Mortensen v. Busch Entertainment Corporation, et al

Filing 16

MEMORANDUM OPINION AND ORDER Granting Defendant's Motion to Dismiss 13 and Plaintiff's suit is DISMISSED WITH PREJUDICE. Signed by District Judge Raymond A. Jackson on 09/10/2019. (bboy, )

-FILED

IN THE UNITED STATES DISTRICT COURT I

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FOR THE EASTERN DISTRICT OF VIRGINIA'
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Newport News Division

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MnqpoLK^ VA COURT

KRISTINA L. MORTENSEN

Plaintiff,
V.

CIVIL ACTION NO.: 4:19-cv-00038-RAJ-RJK

SEAWORLD PARKS & ENTERTAINMENT LLC
Defendant.

MEMORANDUM OPINION AND ORDER

The matter currently before the Court is SeaWorld Parks & Entertainment LLC's
("Defendant") Motion to Dismiss and the accompanying Memorandum in Support. ECF No. 13
& 14. For the reasons set forth below, the Motion is GRANTED.
1. FACTUAL AND PROCEDURAL HISTORY

On April 18,2019, Kristina L. Mortensen's ("Plaintiff") action was properly removed by
Defendant and assigned to this Court. On May 2,2019, the Magistrate Judge issued a Pretrial
Order, pursuant to Fed. R. Civ. P. 26(f), which ordered a conference between the parties and a
Scheduling Conference consistent with Fed. R. Civ. P. 16(b). ECF No. 8. On May 22,2019,
this Court issued a Scheduling Order, pursuant to Fed. R. Civ. P. 16(b). ECF No.9. The
scheduling order provided that Plaintiffs discovery obligations were to be completed by August
28,2019. Id.

Defendant sent its first set ofinterrogatories and requests for production to Plaintiffs
counsel on May 15,2019. ECF No. 14-A. Plaintiffs counsel spoke with Plaintiff on May 21,
2019 and advised them that she had completed her responses to the Defendant's interrogatories,
which were due back to Defendant on June 17,2019. ECF No. 11. However,Plaintiff never

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responded to her counsel with her responses to Defendant's interrogatories, despite her counsel s
attempts to reach her on May 23, May 31,June 1, June 4,June 5,and June 10 of 2019. Id. On
June 19,2019, Plaintiffs counsel moved to withdraw pursuant to Fed. R. Civ. P. 83.1(c)(5).

ECF No. 10. In moving to withdraw, Plaintiffs counsel represents to this Court that Plaintiff has

not responded to their attempts to communicate with Plaintiff since their conversation regarding
Defendant's interrogatories on May 21,2019. ECF No. 11. After receiving no responses to any

ofits discovery requests. Defendant filed its Motion to Dismiss on August 6,2019. ECF No. 13.
11. LEGAL STANDARD

Rule 41(b), the relevant provision ofthe Federal Rules of Civil Procedure for this matter,
dictates that:

If the plaintiff fails to prosecute or to comply with these rules or a court order, a
defendant may move to dismiss the action or any claim against it. Unless the
dismissal order states otherwise, a dismissal under this subdivision (b) and any
dismissal not under this rule—except one for lack ofjurisdiction, improper venue,

or failure to join a party under Rule 19—operates as an adjudication on the merits.
As the United States Court of Appeals for the Fourth Circuit("Fourth Circuit") holds,"[t]he

district court had authority under Rule 41(b)to dismiss the case with prejudice, on its own
motion,for failure to prosecute." Davis v. Williams,588 F.2d 69,70(4th Cir. 1978)(citations

omitted). However,"[a] dismissal with prejudice is a harsh sanction which should not be
invoked lightly in view of'the sound public policy ofdeciding cases on their merits.'" Id. With
this in mind,the Fourth Circuit has set out a series of factors to govern a district court decision
making under Rule 41(b):

[T]he district court must balance considerations ofsound judicial administration,
applying four criteria:(1)the degree of personal responsibility on the part ofthe
plaintiff;(2)the amount of prejudice to the defendant caused by the delay;(3)the
presence or absence of a drawn out history of deliberately proceeding in a dilatory
fashion; and(4)the effectiveness of sanctions less drastic than dismissal.

