Williams et al v. LA Quinta Developement Partners, L.P. et al

MOTION to Dismiss for Lack of Prosecution

M.D. Tenn.March 17, 2017

4819-2353-6960 v1 2823531-000044 01/25/2017 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE AT NASHVILLE TARVIS WILLIAMS AND CORIE GREEN, ) ) Plaintiffs, ) ) v. ) Civil Action No. 3:16-cv-2483 ) LA QUINTA DEVELOPMENT PARTNERS, ) JUDGE SHARP L.P. and its wholly-owned subsidiary BRE/LQ ) Magistrate Judge Frensley PROPERTIES, L.L.C. d/b/a LA QUINTA INN, ) ) JURY DEMAND Defendants. ) DEFENDANT BRE/LQ PROPERTIES, LLC d/b/a LA QUINTA INN'S MOTION AND MEMORANDUM IN SUPPORT OF ITS MOTION TO DISMISS FOR FAILURE TO PROSECUTE Defendant BRE/LQ Properties, LLC d/b/a La Quinta Inn (“Defendant”),1 hereby moves this Court for an Order dismissing this action pursuant to Federal Rules of Civil Procedure 37(c)(1) and 41(b) based on Plaintiffs Tarvis Williams and Corie Green’s (collectively, “Plaintiffs”) failure to cooperate in discovery or otherwise prosecute this matter. I. FACTS AND PROCEDURAL HISTORY Plaintiffs filed their Complaint in this case on August 11, 2016. (See Complaint). Defendant removed this matter from Davidson County Circuit Court to this Court on September 13, 2016 (D.E. 1), and filed its Answer on September 20, 2016. (D.E. 6). An Initial Case 1 Pursuant to the Initial Case Management Order, Plaintiffs have agreed to dismiss La Quinta Development Partners, L.P., as it was dissolved July 11, 2014. (D.E. 14). Therefore, this Motion to Dismiss is brought on behalf of Bre/LQ Properties, LLC d/b/a La Quinta Inn alone. However, it is Defendant’s intention that an Order granting this Motion would completely resolve this matter. To the extent that this Court believes the Motion should be brought on behalf of La Quinta Development Partners, L.P. and Bre/LQ Properties, LLC, the use of the term Defendant throughout should be read as plural. Case 3:16-cv-02483 Document 15 Filed 03/17/17 Page 1 of 7 PageID #: 55 2 4819-2353-6960 v1 2823531-000044 01/25/2017 Management Conference was scheduled by the Court for November 10, 2016. (D.E. 5). The Notice of Setting of Initial Case Management Conference expressly required lead trial counsel for each party “to attend the initial case management conference.” (Id.). The Notice further instructed Plaintiffs’ counsel to initiate the preparation and submission of a proposed case management order. (Id.). Counsel for Plaintiffs failed to contact Counsel for Defendant. Having not heard from Plaintiff’s counsel, Defendant’s counsel prepared a proposed order and sent it to Plaintiffs’ counsel several days before it was due to be filed. Plaintiffs’ counsel never responded, and Defendant’s counsel filed its own Proposed Initial Case Management Order on November 7, 2016. (D.E. 7). Later the same day, the Court entered an Order resetting the Initial Case Management Conference for December 8, 2016. (D.E. 8). Once again not hearing from Plaintiffs’ counsel, Defendant filed its own Proposed Case Management Order on December 5, 2016. (D.E. 9). On December 7, 2016, Counsel for Plaintiffs reached out to counsel for Defendant for the first time and agreed to the dates proposed by Defendant and the dismissal of La Quinta Development Partners, L.P., going on to then ask if he still needed to attend the Initial Case Management Conference. Upon being told that he would need to ask the Court about his appearance, he requested a continuance. Later on December 7, 2016, Counsel for Plaintiffs called counsel for Defendant and informed them that he was not admitted in the Middle District of Tennessee and he needed the continuance to give him time to become admitted. Because Counsel for Plaintiffs was not admitted, it fell to Counsel for Defendant to draft a motion for a continuance, even though Plaintiffs hired local counsel who was admitted to the Middle District on December 7, 2016. (D.E. 10 & 11). This Court granted the continuance. (D.E. 12). Case 3:16-cv-02483 Document 15 Filed 03/17/17 Page 2 of 7 PageID #: 56 3 4819-2353-6960 v1 2823531-000044 01/25/2017 On January 5, 2017, Counsel for Defendant once again sent its proposed Case Management Order to Counsel for Plaintiffs for review and the insertion of Plaintiffs’ theory of the case. Counsel for Plaintiffs never responded, and Counsel for Defendant filed its own Initial Case Management Order on January 6, 2017. (D.E. 12). An initial case management conference was held on January 11, 2017. As is noted in this Court’s Initial Case Management Order, “there was no appearance by Plaintiffs’ counsel.” (D.E. 14). Under the terms of the Initial Case Management Order, the parties were to exchange initial disclosures on or before January 25, 2017. (Id.). Defendant served its Rule 26 Initial Disclosures on Plaintiffs’ counsel on January 25, 2017 via email and U.S. Mail. At this time Defendant still has not received Plaintiffs’ initial disclosures. II. LAW AND ARGUMENT A. Standard of Review Federal Rule of Civil Procedure 37(c)(1) provides if a party failed to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at trial, unless the failure was substantially justified or is harmless. In addition to or instead of this sanction, the court, on motion and after giving an opportunity to be heard … may impose other appropriate sanctions, including any of the orders listed in 37(b)(2)(A)(i)-(vi). Id. (emphasis added). Federal Rule of Civil Procedure 37(b)(2)(A)(v) states that “dismissing the action or proceeding in whole or in part” is one available sanction. Fed. R. Civ. P. 37(b)(2)(A)(v). Rule 41(b) of the Federal Rules of Civil Procedure likewise provides that a case may be involuntarily dismissed for failure of the Plaintiff to prosecute the case. Fed. R. Civ. P. 41(b). The Rule states “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.” Id. Case 3:16-cv-02483 Document 15 Filed 03/17/17 Page 3 of 7 PageID #: 57 4 4819-2353-6960 v1 2823531-000044 01/25/2017 Pursuant to these two rules, trial courts have great discretion in determining the scope of sanctions. Meles v. Avalon Health Care, LLC, No. 3:14-cv-1487, 2015 WL 5568060, at *5 (M.D. Tenn. Sept. 22, 2015).2 While dismissal is considered to be the sanction of last resort, it may be imposed if a party’s failure to cooperate in discovery is due to willfulness, bad faith, or fault. See Jones v. Makowsky, Ringel, and Greenberg Properties, No. 14-cv-2961-SHM-dkv, 2015 WL 5334203, at *1 (W.D. Tenn. July 23, 2015). Willfulness, bad faith, or fault is demonstrated when “a plaintiff’s conduct evidences either an intent to thwart judicial proceedings or a reckless disregard for the effect of his conduct on those proceedings.” Id. at *2. Courts typically consider four factors when determining whether to grant dismissal for disclosure violations: (1) evidence of bad faith, (2) prejudice to the opposing party, (3) whether the violating party had notice of the potential sanction, and (4) whether less drastic sanctions have been considered. See Knight v. Systech Intern. LLC, No. 3:11-cv-01024, 2013 WL 6827930, at * (M.D. Tenn. Dec. 20, 2013). No one factor is determinative. Mulbah v. Detroit Bd. of Educ., 261 F.3d 586, 590 (6th Cir. 2001). The same factors are considered when dismissing a case under Rule 41(b) for failure to prosecute. See Hays v. Wharton, No. 11-2193-JDT-tmp, 2014 WL 3535730, at *5 (W.D. Tenn. July 16, 2014). Dismissal under Rule 41(b) “is warranted when there is a clear record of delay or contumacious conduct by the plaintiff and when the plaintiff is inexcusably unprepared to prosecute the case.” Id. at *2. Courts also consider whether “a defendant is prejudiced by the plaintiff’s conduct where the defendant wastes time, money, and effort in pursuit of cooperation which the plaintiff was legally obligated to provide.” Id. at *3. 2 Copies of all unpublished cases cited throughout are attached hereto as Exhibit A. Case 3:16-cv-02483 Document 15 Filed 03/17/17 Page 4 of 7 PageID #: 58 5 4819-2353-6960 v1 2823531-000044 01/25/2017 B. Plaintiffs’ Case Should Be Dismissed for Their Failure to Participate in Discovery or Otherwise Prosecute this Matter. Because the standards applied to Federal Rule of Civil Procedure 37(c)(1) and 41(b) are substantially similar, Plaintiffs’ Complaint should be dismissed under both rules. The record in this case shows that Plaintiffs have failed to abide with a number of the Court’s orders. Plaintiffs failed on three separate occasions to initiate discussion and submission of a proposed case management order; their counsel failed to appear at the case management conference; and they failed to serve their initial disclosures as required by the Court’s Initial Case Management Order. Plaintiffs’ conduct exhibits a clear record of delay and a refusal to prosecute their case. Plaintiffs’ lack of regard for this Court’s orders warrants dismissal of this action. Further, Defendant has incurred the cost of preparing three proposed case management orders, having counsel attend the initial case management conference, serving initial disclosures which were not reciprocated, and now filing this Motion to Dismiss as a direct result of Plaintiffs’ failure to progress their case. In addition to the costs, Defendant has been prejudiced by Plaintiffs’ failures, in that Defendant cannot move its defense of this case forward if Plaintiffs do not provide their theory of the case, any documentary evidence in support of their claims, a computation of their damages, and the names of individuals with knowledge of their claims. Britton v. Nahon, Saharovich, & Trotz, PLLC, No. 07-2443, 2008 WL 782475, at *5, (W.D. Tenn. Mar. 20, 2008)(Defendant was prejudiced by Plaintiff’s failure to serve initial disclosures). Additionally, Defendant should not have to incur the expense of drafting discovery requests that given Plaintiffs’ current behavior will likely go unanswered. Apart from filing their complaint, Plaintiffs have not engaged in any other efforts to prosecute their case. Case 3:16-cv-02483 Document 15 Filed 03/17/17 Page 5 of 7 PageID #: 59 6 4819-2353-6960 v1 2823531-000044 01/25/2017 Defendant cannot deny that Plaintiffs have not been specifically warned that dismissal could result from failure to serve requests, but the Court has not had the opportunity to provide such a warning since they did not attend the initial case management conference. Additionally, no other sanctions are likely to get the Plaintiffs to engage in this case given their behavior to this point. Plaintiffs’ complete lack of attention to this case in which they demanded $14 million dollars in damages, proves that no sanction short of dismissal will appropriately address Plaintiff’s failure to comply with the Court’s orders and the requirements imposed by the Federal Rules. III. CONCLUSION Because Plaintiffs have repeatedly failed to comply with this Court’s order, have not participated in the progress of the case, and have not served their initial disclosures, Defendant respectfully requests that Plaintiffs’ case be dismissed. Respectfully submitted this 17th day of March, 2017. /s/ Sarah Murray___________________ Samuel T. Bowman (BPR No. 020657) Sarah D. Murray (BPR No. 033454) BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ 211 Commerce Street, Suite 800 Nashville, TN 37201 Telephone: 615-726-5707 Fax: 615-744-5707 sbowman@bakerdonelson.com Counsel for Defendant BRE/LQ Properties, LLC Case 3:16-cv-02483 Document 15 Filed 03/17/17 Page 6 of 7 PageID #: 60 7 4819-2353-6960 v1 2823531-000044 01/25/2017 CERTIFICATE OF SERVICE The undersigned hereby certifies that a copy of the foregoing was served through this Court’s electronic filing system and electronic mail upon: Walter Lee Bailey, Jr. Janika N. White 22 North Front Street, Suite 1060 Memphis, Tennessee 38103 wblegal@aol.com jwhite@walterbaileylaw.com Luvell L. Glanton, Sr. 915 Jefferson Street Nashville, Tennessee 37208 glantonfirm@gmail.com Attorneys for Plaintiffs This 17th day of March, 2017. /s/ Sarah Murray Sarah Murray Case 3:16-cv-02483 Document 15 Filed 03/17/17 Page 7 of 7 PageID #: 61 Case 3:16-cv-02483 Document 15-1 Filed 03/17/17 Page 1 of 38 PageID #: 62 Moles v. Avalon Health Care, LLC, Not Reported in F.Supp.3d (2015) states that Janice Coure was laughing at Ms. Meles for no reason, would not communicate with her, and was uncooperative in performing their work assignments. '2 On August 15, 2012, Ms. Meles filed another written complaint against two coworkers, Alesia Barton and Janice Coure. This complaint alleged that, on August 14, 2012, these coworkers cursed at Ms. Metes, threw socks at her, and threatened to hurt her. The complaint also stated that, on this same day, they called Ms. Metes "ugly" and monkey," commented about her taking time off of work for an abortion, and stated that they couldn't understand her and didn't know what language she was speaking. Ms. Meles also told Ms. Diaz that these coworkers were making taunting comments to her about her belly being fat and about her having "another abortion." On August 16, 2012, Ms. Meles took a day off, On the day she returned to work, her coworkers made fun of her for having a "fat belly" and made comments about her having "decided to keep the baby." Ms. Meles reported this incident to Ms. Diaz, who told her that someone from Human Resources would address the matter, but no one came that day. At some point between March and August of 2012, Ms. Metes also complained to Ms. Diaz that her coworker, Dien Harleston, engaged in inappropriate conduct, including making sexually suggestive remarks, and that she felt uncomfortable around him. The record, however, does not provide any additional details about what Mr. Harleston said or did or when. There is no evidence in the record that Ms. Metes filed any written complaints about Mr. Harleston, nor are there any further details in the record regarding what Ms. Meles told Ms. Diaz about him. 5 Ms. Barton, Ms. Coure, and Mr. Harleston () were all coworkers of Ms. Meles, with no authority to hire, fire, discipline, or take any action on behalf of Trevecca that could affect Ms. Meles' employment. Ms. Barton and Ms. Coure are African-American women, and Mr. Harleston is an African-American man. Neither Ms. Harris, Ms. Diaz, nor any other Trevecca supervisor or manager, ever made any inappropriate or offensive comments to Ms. Metes about her race, sex, or national origin, and Ms. Metes never made any complaints against a supervisor or manager. In August 2012, Trevecca launched an investigation into Ms. Meles' complaints about her coworkers that included interviews with the named coworkers and eyewitnesses, as well as a review of Trevecca's security camera recordings. Trevecca was unable to substantiate or corroborate Ms. Meles' allegations. 7 On August 22, 2012, this fact was communicated to Ms. Meles by Ms. Diaz and another Trevecca manager, Bobby Sharpe. On August 24, 2012, after the investigation was concluded, Ms. Meles complained again to Ms. Diaz that the harassment by her coworkers was still going on and requested a change of jobs within the company or a different schedule. There is no evidence in the record regarding the details of Ms. Meles' complaints to Ms. Diaz at that time. Ms. Diaz told Ms. Meles she was just causing trouble and should do her job; she also told her that her earlier complaints had done no good but that she could make another written complaint if she wanted. Trevecca scheduled a meeting for August 27, 2012 for Ms. Meles and her coworkers to discuss the ongoing issue, but Ms. Meles did not attend the meeting and was absent from work that day. a Ms. Meles faxed a physician's note to Trevecca excusing her from work for August 27 through September 3, 2012, with a return to work date of September 4, 2012. Ms. Meles did not return to work on September 4, 2012 and, in fact, she never returned to work at Trevecca thereafter. DISPUTES OF FACT AS TO MS. MELES' TERMINATION DATEI0 Ms. Metes avers that, on September 4, 2012, she called and spoke to Bobby Sharpe, another Trevecca manager, and told him that she was still sick and that he responded that she could take time off until she was "fully recovered." Trevecca avers, to the contrary, that Ms. Meles never called in on September 4, 2012 but was a "no-call/ no-show" that day under Trevecca's attendance policy. Trevecca further avers that it was not until September 12, 2012 that Ms. Meles explained that her absence on Case 3:16-cv-02483 Document 15-1 Filed 03/17/17 Page 2 of 38 PageID #: 63 Moles v. Avalon Health Care, LLC, Not Reported in F.Supp.3d (2015) September 4th had been due to her ongoing medical condition. 1 1 Trevecca does not allege, however, that any adverse employment action was taken against Ms. Meles due to this absence but, rather, concedes that her time off during this period was retroactively approved. Ms. Meles avers that she returned to her doctor on September 6, 2012, and received a letter stating that she should remain out of work for an additional three weeks. According to Ms. Meles, she faxed that note to Ms. Diaz and then called Ms. Diaz on that same day, September 6, 2012, to confirm that Ms. Diaz had received the note. In this conversation, Ms. Metes avers that Ms. Diaz told her she was terminated from her position at Trevecca. It is undisputed that Ms. Meles subsequently tiled a complaint with the EFOC, sometime between September 6, 2012 and September 12, 2012, though the exact date of that filing is not clear from the record. 