Sullivan, Dolores et al v. Dolgencorp, LLC
ORDER denying 24 Motion to exclude witnesses by plaintiff Dolores Sullivan ; denying 52 Motion for Sanctions by plaintiff. Plaintiff may have until 12/3/14 to renew her request for fees. Defendant may have until 12/8/14 to respond. Signed by District Judge James D. Peterson on 11/26/14. (rep)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
DOLORES A. SULLIVAN,
OPINION & ORDER
incorrectly designated as Dollar General Corporation,
This is a personal injury suit, which the defendant, Dolgencorp, LLC, removed to this
court on the basis of diversity jurisdiction. Plaintiff Dolores Sullivan alleges that she tripped
while shopping in one of the defendant’s Dollar General Stores, suffering serious injuries as a
result. The matters now before the court arise from a series of discovery motions filed by
This case got off to a slow start, and the parties are now suffering from their initial lack
of diligence. The court held a preliminary pretrial conference in November 2013, and it set the
calendar in a November 21, 2013, scheduling order. Dkt. 9. But then, except for a pair of expert
witness disclosures (which for some reason were filed with the court, though they need not have
been), this case sat apparently ignored for 10 months. The parties returned from radio silence,
not with dispositive motions or discovery disputes, but with a joint request to move the trial
date by three months. They explained that there was “insufficient time to allow [them] to
complete discovery to properly prepare for trial as scheduled.” Dkt. 14. The court denied their
request. Dkt. 15.
Facing the December 15, 2014, trial date, the parties are now in a rush to complete
discovery. The process is not going smoothly, particularly for Sullivan, who has filed three
discovery-related motions. The court denied the bulk of her first motion as moot because
Dolgencorp provided the requested discovery less than an hour after Sullivan filed her motion to
compel it (of course, it was still “late” for purposes of Federal Rules of Civil Procedure 33 and
34). The two motions that remain request that the court (1) prevent Dolgencorp from calling
certain witnesses at trial, Dkt. 24, and (2) grant default judgment on liability against
Dolgencorp as a discovery sanction, Dkt. 52. Both motions seek redress for the same basic
conduct: Dolgencorp’s delay in identifying two employees who were present the day of her fall.
Neither party is blameless: Dolgencorp should have disclosed the witnesses earlier, but Sullivan
should have pressed the issue to resolution when there was time to fix it. The court will not
grant the relief Sullivan requests, and her motions are denied.
Sullivan alleges that on May 5, 2013, she was shopping at a Dollar General Store. She
walked down an aisle, stopped, reached up to grab an item off of a shelf, and then tripped as she
turned back to her cart. The parties appear to agree that Sullivan tripped over a “stack out,” a
cardboard display stand that was set-up in the aisle. Sullivan suffered bruises and a fractured
spine, and she required hospitalization. Her complaint alleges that Dolgencorp failed to
maintain a “safe place,” as required by Wisconsin’s Safe Place Statute, Wis. Stat. § 101.11.
According to Sullivan, this failure caused her injuries.
After a pretrial hearing, the court issued an order setting the calendar for this case. Dkt.
9. The court set an October 31, 2014, cutoff for discovery, and required both parties to make
their Rule 26(a)(3) disclosures by November 10, 2014. Id. The parties later agreed to extend the
discovery cutoff to November 28, 2014, and the court accepted the extension, but reminded
them that their pretrial filing deadlines remained the same. Dkt. 19. Despite the extension, the
parties have had difficulty completing discovery and preparing for trial.
The key problem, apparently, is with the Dolgencorp employees who were present at the
store the day of Sullivan’s fall. Sullivan would like to interview, depose, and possibly call these
witnesses to testify at trial. Her goal is to determine “whether or not they implemented the rules
and procedures regarding maintenance and safety, trained their employees regarding those rules
and were following those rules on the day in question.” Dkt. 49, at 9-10. But Dolgencorp has
been slow to identify these employees. In September 2014, Dolgencorp initially identified only
one witness by name: Tracey Latham, the former manager of the Dollar General Store where the
accident occurred. On November 4, 2014, Dolgencorp identified Everett Rogers, a former
assistant manager of the store in question, and Caren Eldred, a sales associate. On November 5,
Dolgencorp filed an amended witness list including Rogers and Eldred. With less than a week
before Sullivan needed to file a list of the witnesses she planned on calling at trial, Dolgencorp’s
additions left her with little time to interview and depose the newly identified employees.
To make matters worse, Latham and Rogers are no longer employed by Dolgencorp, and
they have been unresponsive to the company’s communications. In a November 4, 2014, letter
to Sullivan’s attorney, Dolgencorp’s attorney provided the last-known addresses for the former
employees and explained that Sullivan could subpoena them if she wanted to take their
depositions. Because they were former employees, however, Dolgencorp objected to Sullivan
speaking with them outside the presence of counsel.
