Emanuel v. Bastrop Independent School District

Filing 60

ORDER ADOPTING 53 Report and Recommendation; GRANTING 32 Motion for Sanctions in the form of costs and attorneys' fees in the amount of $5,000.00; DISMISSING AS MOOT 52 Motion to Continuance and Extension for Court Deadlines; DISMISS WITH PREJUDICE Charlene Emanuel's cause of action. Signed by Judge David A. Ezra. (kkc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
CHARLENE EMANUEL,

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Pro Se Plaintiff,
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vs.
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BASTROP I.S.D.,
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Defendants.
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________________________________ §

CV. NO. 1:12-CV-0592-DAE

ORDER: (1) DENYING OBJECTIONS TO MAGISTRATE JUDGE’S
MEMORANDUM AND RECOMMENDATION; (2) ADOPTING MAGISTRATE
JUDGE’S MEMORANDUM AND RECOMMENDATION
Before the Court is an objection to Magistrate Judge Austin’s
Memorandum and Recommendation filed by Charlene Emanuel (“Plaintiff”).
(“Obj.,” Dkt. # 56.) The Court held a hearing on Plaintiff’s Objections on June 26,
2014. Plaintiff appeared pro se, and John D. Husted, Esq., represented Bastrop
I.S.D. (“Defendant”). After careful consideration of the memoranda in support of
and in opposition to the Memorandum and Recommendation, the Court, for the
reasons that follow, DENIES Plaintiff’s Objections to the Memorandum and
ADOPTS the Magistrate Judge’s recommendations to GRANT Defendant’s Motion
for Sanctions (Dkt. No. 32) and DISMISS WITH PREJUDICE Emanuel’s cause