12 It is also undisputed that, on September 12, 2012, Ms. Harris (aware by this point in time of Ms. Meles' ongoing medical condition and need for further time off) sent Ms. Meles an FMLA certification form to be completed by Ms. Meles' physicia❑ and returned to Trevecca. This form indicated that Ms. Meles had informed Trevecca on September 12, 2012 that she needed FMLA leave for the period beginning September 6, 2012. It is further undisputed that Ms. Meles brought this form to her physician, and her physician completed it and faxed it back to Trevecca on Setptember 18, 2012. Ms. Meles' physician indicated that Ms. Meles had been suffering from her condition from August 24, 2012 and was expected to need to remain out of work until October 15, 2012. It is undisputed that, on September 20, 2012, Ms. Harris, upon receipt of the completed form, mailed Ms. Meles a letter informing her that she had been approved for an eight-week FM LA leave with a return to work date of October 16, 2012. 13 This form indicated that Ms. Meles was required to present a fitness-for-duty certification to Trevecca before she could be restored to her position. 14 *4 Finally, it is undisputed that Ms. Meles never attempted to return to work at Trevecca or to submit a fitness-for-duty certification. In fact, the record is devoid of any communication between Ms. Meles and Trevecca after the September 20, 2012 mailing of the FMLA approval letter. While Trevecca never directly refutes the alleged September 6, 2012 conversation between Ms. Meles and Ms. Diaz in which Ms. Meles avers she was terminated from her position, Trevecca asserts, to the contrary, that Ms. Meles was not in fact terminated on September 6, 2012 but, instead, remained a Trevecca employee until she was officially terminated in November 2013. 16 Trevecca avers that the reason for Ms. Meles' termination at that time was her failure to return to work or provide a fitness-for-duty certification upon the expiration of her approved FMLA leave. Trevecca does not explain why it waited over a year to terminate Ms. Meles. The record contains no evidence that the alleged November 13, 2014 termination was ever communicated to Ms. Meles. PROCEDURAL HISTORY On July 7, 2014, Ms. Meles filed an action against Trevecca in the Circuit Court for Davidson County, Tennessee, bringing claims for 1) violation of her rights under the Family and Medical Leave Act ("FMLA") (29 U.S.C. § 261 1, et seq., 2) hostile work environment and discrimination based on race, sex, and national origin in violation of Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000c. cf req.), and 3) discrimination in violation of the Tennessee Human Rights Act ("THRA") (TENN.CODE ANN. § 4-21-101, ct ,Nrcq.). (Docket No. 1, Ex. A (the "Complaint").) On July 22, 2014, the action was removed to the Middle District of Tennessee on the basis of federal question jurisdiction, pursuant to 28 U.S.C. 1441(a). (Docket No. 1.) On September 15, 2014, the court issued an Initial Case Management Order ("the CI\,10"), requiring among other things-that the parties exchange initial disclosures under Federal Rule of Civil Procedure 26(a)(1) by September 24, 2014, that all written discovery and fact witness depositions be completed by April 30, 2015, and that dispositive motions be filed by June 1, 2015. (Docket No. 10.) Ms. Meles has never provided Trevecca with initial disclosures, despite several requests by Trevecca and an Case 3:16-cv-02483 Document 15-1 Filed 03/17/17 Page 3 of 38 PageID #: 64 Meles v. Avalon Health Care, LLC, Not Reported in F.Supp.3d (2015) agreement by Ms. Meles' counsel, on the record at Ms. Meles' May 1 1, 2015, deposition, 17 that he would provide the disclosures by May 15, 2015. On June 1, 2015, Trevecca filed a Motion to Dismiss for Failure to Provide Rule 26 Initial Disclosures (Docket No. 18), along with a Memorandum in Support (Docket No. 19) and a Declaration of Chen 0. Ni (counsel for Trevecca) with attached exhibits (Docket No. 20). Also on June I. 2015, Trevecca filed a Motion for Summary Judgment (Docket No. 14), as well as a Memorandum in support with attached exhibits (Docket Nos. 15 and 21), a Declaration of Stephanie Harris with attached exhibits (Docket No. 16), and a Statement of Undisputed Material Facts (Docket No. 17). "5 On June 22, 2015, Ms. Meles filed a Response in opposition to Trevecca's Motion to Dismiss (Docket No. 25), along with a Declaration of her counsel, Michael L. Freeman (Docket No. 26). Also on June 22, 2015, Ms. Meles filed a Response in opposition to Trevecca's Motion for Summary Judgment (Docket No. 22), along with a Response to Trevecca's Statement of Undisputed Material Facts (Docket No. 23), and a supporting Declaration (Docket No. 24). On July 2, 2015, Trevecca filed a Reply in further support of its Motion to Dismiss (Docket No. 27) as well as a Reply in further support of its Motion for Summary Judgment (Docket No. 28). MOTION TO DISMISS Trevecca moves, under Federal Rule of Civil Procedure 41(b), to dismiss this action due to Ms. Meles' failure to provide Trevecca with Initial Disclosures as required by Rule 26(a)(1) and the court's September 15, 2014 CM O. I. Rule 41 and Rule 37 Rule 41(b) allows a defendant to move for involuntary dismissal of an action where a plaintiff has failed to comply with the federal rules or with a court order. Trevecca argues that Ms. Meles' failure to provide initial disclosures is grounds for dismissal of the case, with prejudice, under Rule 37(c)( 1 1, which allows the court to impose any sanctions, including dismissal, listed under Rule 37(b)(2)(A) for failure to comply with Rule 26 procedures. 18 Under Federal Rule of Civil Procedure 37(c), "[i]f a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at trial ...", and the court "may impose other appropriate sanctions, including any of the orders listed in Rule 37(b)( 2)(A )(i)-(vi)." 19 In responding to violations of Rule 26, the trial court is granted a great deal of discretion in determining the scope sanctions under R ule 37(c). See., e.g., Ta.ulor r. Alechronies, Inc. 861 F.2d 980, 985 (6th Cir.1988). While Rule 37 generally requires the exclusion of evidence not properly disclosed, even this sanction may be avoided, at the court's discretion, where there is a reasonable explanation or where the mistake was harmless. See Bessemer ck Lake Erie R. R. Co. a Seaway Marine Transport, 596 F.3d 357, 370 (6th Cir.2010) (citing Vance ex rel. Dammam' v. United States, 182 F.3d 920 (6th Cir. 1999)). The imposition of additional sanctions is likewise discretionary and, in determining whether to grant dismissal for disclosure violations, the court should consider: 1) evidence of bad faith, 2) prejudice to the opposing party, 3) whether the violating party had notice of the potential sanction, and 4) whether less drastic sanctions have been considered. See Bessemer, 596 F.3d at 370 (citing Phillips v. Cohen, 400 F.3(1 388, 402 (6th Cir.2005)); Standee, inc. v. Anson, 195 F. App'x 473, 479 (6th Cir.2006). Moreover, the Sixth Circuit has referred to the dismissal of an action for violation of discovery procedures as a "sanction of last resort." Stamtec, 195 F. App'x at 478; see also Schreiber v. Sloe, 320 F. App'x 312, 317-18 (6th Cir.2008) ( "While we have recognized that district courts possess broad discretion to sanction parties for failing to comply with procedural requirements, we have also cautioned that dismissal for failure to prosecute is a harsh sanction which the court should only order in extreme situations ... dismissal is appropriate only if the attorney's dilatory actions amounted to failure to prosecute and no alternative sanction would protect the integrity of the trial proceedings.") (internal citations omitted). II. Application Case 3:16-cv-02483 Document 15-1 Filed 03/17/17 Page 4 of 38 PageID #: 65 Metes v. Avalon Health Care, LLC, Not Reported in F.Supp.3d (2015) *6 Ms. Meles has plainly violated Rule 26 and the CMO by failing to provide Trevecca with initial disclosures, despite numerous reminders by Trevecca and Ms. Meles' counsel's own promise to Trevecca that he would comply. It appears to the court, however, that this violation does not reflect any bad faith intent by Ms. Meles to withhold from Trevecca information about the evidence she plans to rely on to support her claim. To the contrary, the failure to provide initial disclosures reflects Ms. Metes' sheer lack of evidence to disclose in support of her claim, as evidenced by the dearth of evidence relied on in her Response to Trevecca's Motion for Summary Judgment, discussed in greater detail below. Indeed, in her Response to Trevecca's Motion to Dismiss, Ms. Meles does not attempt to argue that she should still be permitted to introduce any significant amount of previously undisclosed evidence at trial hut, rather, states simply that she, "herself, will be the primary witness at trial." (Docket No. 25 at p. 1.) Ms. Meles' Response does not identify any other documents or witnesses she intends to use, with the exception of one potential witness, her cousin Solomon Aregawi.2() See id. In keeping with Rule 37, the court holds that Ms. Meles will not be permitted at trial to introduce any other evidence aside from her own testimony during her case in chief (including testimony from Mr. Aregawi). The court does not, however, find that dismissal of the action is warranted. Further, Ms. Metes' own testimony will not be excluded because the court finds that Ms. Metes' failure to disclose her own testimony under Rule 26 is plainly harmless. Not only was Trevecca necessarily aware that Ms. Meles' recounting of her version of events would be at issue in this trial, but Trevecca has had the opportunity to fully depose Ms. Meles prior to the deadline for the filing of dispositive motions. Accordingly, nothing presented at trial will come as a surprise to Trevecca, nor does the court find that Ms. Meles' failure to provide initial disclosures otherwise prejudices Trevecca's preparation of its defense. If anything, Ms. Meles' counsel's failure to provide disclosures reflects an overall lack of zealous advocacy on behalf of Ms. Meles and an implicit admission that the evidence Ms. Meles has garnered to support her case is thin. It is, therefore, Ms. Meles and not Trevecca who may have a difficult time proving her case before a jury on this record. Trevecca's preparation of its defense in this matter, on the other hand, is exceedingly straightforward, as Trevecca needs only to prepare to respond to Ms. Meles' own recounting of the events after already having taken Ms. Meles' deposition and received her Declaration. Trevecca relies primarily on Kiti,cht r. ,S1ysicch hit'/, LLC' (2013 WL 6827930 (M.D.Tenn. Dec.20, 2013)) in arguing that dismissal is appropriate here. The circumstances in Knight, however, differ significantly from the circumstances here. In Knight, the court found that, in addition to failing to serve disclosures, the plaintiff had willfully failed to attend multiple hearings, failed to obey court orders to pay attorney's fees, failed to respond to motions, and had been warned by the court that continued failure to comply could result in dismissal, demonstrating a total unwillingness to prosecute the case. 2013 \\,'L. 6827930 at *4. In this case, to the contrary, Ms. Meles has participated in the litigation, aside from the failure to provide initial disclosures, and there is no other evidence of an unwillingness to prosecute the action or of bad faith. There have been no warnings to counsel prior to the filing of Trevecca's Motion to Dimiss and no indications by the court that this action was at risk of dismissal. Allowing Ms. Meles to proceed, while not allowing her to introduce evidence beyond her own testimony, represents a less drastic measure than dismissal of the action that is fair to both parties and will ensure that Trevecca is not prejudiced in defending this matter. *7 For these reasons, the court will deny Trevecca's Motion to Dismiss. The court will, however, order that Ms. Meles may only introduce her own testimony, and no other evidence, during her presentation of her case in chief at trial. MOTION FOR SUMMARY JUDGMENT Trevecca's position on summary judgment is grounded in the operating presumption that the undisputed facts show that Ms. Metes was terminated from her position no earlier than November of 2013. Trevecca does not address whether Ms. Meles' claims could survive as a matter of law, were a factfinder to accept Ms. Meles' allegation that she was terminated by telephone conversation with Ms. Diaz in September of 2012. 21 The court's review of this motion, therefore, turns, in part, on the court's interpretation as to whether the record creates an actual dispute of fact with respect to the date of Ms. Meles' termination. At face value, Ms. Meles' Response to Trevecca's Statement of Undisputed Facts does not reflect Case 3:16-cv-02483 Document 15-1 Filed 03/17/17 Page 5 of 38 PageID #: 66 Moles v. Avalon Health Care, LLC, Not Reported in F.Supp.3d (2015) any true dispute, as Ms. Meles cites to no facts in the record as required under Rule 56. As discussed above, however, Ms. Meles' Declaration, which is attached to her Response in opposition to Trevecca's Motion for Summary Judgment, tells a very different story. The court does not need to search for the factual allegations that refute Trevecca's basic premise for its summary judgment motion, that Ms. Metes was not terminated from her position until November of 2013. While the question of whether Ms. Metes was terminated on September 6, 2012 will ultimately be a question for the jury, for purposes of summary judgment, the court views the disputed facts in the light most favorable to Ms. Meles. Accordingly, the court analyzes each of Ms. Meles' claims under the presumption that she was in fact terminated from her position by telephone conversation with Ms. Diaz on September 6, 2012, a fact which may further color the meaning of the FM LA leave approval documentation she received after that point in time. I. Standard of Review R ule 56 requires the court to grant a motion for summary judgment if "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." red.R.Ciy.E. 56(a). To win summary judgment as to the claim of an adverse party, a moving defendant must show that there is no genuine issue of material fact as to at least one essential element of the plaintiff's claim. Once the moving defendant makes its initial showing, the burden shifts to the plaintiff to provide evidence beyond the pleadings, "sei[tng] forth specific facts showing that there is a genuine issue for trial." 1/0/r/Hiyan 1] City of Warren, 578 F.3d 351, 374 (6th Cir.2009), see also Celotex Corp. v. Catrett, 477 U.S. 317. 322-23. 106 S.Ct. 2548. 01 L.Ed.2d 265 (1986). Conversely, to win summary judgment as to its own claims, a moving plaintiff must demonstrate that no genuine issue of material fact exists as to all essential elements of her claims. "In evaluating the evidence, the court must draw all inferences in the light most favorable to the non-moving party.- Mo/doiyair, 578 F.3d at 374 (citing A/a/sits/lira Elec. Indus. Co. v. Zenith Radio Cmp., 475 U.S. 574, 587, 106 S.(:t. 1348, 89 L.E(1.2(1 538 (1986)). *8 At this stage, " 'the judge's function is not ... to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial.' (quoting Anderson v. 'ahem Lobby, Inc., 477 U.S. 242, 249, 1(16 S.Ct. 2505. 01 1,.170.2d 202 (1986)). But "[t]he mere existence of a scintilla of evidence in support of the [non-moving party's] position will be insufficient," and the party's proof must be more than "merely colorable." Anderson, 477 U.S. 242, at 252, 106 S.Ct. 2505, 91 LE(1.2(1 202. An issue of fact is "genuine" only if a reasonable jury could find for the non-moving party. Illohimraii, 578 F.3d a t 374 (citing Anderson, 477 U.S. at 252). II. Title VII Discrimination Claim In order for Ms. Metes to succeed on a Title VII discrimination claim, she would need to prove that her termination in September of 2012 was based on her race, sex, or national origin. See 42 U.S .C. § 2000e-2(a))1). The Sixth Circuit has held that there are two types of Title VII discrimination cases: single-motive cases, in which an employer's decision is based solely on discriminatory motive and mixed-motive cases, in which an employer's decision is based on both discriminatory and non- discriminatory factors. ftliitc y. Baxter ILaltheare, Cotp., 533 F.3(1 381, 396 (6th Cir.2008). Under a single- motive theory, absent direct evidence of discriminatory motive, a plaintiff must show the following in order to establish a prima facie case of discrimination (according to the framework established by the Supreme Court in AL:Donnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1 817. 