plaintiff’s appeal.4
B.
(ECF No. 189.)
Magistrate Judge Claxton’s Report and Recommendation
On July 28, 2016, Defendants filed a Motion for Sanctions
against Plaintiff.
(ECF No. 124.)
Plaintiff filed a Response
in Opposition to Defendants’ Motion for Sanctions on August 5,
2016.
(ECF No. 145.)
Claxton
held
a
hearing
Entry, ECF No. 147.)
On August 8, 2016, Magistrate Judge
on
the
Motion
for
Sanctions.
(Min.
A Report and Recommendation on the Motion
for Sanctions was entered on August 9, 2016.
(ECF No. 149.)
On
August 23, 2016, Plaintiff timely filed objections to the Report
and
Recommendation.
(ECF
No.
175.)
6,
2016,
Defendants timely filed a Reply to Plaintiff’s objections.
(ECF
No. 189.)
4
See supra note 2.
4
On
September
II.
ANALYSIS
A.
The Court Affirms Magistrate Judge Claxton’s Order Denying
Plaintiff’s Motion to Set Aside
Pursuant to Federal Rule of Civil Procedure 72(a), when a
magistrate judge issues a non-dispositive order, “[a] party may
serve and file objections to the order within 14 days after
being served with a copy.”
Fed. R. Civ. P. 72(a).
“The
district judge in the case must consider timely objections and
modify or set aside any part of the order that is clearly
erroneous or is contrary to law.”
Id.; see also 28 U.S.C. §
636(b)(1)(A) (stating that a district judge may reconsider the
matter “where it has been shown that the magistrate judge’s
order is clearly erroneous or contrary to law”); Local Rule
72.1(g) (“The presiding district judge may reconsider any order
determining a pretrial matter where it has been shown that the
magistrate judge’s order is clearly erroneous or contrary to
law.”).
A finding is clearly erroneous when “the reviewing
court, upon review of the entire record, is left with a definite
and firm conviction that a mistake has been committed.”
United
States v. Hurst, 228 F.3d 751, 756 (6th Cir. 2000).
In the Order Denying Plaintiff’s Motion to Set Aside,
Magistrate Judge Claxton denied Plaintiff’s Motion to Set Aside
Order Granting Motion to Compel, finding that Plaintiff failed
to establish any of the grounds for relief under Federal Rule of
5
Civil Procedure 60.
No. 148.)
(Order Denying Mot. to Set Aside at 3, ECF
Plaintiff asserts in her appeal that the Magistrate
Judge erred in finding that Plaintiff’s counsel “deliberately
failed”5 to respond to the Motion to Compel, stating that
Plaintiff’s counsel instead failed to respond to the Motion to
Compel out of neglect.
(Pl.’s Appeal at 4, ECF No. 175.)
Plaintiff also argues that she should have been granted relief
under Rule 60(b) due to Defendants’ failure to consult in
accordance with Local Rule 7.2 prior to filing their Motion to
Compel.
(Id. at 5-8.)
The Court does not find Magistrate Judge Claxton’s Order
Denying Plaintiff’s Motion to Set Aside to be clearly erroneous
or contrary to law.
June 27, 2016.
Defendants filed the Motion to Compel on
Fourteen days later, on July 11, 2016, Plaintiff
responded to Defendants’ discovery requests but failed to file a
response to the Motion to Compel with the Court.
On July 13,
2016, the Magistrate Court had not received notice that the
Plaintiff had served responses to Defendants’ discovery
5
In her Appeal, Plaintiff states, “[t]he Court’s fundamental premise
stated in its Order . . . was that Plaintiff’s counsel had ‘deliberately
failed’ to respond to the original Motion to Compel. This assertion is
patently and demonstrably false.” (Pl’s. Appeal at 4, ECF No. 175.)
Plaintiff misquotes the Magistrate Judge’s Order. The Order does not contain
an assertion that Plaintiff’s counsel “deliberately failed” to respond to the
Motion to Compel. (See ECF No. 148.) Additionally, the Order appears to
have been granted due to Plaintiff’s failure to respond to the Motion,
regardless of the intentional or unintentional nature of Plaintiff’s failure.
6
requests.6
As a result, the Magistrate Court granted Defendants’
Motion to Compel due to Plaintiffs’ lack of response, consistent
with Local Rule 7.2(a)(2).
ECF No. 108.)
(Order Granting Mot. to Compel at 1,
It was not clearly erroneous for Magistrate Judge
Claxton to find that “Plaintiff’s counsel made a conscious
decision not to respond to the motion to compel” due to the fact
that over fourteen days had passed without a response.
Denying Mot. to Set Aside at 1, 3, ECF No. 148.)