Two days after receiving Dolgencorp’s amended witness list, Sullivan moved to prevent
Dolgencorp from calling the new witnesses. Dkt. 24. About two weeks later, Sullivan moved the
court for judgment on liability as a discovery sanction. Dkt. 52. The second motion repeated the
issues Sullivan raised in the first motion, but added that Dolgencorp had compounded the
problem with continuing discovery delays.
Both motions present essentially the same argument. Sullivan contends that
Dolgencorp’s tardy identification of its witnesses and its failure to timely respond to discovery
requests have prevented her from taking discovery from these witnesses, which has prevented
her from putting together evidence needed for her liability case. Sullivan brought both motions
under Rule 37, purporting to seek discovery sanctions for Dolgencorp’s violations of Rule 26.
The seeds of the parties’ difficulties were sown at the beginning of the case. Apparently
because the case was removed to this court, the parties did not attend to their initial disclosure
obligations. Sullivan notes that, under Rule 26(a)(1)(A)(i), Dolgencorp should have made initial
disclosures that included “the name and, if known, the address and telephone number of each
individual likely to have discoverable information—along with the subjects of that
information—that the disclosing party may use to support its claims or defenses, unless the use
would be solely for impeachment.” Sullivan is correct that these disclosures should have taken
place within 14 days of the parties’ Rule 26(f) conference. But Dolgencorp informs the court
that the parties never had such a conference, nor did they file the required discovery plan with
the court. 1 Dkt. 46, at 2 and Dkt. 57, at 6. There was never any court order setting a deadline
for initial disclosures in this case, and so apparently neither party made its Rule 26(a)(1)(A)(i)
Sullivan has not confirmed that the parties never met and conferred, but she has had several
opportunities to set the record straight if she needed to. She has not done so, and the court
therefore assumes that Dolgencorp is correct that the parties jointly failed to meet their Rule
The parties should have figured out a time to make their initial disclosures, and either
party could have asked the court for help if they felt that they did not get what they were
entitled to. But Sullivan has failed to identify any actual violation of Rule 26 that would give
rise to the “automatic and mandatory” sanction of excluding witnesses when a party fails to
make its required initial disclosures. See Fed. R. Civ. P. 37(c)(1); NutraSweet Co. v. X-L Eng’g Co.,
227 F.3d 776, 786 (7th Cir. 2000).
The court agrees with Sullivan that Dolgencorp’s disclosures appear to have occurred
awfully late in the game, but Sullivan’s own delay in pursuing discovery makes it difficult to
take her request for sanctions seriously. She filed this case over a year ago, and she has had
significant time to build proof for her theory of liability. She did not file her first set of discovery
requests until three months ago, and the first time she brought Dolgencorp’s missing initial Rule
26(a) disclosures to the court’s attention was just over a month before trial. As the pretrial
conference order in this case warned, “[t]his court also expects the parties to file discovery
motions promptly if self-help fails. Parties who fail to do so may not seek to change the schedule
on the ground that discovery proceeded too slowly to meet the deadlines set in this order.” Dkt.
9, at 4. If the testimonies of the missing store employees were critical to Sullivan’s case, she
should have sought immediate assistance from the court after making an unsuccessful, good
faith effort to resolve the problem with Dolgencorp’s counsel; waiting and seeking extreme
sanctions was the wrong approach. Cf. Ackermann v. Powers, No. 04-cv-845, 2005 WL 1432369,
at *1 (W.D. Wis. June 16, 2005) (“Defendant has taken the wrong approach. . . . [D]efendant
has taken no steps to resolve the discovery dispute, instead waiting for deadlines to pass and
then seeking dismissal or summary judgment instead of some intermediate sanction available
under Rule 37.”).
As for any prejudice that was not self-inflicted, Sullivan had the ability to cure it at the
time she filed her motions, and to an extent still has that ability. As of November 4, 2014,
Dolgencorp had located its two missing former employees and explained to Sullivan that they
were not responding to the company’s efforts to contact them. Dkt. 48-19. Dolgencorp further
advised Sullivan that she could subpoena the witnesses if she wanted to depose them. Id. Rather
than prepare and serve subpoenas, however, Sullivan filed a motion to exclude the witness
altogether. Further, Dolgencorp has now been ordered to provide the safety policies that
Sullivan contends are central to her theory of liability, and she has been given leave to seek out
and interview the two missing witnesses regardless of whether Dolgencorp’s counsel is present.