36 L.E(1.2d 668 (1973)): 1) that she is a member of a protected class, 2) that she was qualified for her job, 3) that she suffered an adverse employment decision, and 4) that she was replaced by a person outside the protected class or treated differently than similarly situated non-protected employees. See, e.g., id. at 391; fallen v. City of Cohnnbus, 514 F. App's 601, 605 (6th Cir.2013) (citing Newman r. Fed. Ex. Cop., 266 F.3d 401, 406 (6th Cir.2001)). Under a mixed-motive theory, a plaintiffs burden is lower, but, in order to survive summary judgment, she is still required to produce "evidence sufficient to convince a jury that ... race, color, religion, sex, or national origin was a motivating factor for the defendant's adverse employment action." lEhitc, 533 F. 3d at at 400 (internal citations omitted). For the reasons discussed above, Trevecca's arguments on summary judgment, which presume that Ms. Meles was not terminated from her position until November 2013, are misplaced. Ms. Metes may be able to survive summary judgment based on the evidence she has put forth that she was terminated in September 2012 and, for purposes of this analysis, the court construes the alleged September 2012 termination to be the adverse Case 3:16-cv-02483 Document 15-1 Filed 03/17/17 Page 6 of 38 PageID #: 67 Meles v. Avalon Health Care, LLC, Not Reported in F.Supp.3d (2015) employment decision at issue. It is also undisputed that Ms. Meles is a member of several protected classes based on her race, sex, and national origin. However, Ms. Meles still must demonstrate the other elements of her claims. It is plain that the record in this case is devoid of any evidence that Trevecca based Ms. Meles' termination, even in part, on discriminatory motive and, therefore, Ms. Meles cannot establish even a prima facie case of Title VII discrimination. *9 Ms. Metes concedes that no supervisor or manager ever made any comments about her race, sex, or national origin. There is no evidence in the record to suggest that Trevecca, or any of its managers or supervisors, held biased views against Ms. Metes, expressed biased behavior, or otherwise considered her race, sex, or national origin in making the determination to terminate her. To the contrary, the record shows that Ms. Metes was employed by Trevecca for several years without incident, including having been treated leniently with respect to past attendance violations that could have resulted in termination. Prior to her termination, nothing changed with respect to Ms. Metes' status as a member of protected classes or Trevecca's awareness of her protected class status. Further, Ms. Metes has placed no evidence in the record regarding the treatment of similarly situated employees outside of the protected classes she occupies. For these reasons, the court finds that Ms. Metes' Title VII discrimination claims cannot proceed as a matter of law, and summary judgment will be granted to Trevecca on this claim. 22 III. Title VII Hostile Work Environment Claim To establish a prima facie claim of hostile work environment based on the actions of coworkers, a plaintiff must demonstrate evidence of the following: 1) she is a member of a protected class, 2) she was subject to unwelcome harassment, 3) the harassment was based on her status as a member of a protected class, 4) the harassment was sufficiently pervasive to affect a term, condition, or privilege of employment, and 5) the employer knew or should have known about the harassment but failed to take preventative or correction action. See, e.g., Hawkins a. Anlicieser -Busch, Inc., 517 F.34 321, 332 (6th Cir.2008); Bui/cy v. LiSP Holland, Inc., 526 F.34 880, 885 (6th Cir.2008) (citing Michael v. Caterpillar Fin. Sera. Corp., 496 F.3(.1 584, 600 (6th Cir.2007)). Title VII is violated "[w]hen the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Harris r. Forklift Sy,s'., Inc., 510 US. 17. 21. 114 S.Ct. 367, 126 L.Fid.2d 295 (1993) (internal citations omitted). Determining whether an environment is hostile or abusive requires "looking at all the circumstances" and considering factors such as "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or, a mere offensive utterance; and whether it unreasonably interferes with an employees' work performance." Id. at 23, The only evidence in the record to support Ms. Metes' hostile work environment claim is three incidents in August 2012, in which Ms. Coure, Ms. Barton, and Mr. Harlseton allegedly threw socks at Ms. Metes, threatened to hurt her, called her "ugly," "dumb," "doggie" and "monkey," commented about her taking time off of work for an abortion and commented on her "fat belly," teased her about her education, and stated that they could not understand her and did not know what language she was ; speaking. - While it is not entirely clear from the record that Ms. Metes can link any of the alleged comments to her race, sex, or national origin, the court finds that a jury may be able to infer that comments about Ms. Metes' physical appearance and abortion were related to her sex, 4 that the comments about her language and intelligence were related to her national origin, or that calling Ms. Metes "monkey" was a derogatory term related to her race. Ms. Meles, thus, may be able to prove the first three elements of a hostile work environment claim: that she is a member of protected classes, that she experienced unwanted harassment, and that this harassment was related to her status as a protected class member. *10 Viewing the allegations of harassment as a whole, however, the court finds that Ms. Metes has not presented sufficient evidence of the fourth factor, that the harassment she allegedly experienced was severe or pervasive enough to demonstrate a hostile work environment as a matter of law. See Bonman v. Shawnee State Univ., 220 F.34 456, 464 (6th Cir.2000) (finding no hostile work environment as a matter of law where there were only four incidents of sex-based harassment, including three incidents that involved physical touching); Burnett v. liven Corp., 203 12.34 980, 985 (6th Cir.2000) (finding no hostile work environment based on two Case 3:16-cv-02483 Document 15-1 Filed 03/17/17 Page 7 of 38 PageID #: 68 Meles v. Avalon Health Care, LLC, Not Reported in F.Supp.3d (2015) incidents of sexually suggestive comments, which the court found "merely offensive" and one instance of reaching inside the plaintiffs blouse). It is clear that the Sixth Circuit has established a very high bar for a finding of pervasive harassment to support a hostile work environment claim. Sec 147!limns r. Gen. Motors Corp., 187 F.3d 553, 562-53 (6th Cir.1999) (finding a hostile work environment could be established by evidence of several instances of crude language and inappropriate touching, several instances of physically intimidating behavior such as locking the plaintiff inside, blocking exits, blocking her workspace, throwing boxes, and gluing items to her desk, along with ongoing offensive language and comments as well as differential treatment by both coworkers and a supervisor, while noting that each category of offense alone might not). The evidence Ms. Metes has put forth of what is essentially name-calling and taunts in only two recorded instances, and one instance of throwing socks, cannot meet this high threshold. Moreover, the court finds that Ms. Metes has not shown any evidence to support the fifth factor of her hostile work environment claim that Trevecca was notified of the harassment and did nothing about it. It is undisputed that Trevecca followed up on the written complaints it received by conducting a full investigation and finding that the allegations were not substantiated and that there were, therefore, no additional actions to be taken. Ms. Metes cites no evidence to support the position that Trevecca failed to conduct an adequate investigation or that there were other actions Trevecca should have taken but did not. It is further undisputed that Trevecca called a meeting for August 27, 2012 to discuss the issue with Ms. Meles' coworkers, despite the harassment not being corroborated. The fact that Ms. Metes was out of work that day and did not attend this meeting, and what happened between Ms. Metes and Trevecca after that point in time, is irrelevant to the finding that there is no evidence to refute that, at least initially, Trevecca properly and sufficiently addressed Ms. Metes' complaints. Ms. Metes' allegation that she was thereafter fired on September 12, 2012, does not demonstrate a hostile work environment. Ms. Meles cannot rely on the fact that she asked Ms. Diaz for a change of shift or a new position after the investigation was concluded and that this particular remedy was denied. She does not provide any evidence that this remedy was warranted because she does not sufficiently refute that Trevecca's official investigation showed no harassment. Nor does Ms. Metes cite to any evidence in the record to suggest that the remedies she sought were in any way a part of Trevecca's policy for handling even substantiated claims of harassment. A hostile work environment claim cannot be sustained on the basis that the employee did not get the exact remedy he or she sought. Moreover, Ms. Metes cannot rely on the allegation that, on August 24, 2012, Ms. Diaz told her to get back to work and that her prior complaints had done no good. At most, this conversation suggests that Ms. Diaz was displeased with complaints of harassment that were unsubstantiated by investigation, but it does not suggest that harassment was condoned or ignored. Moreover, Ms. Metes concedes that Ms. Diaz also informed her that she was welcome to make another written report if she wished. *11 Accordingly, the court finds that Ms. Meles' hostile work environment claim cannot proceed and will grant summary judgment to Trevecca on this claim. IV. THRA Claims The THRA is a Tennessee statute that tracks Title VII and is analyzed in the same way. See Regnier v. Metro. Gov. of Nashville, 2006 WL 1328937 (ienn.Ct.App. May 1 1 , 2006) ("It is clearly the law in Tennessee that federal case law on Title VII and related civil rights statutes may be used to interpret the THRA since the stated purpose and intent of the THRA is to execute the policies embodied within the federal anti-discrimination acts) (citing TENN.CODE ANN. 5 421-101) (a)(I)); Bobo v. United Parcel Service, Inc., 665 F.3d 741, 757-58 (6th Cir.2012). Ms. Moles' claims under the THRA, which she does not articulate separately from her Title VII claims in her briefing on summary judgment, are, therefore, analyzed as duplicative of her Title VII discrimination and hostile work environment claims discussed above. Accordingly, Ms. Metes' claims under the THRA will be dismissed for the same reasons her Title VII claims were dismissed. Ms. Metes' THRA claims are additionally barred by the TH RA's one year statute of limitations. See TENN CODE ANN. 5 4--21-311(4); see also Baltimore v. City of Franklin, 2007 WL 2123906 (M .D.Tenn. July 20, 2007). Ms. Meles' discrimination claim, which is premised on a termination date of September 6, 2012, and her hostile work environment claim, which is based on alleged harassment that took place between March and August Case 3:16-cv-02483 Document 15-1 Filed 03/17/17 Page 8 of 38 PageID #: 69 Moles v. Avalon Health Care, LLC, Not Reported in F.Supp.3d (2015) of 2012, were not filed until nearly two years later in July of 2014. For these reasons, the court will grant summary judgment to Trevecca on the THRA claims. V. FMLA Claims Ms. Metes does not fully articulate her position on summary judgment with respect to her FMLA claims. She neither clarifies which FM LA claims she asserts, nor does she explain how the facts in the record support the elements of these claims. Her Response in opposition to Trevecca's Motion for Summary Judgment contains only the following statement: "Trevecca violated FMLA by denying Alem Meles leave until Trevecca learned that Meles had filed a charge of discrimination with the EEOC. Meles was terminated by Trevecca on September 4, 2012, a fact that was communicated to her on September 6, 2012. She filed a claim with the FLOC on September 1 2, 2012 and when she communicated this fact to Trevecca, the pretext of granting the FMLA leave was hatched." (Docket No. 22 at p. 5.) Nevertheless, the court finds that the meaning of Ms. Meles' position is clear: she argues that, because she was terminated on September 6, 2012, Trevecca cannot defend against her FMLA claims based on FMLA approval documentation that was processed after that time, when she believed irrespective of what those documents indicated-that she was not welcome to return to work. Trevecca's briefing on this issue does not address this ground for Ms. Metes' claim but, instead, argues that there can be no FMLA claim because FMLA leave was clearly granted, and Ms. Meles was not terminated until a year after that leave expired. Therefore, the court finds that it would be inappropriate to dismiss Ms. Metes' FMLA claims on the basis of her inadequate briefing and, instead, turns to the underlying question of whether the facts in the record, when viewed in the light most favorable to Ms. Meles, can support the elements of an FMLA claim, For the reasons discussed more fully below, the court finds that they can. A. Legal Standard for FMLA Claims *12 There are two theories of recovery under the FMLA, interference and retaliation. ILaHner a Hilliard, 590 F. App'x 546, 550 (6th Cir.2014) (citing limier Pallet Vicar Lucid 579 F.3d 688, 691 (6th Cir.2009)). The elements of an FMLA interference claim are simple: 1) the employee was entitled to benefits, 2) the employee notified the employer of the intent to exercise the rights, and 3) the employee was denied the benefits to which she was entitled. Id. (citing Eclgor Producis, 443 F.3d 501, 507-08 (6th 01-.2006)). There is no need to show evidence of any particular employer motive or intent. M. A retaliation claim requires showing a causal connection between an exercise of FMLA rights and an adverse employment action. Id (citing Edgar, 443 F.3d at 408 and Hunter, 579 F.3d at 692). "[F]iring someone who has just requested FMLA leave before he can take it could be construed both as retaliation for having asked for leave and as interference with the employee's ability to take it." Id. at 551 (citing Skijanc a Great Lakes Power Scry. Co., 283 F.3d 818, 825 (6th Cir.2002)). Finally, temporal proximity between exercising FMLA rights and an adverse employment action can lead to an inference of causality. Id at 554 (finding that an employee discharge nine days after returning from FM LA leave led to a strong inference of causal connection.) B. Application While the undisputed facts show that Ms. Metes was sent notification approving an FM LA leave from August 24, 2012 through October 15, 2012, Ms. Meles has also presented evidence that she was effectively terminated from her position on September 6, 2012, during a conversation with Ms. Diaz about her request for ongoing leave. Trevecca's argument in favor of summary judgment does not address the sufficiency of these facts to support an FM LA claim. If true, the conversation between Ms. Meles and Ms. Diaz on September 6, 2012 could give rise to both a finding that Trevecca interfered with Ms. Meles' FMLA rights and an inference that Ms. Metes' termination was motivated by her request to exercise her rights under the FMLA in support of a retaliation claim. Ms. Meles' evidence to support these claims is admittedly thin and relies solely on the credibility of Ms. Meles' version of events in September 2012 and, with respect to the retaliation claim, an inference based on the temporal proximity of the request for leave and the termination. However, the burden for an FM LA interference claim is low, and, if a jury were to find Ms. Meles' version of her termination credible, she would easily meet all three elements of the claim. It is undisputed that Ms. Meles was entitled to FMLA benefits. It is also undisputed that she requested leave. Terminating her employment at the time of this request (such that she was either unwelcome to any FMLA benefits at all or unwelcome to return to work after the leave period expired) is plainly a denial of her FMLA Case 3:16-cv-02483 Document 15-1 Filed 03/17/17 Page 9 of 38 PageID #: 70 Meles v. Avalon Health Care, LLC, Not Reported in F.Supp.3d (2015) rights. With respect to the retaliation claim, the court acknowledges that the record is devoid of any evidence of motive beyond the temporal proximity. Yet, if Ms. Meles' version of events is true, her termination actually occurred in the same conversation in which she asked for leave, suggesting a very strong inference of causal connection. The court finds, viewing the facts in the light most favorable to Ms. Meles, that while Ms. Meles may have an uphill battle convincing a jury of the elements of either FMLA claim on the basis of this record, there is a genuine question of fact that warrants allowing Ms. Meles to proceed. Accordingly, Trevecca's motion for summary judgment will be denied as to Ms. Meles' FMLA claims. CONCLUSION *13 For the reasons discussed herein, Trevecca's Motion to Dismiss will be denied and Trevecca's Motion for Summary Judgment will be granted with respect to Ms. Meles' THRA and Title VII discrimination and hostile work environment claims, but denied with respect to Ms. Meles' FMLA claims. Additionally, Ms. Meles will not be permitted to rely on any evidence in her case in chief aside from her own testimony. An appropriate order will enter. All Citations Not Reported in F.Supp.3d, 2015 WL 5568060 Footnotes The facts recounted in this section are drawn primarily from Ms. Meles' Response to Trevecca's Statement of Undisputed Material Facts (Docket No. 23). This section also contains facts from Ms. Meles' June 22, 2015 Declaration (Docket No. 24) and Trevecca Human Resources Director Stephanie Harris' June 1, 2015 Declaration (Docket No. 16), and the documents attached thereto, that are not expressly refuted or contradicted by the opposing party. 