(Order
Even if
Plaintiff’s counsel had unintentionally neglected to file a
response to the motion, unintentional neglect still would not
entitle Plaintiff to relief.
“The failure to respond to a
motion . . . or to request an extension of time to file a
response thereto is inexcusable neglect.”
B & D Partners v.
Pastis, No. 05-5954, 2006 WL 1307480, at *2 (6th Cir. May 9,
2006).
Plaintiff asserts that she is entitled to relief under
Federal Rule of Civil Procedure 60(b) due to Defendants’ failure
to consult prior to filing their Motion to Compel.
Federal Rule
of Civil Procedure 60(b) provides that a party may receive
relief from a final judgment, order, or proceeding on grounds of
“(1) mistake, inadvertence, surprise, or excusable neglect; . .
6
Plaintiff did not file a Notice of Service of the responses to the
discovery requests with the Court until July 19, 2016. (ECF No. 113.) As
discussed below, even if the Court had been informed of the Plaintiff’s
responses, Plaintiffs’ responses were incomplete and contained objections and
would not, even retroactively, have complied with the Order that was issued.
7
. or (6) any other reason that justifies relief.”
P. 60(b).
Fed. R. Civ.
The Magistrate Judge’s Order discussed the presence
of electronic mail messages and correspondence between the
Plaintiff and Defendants regarding the outstanding discovery in
the weeks leading up to the day the Defendants filed the Motion
to Compel.
(Order Denying Mot. to Set Aside at 2, ECF No. 148.)
The Court does not find any clear error in Magistrate Judge
Claxton’s finding that “there is no indication that this motion
came upon Plaintiff as a surprise or without an opportunity to
rectify the situation.”7
(Id.)
The Court therefore finds that Magistrate Judge Claxton did
not clearly err or act contrary to law in issuing the Order
Denying Plaintiff’s Motion to Set Aside Order Granting Motion to
Compel, and AFFIRMS the Order in its entirety.
B.
The Court Adopts Magistrate Judge Claxton’s Report and
Recommendation
Pursuant to Federal Rule of Civil Procedure 72(b)(2),
“[w]ithin 14 days after being served with a copy of the
recommended disposition, a party may serve and file specific
written objections to the proposed findings and
7
Though email messages may have complied with the spirit of Local Rule
7.2(a)(1)(B) in this situation, all parties are reminded that Local Rule
7.2(a)(1)(B) requires that “[a]ll motions, including discovery motions but
not including motions pursuant to Federal Rules of Civil Procedure 12, 56,
59, and 60”, be accompanied by a certificate of consultation. L.R.
7.2(a)(1)(B). “Failure to attach an accompanying certificate of consultation
may be deemed good grounds for denying the motion.” Id.
8
recommendations.”
Fed. R. Civ. P. 72(b)(2).
“The district
judge must determine de novo any part of the magistrate judge’s
disposition that has been properly objected to.”
Fed. R. Civ.
P. 72(b)(3).
In the Report and Recommendation, Magistrate Judge Claxton
recommends that Defendants’ Motion for Sanctions (ECF No. 124)
be “granted in part and denied in part.”
149.)
(R. & R. at 1, ECF No.
Defendants’ Motion requested that Plaintiff be sanctioned
for failure to provide complete discovery responses and for
failure to abide by the orders of the court.
(ECF No. 124.)
Defendants requested dismissal of the action with prejudice,
default judgment against Plaintiff, as well as any other
sanctions deemed appropriate.
(ECF No. 124.)
Magistrate Judge
Claxton found that Plaintiff did not fully comply with the Order
Granting Defendants’ Motion to Compel (ECF No. 108).
at 3, ECF No. 149.)
(R. & R.
In the Report and Recommendation,
Magistrate Judge Claxton recommends:
That Defendants’ motion to dismiss be DENIED;
That Plaintiff be ordered in the alternative to
1. more fully respond to interrogatory 3 and requests
for production of documents 1, 2, 3, 4, 6, 10 and
14,
9
2. to
resubmit
through
63
Plaintiff
Bates
(documents
that
number
were
documents
stated
to
35
be
responsive to requests 12 and 13) and
3. provide a sworn certification
That Plaintiff’s counsel be taxed with the Defendants’
attorney fees and costs (including the cost to travel to
and
from
Nashville
for
the
August
8,
2016
hearing)
associated with the Motion for Sanctions.
That Plaintiff be admonished that any further failures to
comply with the orders of the Court may result in the
imposition of additional sanctions under Fed. R. Civ. P.
37
or
the
inherent
powers
of
the
Court
including
dismissal of this action without further notice.
(Id. at 3-4.)
Plaintiff
argues
that
she
was
not
in
violation
of
the
Court’s Order (ECF No. 108), that she is allowed to supplement
her discovery responses, and that Plaintiff has given Defendants
a health care release with the authority to obtain some of the
documents they are seeking on their own.8
ECF
No.