Dkt. 54. Finally, Sullivan still has a bit of time before trial; she should make good use of it. And,
for what it is worth, the court will expect Dolgencorp to be courteous, accommodating, and
reasonably flexible, even if depositions have to be scheduled beyond the already extended
The court might treat Dolgencorp more harshly if Sullivan could show evidence of bad
faith. In support of her motion for a finding of liability, Sullivan directs the court to Charter
House Insurance Brokers, Limited v. New Hampshire Insurance Company, a case in which the Seventh
Circuit affirmed a dismissal sanction after holding that “[a] Rule 37 dismissal requires a showing
of ‘willfulness, bad faith, or fault’ by the dismissed party.” 667 F.2d 600, 605 (7th Cir. 1981).
More recently, the court of appeals confirmed that “considering the severe and punitive nature
of dismissal as a discovery sanction, a court must have clear and convincing evidence of
willfulness, bad faith or fault before dismissing a case.” Maynard v. Nygren, 332 F.3d 462, 468
(7th Cir. 2003).
Sullivan takes issue with Dolgencorp’s delay in responding to her discovery requests,
particularly given that many “responses” were boilerplate objections, and she also recounts how
Dolgencorp cancelled a scheduled deposition of one of its former employees the day before it
was to take place. But a modest lack of diligence is not bad faith, particularly when both sides
have been less than diligent. 2 The court already reviewed Dolgencorp’s discovery responses
when it denied most of Sullivan’s motion to compel, Dkt. 23, and even the portion that the
court granted required the magistrate judge to refine and clarify the scope of the request. As for
the cancelled deposition, Dolgencorp explains that it was the product of being unable to locate a
former employee, and not a deliberate effort to sabotage Sullivan’s suit. Once the company
found the employee, it promptly updated Sullivan’s attorney and advised him that a subpoena
might be necessary to secure a deposition. The court could rightly be skeptical of how diligently
Dolgencorp has responded to Sullivan’s discovery requests, but there certainly is no “clear and
convincing evidence” of willfulness or bad faith.
Sullivan cannot demonstrate that she is entitled to a judgment of liability as a discovery
sanction. That motion will be denied.
The court is also inclined to deny her motion to exclude the late-disclosed witnesses, but
will defer ruling definitively on that issue until hearing argument at the final pretrial hearing.
The court notes that Sullivan has filed a motion in limine seeking to “preclude Defendant from
presenting any witnesses in this matter based upon Plaintiff’s Motion to Exclude Witnesses.”
Dkt. 35. If the court is convinced that Dolgencorp has gained an unfair advantage by delaying
the disclosure of the store employees, their testimony will be excluded. But in the meantime, the
parties should prepare their cases as though these witnesses will testify. At the final pretrial
Sullivan herself missed a deadline for disclosing her expert witnesses. This missed deadline is
one of the subjects of Dolgencorp’s pending motion in limine, Dkt. 37, and Sullivan opposes
that motion on the grounds that her mistake was harmless, Dkt. 45, at 7. In seeking sanctions,
however, Sullivan contends that Dolgencorp’s missed deadline indicates bad faith. Given the
obvious contradiction, her suggestion borders on disingenuous.
conference, the court will expect to hear detailed descriptions of the topics about which these
witnesses will testify. The court will also expect to hear how the parties have alleviated the
problems posed by the tardiness of the discovery conducted in this case, tardiness for which
both sides bear responsibility.
The final remaining issue concerns attorney fees. With each of her discovery-related
motions, including the two addressed in this order, Sullivan sought her reasonable attorney fees.
Sullivan succeeded only on her motion to compel, and even then, only partially. The court did
not award fees following her motion to compel, deferring the issue until all of Sullivan’s
discovery motions had been resolved. Dkt. 54. Although Sullivan will not get the major
sanctions that she seeks, an award of fees may be appropriate for Sullivan’s motion to compel
because Dolgencorp acknowledges that it was late in providing discovery disclosures and it was
Sullivan’s motion that arguably motivated the company to finally comply. At this point,
Sullivan’s claim for fees anticipates success on each of her discovery motions. Sullivan may
therefore have until December 3, 2014, to revise and renew her request for fees incurred in
pursuing her motion to compel, explain why she is entitled to such fees, and provide adequate
supporting documentation. Dolgencorp may, if necessary, file a response to Sullivan’s request by
December 8, 2014, and the court will decide the issue as part of its final pretrial order. If the
parties can reach agreement on a modest fee award to Sullivan, so much the better.
IT IS ORDERED that:
1. Plaintiff Dolores Sullivan’s motion to exclude witnesses, Dkt. 24, is DENIED,
although the court will revisit the issue at the final pretrial conference.
2. Plaintiff’s motion for sanctions, Dkt. 52, is DENIED.
3. Plaintiff may have until December 3, 2014, to renew her request for fees and file
supporting documentation. Defendant Dolgencorp, LLC may have until December 8,
2014, to respond to plaintiff’s request.
Entered this 26th day of November, 2014.
BY THE COURT:
JAMES D. PETERSON
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