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of action. The Court further ADOPTS the Magistrate Judge’s recommendation that
the Court DENY AS MOOT Emanuel’s Motion for Continuance and Extension of
Court Deadlines (Dkt. No. 52).
The Court ADOPTS the Magistrate Judge’s recommendation to
sanction Emanuel in the form of costs and attorneys’ fees in the amount of FIVE
THOUSAND DOLLARS ($5,000.00) for violations of the Federal Rules of Civil
Procedure, to be paid to the opposing party.
BACKGROUND
On July 6, 2012, Plaintiff filed a complaint under Title VII against
Defendant, her former employer. (“Comp.,” Dkt. # 1.) In her complaint, Plaintiff
alleged Defendant discriminated against her on the basis of her race, color, national
origin, age and disability. (Comp. at 3.) Plaintiff further alleged that Defendant
retaliated against her for opposing its alleged discriminatory treatment. (Id. at 4.)
In May 2012, Defendant discharged Plaintiff from her employment
with the school district. Plaintiff asserts that discharge was the culmination of
discriminatory behavior by Defendant. (Id.) Defendant argues that Plaintiff’s
dismissal and all previous disciplinary action against her resulted from her poor
performance and inappropriate behavior. (Dkt. # 16.)
Defendant moved for sanctions and sought an order dismissing
Plaintiff’s causes of action and awarding Defendant its costs and fees. (“Mot.,” Dkt.
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# 32.) Defendant asserts that Plaintiff has repeatedly missed discovery deadlines
and refused to hand over relevant evidence, resulting in Defendant’s inability to
present a proper defense. (Id. at 1-2.)
Throughout the course of this litigation, Plaintiff has had sporadic legal
representation. Although Plaintiff initially filed her complaint pro se, she later
retained the legal services of Terry Davis, who filed an Amended Complaint on her
behalf on December 28, 2012. (Dkt. # 13.) However, seven months later, Davis
sought to withdraw as Plaintiff’s attorney (Dkt. # 21), and Judge Yeakel permitted
his withdrawal on August 5, 2013. (Dkt. # 22.) Plaintiff proceeded pro se until
September 5, 2013, when she retained attorney Chris Tolbert. Mr. Tolbert never
made an appearance before the Magistrate; however, he did sign and serve
interrogatory answers, defend Plaintiff’s deposition, and otherwise represent her
through the fall and winter of 2013–14. In February 2014, Mr. Tolbert informed
Plaintiff he could no longer represent her.
On May 31, 2013, the Court issued its initial scheduling order and set
August 16, 2013 as the deadline for Plaintiff to designate potential witnesses,
testifying experts and proposed exhibits. (Dkt. # 20 ¶ 2.) As of November 5, 2013,
Plaintiff had not produced any of the relevant information due on August 16, 2013.
(Dkt. # 26 at 3.) Defendant filed a motion to compel the relevant documents. (Id.)
On May 31, 2013, Defendant served Plaintiff with (1) Defendant’s First
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Set of Interrogatories, (2) Defendant’s First Set of Requests for Production, and
(3) Defendant’s First Set of Requests for Admissions. Plaintiff’s deadline to
respond was June 30, 2013. (Dkt. # 26, Ex. A.)
On July 5, 2013, counsel for Defendant conferred with Plaintiff’s first
attorney, Mr. Davis, regarding his intent to file a Motion for Withdrawal and an
extension of Plaintiff’s deadline to respond to discovery. Defendant agreed to a
one-month extension of Plaintiff’s deadline to respond until July 30, 2013. (Dkt.
# 21.) Despite Defendant’s extension of the response deadline, Plaintiff still failed
to turn over the necessary documents. (Id.)
On November 15, 2013, the parties agreed that Plaintiff would provide
all overdue discovery prior to Plaintiff’s deposition on November 22, 2013. (Dkt.
# 28 at 3.) According to Bastrop I.S.D., Plaintiff only sent Defendant an unsigned,
draft witness list on November 27, 2013, which Plaintiff did not file with the court.
(Id. at 1–2.)
On December 27, 2013, Defendant again agreed to an extension of the
discovery deadline, this time, until February 5, 2014. (Dkt. # 31.) On January 30,
2014 the parties’ counsels conferred regarding the overdue discovery items. (Dkt.
# 32 at 13.) At that time, Plaintiff’s counsel informed Defendant’s counsel that he
did not know if Plaintiff would provide any of the information before the new
deadline. (Id.) Counsel for Defendant also explained that the documents he had
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received from Plaintiff showed that Plaintiff received treatment from other
healthcare providers that she did not disclose, and that additional medical
authorizations for those additional providers were necessary. (Id.) On February 7,
2014, after yet another discovery deadline had passed, Defendant filed the Motion
for Sanctions at issue here. (Id.)
LEGAL STANDARD
I.

Review of a Magistrate Judge’s Memorandum and Recommendation
Any party may contest the Magistrate Judge’s findings by filing written

objections within fourteen days of being served with a copy of the Memorandum
and Recommendation. 28 U.S.C. § 636(b)(1)(C). The objections must specifically
identify those findings or recommendations that the party wishes to have the district
court consider. Thomas v. Arn, 474 U.S. 140, 151 (1985). A district court need not
consider “[f]rivolous, conclusive, or general objections.” Battle v. U.S. Parole
Comm’n, 834 F.2d 419, 421 (5th Cir. 1987) (quoting Nettles v. Wainwright, 677
F.2d 404, 410 n.8 (5th Cir. 1982), overruled on other grounds by Douglass v. United
States Auto. Ass’n, 79 F.3d 1415 (5th Cir. 1996)).
The Court must conduct a de novo review of any of the Magistrate
Judge’s conclusions to which a party has specifically objected. See 28 U.S.C.
§ 636(b)(1)(C) (“A judge of the court shall make a de novo determination of those
portions of the report or specified proposed findings or recommendations to which
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objection is made.”). On the other hand, findings to which no specific objections
are made do not require de novo review; the Court need only determine whether the
Memorandum and Recommendation is clearly erroneous or contrary to law. United
States v. Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989).
DISCUSSION
I.

Dismissal of Plaintiff’s Cause of Action
Defendant brought this Motion for Sanctions pursuant to Fed. R. Civ.

