Moba et al v. Total Transportation Services, Inc., et al

Filing 71

ORDER granting 54 Defendants' Motion for Contempt and sanctions and this case is dismissed. Dismissal is with prejudice as to Plaintiffs Amanuel Medhani and Gidez Beraki. Dismissal is without prejudice as to all other plaintiffs. No costs or fees are awarded, by Judge Marsha J. Pechman.(MD)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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AYNALEM MOBA, et al.,

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Plaintiffs,
v.

CASE NO. C13-138 MJP
ORDER GRANTING
DEFENDANTS’ MOTION FOR
CONTEMPT AND SANCTIONS
AND DISMISSING CASE

TOTAL TRANSPORTATION
SERVICES INC, et al.,

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Defendants.
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This matter is before the Court on Defendants’ motion for contempt and sanctions based
on Plaintiffs’ failure to comply with discovery and with this Court’s previous Order compelling

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Plaintiffs to comply. (Dkt. No. 54 at 1.) Defendants ask the Court to dismiss Plaintiffs from the
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lawsuit with an award of costs as a sanction, or alternatively, limit Plaintiffs’ testimony and

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evidence to that which was timely disclosed. (Id. at 2.) The Court considered the motion,
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Plaintiffs’ response (Dkt. No. 62), and Defendants’ reply (Dkt. No. 66). The motion was

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discussed at a pretrial conference held in open court on June 30, 2014. The trial date of this case
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is July 7, 2014. (Dkt. No. 19.) The motion is GRANTED and this case is DISMISSED.
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ORDER GRANTING DEFENDANTS’ MOTION
FOR CONTEMPT AND SANCTIONS AND
DISMISSING CASE- 1

1 Dismissal is with prejudice as to Plaintiffs Amanuel Medhani and Gidez Beraki. Dismissal is
2 without prejudice as to all other Plaintiffs.
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Background

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Plaintiffs brought suit against Defendants alleging violations of the Fair Labor Standards

5 Act (“FLSA”), violations of the Washington Law Against Discrimination Act (“WLAD”),
6 violations of Washington wage laws, intentional infliction of emotional distress, and negligence.
7 (Dkt. No. 1.) Defendants moved for summary judgment (Dkt. No. 30), and Plaintiffs filed
8 opposition to the summary judgment motion and moved for a continuance pursuant to Fed. R.
9 Civ. P. 56(d). (Dkt. No. 42.) On April 25, 2014, this Court granted summary judgment on all
10 claims except the hostile work environment claim brought under the Washington Law Against
11 Discrimination. (Dkt. No. 46 at 14.) The Court denied Plaintiffs motion for a continuance. (Id. at
12 16.)
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In the Order denying a continuance, the Court addressed concerns regarding Plaintiffs’

14 counsel Lawrence Hildes’s continual difficulty meeting Court deadlines and participating in
15 discovery. The Court noted the discovery deadline had already been extended once to
16 accommodate Mr. Hildes’s travel and trial schedule. (Dkt. No. 46 at 6.) The Court also raised a
17 concern that the failure to comply with Court deadlines was a pattern for Mr. Hildes, referencing
18 the following cases: Acorn et al. v. City of Seattle et al., Case No. 05-00460, Dkt. No. 39 (W.D.
19 Wash. 2005); White v. Witt, Case No. 05-00695, Dkt. No. 75 (W.D. Wash. 2005); Skvorak et al.
20 v. Thurston County et al., Case No. 05-05100, Dkt. No. 42 (W.D. Wash. 2005); Dunn et al. v.
21 Hyra et al., Case No. 08-00978, Dkt. No. 34 (W.D. Wash. 2008); Hall et al. v. County of
22 Whatcom (WCSO) et al., Case No. 09-01545, Dkt. No. 151 (W.D. Wash. 2009); Love et al. v.
23 City of Olympia et al., Case No. 09-05531, Dkt. No. 35 (W.D. Wash. 2009); Klyne v. Lindros et
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ORDER GRANTING DEFENDANTS’ MOTION
FOR CONTEMPT AND SANCTIONS AND
DISMISSING CASE- 2