2 In the record, Ms. Harris is sometimes referred to by her former name, Stephanie Bryant. 3 In her Response to Trevecca's Statement of Undisputed Material Facts, Ms. Meles indicates that Trevecca's policy to i mmediately investigate complaints is in dispute. (Docket No. 23 at ¶ 2.) Ms. Meles does not cite to anything in the record, nor can the court locate any evidence in the record that calls this policy into dispute. The court, therefore, accepts this fact as true for purposes of summary judgment. 4 Ms. Meles avers, in her Declaration, that Ms. Diaz and Ms. Harris repeatedly insisted that she provide additional details about the nature of her procedure in order for them to approve her paid absence. (Docket No. 24 at pp. 1-3.) Ms. Harris asserts, in her Declaration, that the reason additional documentation was requested is because the initial fax from Ms. Meles' physician was i llegible. (Docket No. 16 at 2-3.) A copy of the i llegible fax is found in the record at Docket No. 16, Ex. B and, in fact, no information whatsoever (even Ms. Meles' name or her physician's name) is visible. While Ms. Harris does not expressly deny Ms. Meles' allegation that she and Ms. Diaz asked Ms. Meles for additional details about her procedure, the court construes Ms. Harris' explanation for the additional document request as a denial that anything else was said about the matter. Moreover, Ms. Meles does not anywhere contest that, once a legible copy of her physician's note was provided, she was granted paid sick leave as requested, despite the fact that no details about the nature of her procedure were provided nor did she reveal any. Ms. Meles also avers, in her Declaration, that Ms. Diaz subsequently informed Ms. Meles' coworkers about Ms. Meles' abortion. (Docket No. 24 at p. 4). This allegation is also contained, although in a somewhat cryptic form, in the August 15, 2012 written complaint Ms. Meles lodged with Trevecca. (Docket No 16, Ex. 5.) There is no evidence in the record to support this allegation other than Ms. Meles' own statements, which she admits are based on assumption. (Docket No. 28, Ex. 1. at pp. 5-7.) Ms. Meles conceded, in her deposition, that she never heard Ms. Diaz make any comments about her pregnancy and that her allegations are based only on the fact that Ms. Meles' coworkers made comments about Ms. Meles' abortion and Ms. Meles cannot explain how they knew about it. Id. Ms. Meles further concedes, in her declaration, that she never told anyone at Trevecca, including Ms. Diaz, about her abortion. (Docket No. 24 at 10, 14.) I n her Response to Trevecca's Statement of Undisputed Material Facts, as recounted below, Ms. Meles concedes that neither Ms. Harris, nor Ms. Diaz, nor any other Trevecca supervisor or manager, ever made any inappropriate or offensive comments to Ms. Meles about her race, sex, or national origin. (Docket No. 23 at 7.) Ms. Meles also Case 3:16-cv-02483 Document 15-1 Filed 03/17/17 Page 10 of 38 PageID #: 71 Meles v. Avalon Health Care, LLC, Not Reported in F.Supp.3d (2015) concedes in her briefing on summary judgment: "It is true that Meles was harassed by coworkers and not supervisors or managers," and she does not appear to base any of her claims on the allegations against Ms. Diaz and Ms. Harris recounted in this footnote. (Docket No. 22 at p. 8.) The allegations that Ms. Diaz and Ms. Harris improperly asked Ms. Meles for private medical information and shared private medical information about Ms. Meles with her coworkers, therefore, not only lack credibility or support in the record, but they are also irrelevant to any of the claims at issue. The court notes these allegations only because they occupy a large portion of Ms. Meles' Declaration and briefing on summary judgment and, therefore, appear-even if untrue-to be a primary source of Ms. Meles' agitation, perhaps due to some sort of misunderstanding that took place at the time (it appears from the record that there is a language barrier, as Ms. Meles appears to have relied on the assistance of an interpreter at her deposition). Accordingly, the court notes that these allegations have not been ignored but have been reviewed, in the context of the record and the briefing, and found to have no proper place in the court's analysis. 5 Similarly, Ms. Meles testified, during her deposition, that Ms. Coure, Ms. Barton, and Mr. Harleston made "racial comments" every day from March to August of 2012, and that she submitted complaints about it "many times." (Docket No. 21, Ex. 1 at p. 22-26.) She also added that Mr. Harleston told her "go back" and "you need a husband from America." Id. Ms. Meles also admitted, however, that it has been a long time and she does not remember how often the harassment occurred. Id. The record does not contain any additional details about the alleged daily "racial comments" or any additional context for the alleged comments by Mr. Harleston. Accordingly, for purposes of summary judgment, the court finds these allegations are not properly developed in the record and will not be considered. 6 In Ms. Meles' written complaints to Trevecca, as well as in her pleadings, briefings, Declaration, and deposition testimony, Ms. Meles uses inconsistent names (and spellings) for these coworkers. Ms. Meles does not appear to dispute, however, that their proper names are Janice Coure, Alesia Barton, and Dien Harleston. Trevecca refers to them by these names, and it appears from the record that Trevecca uncovered the proper identities of these individuals in the course of its i nternal investigation into Ms. Meles' complaints and through its familiarity with the names and positions of its employees. 7 In her Response to Trevecca's Statement of Undisputed Material Facts, Ms. Meles responds to Trevecca's assertion that an investigation was conducted by stating that this fact is in dispute because "it is unclear what is meant by the launching of an investigation or that any such investigation was conducted." (Docket No. 23 at p. 2-3.) Ms. Meles cites no evidence to refute Trevecca's assertion that it conducted an investigation. Trevecca's statement properly cites to, and is supported by, Ms. Harris' Declaration (Docket No. 16) and exhibits thereto. Moreover, Ms. Meles responds to Trevecca's assertion that the investigation did not substantiate or corroborate Ms. Meles' allegations by stating that these statements "are undisputed for the purpose of this motion for summary judgment insofar as Trevecca questioned the employees and accepted their denial of any harassment as fact." (Docket No. 23 at p. 3.) This is a clear admission by Ms. Meles that an investigation was conducted and included, at least, the employee interviews, in direct contradiction to her prior assertion that it is unclear that any investigation was conducted. To the extent Ms. Meles argues that either Trevecca did not conduct the investigation it claims to have conducted or that this investigation was insufficient and reached an i naccurate conclusion, she cites no evidence, nor is there any such evidence in the record. Ms. Meles, therefore, fails to meet the criteria set forth in Rule 56(c)(a) of the Federal Rules of Civil Procedure. Accordingly, the court accepts as true Trevecca's position, as recounted above, that it conducted an investigation and could not corroborate Ms. Meles' allegations against her coworkers. The sufficiency of this investigation will not be called into question for purpose of the court's summary judgment analysis. 8 Ms. Metes' Declaration states that, on August 23, 2012, her coworkers called her "doggie" and "dumb, fat monkey," told her they could not understand her when she spoke, told her she was "so dumb [she] hadn't even finished the 12th grade, and stated that she should stop complaining because they would stick together and deny her complaints and have her fired. (Docket No. 24 at ¶ 18.) Ms. Meles' Declaration does not indicate, however, that any of these specifics were reported to Ms. Diaz or to anyone else at Trevecca. 9 There is a dispute of fact as to whether Ms. Metes was expected at the meeting but did not show up or was told by Ms. Harris, or one of the other supervisors, that she was not needed at the meeting. 10 This section highlights the conflicting versions of events from September 4, 2012 onward, as set forth in Ms. Meles' June 22, 2015 Declaration (Docket No. 24) and Ms. Harris' June 1, 2015 Declaration (Docket No. 16). 1 1 Curiously, Trevecca does not allege that Ms. Meles was a no-call/no-show for any other days between September 4th and September 12th, despite the undisputed fact that Ms. Meles did not come to work at all during that time period and Trevecca's allegation that no explanation was given until the 12th. 12 This fact is not directly stated in Trevecca's Statement of Undisputed Facts or Ms. Meles' Response thereto, nor is it referenced at al l in the Harris Declaration. Ms. Metes' Declaration indicates that the EEOC complaint was filed after the Case 3:16-cv-02483 Document 15-1 Filed 03/17/17 Page 11 of 38 PageID #: 72 Moles v. Avalon Health Care, LLC, Not Reported in F.Supp.3d (2015) September 6, 2012 conversation with Ms. Diaz and prior to Trevecca's providing Ms. Meles with any documents regarding FMLA leave. Trevecca does not refute this timing, and it is accepted as true for purposes of summary judgment. An undated document that appears to be an attachment to the EEOC complaint is found in the record as an exhibit to the Meles Deposition, attached to Trevecca's Memorandum in support of its Motion For Summary Judgment. (Docket No. 21, Ex 1 at p. 30.) This document recounts Ms. Meles' version of the September 6, 2012 conversation between Ms. Meles and Ms. Diaz in which Ms. Diaz informed Ms. Meles that she was terminated from her position, but states that the conversation took place on September 5, 2012. Id. It is not clear, however, that this document has been authenticated and would be admissible at trial. 13 Assuming Friday, August 24, 2012 was Ms. Meles' last day of work (or even her first day absent), the court notes that a return date of October 16, 2012 is a few days shy of a full eight weeks of leave. This curiosity, however, is not material to the analysis. 14 In her Response to Trevecca's Statement of Undisputed Facts, Ms. Meles responds to Trevecca's assertion that she was approved to take FMLA leave unti l October 16, 2012, and that a copy of this letter was mailed to her, by stating that "the timing and manner in which the approval took place and was communicated to the Plaintiff are disputed." (Docket No. 23 at if 16.) Ms. Meles does not dispute, however, that Trevecca sent her notice that she needed to present a fitness-for- duty certificate in order to return to work, notice which appears from the record to have been contained in the same letter that contained the notice of FMLA leave approval. (Id. at ¶ 17.) The court interprets Ms. Meles' responses to indicate, not that Ms. Meles contests her receipt of the FMLA approval form but, rather, that she contests that she reasonably understood the approval of FMLA leave to mean that she remained a Trevecca employee eligible to return to work on October 16, 2012, in light of the prior conversation with Ms. Diaz in which she was told she was terminated from her position. It is not entirely clear from the record whether Trevecca offered any pay or other benefits to employees who were out on FMLA leave, or whether Ms. Meles received any pay or benefits during this period. Both the FMLA eligibi l ity letter that Ms. Harris sent to Ms. Meles on September 12, 2012, and the FMLA approval letter she sent on September 20, 2012 indicate that Ms. Meles may have been eligible to use paid sick, vacation, or other leave during this time period. (See Docket No. 16, Exs. 9, 11.) 15 In her Response in opposition to Trevecca's Motion for Summary Judgment, Ms. Meles states: "In a letter, dated November 8, 2012, Trevecca indicates that Meles was no longer employed after August 2012." (Docket No. 22 at p. 5.) There is, however, no such document in the record, nor any reference to such a document in any of the Declarations or testimony in the record. 16 In her Response to Trevecca's Statement of Undisputed Statement of Material Facts, Ms. Meles does not properly cite to evidentiary support in the record for her refutation of Trevecca's assertion that Ms. Meles was not terminated until November 14, 2013. (Docket No. 23 at ¶ 19.) The court finds, however, that it is not necessary to search the record for such evidence. Ms. Meles' Declaration explicitly clarifies the evidentiary basis for Ms. Meles' position: her allegation that she was terminated in September of 2012. (Docket No 24 at ¶ 23.) 17 Trevecca explains in its Reply to its Motion to Dismiss that Ms. Meles' deposition was originally scheduled for Apri l 8, 2015, but that Ms. Meles and her counsel appeared almost three hours late and the parties then agreed to reschedule the deposition for May 11, 2015, even though this was outside of the deadline for fact witness depositions. (Docket No. 27 at p. 3, n. 3.) 18 Trevecca also cites Rule 16(f)(1), which states that a party that fails to obey any scheduling order may be subject to "just orders," including those authorized by Rule 37(b)(2)(A). There is no need to analyze the issue separately under Rule 16, as the question of sanctions under 37(b)(2)(A) is subsumed under the court's Rule 37(c)(1) analysis. 19 Rule 37(b)(2)(A)(1)-(vi) lists the following sanctions: '(i) directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims; (ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters into evidence; (iii) striking pleadings in whole or in part; (iv) staying further proceedings until the order is obeyed; (v) dismissing the action or proceeding in whole or in part; (vi) rendering a default judgment against the disobedient party." 20 Ms. Meles references Mr. Aregawi in her Declaration as someone who can corroborate her allegations regarding Ms. Diaz and Ms. Harris' response to her physician's note in March of 2012. (Docket No. 24 at in 5-9.) As discussed above, these allegations are nevertheless irrelevant to this action, and so it is not clear that Mr. Aregawi's testimony would in any event be admissible at trial, let alone significant. See infra, n. 4. Ms. Meles also alleges, in her Opposition to Trevecca's Motion to Dismiss, that Mr. Aregawi was identified to Trevecca at Ms. Meles' own deposition, which he attended. (Docket No. 25 at p. 1.) This allegation, however, is not properly supported by any facts in the record and does not affect the court's finding that, due to the failure to properly disclose Mr. Aregawi, Ms. Meles may not call Mr. Aregawi at trial. Case 3:16-cv-02483 Document 15-1 Filed 03/17/17 Page 12 of 38 PageID #: 73 Meles v. Avalon Health Care, LLC, Not Reported in F.Supp.3d (2015) 21 Trevecca argues that Ms. Meles may not assert that she was terminated in September of 2012 because this is inconsistent with statements she made in her deposition testimony. (Docket No. 3 at p. 3, n. 4.) Specifically, Trevecca cites Ms. Meles' deposition testimony that she could not recal l the specific date of the conversation with Ms. Diaz and that she never received termination paperwork at that time. The court finds, however, that this is not inconsistent. In her deposition testimony, Ms. Meles did not disavow her allegations regarding the conversation with Ms. Diaz in September 2012. To the contrary, there is no deposition testimony, or other evidence, in the record that contradicts the statement that Ms. Diaz told Ms. Meles she was terminated, by phone, in September 2012. While Ms. Meles did state that, at the time of the deposition, she could not recall the specific month and date, she maintained that her termination had taken place in 2012. (Docket No. 28, Ex. 1 at p. 8-10). It is for a jury to determine whether the deposition testimony that she could not recall the date, as well as the lack of termination paperwork from September 2012, cuts against Ms. Meles' credibility i n stating that she was told, and rationally believed, she was terminated at that time. The testimony does not, however, preclude the court from allowing Ms. Meles the opportunity to tell her side of the story as laid out in her Declaration. 