Opinion
Civil Action 19-cv-03456-PAB-SKC
09-21-2021
ALLISON MACDOUGALL Plaintiff, v. BANNER HEALTH, Defendant.
ORDER
Philip A. Brimmer, United States Chief Judge
This matter is before the Court on Defendant's Rule 37 Motion for Sanctions [Docket No. 42].
Plaintiff filed suit on December 9, 2019, alleging various workplace related discrimination claims. See Docket No. 1. As part of the relief for those claims, plaintiff requests damages for emotional distress. See Id. at 12. Defendant now seeks to dismiss plaintiff's case based on plaintiff's obstruction of the discovery process or, at a minimum, strike plaintiff's claim for damages resulting from alleged emotional distress. See Id. at 15. Defendant claims that it has been prejudiced by plaintiff's actions in the form of seeking plaintiff's compliance with court orders and discovery and the inability to depose doctors that were disclosed near the end or after discovery. See Id. at 9-10.
Federal Rule of Civil Procedure 37 permits a court to impose appropriate sanctions for failure to comply with court discovery orders, including dismissal of the case. See Fed. R. Civ. P. 37(b)(2)(a), (c)(1). Dismissal, however, should “be predicated on willfulness, bad faith, or some fault rather than just a simple inability to comply.” Lee v. Max Int'l, 638 F.3d 1318, 1321 (10th Cir. 2011) (quotations, citations, and alterations omitted). Courts consider the following factors before dismissing a case as a sanction:
(1) the degree of actual prejudice to the defendant; (2) the amount of interference with the judicial process; (3) the culpability of the litigant; (4) whether the court warned the party in advance that dismissal of the action would be a likely sanction for noncompliance; and (5) the efficacy of lesser sanctions. Only when the aggravating factors outweigh the judicial system's strong predisposition to resolve cases on their merits is dismissal an appropriate sanction.Callahan v. Commc'n Graphics, Inc., 657 Fed.Appx. 739, 743 (10th Cir. 2016) (unpublished).
The Court finds that defendant has demonstrated that: (1) plaintiff did not provide releases for at least two of her current providers, Dr. Guaderrama and Dr. Del Aguila, in response to the Court's June 10, 2020 Order, see Docket No. 27, and that defendant did not discover their identities until plaintiff's deposition; (2) defendant discovered through alternate sources two additional mental health care professionals who plaintiff received treatment from, but who plaintiff did not disclose, Dr. Meredith and Ms. Zurek; (3) plaintiff testified that she has the address of Dr. Guaderrama, but she has failed to provide it; (4) despite the Court's November 13 Order giving plaintiff a “final opportunity to fully comply, ” Docket No. 39 at 10, she has failed to provide a medical release for Dr. Guaderrama and only recently provided one for Ms. Zurek; and (5) plaintiff has been deceptive about her employer and where she was living in 2019 and 2020.
Despite these instances of plaintiff causing discovery delays, the Court finds that dismissal is inappropriate. First, as to actual prejudice, defendant has suffered prejudice in the form of seeking compliance with discovery orders and the inability to depose several of plaintiff's mental health providers before the discovery cutoff. While defendant has been prejudiced, the Court can fashion a remedy to relieve defendant of this prejudice. Moreover, these instances relate to plaintiff's damages for emotional distress, rather than to liability issues. See Docket No. 42 at 14-15. As to interference with the judicial process, the prejudice relates to a subset of plaintiff's damages, not to all issues in the case.
Third, regarding culpability, there are two issues. First, plaintiff has not been entirely forthcoming about her mental health providers, which weighs in favor of plaintiff's culpability. Additionally, counsel's failure to comply with discovery deadlines evidences a significant level of culpability. However, defendant did eventually receive the discovery it requested, with the exception of the address and release for Dr. Guaderrama.
Fourth, and fifth, although plaintiff has been warned that sanctions might be forthcoming, she has not been warned that her case might be dismissed, and no previous sanctions have been imposed to demonstrate that lesser sanctions would be ineffective. Defendant does argue that, if the Court disagrees with dismissal, the Court should strike plaintiff's claims for emotional distress damages. Docket No. 42 at 14-15. While this is a lesser sanction than dismissing the case in its entirety, it is severe: as defendant notes, damages for emotional distress “are undoubtedly a significant portion” of plaintiff's damages. Id.
As a result, only the third factor, culpability of the litigant, weighs significantly in favor of dismissal, and actual prejudice marginally in favor of dismissal. However, the Court finds that the behavior of plaintiff's counsel and plaintiff is not sufficient to “outweigh the judicial system's strong predisposition to resolve cases on their merits.” Callahan, 657 Fed.Appx. at 743. Thus, the Court will not dismiss the case.
Although dismissal is inappropriate, some sanction is appropriate given plaintiff's late disclosures, failure to identify her mental health providers, defendant's cost of seeking compliance, including searching out doctors on its own, and the cost of filing this motion. In the alternative to dismissal of the case, plaintiff suggests striking her claim for emotional distress damages for 2019 and later, which is the relevant period for the doctors disclosed near the discovery deadline. See Docket No. 47 at 14. Although defendant argues this is insufficient, defendant does not explain why limiting plaintiff's emotional stress damages to the period on which defendant has not received full discovery is inappropriate. Furthermore, Federal Rule 37(d)(3) also permits a court to order the payment of fees associated with the filing of the motion. Because plaintiff is the party who “fail[ed] to act, ” see Fed. R. Civ. P. 37(d)(3), the Court finds it appropriate to order plaintiff to pay defendant's reasonable fees and costs associated with filing the motion for sanctions.
Additionally, the Court will provide defendant with the opportunity to depose those doctors that were identified after the discovery deadline, if it so chooses. Defendant identifies Dr. Guaderrama and Ms. Zurek as those it has not had the opportunity to depose. See Docket No. 42 at 9. Accordingly, defendant may depose these two providers, with reasonable costs chargeable to plaintiff.
It is therefore
ORDERED that Defendant's Rule 37 Motion for Sanctions [Docket No. 42] is DENIED in part and GRANTED in part. It is further
ORDERED that any claim for damages resulting from emotional distress that occurred after January 1, 2019 is DISMISSED. It is further
ORDERED that defendant may depose those mental health providers that were disclosed too late to be deposed, with plaintiff to bear reasonable costs. It is further
ORDERED that plaintiffs must pay defendant's reasonable fees and costs associated with the filing of the motion for sanctions. It further
ORDERED that defendant is instructed to contact the chambers of Magistrate Judge Crews to set a schedule for any depositions that will be taken pursuant to this order.