P. 37(b)(2). When a party “fails to obey an order to provide or to permit discovery”
a court may respond by striking the pleadings in whole or in part, staying further
proceedings until the order is obeyed, dismissing the action or proceeding in whole
or in part or rendering a default judgment against the disobedient party. Fed. R. Civ.
P. 37(b)(2)(A)(iii)–(vi). A trial judge has broad discretion to fashion an appropriate
sanction. Pressey v. Patterson, 898 F.2d 1018, 1021 (5th Cir. 1990). However,
several factors must be present before a district court may dismiss a case with
prejudice as a sanction for violating a discovery order. FDIC v. Conner, 20 F.3d
1376, 1380 (5th Cir. 1994). First, there must be a refusal to comply that results from
“willfulness or bad faith and is accompanied by a clear record of delay or
contumacious conduct.” Coane v. Ferrara Pan Candy Co., 898 F.2d 1030, 1032 (5th
Cir.1990). Second, the violation of the discovery order must be attributable to the
client instead of the attorney. Id. Third, the violating party's misconduct “must
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substantially prejudice the opposing party.” Id. Finally, the Fifth Circuit has
indicated that dismissal is usually improper if a less drastic sanction would
substantially achieve the desired deterrent effect. FDIC v. Conner, 20 F.3d at 1381.
After examining these factors, the Court finds that each of them weighs
heavily against the Plaintiff and supports the Magistrate Judge’s finding that this
case should be dismissed with prejudice. First, there is no way to characterize
Plaintiff’s refusal to hand over the appropriate discovery items other than willful and
in bad faith. Plaintiff missed multiple deadlines, even after Defendant agreed to
numerous extensions. (See Dkt. # 32 at 2–15.) To date, Plaintiff is still not in
compliance with her discovery obligations or the Court’s Order directing her to
comply or risk facing the sanctions previously mentioned. (Dkt. #29.) During her
deposition, Plaintiff refused to answer or provided evasive answers to simple
questions such as the identities of those she claims racially discriminated against her
(Dkt. #32 Ex. N at 334–336.) She refused to answer pointed questions regarding
documentation of her poor performance at work. (Id. at 185–195.) Plaintiff claimed
to not remember several episodes of nervous breakdowns at work or direct actions
taken against her by supervisors for her poor performance. (Id. at 328–333.)
Second, although Plaintiff attempted, in her Objection to place the
blame for these failures on her attorneys, she has provided no evidence to support
this theory. (Obj. at 4.) Plaintiff only relies on the fact that during some of the
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relevant time, she had been represented by an attorney. That is not sufficient to
excuse her failure to comply with discovery obligations. Plaintiff must offer more
evidence than the bare fact that she was represented at the time of the missed
deadlines. A district court need not consider frivolous, conclusive, or general
objections. Battle, 834 F.2d at 421. Additionally, when pressed by Defense
Counsel, Plaintiff’s Counsel admitted that he had not received any discovery
evidence from Plaintiff despite the looming deadline. (Dkt. # 32 at 13.) Similarly,
Plaintiff had also failed to comply with her discovery obligations for more than
seven months prior to Defendant filing its Motion for Sanctions. Plaintiff was pro
se during much of this time and was solely responsible for meeting her discovery
obligations of which she was well aware. Further, the record shows that Plaintiff
actively hindered and personally attacked her counsel for following simple
procedural matters required by law. In her “grievance,” filed on March 7, 2014,
Plaintiff accused her attorney of conspiring with Defendant’s counsel to violate her
privacy rights by sharing relevant medical evidence as part of discovery. (Dkt.
# 36.) Plaintiff claimed she was never consulted about signing release forms for the
records; however the record indicates that her attorney did discuss this matter with
her. (Dkt. # 49 at 2.) Finally, Plaintiff failed to appear at the April 22, 2014
hearing. Plaintiff claims her absence was in reliance of statements made by
Defendant Counsel which indicated they would “handle the matter.” (Obj. at 5.)
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However, because the hearing was never cancelled by the Court and because
Plaintiff has no evidence of Defendant’s counsel’s statements, this will not excuse
Plaintiff’s absence.
Plaintiff’s refusal to meet court directed deadlines has severely
prejudiced Defendant. Nearly one year after the initial scheduling order was
released, Plaintiff has still not complied with her discovery obligations including
designating potential witnesses, testifying experts, proposed exhibits or providing
initial disclosures. (Dkt. # 53 at 8.) Plaintiff’s delays have cost Defendant
significant time and money and required them to draft and file additional motions.
(Dkt. # 32 at 16.)
Finally, lesser sanctions would not be effective or serve any beneficial
purpose. Plaintiff has shown blatant disregard for this Court’s authority. She
remains delinquent in filing required discovery, even though she was specifically
warned that her failure to comply would result in sanctions. (Dkt. # 29.) Plaintiff
has demonstrated her disregard for the legal system and process she invoked.
In addition to violating multiple court orders, Plaintiff did not respond
to Defendant’s Motion to Compel or Motion for Sanctions. (Dkt. # 53.) Rather than
use those opportunities to correct the record and explain her delinquencies, Plaintiff
chose to file frivolous motions in limine to prevent Defendant from discussing
relevant medical testimony and accusing all legal counsel involved in the case of a
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conspiracy to violate her privacy1. (Dkt. ## 35, 36.)
The Court and Defendant’s Counsel have been exceedingly lenient with
Plaintiff; however, Plaintiff’s continuing contumacious conduct warrants a severe
sacntion. Plaintiff’s dilatory tactics were so blatant, and her misrepresentations so
continuous, that the Court finds that there would be no purpose in attempting to
issue a lesser sanction. Plaintiff has already demonstrated her willingness to
disregard this Court’s orders and hinder the progress of this case. Accordingly, this
Court concludes that only the sanction of dismissal with prejudice will serve the
desired deterrent effect. Additionally, because Plaintiff’s case is dismissed with
prejudice, her Motion for Continuance and Extension for Court Deadlines (Dkt.
# 52) is also dismissed as moot.
II.