22 The court notes that the record might support an inference (due to temporal proximity and the alleged comments of Ms. Diaz) that Ms. Meles' termination in September 2012 was motivated, at least in part, by the complaints of discrimination she made against her coworkers and, therefore, support a retaliation claim under Title VI I. Ms. Meles, however, failed to name this claim in her Complaint (Docket No. 1, Ex. 1) and there is no indication in the CMO that Ms. Meles presented a retaliation theory as a basis for this action at the time of the initial case management conference (see Docket No. 10 at p. 1). Moreover, Ms. Meles has not articulated an argument that she has a Title VII retaliation claim in her Response to Trevecca's Motion for Summary Judgment. After laying out the elements of a Title VII discrimination claim, and arguing that she has made a prima face case that she was fired for discriminatory reasons because she was replaced by a male employee (a fact not in the record), Ms. Meles adds that "something else Meles did was request that the management of Trevecca stop her coworkers from harassing her." (Docket No. 22 at p. 6.) Ms. Meles does not, however, argue that these complaints were the basis for her termination. Ultimately, the court will not read a retaliation claim into this action sua sponte. 23 An earlier incident in which Ms. Coure laughed at Ms. Meles and was uncooperative is not relevant to this analysis because there is no evidence in the record to suggest this incident can be construed as harassment based on Ms. Meles' race, sex, or national origin. 24 Trevecca argues that abortion-related comments generally cannot be construed to create a hostile work environment on the basis of sex, but it cites only to one district court case that held that an isolated comment about an abortion did not constitute severe and pervasive harassment (Taverna v. First Wave, Inc.; 2010 WL 4930593 (N.D.Okla. Nov. 30, 2010)) and a Supreme Court case that addressed the question of whether protests of abortion constitute discrimination against women (Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 113 S.Ct. 753, 122 L.Ed.2d 34 (1993)). (Docket No. 21 at 18.) The court does not find, as a matter of law, that taunts by coworkers about Ms. Meles being pregnant and/or having an abortion cannot be construed as harassment based on her sex. End Document 2017 Thouson keutonzi No claim to or iginal U S Government Viorks Case 3:16-cv-02483 Document 15-1 Filed 03/17/17 Page 13 of 38 PageID #: 74 Jones v. Makowsky, Ringel, and Greenberg Properties, Not Reported in F.Supp.3d (2015) 2015 WL 5334203 2015 WL 5334203 Only the Westlaw citation is currently available. United States District Court, W.D. Tennessee, Western Division. Jerry L. JONES, Plaintiff, v. MAKOWSKY, RI NGEI „ AND GREENBERG PROPERTIES, Defendant. No. 11.-cv-2961-SHM-dkv. Signed July 23, 2015. Attorneys and Law Firms Jerry L. Jones, Southaven, MS, pro se. Kathryn \V. Pascover, Fordharrison, LLP, Memphis, TN, for Defendant. REPORT AND RECOMMENDATION GRANTING DEFENDANT'S MOTION TO DISMISS DIANE K. VESCOVO, United States Chief Magistrate Judge. *I On December 10, 2014, the plaintiff, Jerry L. Jones ("Jones"), filed a pro se complaint under Title VII of the Civil Rights Act of 1964, alleging that the defendant, Makowsky, Ringel, and Greenberg Properties ("Makowsky"), terminated Jones's employment because of his disability. (ECF No. 1.) Makowsky filed an answer on January 9, 2015. (ECF No. 6.) This case has been referred to the United States Magistrate Judge for management and for all pretrial matters for determination and/or report and recommendation as appropriate. (Admin. Order 20134)5, Apr. 29, 2013.) Before the court is Makowsky's June 18, 2015 second motion to dismiss the complaint. (ECF No. 13.) Jones did not respond to the motion and the time for response has expired. For the reasons that follow, the court recommends that Jones's complaint be dismissed under Fed.R.Civ.P. 37( b)(2)(A)(v) for failure to comply with a court order and Fed.R.Civ.P. 41( b) for failure to prosecute. I. PROPOSED FINDINGS OF FACT On February 6, 2015, Makowsky served Jones with its initial disclosures and discovery requests. (ECF No. 9-- 2.) Jones did not respond by the due date, and, on April 1 3, 2015, Makowsky filed a motion to dismiss the action or in the alternative to compel Jones to serve initial disclosures and to respond to Makowsky's discovery requests, and for attorney fees and expenses associated with filing the motion. (ECF No. 9.) Jones did not respond to Makowsky's April 13, 2015 motion. On May 18, 2015, the court denied Makowsky's motion to dismiss and granted Makowsky's alternate motion to compel. (ECF No. 10.) The court ordered Jones to serve his initial disclosures and his responses to Makowsky's discovery requests within fourteen days of that order. (Id.) The court also granted Makowsky's motion for attorney fees and ordered Jones to pay the sum of $1,682.50 incurred by Makowsky in seeking discovery and preparing the filing of the motion to compel. (ECF No. 12.) In its May 18, 2015 order, the court also warned Jones that "failure to comply with proper discovery requests, discovery obligations, or orders of this court will lead to dismissal of his complaint." (ECF No. 10.) To this day, Jones has not served initial disclosures or responded to Makowsky's discovery requests. In its second motion to dismiss, Makowsky requests that the court enter an order dismissing this action with prejudice, pursuant to Fed.R.Civ.P. 37(b)(2)(A)(y) and 41(b). (ECF No. 13.) As stated above, Jones again failed to respond to the motion and the time for response has expired. Pursuant to the scheduling order, all discovery in this case shall be completed by August 3, 2015. (ECF No. 7.) II. PROPOSED CONCLUSIONS OF LAW Federal Rule of Civil Procedure 37(b)(2)(A) empowers the court to issue a number of sanctions in the event a party fails to obey a discovery order. Among such sanctions is dismissal of the action in whole or in part. Fed.R.Civ.P. 37(b)(2)(A)(v). The Sixth Circuit regards the sanction of dismissal under R ale 37 for failure to cooperate in discovery to be "the sanction of last resort." Case 3:16-cv-02483 Document 15-1 Filed 03/17/17 Page 14 of 38 PageID #: 75 Jones v. Makowsky, Ringel, and Greenberg Properties, Not Reported in F.Supp.3d (2015) 2015 WL 5334203 Bcil v. telavoo(1 and Co., 15 F.3d 546, 552 (6th Cir.1004). Dismissal may be imposed "only if the court concludes that a party's failure to cooperate in discovery is due to willfulness, bad faith, or fault." Reg ional Refuse Sys. v. Inland Reclamation Co., 842 F.2d 150, 154 55 (6th Cir.1988)(citing Patton v. :lerojet Ordnance Co„ 765 F.2(1 604, 607 (6)11 ('ir.1085)). In determining whether to dismiss an action, the court should consider (1) whether the party acted with willfulness, bad faith, or fault; (2) whether prejudice resulted from the discovery violation; (3) whether the party had been warned that her conduct could lead to extreme sanctions; and (4) whether less drastic sanctions were previously imposed or should be considered. Freeland P. Amigo, 103 F.3d 1271, 1277 (6th Cir.1997); Bass v.„loqens, Inc., 71 F.3d 237, 241 (6th Cir.1095); Bank One of Cleveland, N'. :1/q,c, 916 1 .2d 1067. 1073 (6th Cir.1990). *2 Another Federal Ride of Civil Procedure, Rule 41(b) provides for involuntary dismissal of a complaint where the plaintiff has failed to prosecute or to comply with the Federal Rules of Civil Procedure or a court order. Rule 41(b) "allows district courts to manage their dockets and avoid unnecessary burdens on both courts and opposing parties." Shavers v. Bergh, 516 F. App'x 568, 569 (6th Cir.2013)(citing Knoll v. Am. Tel. S. Tel. Co., 176 F.3(1359, 363 (6th Cir.1999)). In determining whether to dismiss an action under Rule 41(b), the court considers the same factors as those considered under Rule 37( b)(2)(A). Tel. at 569-70. Dismissal under Rule 41( b) is warranted when there is a "clear record of delay or contumacious conduct by the plaintiff- and when the plaintiff "is inexcusably unprepared to prosecute the case." Id. at 570 (citations and internal quotation marks omitted). Dismissal of Jones's complaint is the only appropriate sanction in this case. Jones has failed to comply with a court order, and therefore, dismissal of the action is warranted under Fed.R.Civ.P. 37(b)(2)(v). Furthermore, Jones has failed to cooperate in discovery and has shown an inexcusable unpreparedness to prosecute the case, and therefore, dismissal is warranted under Feci.R.Civ.P. 41( b). As to the first factor, the Sixth Circuit has held that it is satisfied only if "a clear record of delay or contumacious conduct" exists. Free/and., 103 F.3d at 1277. "Willfulness, bad faith, or fault is demonstrated when a plaintiffs conduct evidences 'either an intent to thwart judicial proceedings or a reckless disregard for the effect of his conduct on those proceedings.' Shavers, 516 F. App". at 570 (quoting .8uhajes r. City of Defiance Police Dept.. 529 F.3d 731, 737 (6th Car.2008)); see also Gibson USA, Inc., 489 F. App'x 24, 31-32 (6th Cir.2012)(stating that bad faith exists when a party delays or disrupts the litigation or hampers the enforcement of a court order (citing Het= r. (-ni=an Bank, 655 F.3d 485, 489 (6th Cir.201 1)). The record in this case reflects that Jones has failed to abide with this court's order. Jones failed to timely serve his initial disclosures and responses to Makowsky's discovery requests. On May 18, 2015, the court ordered Jones to file his initial disclosures and responses to the discovery requests; however, to this day, Jones has not obeyed the court's order. Makowsky's counsel granted Jones an additional week after the court-ordered deadline to provide discovery responses and initial disclosures, however, Jones did neither provide responsive documents and disclosures nor contact Makowsky's counsel to request additional time. (See ECF No. 13-3.) Jones was clearly aware of the court-ordered deadlines and has willfully refused to obey them. Further, Jones did not respond to Makowsky's first and second motion to dismiss and did not file objections to Makowsky's affidavit of fees filed on May 28, 2015. Jones's conduct exhibits a clear record of delay and refusal to prosecute his case in any manner. *3 As to the second factor, a "defendant is 'prejudiced by the plaintiffs conduct where the defendant waste[s] time, money, and effort in pursuit of cooperation which [the plaintiff] was legally obligated to provide.' " 11;riOa v. ('ii of Germantown, Tenn., No. 1 1-02007, 2013 WL 1729105, at *2 (W. D.Tenn. Apr. 22. 2013)(quoting Shavers, 516 F. A pp'x at 570). Here, the discovery deadline is August 3, 2015 and, to this day, Jones has failed to participate in discovery in any manner. As a result, Makowsky has been unable to engage in any discovery or prepare for trial. Makowsky has also wasted time, money, and efforts in filing a motion to dismiss or compel and a second motion to dismiss. Accordingly, Makowsky has been prejudiced by Jones's conduct. The third factor is also satisfied because Jones was warned by the court in its May 18, 2015 order that failure to comply with proper discovery requests, discovery Case 3:16-cv-02483 Document 15-1 Filed 03/17/17 Page 15 of 38 PageID #: 76 Jones v. Makowsky, Ringel, and Greenberg Properties, Not Reported in F.Supp.3d (2015) 2015 WL 5334203 obligations, or orders of this court would lead to dismissal of his complaint. (ECF No, 10.) As to the fourth factor, the court has previously imposed significant financial sanctions on Jones. On June 9, 2015, the court sanctioned Jones monetarily for his failure to respond to Makowsky's discovery requests and to provide initial disclosures, (ECF No. 12.) Despite this sanction, Jones has still not provided initial disclosures or discovery responses to Makowsky. Therefore, it is clear that further financial sanctions would have no practical deterrent effect on Jones. While dismissal is a sanction of last resort, it is warranted here. All the factors weigh in favor of dismissing Jones's complaint. Apart from filing his complaint, Jones has not engaged in any other efforts to prosecute his case or notified the court of any necessity for additional time. Despite the approaching discovery deadline of August 3, 2015, Jones has not yet sought any discovery from Makowsky, has not responded to Makowsky's discovery requests, and has failed to even respond in objection to Makowsky's various motions to dismiss the case, to compel discovery responses and disclosures, and to seek reasonable expenses from Jones. Therefore, the court recommends dismissal of Jones's complaint under Federal R ules of Civil Procedure 41 ( b) and 37(1))(2)(A)(v). III. RECOMMENDATION For the foregoing reasons, it is recommended that the court dismiss Jones's complaint under Fed.R.Civ.P. 41(b) and 37(b)(2)(A)(v) with prejudice. All Citations Not Reported in F.Supp.3d, 2015 WL 5334203 End of Document 2017 tIrt(tmsom Rooters. No claim to otigirml U."-Government Works Case 3:16-cv-02483 Document 15-1 Filed 03/17/17 Page 16 of 38 PageID #: 77 Knight v. Systech Intern. LLC, Not Reported in F.Supp.2d (2013) 2013 WL 6827930 KeyCite Yellow Flag - Negative Treatment Distinguished by Males v. Avalon Health Care. 1.L.0 M.D.Tenn., September 22, 2015 2013 WL 6827930 Only the Westlaw citation is currently available. United States District Court, M.D. Tennessee, Nashville Division. Cortez KNIGHT, Plaintiff, v. SYSTECH INTERNATRAAT, LLC, Defendant. No. 3:11-cv-01024. Dec. 20, 2013. Attorneys and Law Firms Michael Lloyd Freeman, Freeman Law Firm, Nashville, TN, for Plaintiff. Fredrick J. Bissinger, Anne Todd McKnight, Wimberly, Lawson, Wright, Daves & Jones, PLLC, Nashville, TN, Jerome D. Finn, Wimberly, Lawson, Wright, Daves & Jones, PLLC, Knoxville, TN, for Defendant. ORDER JOHN T. NINON, Senior District Judge. *1 Pending before the Court is Defendant Systech International L LC's Renewed Motion for Sanctions ("Motion") against Plaintiff Cortez Knight and Plaintiffs counsel, Michael Lloyd Freeman. (Doc. No. 59 .) Plaintiff has not responded to the Motion. Magistrate Judge Griffin issued a Report and Recommendation ("Report") recommending that the Motion be granted and that this action be dismissed in its entirety with prejudice. (Doc. No. 65 at 14.) Plaintiff has not filed an Objection to the Report. For the reasons stated below, the Court ADOPTS Magistrate Judge Griffin's Report, GRANTS Defendant's Motion, and DISMISSES this action, in its entirety, with prejudice. I. PROCEDURAL BACKGROUND Plaintiff filed this action on October 26, 2011, alleging racial discrimination under Title VII of the Civil Rights Act of 1964 and the Tennessee Human Rights Act ("THRA"). (Doc. No. 1 at 1.) On February 3, 2012, the parties attended a joint case management conference. (See Doc. Nos. 16 at 1; 65 at 2.) On February 15, 2012, Magistrate Judge Griffin issued a Case Management Order, establishing deadlines, including: (1) a March 2, 2012, deadline for the parties to serve initial disclosures under Federal Rules of Civil Procedure R ule 26( a)( 1 ); (2) a November 5, 2012, deadline for completion of discovery; (3) a November 30, 2012, deadline for the filing of dispositive motions; and (4) a trial date of June 4, 2013, (Doc. Nos. 15 and 16.) At the February 3, 2012, case management conference, Plaintiffs counsel informed the Court that the parties intended to file a stipulation of dismissal of Plaintiffs THRA claims by February 10, 2012. (Doc. No. 65 at 2.) As the stipulation was not filed by that date, Judge Griffin's February 15, 2012, Case Management Order also provided an extended deadline of February 24, 2012, for the parties to file a stipulation of dismissal of Plaintiffs TH RA claims. (Doc. No. 16 at 1.) On April 18, 2012 Defendant filed a motion requesting a status conference. On April 30, 2012, Judge Griffin held a telephonic status conference, at which time Defendant's counsel informed the Court that Plaintiff had not yet served initial disclosures or filed a stipulation to dismiss his THRA claims. (Doc. No. 65 at 2.) Plaintiffs counsel, Katherine Everette, informed the court of her intention to withdraw as Plaintiffs attorney on or before May 4, 2012. (Id.) Judge Griffin subsequently scheduled a status conference for June 7, 2012. (Doc. No. 19 at 1 .) Ms. Everette was permitted to withdraw on May 30, 2012. (Doc. No. 23.) No appearance was made on behalf of Plaintiff at the June 7, 2012, conference, and Ms. Everette informed the Court that she had notified Plaintiff of the conference but did not know whether Plaintiff had been sent the scheduling order. (Doc. No. 26 at 1.) Based on Ms. Everette's representations, the Court issued an order on June 11, 2012, scheduling a further status conference for June 22, 2012. (Id. at 2.) *2 Counsel for Defendant and Plaintiffs new counsel, Mr. Freeman, appeared