1 al., Case No. 12-05105, Dkt. No. 19 (W.D. Wash. 2012); Rojsza v. Ferndale et al., Case No. 122 01149, Dkt. Nos. 10, 15 (W.D. Wash. 2012); Elmi et al. v. SSA Marine, Inc. et al., Case No. 133 01703, Dkt. No. 14 (W.D. Wash. 2013); Hendricks et al. v. Pierce County et al., Case No. 134 05690, Dkt. Nos. 20, 25 (W.D. Wash. 2013). (Id. at 6-7.) Since the Court’s Order on summary
5 judgment, Mr. Hildes has also requested extensions of time in Young v. McEachron, Case No.
6 14-590, Dkt. No. 13 (W.D. Wash. 2014) and in Hendricks v. County of Pierce (PSCO), Case No.
7 13-5690, Dkt. No. 35 (W.D. Wash. 2014). This problem of failing to adhere to court scheduling
8 orders goes back many years, and has been repeated with multiple judges in the District. See,
9 Panagacos v. Towery, Case No. 10-5018, Dkt. No. 227 (W.D. Wash. 2013)(“The Court is
10 reluctant to continually enable Plaintiffs’ counsel’s apparent inability to comply with the Court’s
11 schedule−even when that schedule is modified at the Plaintiffs’ request.”)
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On April 28, 2014, this Court granted a motion to compel brought by Defendants,

13 ordering Plaintiffs to fully answer interrogatories and requests for production by May 6, 2014,
14 including production of requested tax returns. (Dkt. No. 47 at 4.) Upon finding Plaintiffs’
15 counsel had inappropriately instructed a deponent not to answer certain questions, the Court also
16 extended the discovery deadline to May 28, 2014 for depositions to be reconvened. (Id.)
17 Defendants allege Plaintiffs’ counsel indicated he would stipulate to dismissal of Plaintiffs who
18 failed to comply with the Court’s Order. (Dkt. No. 54 at 3.) On May 5, 2014, Defendants
19 provided Plaintiffs with a list of Plaintiffs who either failed to answer interrogatories or failed to
20 produce documents. (Dkt. No. 59 at 5.) No extension of the May 6, 2014 deadline was requested
21 of the Court.
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On May 12, 2014, Defendants learned Plaintiffs’ attorney was ill, and refrained from

23 contacting Plaintiffs until May 16, 2014, at which point Plaintiffs counsel was advised any
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ORDER GRANTING DEFENDANTS’ MOTION
FOR CONTEMPT AND SANCTIONS AND
DISMISSING CASE- 3

1 dismissals should include an award of costs. (Dkt. No. 54 at 3.) Defendants received
2 interrogatory answer verification pages from 20 Plaintiffs, unattached to interrogatory answers
3 and including verifications from some Plaintiffs who had not sent any actual answers on May 23,
4 2014, and on May 29, 2014 Defendants advised Plaintiffs the motion for sanctions at issue here
5 would be filed on June 4, 2014. (Dkt. No. 55 at 2-3.) On June 4, 2014, six more responses were
6 received. (Id.)
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As of the date Defendants filed for sanctions, Plaintiffs Beraki, Medhani, and D.

8 Gebremichael did not answer interrogatories, Plaintiffs Beraki, Chernat, Fentea, Girmay,
9 Medhani, and H. Tsegay produced no documents, and not a single Plaintiff produced 2013 tax
10 returns. (Dkt. No. 55 at 3.) Plaintiff Fentea did answer interrogatories, but Defendants allege the
11 answers were insufficient. (Dkt. No. 59-1 at 5.) Of the Plaintiffs who answered interrogatories, at
12 least six Plaintiffs (Sebhatu, H. Tsegay, Gebrehiwet, Kidane, Teklemarium, and S. Tsegay) did
13 not answer until June 4, 2014. (Dkt. No. 55 at 3.)
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The Court’s Order compelling Plaintiffs to comply with discovery obligations also