Id. As such, this Court must apply the factors in Davis v. Williams(the "Davis Factors")to
determine whether dismissing the Plaintiff's suit with prejudice is warranted under the
circumstances.
III. DISCUSSION

With respect to Factor One, it is clear that Plaintiff is responsible for her failure to

prosecute her case before the Court. Plaintiff has failed to respond to any discovery recjuests in
violation ofthe Court's orders. In addition, the Plaintiff has failed to communicate with her

counsel since May 21,2019, despite their repeated efforts to assist her with discovery. ECF No.

11. Before seeking to withdraw from representing Plaintiff, Plaintiffs counsel attempted to
reach her through multiple channels, including certified mail verifying her receipt oftheir
overtures. Id. Plaintiffs conduct indicates she seeks to simply remove herselffrom the case and

does not wish to be burdened by discovery, an essential duty and responsibility ofa plaintiff in
both civil and criminal cases. See Shabazz v. PYA Monarch,LLC,271 F. Supp. 2d 797, 801
(E.D. Va.2003)("Furthermore, plaintiff has offered no reason for failing to comply with the
Federal Rules of Civil Procedure and Local Rules in other aspects ofthe case thus far, such as
filing memoranda oflaw with his motions and responding to discovery requests on time. The
plaintiffs failure to comply with these rules is completely inexcusable."). Therefore, the Court
concludes this factor weighs heavily in favor ofthe Defendant's Motion to Dismiss.

With respect to Factor Two, while the Court recognizes that discovery burdens are a

normal aspect of a lawsuit in federal court,the Plaintiffs complete failure to participate in the

discovery process has created substantial prejudice to the Defendant. The Court's May 22,2019
Scheduling Order provided that Plaintiffs responses to Defendant's interrogatories, requests for
production, and requests for admission were to be completed by August 28,2019. ECF No. 9.

At the end ofthe Plaintiffe period to fulfill her diseovety obligations pteseribed by this Court,
Defendant is left only with legal objeetions ftom PlaintifiPs eounsel to their intenogatories and
no further discovery infortnation. EOF No. 14-2. The PlaintifiPs unwillingness to participate in
discovery is depriving Defendant ofinfonnation necessary to mount a defense to the claims
agatnst them,substantially prejudicing them. Therefore, Factor Two weighs heavily in favor of
the Defendant's Motion.

With respect to Factor Three, PiaintifiPs pattern ofdisengagement with her own counsel
during discovery indicates a history ofdeliberately delaying the prosecution ofher case.

PlaintifPs counsel has made repeated attempts to engage with her regarding discovery after the
Court's Scheduling Order. ECFNo. 11. Despite six attempts to reach Plaintiffvia phone,email,
and certified mail between May 22,2019 and June 10,2019, Plaintiff has not responded.

Therefore, PlaintifPs conduct indicates an intent to withdraw ftom litigating her case or delaying
Its prosecution. Factor Three weights in favor of Defendant's Motion.

For the same reasons listed above,the Court finds Factor Four weighs in favor of

Defendant s motion,given PlaintifiPs disengagement with her counsel and nonparticipation in
discovery. The Court finds that a modification to the Scheduling Order would not incentivixe
Plaintiffto reengage in the prosecution ofher case and serve only to create further delay.
Moreover, the Court has considered the alternative remedy ofissuing a show cause order to
compel Plaintiff to participate in discovery. However,the Court concludes this would be an
ineffective and useless remedy because Plaintiffhas not answered any communications ftom her
own counsel and has abandoned any effort to participate in discovery or prosecute her case.

Additionally, Plaintiffhas failed to respond to Defendant's Motion to Dismiss indicating an
acquiescence to dismissal. Therefore, Factor Four weighs in favor of Defendant's Motion.

IV. CONCLUSION

For the foregoing reasons, the Defendant'

s Motion to Dismiss(ECF No. 13), put^uant to

Norfolk, Virginia

September/d^,2019

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