at the June 22, 2012, status conference. (Doc. No. 65 at 3 .) Plaintiff was directed to serve or supplement his initial disclosures I and determine Case 3:16-cv-02483 Document 15-1 Filed 03/17/17 Page 17 of 38 PageID #: 78 Knight v. Systech Intern. LLC, Not Reported in F.Supp.2d (2013) 2013 WL 6827930 whether he intended to pursue his THRA claim, and an additional status conference was scheduled for July 10, 2012. (Doc. No. 29.) At the July 10, 2012, conference, the deadline for Plaintiff to serve initial disclosures was extended to August 22, 2012, the deadline for completion of discovery was extended to December 21, 2012, and the deadline for completion of dispositive motions was extended to January 18, 2013. (Doc. No. 30.) Additionally, Plaintiff was instructed to inform the Court as to whether he wished to dismiss or pursue his THRA claim by July 27, 2012, (N.) Defendant requested a status conference on August 14, 2012, representing that Plaintiff had not yet served initial disclosures or provided notice of his intent regarding the THRA claim. (Doe. No. 33.) A status conference was accordingly scheduled for August 23, 2012. (Doc No. 34.) At the hearing, Mr. Freeman stated that Plaintiffs TH RA claims were untimely and should be dismissed. (Doc. No. 38 at 1 n. 2.) O❑ September 7, 2012, the parties filed a proposed Dismissal of State Law Claims (Doc. No. 41) which Judge Griffin signed on September 10, 2012 (Doc. No. 45). On September 7, 2012 Defendant also filed a Motion for Sanctions ("Initial Motion for Sanctions"), specifically requesting the Court dismiss the case and an award Defendant attorney's fees, based on Plaintiffs repeated failure to meet established deadlines and resulting delay. (Doc. No. 42.) In response to Defendant's Initial Motion for Sanctions, Judge Griffin issued an order directing Plaintiffs counsel to communicate with Defendant's counsel about the delinquent disclosures prior to the upcoming September 12, 2012, status conference. (Doc. No. 44.) Neither Plaintiff nor Plaintiffs counsel appeared at the September 12, 2012, status conference. (Doc. No. 46 at 1.) Defendant's counsel stated that Plaintiffs counsel had not communicated with him regarding the disclosures. (Id.) Thus, an order was issued on September 13, 2012, scheduling a show cause hearing for October 9, 2012, and directing Plaintiff and his counsel to appear and show cause for why Defendant's Initial Motion for Sanctions should not be granted, giving Plaintiff a deadline of September 21, 2012, to file a response. (Id.) Defendant filed a motion for attorney's fees on October 8, 2012. (Doc. No. 50.) Plaintiff did not file a response to the Initial Motion for Sanctions, but did appear without an attorney at the October 9, 2012, hearing, indicating that his counsel had not asked him to provide any information, and that he intended to get another attorney. (Doe. No. 52.) The Court then rescheduled the show cause hearing for October 19, 2012. (Id.) Plaintiffs counsel, Mr. Freeman, appeared at the hearing on October 19, 2012, stating that he had advised Plaintiff that Plaintiff did not need to appear personally at the hearing, and that Plaintiff agreed that Mr. Freeman should continue to represent him. (Doc. No. 65 at 7.) Plaintiffs counsel stated that he had missed the previous status conference and show cause hearing dates due to state court proceedings, and that he was only "twenty minutes" away from completing the supplemental disclosures. (Id.) The Court declined to consider dismissing the case as a sanction at this hearing--despite allusions by Mr. Freeman and Plaintiffs former counsel that Plaintiff was uncooperative based on Plaintiffs statement that his counsel had not asked for information concerning the initial disclosures and because "it appeared to the Court at that time that the plaintiff intended to prosecute this case." (Id. at 7-8.) Mr. Freeman was ordered to pay Defendant's counsel 81,500.00 in attorney's fees and directed to communicate with Defendant's counsel as matters arose in the future, ideally by phone. (Doc. Nos.56-57.) Plaintiff was given until October 22, 2012, to fully serve initial disclosures and a telephone conference was scheduled for October 29, 2012. (Doc. No. 56 at 1.) The discovery deadline was also extended to May 31. 2013, the deadline for filing dispositive motions was extended to July 1, 2013, and trial was rescheduled for January 28, 2014. (Id. at 2.) On October 29, 2012, Defendant's counsel informed the Court that he had attempted to call Mr. Freeman but was unable to reach him, and the telephone conference did not take place. (Doc. No. 65 at 9.) *3 On November 7, 2012, Defendant filed the present Motion, stating that he has not received Plaintiffs initial disclosures. (Doc. No. 59 at 1-2.) Defendant seeks dismissal of the case and award of the remaining attorney's fees that the Court has not yet awarded in its previous orders. (Id. at 3- 4). Plaintiff has not filed a response to the Motion. Defendant has since filed five status updates on the case (Doc. Nos.60-64), the last three of which state that Mr. Freeman has to date not paid the previously awarded attorney's fees (Doc. Nos.62-64). Case 3:16-cv-02483 Document 15-1 Filed 03/17/17 Page 18 of 38 PageID #: 79 Knight v. Systech Intern. LLC, Not Reported in F.Supp.2d (2013) 2013 WL 6827930 II. LEGAL STANDARD Federal Rule of Civil Procedure Rule 37(b) provides that courts may issue such orders as are "just" when a party fails to obey an order to provide discovery. Fed.R.Civ. P. 37(b)(2)(A). This includes imposing sanctions under Rule 37(b)(2), which include, but are not limited to "dismissing the action or proceeding in whole or in part" and "rendering a default judgment against the disobedient party." id. Rule 37(b )( 2)(C) further requires courts to "order the disobedient party, the attorney advising that party, or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust." Additionally, Rule 41(b) provides for involuntary dismissal of cases where the plaintiff "fails to prosecute or to comply with these rules or a court order" and that, with a few narrow exceptions, - "a dismissal under this subdivision ... operates as an adjudication under the merits." The imposition of sanctions, and the type of sanctions imposed, is within the discretion of the court based on the facts of each particular case. Sec Nat'l Hockey League v. Moro. Hockey Club, Inc., All U.S. 639 (1976) (per curiam). Dismissal of an action is appropriate where a plaintiff callously disregards its discovery responsibilities, Nat'l Hockey League, 427 U.S. at 640, but this is "a sanction of last resort that may be imposed only if the court concludes that a party's failure to cooperate in discovery is due to wilfulness [sic], bad faith, or fault," S'nuniec, Inc. r. Anson. 195 F. App'x 473, 478 (6th 01-.2006) (quoting Patton v. Acrojet Ordnance Co., 765 F.2d 604. 607 (6th Lir.1985)). The Sixth Circuit has, however, clarified that "if a party has the ability to comply with a discovery order and does not, dismissal is not an abuse of discretion." Reg'l Rtjitse .Vs., Inc. v. Inland Reclamation Co., 842 F.2d 150, 154 (6th Cir.1988) (superseded by statute on other grounds). In addition to weighing whether a party's failure to complete discovery was due to willfulness, bad faith, or fault, the Sixth Circuit lays out three additional factors that a court may consider in determining whether dismissal is an appropriate sanction pursuant to Rule 37( b ), including whether: (1) the adversary was prejudiced by the dismissed party's failure to cooperate in discovery; (2) the dismissed party was warned that failure to cooperate could lead to dismissal; and (3) less dramatic sanctions were imposed or considered before dismissal was ordered. Id. at 155. However, "[d]ismissal is usually inappropriate where the neglect is solely the fault of the attorney" Carter v. City of Ilemphis, 636 F.2d 159, 161 (6th Cir.1980). In such situations, the sanction of dismissal is appropriate only when the attorney's "dilatory actions"----including failure to appear at a pretrial conference or failure to comply with a pretrial order -"amount[ ] to failure to prosecute and no alternative sanction would protect the integrity of pre-trial procedures.- Carter. 636 F.2d at 161(citirw .I.E Edivards Cons!. Co. a Andcrson Sq/c.way Guard Pail Corp., 542 F.2d 1318, 1323 -24 (7th Cir.1976) (per curiam)); Schreiber r. ilfoc, 320 F. App'x 312, 317 18 (6th Cir.2008). III. ANALYSIS *4 The Court finds the sanction of dismissal is appropriate in this case. Plaintiff and Plaintiff's counsel have demonstrated a willful failure to attend hearings, engage in discovery, and comply with orders of the Court, namely service of his initial disclosures, despite being warned by Judge Griffin that failure to comply could result in a recommendation that the case be dismissed. Further, Plaintiffs failure to be actively involved in this lawsuit has prejudiced Defendant. Judge Griffin first set a deadline of March 2, 2012, for Plaintiff to provide Defendant with his initial disclosures. Since that time, the deadline has been extended twice: first, to August 22, 2012 (Doc. No. 30), then to October 22, 2012 (Doc. No. 56 at 1). To date, Plaintiff has not served Defendant with initial disclosures and has not sought aft extension to the deadline to serve them or challenged Defendant's expressed need for them. (Doc. No. 65 at 12.) Plaintiffs current counsel, Mr. Freeman, has been on notice since June 22, 2012, and Plaintiff himself has been on notice at least since October 9, 2012, that Plaintiff was obligated to serve supplemental initial disclosures. (Id. at 1 1.) Plaintiff and Mr. Freeman failed to participate in hearings scheduled on September 12, 2012; October 9, 2012; and October 29, 2012. (id. at 12). Plaintiff has offered no explanation for these failures nor made any effort to reschedule, and Plaintiffs counsel has failed to pay Defendant's counsel the 81,500.00 in attorney's fees imposed by orders issued on October 26, 2012, and November 6, 2012 (Doc. Nos.57-58). Plaintiff has also not filed any response to Defendant's Motion or made Case 3:16-cv-02483 Document 15-1 Filed 03/17/17 Page 19 of 38 PageID #: 80 Knight v. Systech Intern. LLC, Not Reported in F.Supp.2d (2013) 2013 WL 6827930 any communications with respect to Defendant's status reports. (Id. at 13.) Judge Griffin notes that At the October 19, 2012, hearing, the Court was not willing to consider dismissal of this case as a sanction because that would have unfairly prejudiced the plaintiff who had shown an interest in prosecuting this case. However, the plaintiff was himself aware of the need to supplement his initial disclosures, since that issue was specifically addressed at the October 9, 2012, hearing that he attended, and the plaintiff himself had questions about whether he wanted his lawyer to continue to represent him. Despite these red flags and the passage of more than sufficient time, the plaintiff himself has taken no action in this case. This is not a situation in which the plaintiff has been blindly relying upon his counsel to take care of all matters related to this lawsuit. The plaintiff himself was aware of his counsel's previous shortcomings. In addition, the plaintiff himself was fully aware of the consequences of tailing to comply with court orders since he had been advised in orders sent directly to him [ (Doc. Nos. 19 and 26) ] that his case could be dismissed pursuant to Rules 16(f) and Rule 37(b)(2)(A) of the Federal Rules of Civil Procedure. (Doe. No. 65 at 13.) *5 Dismissal of the action with prejudice is appropriate in light of Plaintiffs apparent lack of interest in the instant action, the hardship it would cause Defendant to face the prospect of defending a future action based on allegations which it has attempted to defend against in this action, the impasse caused by Plaintiffs refusal to participate in discovery, and the needless expenditure of resources by both the Court and Defendant due to Plaintiffs conduct. IV. CONCLUSION For the reasons set forth above, the Court ADOPTS Judge Griffin's Report, GRANTS Defendant's Motion, and DISMISSES this action, in its entirety, with prejudice. It is so ORDERED. All Citations Not Reported in F.Supp.2d, 2013 WL 6827930 Footnotes 1 There is some uncertainty as to whether Plaintiff had already served a portion of the initial disclosures prior to this date. Judge Griffin reports that Defendant's counsel indicated on June 22, 2012, that Plaintiff had served "pro forma" initial disclosures, but the Court also stated that it was "the Court's memory" that counsel for both parties represented that there had been no service of initial disclosures whatsoever. (Doc. No. 29 at 1 n. 1.) 2 The exceptions provided for in Rule 41(b) are lack of jurisdiction, improper venue, or failure to join a party under Rule 19, none of which are applicable here. End of Document 2u 17 Thomson Reuters No claim to original U 5. Government \IVorks Case 3:16-cv-02483 Document 15-1 Filed 03/17/17 Page 20 of 38 PageID #: 81 Mulbah v. Detroit Bd. of Educ., 261 EU! 586 (2001) 80 Empl. Prac. Dec. P 40,672, 50 Fed.R.Serv.3d 543, 156 Ed. Law Rep. 484... KeyCite Yellow Flag - Negative Treatment Distinguished by Carpenter v. City or Hint. 61.11 Cir1Mich.), July 25. 2013 261 F.3d 586 United States Court of Appeals, Sixth Circuit. Larwuson MULBAII, Plaintiff-Appellant, DETROIT BOARD OF EDUCATION, a governmental corporation, Alsce Johnson, Daisey C. Marshall, Marvin Weingarden, Emcral Crosby, Deidra Wells Smith, and Irene Norde, in their individual and official capacities, Jointly and Severally, Defendants-Appellees. No. 00-1079. Argued April 25, 2001. Decided and Filed Aug. 16, 2001. Public school teacher who had been discharged brought suit asserting civil rights claims under federal and state law, and additional state law claims. The United States District Court for the Eastern District of Michigan, Paul 0. Berman, J., dismissed with prejudice for failure to prosecute. Teacher appealed. The Court of Appeals, Clay, Circuit Judge, held that district court abused its discretion by dismissing suit, and should instead have employed an alternative sanction that would have protected integrity of pretrial procedures, even though teacher and his counsel could have proceeded in a more timely and professional fashion. Reversed and remanded. Attorneys and Law Firms "587 William A. McNeil (argued and briefed), Law Office of William A. McNeil, Detroit, MI, for Plaintiff- Appellant. Mark A. Randon (briefed), Detroit Board of Education, Detroit, MI, Lamont D. Satchel (argued and briefed), Office of General Counsel, Detroit, MI, for Defendants- Appellees. Before BOGGS and CLAY, Circuit Judges; OW IN, District Judge. OPINION CLAY, Circuit Judge. Plaintiff, Larwuson Mulbah, appeals from the district court's Order dismissing his civil rights action against the Detroit Board of Education for failure to prosecute pursuant to Local Rule 41.2 of the United States District Court for the Eastern District of Michigan. Plaintiff contends that the district court's dismissal was an abuse of discretion. For the reasons set forth below, we REVERSE the judgment of the district court and REMAND for- further pre-trial proceedings consistent with this opinion. I. Plaintiff, a native of Liberia, was hired by the Detroit Board of Education in 1991 as a mathematics teacher. In October of 1992, he was transferred to a different school and received tenure. Plaintiff contends that since a new principal joined his school in the 1993 94 academic year, the principal and others have conspired to discriminate against Plaintiff and have treated him differently from "white, American American [sic] and/ or female teachers; infringed upon his constitutionally protected right of freedom of speech; and retaliated against him." (Appellant's Br. at 2.) In April of 1996, Plaintiff received a letter of intent to terminate his employment. As was required by the Detroit Federation of Teachers' Collective Bargaining Agreement, Plaintiff received a hearing before an Administrative Law Judge ("AU"), which look place between July 30, 1996, and August 7, 1996. Following the hearing, Plaintiff was terminated for incompetence. Plaintiff appealed the decision of the A LJ to the Michigan Tenure Commission, which adopted the ALJ's preliminary decision and order. The Michigan Court of Appeals denied Plaintiffs application for leave to appeal that decision. On October 1 5, 1998, Plaintiff filed a complaint against the Detroit Board of Education and several of its employees ("Defendants") in the United States District *588 Court for the Eastern District of Michigan alleging various Case 3:16-cv-02483 Document 15-1 Filed 03/17/17 Page 21 of 38 PageID #: 82 Mullah v. Detroit Bd. of Educ., 261 F.3d 586 (2001) 80 Empl. Prac. Dec. P 40,672, 50 Fed.R.Serv.3d 543, 156 Ed. Law Rep. 484... forms of discrimination and conspiracy to interfere with his civil rights in violation of federal and state statutes. 