15 allowed Defendants to reconvene depositions at Plaintiffs’ expense by May 28, 2014. (Dkt. No.
16 47 at 4.) On May 16, 2014, Defendants sent a letter to Mr. Hildes noting Defendants had
17 requested depositions be reconvened, and Defendants had agreed to schedule depositions after a
18 May 15, 2014 settlement conference. (Dkt. No. 59 at 7.) Mr. Hildes later requested the mediation
19 be rescheduled to May 28, 2014. (Id.) Mediation was completed unsuccessfully, and Defendants
20 attempted to schedule the depositions of Plaintiffs Moba and C. Gebremichael. (Id.) Reconvened
21 depositions were not successfully scheduled or completed, and Defendants were ultimately able
22 to take only 5 depositions. (Dkt. No. 54 at 2.) Defendants represented at the June 30, 2014
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ORDER GRANTING DEFENDANTS’ MOTION
FOR CONTEMPT AND SANCTIONS AND
DISMISSING CASE- 4

1 pretrial conference that in preparation for trial they had intended to take each Plaintiff’s
2 deposition after reviewing answers to interrogatories and tax returns.
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The difficult discovery issues in this case are further complicated by the need for

4 interpreters in multiple languages. As of one week before trial, Mr. Hildes had not made
5 arrangements for interpreters for presentation of each Plaintiff’s testimony at trial, nor was there
6 certification accompanying the answers to interrogatories that they were interpreted for the
7 Plaintiffs so that they knew what they were verifying.
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At the pretrial conference, Plaintiffs agreed two Plaintiffs, Amanuel Medhani and Gidez

9 Beraki, should be dismissed from this case with prejudice because they have not responded to
10 discovery and are not reachable, or no longer wish to be in this case. Plaintiffs indicated at the
11 conference they were not prepared to begin trial on the scheduled trial date.
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Analysis
A court may award sanctions against a party that fails to comply with a discovery order,

14 up to and including dismissal of the action in whole or in part, or entering default judgment
15 against a party. Fed. R. Civ. P. 37(d)(3). Courts “weigh five factors in deciding whether to
16 dismiss a case for failure to comply with a court order: (1) the public’s interest in expeditious
17 resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the
18 defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the
19 availability of less drastic sanctions.” Allen v. Bayer Corp., 460 F.3d 1217, 1226 (9th Cir.
20 2006)(internal citations omitted). These factors are not conditions precedent to issuing a
21 sanction, but a way for courts to determine the best course of action. Id. Dismissal is a harsh
22 penalty, and should only be imposed in extreme circumstances. Id. A court must generally
23 consider less drastic alternative sanctions before using the sanction of dismissal. Adriana Int’l
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ORDER GRANTING DEFENDANTS’ MOTION
FOR CONTEMPT AND SANCTIONS AND
DISMISSING CASE- 5

1 Corp. v. Thoeren, 913 F.2d 1406, 1412 (9th Cir. 1990). “Where a court order is violated, the first
2 two factors support sanctions and the fourth factor cuts against a default. Therefore, it is the third
3 and fifth factors that are decisive.” Id.
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Defendants argue the harshest sanction of complete dismissal is appropriate because

5 Plaintiffs’ failure to comply with discovery is not justified or harmless, and this Court already
6 utilized a less drastic sanction in granting Defendants’ earlier motion to compel. (Dkt. No. 54 at
7 9.) Plaintiffs assert delays in compliance with discovery were justified, caused by Plaintiffs’
8 counsel’s illness and obligations in a separate case. (Dkt. No. 62 at 5.) Plaintiffs also assert a
9 belief that Defense counsel verbally granted Plaintiffs additional time, until June 4, 2014, to
10 comply with this Court’s discovery Orders. (Id.)
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Upon consideration of the factors provided by the Ninth Circuit, the Court finds the

12 sanction of dismissal without prejudice the best and most practical course of action in this case.
13 “A defendant suffers prejudice if the plaintiff’s actions impair the defendant’s ability to go to
14 trial or threaten to interfere with the rightful decision of the case.” Adriana Intl. Corp., 913 F.2d
15 at 1412. “Failure to produce documents as ordered . . . is considered sufficient prejudice.” Id.
16 Plaintiffs failed to comply with discovery, even following an Order compelling them to do so,
17 and the Court will not require Defendants to defend themselves without the benefit of
18 depositions and complete discovery responses. Allowing this case to proceed to trial would be
19 prejudicial to Defendants.
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The Court also finds less severe sanctions would not be adequate under the circumstances