175.)
Defendants
reply
8
that
(Pl.’s Appeal at 8,
Plaintiff’s
discovery
Plaintiff also alleges that Defendants misled the Court by writing the
incorrect date for Plaintiff’s response to the discovery requests in their
Motion for Sanctions; however, this was not a proposed finding or
recommendation in the Report and Recommendation and thus is not a proper
objection to the report. Even so, Defendants do not dispute that the date is
incorrect and that the mistake was a clerical error that has since been
clarified to Magistrate Judge Claxton; therefore, the issue is moot. (See
Defs.’ Reply at 10, ECF No. 189.)
10
responses filed on July 27, 2016 were deficient and failed to
comply with the Magistrate Judge’s Order Granting Defendants’
Motion to Compel (ECF No. 108).
(Defs.’ Reply at 10-12, ECF No.
189.)
The Order Granting Defendants’ Motion to Compel that was
issued on July 13, 2016
ordered Plaintiff to “fully respond
without objection to Defendant’s First Set of Interrogatories
and Request for Production of Documents within fourteen (14)
days from entry of the Court’s Order.”
Compel at 1, ECF No. 108.)
(Order Granting Mot. to
Upon de novo review, the Court finds
that Plaintiff did not fully comply with the Magistrate Judge’s
Order.
On July 27, 2016, Plaintiff timely served discovery
responses upon Defendants.
(ECF No. 124-7.)
Upon review of the
discovery responses provided, however, it is apparent that the
responses
were
incomplete.
(See
id.)
In
a
number
of
the
requests for production of documents, Plaintiff responds, “The
Plaintiff is in the process of compiling these documents and
will supplement her response once they are compiled.”
e.g., Pl.’s Second Resp. at 9-13, ECF No. 124-7.)
the
deficiencies
identified
appear
to
pertain
(See,
Only a few of
to
medical
records; therefore, even if Defendants had been able to obtain
the records on their own, Plaintiff’s responses would still be
incomplete.
(See id. at 12-13.)
to
a
provide
sworn
Additionally, Plaintiff failed
certification.
11
(See
ECF
No.
124-7.)
Incomplete responses did not comply with the Magistrate Judge’s
Order to “fully respond.”
(Order Granting Mot. to Compel at 1,
ECF No. 108.)
Plaintiff argues that she is entitled to supplement her
responses,
stating
that
the
supplementation of discovery.9
Scheduling
Order
allows
for
(Pl.’s Appeal at 8, ECF No. 175.)
Federal Rule 26(e)(1) states the rule for supplementation of
general disclosures and responses, stating that a party “must
supplement
or
correct
its
disclosure
or
response:
(A)
in
a
timely manner if the party learns that in some material respect
the disclosure or response is incomplete or incorrect . . . or
(B)
as
ordered
by
the
court.”
Fed.
R.
Civ.
P.
26(e)(1).
Plaintiff’s arguments regarding her failure to supplement are
void
when
26(e)(1).
assessed
in
light
of
the
requirements
Plaintiff was ordered by the
under
Magistrate
Rule
Judge to
supplement her discovery responses, and did not do so.
The
discovery responses served on July 27, 2016, were the same as
those
that
Plaintiff
had
served
prior
to
the
entry
of
the
Court’s Order, except that all of the objections were removed.
(See ECF No. 124-4 and ECF No. 124-7.)
Additionally, Plaintiff
learned that her responses were incomplete as early as July 20,
9
The Scheduling Order sets the deadline for “Supplementation Under Rule
26(e)(2)” as September 2, 2016. (Scheduling Order at 2, ECF No. 57.) The
text contains a typo. The Scheduling Order should in fact read
“Supplementation Under Rule 26(e)(1),” thus setting the deadline for
supplementation of general discovery.
12
2016 (See ECF No. 124-5) and thus was required to supplement her
responses
previously
in
a
timely
discussed,
manner
following
however,
when
this
knowledge.
Plaintiff
As
provided
her
second set of responses on July 27, 2016, no supplementation was
included.
failed
to
Upon de novo review, the Court finds that Plaintiff
fully
comply
with
the
Magistrate
Judge’s
Order
Granting Defendants’ Motion to Compel.
The Court hereby ADOPTS the Report and Recommendation (ECF
No. 149) in its entirety.
Accordingly, Defendants’ Motion for
Sanctions (ECF No. 124) is hereby GRANTED IN PART AND DENIED IN
PART in accordance with the terms in the Report and
Recommendation.
IT IS SO ORDERED, this 12th day of September, 2016.
/s/ Jon P. McCalla
JON P. McCALLA
UNITED STATES DISTRICT JUDGE
13
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