1 Plaintiff's counsel failed to serve Defendants with the complaint for over three months. On January 22, 1999, the district court, acting Slat spoon, issued a show cause order requiring Plaintiff to explain why his action should not be dismissed for failure to prosecute. In response, Plaintiffs counsel filed an amended complaint on February 2, 1999. The amended complaint was nearly identical to the original complaint, but it contained two exhibits that were cited in, but not attached to, the original complaint. Plaintiff's counsel also responded directly to the show cause order via a letter to the district court stating that he had mailed the amended complaint and summonses to two of the defendants and would personally serve the others within a few days before the summonses expired. Plaintiffs counsel served the amended complaint and corresponding summonses upon each defendant within the 120 day period that began upon the filing of the original complaint. See FED.R.C1V.P. 4. On February 24, 1999, Defendants requested from Plaintiff a thirty-day extension of the date on which Defendants' answer was due. This extension is not reflected in the district court docket sheet and was Discovery cut-off: Witness List Exchange: Stipulation for Mediation: Dispositive Motions Filed By: (Scheduling Order, J.A. at 133-34.) That same day, Defendants filed a motion for partial dismissal with respect to certain claims and named parties. On May 24, 1999, the district court notified the parties that a hearing on this motion was scheduled for July 21, 1999. However, Plaintiffs counsel did not file a response to the motion until July 19, 1999-fifty-nine days after the motion was filed and only two days before the hearing was scheduled to take place. Instead of proceeding as scheduled, the district court postponed the hearing until July 28, 1999 so that it could adequately prepare. Defendants filed a reply to Plaintiffs response on July 23, 1999. On August 25, 1999, the district *589 court granted in part and denied in part Defendants' motion for partial dismissal. not mentioned in the district court's order of dismissal. However, the record does reflect that Defendants' joint answer was filed on May 7, 1999, which was over a month past the agreed-upon thirty-day extension. On May 20, 1999, Plaintiffs counsel served his first and only discovery request upon Defendants. This request consisted of forty-eight inter-related interrogatories, requests for admission, and requests for production of documents. Each request to admit was linked to an interrogatory providing that if the response was "anything other than an unequivocal admission, identify in full, complete and in every detail the factual basis for the failure to unequivocally admit." Each request to admit was also linked to a request for production of documents in support of any failure to admit and the answers to the interrogatories. On June 24, 1999, Defendants sent a letter to Plaintiffs counsel indicating that they would not comply with the discovery request insofar as it violated the limit of twenty-five interrogatories imposed by r, ED.R.CIV.P. 33(a). Plaintiff failed to respond to this letter and never moved to compel discovery. On May 21, 1999, the district court entered a scheduling order setting the following dates: September 13, 1999 September 13, 1999 September 13, 1999 October 13, 1999 On November 2, 1999, the district court set a deadline of December 14, 1999 for submission of the Joint Final Pretrial Order and notified the parties that the pretrial conference would take place on December 21, 1999. Before this conference took place, Defendants filed an A pplication for Dismissal for Failure To Prosecute on November 12, 1999. On November 29, 1999, the district court notified the parties that a hearing on this motion would take place on December 14, 1999. Plaintiff filed a response in opposition to Defendant's Application for Dismissal on December 2, 1999, which consisted of a one-half page recitation of the facts and a challenge to Defendant's contention that Plaintiffs counsel had not conducted valid discovery. The brief in support of the response read in its entirety as follows: Case 3:16-cv-02483 Document 15-1 Filed 03/17/17 Page 22 of 38 PageID #: 83 Mulbah v. Detroit Ed. of Educ., 261 F.3d 586 (2001) 80 Empl. Prac. Dec. P 40,672, 50 Fed.R.Serv.3d 543, 156 Ed. Law Rep. 484... In support of Plaintiffs Response in Opposition to Defendants' Application for Dismissal for Failure to Prosecute, Plaintiff relies on the Fed.R.Civ.P. and federal case law. After a hearing, the district court granted the Application for Dismissal with prejudice in an order dated December 21, 1999.• Plaintiff filed a timely appeal to this Court on January 20. 2000, but failed to file an appearance and civil appeal conference statement. Thereafter, this Court entered an order dismissing the instant appeal for want of prosecution. See Docket Sheet at 5. However, on March 3, 2000, Plaintiffs counsel filed a notice of appearance and a motion to reinstate the appeal. See id. We granted the motion to reinstate Plaintiffs appeal on March 10, 2000. See id. 11. The only issue before this Court is whether the district court abused its discretion in dismissing the action. Pursuant to FED.R.C1V.P. 41(b) and Local Rule 41.2, the United States District Court for the Eastern District of Michigan may dismiss complaints for failure to prosecute. Link r. It akush R. R. Co., 370 U.S. 626, 32 S.Ct. 1336, L.Er1.2d 734 (1962). The local rule provides: [W]hen it appears that the court lacks subject matter jurisdiction or that the parties have taken no action for a reasonable time, the court may, on its own motion after reasonable notice or on application of a party, enter an order dismissing or remanding the case unless good cause is shown. An application for a continuance or pending discovery may not preclude a dismissal for failure to prosecute. F.D. MICH. ER 41.2. i II We consider four factors in assessing the appropriateness of a district court's decision to dismiss a complaint for failure to prosecute: (1) whether the party's failure is due to willfulness, bad faith, or fault; (2) whether the adversary was prejudiced by the dismissed party's conduct; (3) whether the dismissed party was warned that failure to cooperate could lead to dismissal; and (4) whether less drastic sanctions were imposed or considered before dismissal of the action. Knoll v. American -Tel. ct /31., 176 F.3d 359 (6th Cir.1999) (citing Stough v. A loyville Only. Schs., 138 F.3d 612, 615 (6th Cir.1998)); .sec: also Hoinion r. C'S.‘"Transp., 1 10 F.3d 364. 366 67 (6th Cir. 1997 ). 121 In the instant case, the district court determined that dismissal of Plaintiffs civil rights action was warranted because Plaintiff exhibited a long record of delay without good cause. First, the district court noted that the original complaint was filed fourteen months prior to the hearing on the application for dismissal *590 and that service of the original complaint was never made to Defendants. The district court pointed out that Plaintiff served Defendants with an amended complaint only after receiving an order to show cause why his case should not be dismissed for failure to prosecute. Noting that the two complaints were substantively identical, the court characterized the amended complaint as being "no amendment at all, but rather an attempt to restart the clock on this case," and characterized the filing of the amended complaint as "Plaintiffs first delay, lasting nearly three months." Second, the district court criticized Plaintiff for waiting fifty-nine days to file his response to Defendants' motion for partial dismissal, only two days before the scheduled hearing, thereby prompting the court to reschedule the hearing. The district court found that Plaintiff provided no excuse for his tardiness. Next, the district court noted that Plaintiff failed to respond to Defendants' objection to the flawed discovery request and instead allowed the September 13, 1999 deadline for the close of discovery to expire without filing a proper discovery request or a motion to compel compliance with the original request. In addition, the court found probative the fact that Plaintiff attempted to contact Defendants' counsel on December 6, 1999 regarding his lack of response to Plaintiffs initial discovery requests; this communication came only after Defendants filed their application for dismissal for failure to prosecute and only one week prior to the scheduled hearing on that application. Observing that the December 6 communication requested a date for deposing Defendants, filing a witness list, preparing a Case 3:16-cv-02483 Document 15-1 Filed 03/17/17 Page 23 of 38 PageID #: 84 Mulbah v. Detroit Bd. of Educ., 261 F.3d 586 (2001) 80 Empl. Prac. Dec. P 40,672, 50 Fed.R.Serv.3d 543, 156 Ed. Law Rep. 484 pre-trial order and a one-time extension of discovery, the court characterized the letter as "yet another delay" which left Plaintiff unprepared to proceed to trial. Filially, the court chastised Plaintiffs counsel for his "unprofessional effort" in preparing a brief in opposition to Defendants' application for dismissal, which the court characterized as being "no brief at all." The court also commented that Plaintiffs counsel was unprepared for oral argument, repeatedly stating that he had brought the wrong file to court a mistake which the court was unwilling to forgive under the circumstances. Plaintiff contends on appeal that under the circumstances it is not he who should be punished, but rather his counsel. He further claims that even if he may be held responsible for the acts of his counsel, those acts are insufficient to warrant dismissal of his case for failure to prosecute. Although Plaintiff and his counsel could have proceeded in a more timely and professional fashion, the facts of this case fail to justify dismissal of Plaintiffs action with prejudice. 131 141 151 The Supreme Court seemingly rejected Plaintiffs first argument in Link v. Wabash Railroad Company, holding that "[t]here is ... no merit to the contention that dismissal of [a plaintiff's] claim because of his counsel's unexcused conduct imposes an unjust penalty on the client," Link, 370 U.S. at 633 34. 82 S.Ct. 1386. However, recognizing that the sanction of dismissal with prejudice "deprives a plaintiff of his day in court due to the inept actions of his counsel," Paticrsiin a Grand Blanc Township, 760 F.24 686, 688 (6th Cir.1985), this Court has expressed an extreme reluctance to uphold the dismissal of a case merely to discipline a party's attorney. Knoll, 176 F.3(1 at 363 (citing Bin v. (.'.S. Dupa of Agric., Farmary Manic' rldmin., 960 F.2d 603, 608 (6th (jir.1992)). As we explained in Little v. Yeutter, 984 F.2d 160 (6th Cir.1993), [t]here are competing concerns which guide whether a court should dismiss an action for failure to prosecute. On the one hand, there is the court's need to manage its docket, the public's interest "591 in expeditious resolution of litigation, and the risk of prejudice to a defendant because the plaintiff has failed to actively pursue its claims. On the other hand is the policy which favors disposition of cases on their merits. In recognizing those competing concerns, this [C]ircuit has stated that dismissal of an action is a harsh sanction which the court should order only in extreme situations ... M. at 162 (citations omitted). "Thus, although the Link principle remains valid, we have increasingly emphasized directly sanctioning the delinquent lawyer rather than an innocent client." Cbionan r . :Imcric an Rcd Cross. 23 F.3d 1001, 1095 (6th Cir.1994) (internal citation omitted). We have therefore applied the four-factor test more stringently in cases where the conduct of a plaintiffs attorney is the reason for dismissal, Harmon, 1 10 F.3d at 367. While none of these factors is diapositive, a case may be dismissed by a district court where there is a clear record of delay or contumacious conduct on the part of the plaintiff. Knoll, 176 F.3d at 363 (citing Corral' a City of Memphis, 636 F.2d 159, 161 (6th Cir.1980)); Li/de, 984 F.2d at 162. However, we do not find such a record of delay in the instant case. Although the district court characterizes Plaintiff's actions as constituting multiple delays, we find that there was no significant delay involved. The most important fact in support of our conclusion is that Plaintiff actually served the amended complaint on all of the Defendants within the allotted 120 day period that began with the filing of his original complaint. Although he cut it quite close, Plaintiff fulfilled the service requirements set forth by ET).R.CIV.P. 4. We therefore find illogical the district court's determination that Plaintiff attempted to "restart the clock" on his case by filing the amended complaint. Plaintiff's counsel even explained his rationale for filing an amended complaint so substantively similar to the original complaint, noting that the only way to properly file the exhibits missing from the original complaint was to re-file the complaint altogether. I n addition, despite its repeated references to certain gaps in the record, the district court points to only minimal periods of inactivity. Local Rule 41.2 authorizes dismissal when "the parties have taken no action for a reasonable time." At the time Defendants sought dismissal for failure to prosecute, less than three months had elapsed since the district court's August 25, 1999 grant of' Defendants' motion for partial dismissal of certain counts and parties. Furthermore, only a little over three months had passed since Plaintiffs August 12,1999 response in opposition Case 3:16-cv-02483 Document 15-1 Filed 03/17/17 Page 24 of 38 PageID #: 85 iVlulhah v. Detroit Bd. of Educ., 261 F.3d 586 (2001) 80 Empl. Prac. Dec. P 40,672, 50 Fed.R.Serv.3d 543, 156 Ed. Law Rep. 484... to Defendants' motion for partial dismissal. We do not believe that such short periods of inactivity are sufficient, without more, to warrant the dismissal of a complaint under this rule, especially given Plaintiffs timely service of process. Our previous holdings support this conclusion. For example, in Little, we reversed an order of dismissal despite five months of docket inactivity and the lack of any discovery or dispositive motions from the plaintiff, 984 F.2d at 162-63. Similarly, in Carter we reversed an order of dismissal despite a six-month gap during which no discovery took place and no pretrial order had been filed even after the deadline for filing that order had passed. 636 F.2(.1 at 161. 161 In order to consider a plaintiff culpable, his conduct "must display either an intent to thwart judicial proceedings or a reckless disregard for the effect of [his] conduct on those proceedings." Shepard Claims Sera. Dairoh & Avsocs., 796 Ii.2d 190, 194 (0th Cir.1986); see also Freeland v. Amigo, 103 F.3)1 1271, 1277 (6th Cir.1997); Patterson. 760 F.20 at 688; *592 Vinci v. Consolidated Rail Colp., 927 F.20 287, 287 (6th 01-.1991); Cartel. 636 ltd at 161. Unlike other cases in which we found dismissal proper, in the instant case Plaintiff has not failed to respond to any discovery requests propounded by Defendants, nor has he acted in contempt of a court order compelling cooperation with such requests. See, e.g., Harmon, 1 10 F.3d at 368. Furthermore, the trial date had not even been set by the court. Although Plaintiff filed a belated response to Defendants' motion for partial dismissal, the record reveals no instance in which Plaintiff or his counsel missed an actual court appearance. In this respect the instant case is easily distinguishable from the multitude of cases in which this Court has upheld the dismissal of a complaint where a plaintiffs counsel failed to appear at hearings or court-ordered conferences. See, e.g., Knoll, 176 F.3d at 364; Thunioei, 1 10 F.3(1 a t 368; Casten v. Detroit Edison Co., 789 17."'d 377, 379 (6th Cir.1986). In addition, Plaintiffs failure to file proper discovery requests does not necessarily indicate a stubborn effort to delay trial. In Casten, we distinguished an "attorney's failure to appear on the record on repeated occasions under circumstances not deemed acceptable to the court" from "mere dilatory conduct involving failure to file a specified document." Coston, 789 F.2d at 379. In the case at bar, Plaintiffs conduct falls into the later, less culpable category. Defendants argue that if Plaintiff had not conducted discovery or produced a witness list then he could not have provided the contents required for the Joint Pretrial Order, nor could he have brought forth any witnesses at trial. Cf. Carter, 636 F.2d 159 (citing the plaintiffs ability and willingness to proceed to trial as factors militating against dismissal). However, it is not clear that Plaintiff was unprepared to proceed to trial. To the contrary, Plaintiff has averred that despite having no answers to his arguably flawed interrogatories, most of the information he needed to proceed to trial consisted of the sworn testimony contained in the transcripts of Plaintiffs hearing before the Michigan Tenure Commission, at which all hut one of the Defendants testified. In Little, we found that a plaintiff had no need to conduct further discovery in an appeal of an administrative agency action because the administrative record was already available and de novo review was not required. 