21 in this case. The history of this litigation indicates any further extension of time would only
22 result in waste, and would hinder the proper administration of justice. Dismissal is appropriate
23 given the repeated warnings from this Court that Plaintiffs must comply with their discovery
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ORDER GRANTING DEFENDANTS’ MOTION
FOR CONTEMPT AND SANCTIONS AND
DISMISSING CASE- 6

1 obligations in a timely manner. (See, Dkt. No. 47.) Additionally, dismissal without prejudice
2 will allow Plaintiffs to re-file this case and properly participate in discovery. While some
3 Plaintiffs allege negative treatment occurring as far back as “around 10 years ago” (Dkt. No. 59
4 at 3), most allegations of hostile work environment are alleged between 2011 and 2013. (See,
5 Dkt. No. 58 at 3.) Plaintiff Sebhatu describes 2013 as “the worst year for us.” (Dkt. No. 59-1 at
6 15.) While the Washington Law Against Discrimination does not contain its own limitations
7 period, Washington Courts apply the general statute of limitations for personal injury actions.
8 Antonius v. King County, 153 Wn.2d 256, 261 (2004), RCW 4.16.080(2). The applicable statute
9 of limitations is three years, and most of Plaintiffs’ allegations will be capable of timely re-filing.
10 Id.
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Finally, while the Court is sympathetic to Plaintiffs’ counsel’s health concerns, the Court

12 finds that even with the described limitations counsel should have been able to comply with
13 discovery in this case. Counsel asserts he fell ill on May 10, 2014, and was incapacitated until
14 May 17, 2014. (Dkt. No. 62 at 2.) This Court’s Order on Defendants’ motion to compel was filed
15 on April 28, 2014, and required compliance by May 6, 2014, before the alleged illness onset
16 date. (Dkt. No. 47.) At the pretrial conference held on June 30, 2014, Plaintiffs’ counsel had no
17 clear plan for the presentation of evidence or proof of damages. Plaintiffs’ counsel had no plan
18 for how the Court or jury would grapple with 25 individual Plaintiffs using multiple languages,
19 and no plan for how each individual Plaintiff would be presented. In short, Plaintiffs were not
20 ready to go to trial, and based upon Mr. Hildes’s inability to organize and respond to deadlines
21 and discovery throughout the case, there appeared to the Court no date or extension of time that
22 could cure his disorganization.
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ORDER GRANTING DEFENDANTS’ MOTION
FOR CONTEMPT AND SANCTIONS AND
DISMISSING CASE- 7

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Health and scheduling problems appear to be an ongoing issue for Plaintiffs’ counsel, and

2 the Court reminds counsel of the obligations of Rule 1.16(a)(2) of the Washington Rules of
3 Professional Conduct. This Rule requires an attorney to withdraw from representation of a client
4 if “the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent
5 the client.” Mr. Hildes is strongly urged by this Court to contact the Washington State Bar
6 Association to seek assistance from the Lawyers Assistance Program, and to find counsel for his
7 clients while he attends to his own physical and mental health issues.
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Conclusion
Plaintiffs failed to comply with the discovery Orders of this Court. If this case were

10 allowed to go forward, Defendants would be prejudiced by their inability to obtain full
11 discovery. No sanction less drastic than dismissal is appropriate. Defendants’ motion for
12 contempt and sanctions is GRANTED and this case is DISMISSED. Dismissal is with prejudice
13 as to Plaintiffs Amanuel Medhani and Gidez Beraki. Dismissal is without prejudice as to all
14 other Plaintiffs. No costs or fees are awarded.
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The clerk is ordered to provide copies of this order to all counsel.

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Dated this 3rd day of July, 2014.

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A

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Marsha J. Pechman
Chief United States District Judge

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ORDER GRANTING DEFENDANTS’ MOTION
FOR CONTEMPT AND SANCTIONS AND
DISMISSING CASE- 8