Sanction of Attorney Fees
Fed. R. Civ. P. 37(b)(2)(C) states that the Court “must order the

disobedient party… to pay the reasonable expenses, including attorney’s fees,
caused by the failure, unless . . . other circumstances make an award of expenses
unjust.” Defendant submitted a chart detailing the legal expenses incurred
defending this case. (Dkt. # 51, Ex. 2.) Defendant seeks attorney’s fees totaling
$17,738.00. (Id.)

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Plaintiff has subsequently admitted that there was no basis for the accusations she
levied against her attorney and opposing counsel. (Dkt. # 56 at 16.)
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The Magistrate Judge declined to impose the full measure of attorney’s
fees on Plaintiff, in light of her pro se status, and instead recommended that she be
assessed $5,000 in fees. Emanuel objected to this sanction. (Dkt. # 56 at 5.) After
careful consideration of the facts, and considering the expenses incurred by
Defendant and the judicial resources wasted as a result of Plaintiff’s continued
failure to comply with court orders, the Court finds that this award is not only
reasonable, but also generous. See Tollett v. City of Kemah, 285 F.3d 357, 368 (5th
Cir. 2002) (“a party and its counsel can only be held responsible for the reasonable
expenses [including attorney's fees] caused by their failure to comply with
discovery) (internal quotations omitted). See also Chapman & Cole v. Itel Container
Int'l B.V., 865 F.2d 676, 687 (5th Cir. 1989) (Under Rule 37 a party can only be
held responsible for the reasonable expenses caused by their failure to comply with
discovery).
Accordingly, the Court adopts the Magistrate’s recommendation that
Plaintiff be sanctioned in the sum of $5,000 for attorney’s fees incurred by
Defendant as a result of Plaintiff’s refusal to comply with discovery orders.

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CONCLUSION
For the foregoing reasons, the Court GRANTS Defendant’ Motion for
Sanctions and ADOPTS the Magistrate Judge’s RECOMMENDATIONS. (Dkt.
# 53.)
IT IS SO ORDERED.
DATED: Austin, Texas, July 2, 2014.

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