984 F.2(1 at 161 . Although the instant appeal is not from an administrative hearing as was the case in Little, the information Plaintiff now claims to build his case upon is contained in the transcripts of an administrative hearing related to his claims of discrimination. Furthermore, the record is devoid of any evidence of prejudice that has resulted or may result to Defendants due to Plaintiffs dilatory actions. No serious contention can be made that the filing of the amended complaint prejudiced Defendants; the amended complaint was substantively identical to the original complaint and was filed and served upon Defendants in a timely manner. In addition, the fact that Plaintiff missed the deadline for discovery and never responded to Defendants' concerns regarding his improper discovery requests is more likely to hurt Plaintiff than Defendants. While chastising Plaintiff for filing no pre-trial order, the district court seemingly ignored the fact that there was to be a Joint Final Pretrial Order due on the same day the court heard argument on Defendants' application for dismissal for failure to prosecute. The district court also failed to address the fact that Defendants filed their joint answer to the complaint more than 30 days after the extension agreed to by the parties. Furthermore, the record reflects that Defendants have themselves filed no discovery requests at all. These factors all indicate that Defendants were equally dilatory in this case. *593 The district court determined that Plaintiffs brief in opposition to Defendants' Application for Dismissal Case 3:16-cv-02483 Document 15-1 Filed 03/17/17 Page 25 of 38 PageID #: 86 Mulbah v. Detroit Bd. of Educ., 261 F.3d 586 (2001) 80 Empl. Prac. Dec. P 40,672, 50 Fed.R.Serv.3d 543, 156 Ed. Law Rep. 484... for Failure To Prosecute failed to "put his adversary on notice of the arguments he must be prepared to meet, nor does it attempt, as any brief should, to demonstrate to the Court how controlling authority relates to the facts of this case." at 297.) Yet, we cannot give full weight to the district court's conclusion that the brief prejudiced Defendants because their application for dismissal for failure to prosecute also failed to cite any relevant case law. Instead, Defendants' application merely makes blanket allegations to the effect that Plaintiff has taken no action for over three months, which they contend is a "significant period of lime." (J.A. at 222.) Therefore, Plaintiff was also not fully on notice as to Defendants' legal arguments in seeking dismissal. Arguably, Plaintiff was on notice that his counsel's actions could lead to dismissal of the case. The district court's scheduling order did contain boilerplate warnings regarding the consequences of failure to respond to motions in a timely fashion. 2 In addition, Defendants' Application for Dismissal for Failure To Prosecute and the scheduling of a hearing also placed Plaintiff on notice that the court would be considering dismissal of his claim. Cf: Hurnion, 1 10 F.3d at 368 (finding proper notice where a defendant filed a motion to dismiss and plaintiff requested additional lime to respond). However, we do not end the inquiry here. The question of adequate notice is also intertwined with the issue of alternative sanctions. "[W]e have frequently reversed district courts for dismissing cases because litigants failed to appear or comply with pretrial orders when the district courts did not put the derelict parties on notice that further noncompliance would result in dismissal." Vinci, 927 E.2d a t 288 (quoting Norris r. Cailirood, 844 F 3d 1254, 1256 (6th Cir.1988)). The district court in the case at bar did not impose any alternative sanctions on Plaintiffs counsel such as a levying a tine, barring him from participating in oral argument, or any other disciplinary action. Cf: Arlyok (win/ v. Pcrir. No. 00 - 3583, 2001 WL 92182, at *1 (6th Cir. Jim.26, 2(.01); A'eed/e v. Goodman, No. 89 4005, 1990 WL 1 12027, at "2 (6th Cir. Aug. 6, 1990) (both imposing fines as a precursor to ordering dismissal of a complaint). Instead, in response to Plaintiffs late filing of a response to Defendants' motion for partial dismissal, the court merely postponed the hearing so that it could prepare. Nothing in the record indicates that the court punished or even admonished Plaintiff or his counsel for this late filing or warned them that further noncompliance would result in the imposition of a sanction as harsh as the one imposed. 171 We do not believe that dismissal was proper under these circumstances. Instead of dismissal, the district court should have employed an alternative sanction that would protect the integrity of *594 pretrial procedures. Freeland, 103 F.3d at 1280; Carter, 636 F.2d at 161 . "The sanction of dismissal is appropriate only if the attorney's actions amounted to failure to prosecute and no alternative sanction would protect the integrity of the pretrial process." Carter, 636 E.2d at 161 (emphasis added). Despite the modest extent of the delay in this case, the district court failed to implement any alternative sanctions throughout the pre-trial process. Defendants' counsel, and apparently the district court, have serious doubts as to whether Plaintiff can prove his case. However, given that Defendants were not prejudiced, we believe that resolution of such issues would be proper at the summary judgment stage or at trial; the district court should have pursued alternative sanctions prior to depriving Plaintiff of his cause of action. IV. For the aforementioned reasons, we hold that Plaintiffs action was prematurely and improperly dismissed. Accordingly, we REVERSE the district court's judgment and REMAND for further pre-trial proceedings consistent with this opinion. All Citations 261 I-2.3d 586, 80 Empl. Prac. Dec. P 40,672, 50 Fed.R.Serv.3d 543, 156 Ed. Law Rep. 484, 2001 Fed.App. 0270P Footnotes The Honorable James S. Gwin, United States District Judge for the Northern District of Ohio, sitting by designation. Case 3:16-cv-02483 Document 15-1 Filed 03/17/17 Page 26 of 38 PageID #: 87 Mulbah v. Detroit Bd. of Educ., 261 F.3d 586 (2001) 80 Empl. Prac. Dec. P 40,672, 50 Fed.R.Serv.3d 543, 156 Ed. Law Rep. 484... 1 2 Plaintiff alleged that Defendants violated 42 U.S.0 §§ 1981, 1983 and 1985, Title VII of the Civil Rights Act of 1964, and the Michigan Elliot Larsen Civil Rights Act. He also claimed Tortious Interference With a Contract or Advantageous Business Relationship or Expectancy. The scheduling order warned the parties as follows: Attorneys who do not respond to motions in a timely fashion may not be permitted to argue before the Court during oral argument. Failure of counsel to cooperate in the preparation of, to submit, or to strictly comply with the terms of, the Joint Pretrial Order may result in dismissal of the claims, default judgment, refusal to let witnesses testify or admit exhibits, assessment of costs and expenses, including attorney fees, or other appropriate sanctions. (Scheduling Order, J.A. at 134, 139.) Erul of Docuhiant. 1Horo-on root:t,ftt_, [J.loi to orituntt: Case 3:16-cv-02483 Document 15-1 Filed 03/17/17 Page 27 of 38 PageID #: 88 Hays v. Wharton, Not Reported in F.Supp.3d (2014) 2014 WL 3535730 2014 WI, 3535730 Only the Westlaw citation is currently available. United States District Court, W.D. Tennessee. Anthony-Decarlo HAYS, Sr., Plaintiff, v. A,C. V\THARTON, et al., Defendants. No. 11-2103-J DT-tmp. Filed July 16, 2014. Attorneys and Law Firms Anthony Decarlo Hays, Sr., Memphis, TN, pro se. Jonathan C. Hancock, Baker Donelson Bearman Caldwell & Berkowitz, Barbaralette 0. Davis, Robert W. Ratton, III, City Attorney's Office, Memphis, TN, for Defendants. ORDER ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE FOR DISMISSAL AND CERTIFYING TIIAT AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH JAMES D. TODD, District Judge. *1 On July 1, 2014, Magistrate Judge Tu M. Pham issued a report and recommendation [DE # 63] that Defendants' motion to dismiss for failure to prosecute [DE # 61] be granted. Plaintiff has filed objections to the report and recommendation [DE # 64] in which he contends that the Magistrate Judge and Defendants have undertaken a "concerted effort" to prevent his proceeding with this lawsuit. He also contends that the United States Postal Service has interfered with his mail delivery and that the Memphis Police Department has made threats against his life so that he had to move and could not receive his mail. Having carefully reviewed the record, the controlling case law, and Plaintiff's objections, the court agrees with the Magistrate Judge's recommendation, Because the Magistrate Judge thoroughly explained his decision and because an issuance of a more detailed written opinion would be unnecessarily duplicative and would not enhance this court's jurisprudence, the court ADOPTS tile report and recommendation for the reasons set forth by Magistrate Judge Pham. Defendants' motion to dismiss is GRANTED, and the case is hereby DISMISSED with prejudice. Additionally, tlie motion to dismiss of Defendant Deneen Alsadi [DE # 66] is DENIED as moot. The court must also consider whether Plaintiff should be allowed to appeal this decision in fimna pauperis, should he seek to do so. Pursuant to the Federal Rules of Appellate Procedure, a non-prisoner desiring to proceed on appeal ira .1(.11'111[1 .11CIliperis must obtain pauper status under Fed. R.App. P. 24(a). Sec Cu/h/ion v. Schneider, 17$ F.3d 800, 803- 04 (6th Cir.1999). Rule 24(a) provides that if a party seeks pauper status on appeal, he must first file a motion in the district court, along with a supporting affidavit. Fed. R.App. P. 24(a)( 1 ). However, Rule 24(a) also provides that if the district court certifies that an appeal would not be taken in good faith, or otherwise denies leave to appeal in forma pauperi.s, the party must file his motion to proceed in forma pauperis in the Court of Appeals. Fed. R.App. P. 24(a)(4(-(5). The good faith standard is an objective one. Coppedgc v. Cifitc(./ Start's, 369 U.S. 438, 445. 82 S.C't. 917, 8 1.. Ed.2d 21 (1962). The test for whether an appeal is taken in good faith is whether the litigant seeks appellate review of any issue that is not frivolous. Id. It would be inconsistent for a district court to determine that a complaint should be dismissed but has sufficient merit to support an appeal in fornrcr pauperis. See Williunis v. Kullidan, 722 F.2d 1048, 1 050 n. 1 (24 Cir.1983). The same considerations that lead the court to dismiss this case also compel the conclusion that an appeal would not be taken in good faith. It is CERTIFIED, pursuant to Fed. R.App. P. 24(a), that any appeal in this matter by Plaintiff is not taken in good faith. Leave to proceed on appeal in l'orrna pauperis is, therefore, DENIED. Accordingly, if Plaintiff files a notice of appeal, Ile must also pay the full appellate filing fee or file a motion to proceed in forma pauperis and supporting affidavit in the Sixth Circuit Court of Appeals within thirty (30) days. ] *2 The clerk is directed to enter judgment. IT IS SO ORDERED. Case 3:16-cv-02483 Document 15-1 Filed 03/17/17 Page 28 of 38 PageID #: 89 Hays v. Wharton, Not Reported in F.Supp.3d (2014) 2014 WL 3535730 REPORT AND RECOMMENDATION ON DEFENDANTS' JOINT MOTION TO DISMISS WITH PREJUDICE FOR FAILURE TO PROSECUTE TU M. PHA M, United States Magistrate Judge. Before the court by order of reference is Defendants' Joint Motion to Dismiss With Prejudice for Failure to Prosecute, filed on June 4, 2014, on behalf of all the defendants. (FCF No. 61.) To date, plaintiff Anthony - Decarlo Hayes, Sr. has not filed a response, and the time for doing so has expired. See Local Rule 7.2(a)(2) (responses to motions, other than motions filed pursuant to Rule 12(b) and (c) or Rule 56, shall be filed within 14 days after service of the motion). For the reasons below, it is recommended that the Motion to Dismiss be granted. I. PROPOSED FINDINGS OF FACT Plaintiff Anthony--Decarlo Hayes, Sr. filed the instant complaint pro se on March 14, 201 1, against the City of Memphis ("City"), City of Memphis Mayor A C Wharton, numerous employees of the City, and the American Federation of State, County and Municipal Employees ("AFSCME") and its representatives. (ECF No. 1.) The complaint contains numerous allegations of violations of federal, state, and international law. Specifically, Hayes alleges as follows: 1. On October 28, 2009, during his employment as a code enforcement officer for the City, Plaintiff applied for a promotion as a zone manager. 2. The City had posted two job openings for this position. In May 2010, the City chose three individuals, none of whom were Plaintiff. One of these men, Otis Tidwell, later supervised Plaintiff. 3. On May 26, 2010, Plaintiff contacted Antonio Adams, a labor relations officer for the City, to express his concern that the promoted individuals did not meet the standards posted for the position. Adams began an investigation into Plaintiffs allegations but did not follow-up with Plaintiff to his satisfaction. 4. On or around June 26, 2010, Tidwell instructed Plaintiff and another employee to wear a white knit shirt. Later that same day, Tidwell again spoke with Plaintiff. Plaintiff believed that Tidwell was attempting to provoke a fight. During this conversation, Tidwell struck Plaintiff on his left shoulder and told him that he had to wear the white shirt to work on Monday. 5. In response to the physical contact and perceived unfair treatment, Plaintiff filed a police report with the Memphis Police Department, submitted a grievance, and mailed letters to the Mayor, Chief Administrative Officer George Little, the City Council Chairman, and each City Council Member. 6. An officer from the Memphis Police Department took a memo on the events. The General Assignment Bureau received the case and decided not to pursue criminal charges. 7. Because the Police Department declined prosecution, Johnny McKay, Deputy Director of Community Enhancement, denied Plaintiffs grievance. None of the letter recipients took any corrective action. *3 8. Plaintiff was transferred to another division. The division leader, Williams Lewis, had formerly supervised his son, William Lewis, Junior. On or about August 16, 2010, Plaintiff contacted Labor Relations Officer Adams to discuss both the actions of Tidwell and his transfer to a different division. 9. On or around August 30, 2010, Tidwell issued a written request for a disciplinary hearing against Plaintiff. 1 0. On or around September 1 , 2010, Plaintiff, along with other members of his division, met with the A FSCME Labor representative, Anthony McGhee. McGhee told Plaintiff that the Union would not assist him in the grievance process because he had not paid his d ues. Plaintiff stated that he had paid his dues. Plaintiff alleged that the Union refused to represent him because of his relationship with "management." 1 1 . On or around September 8, 2010, Eric Muhammed, a senior inspector with Code Enforcement, struck Plaintiff on the shoulder and "began to chuckle as if he was making a point to the Plaintiff about his friend Mr. Tidwell." 1 2, Because of these experiences and the failure of his superiors to remedy the situation, Plaintiff began to Case 3:16-cv-02483 Document 15-1 Filed 03/17/17 Page 29 of 38 PageID #: 90 Hays v. VVharton, Not Reported in F.Supp.3d (2014) 2014 WL 3535730 "fear for his life" and entered the Employee Assistance Program. 1 3. Several months later, on February 22, 2011, Plaintiff noticed that he was being followed by members of the Memphis Police Department. Officer R. Murphy stopped Plaintiff for speeding and asked for his "II) for his traveling conveyance." When Officer Murphy returned to Plaintiff vehicle, Plaintiff stated that he was a former Memphis Police officer. Murphy put his hand on his gun and replied "1 don't know you and I don't care nothing about you people ." Murphy issued him a ticket for violation of state registration. 14. On August 11, 2010, Plaintiff filed a grievance with the Tennessee Human Rights Commission and the Equal Employment Opportunity Commission ("EEOC"). Plaintiff alleged discrimination by the City because he is an American Indian. He stated that the City failed to promote him, he was subjected to unfair conditions of employment, he suffered a physical assault, and he was moved to a different area for filing a grievance. He received his right to sue letter on December 16, 2010. (ECF No. 33, Aug. 8, 2013 Order Granting Motion to Dismiss of Defendants in Their Official Capacities and Denying Motion to Dismiss Individual Capacity Claims.) On September 17, 2012. the court conducted a scheduling conference pursuant to Federal Rule of Civil Procedure 1 6. Hayes and counsel for the defendants were present at the conference. The court discussed with the parties the importance of meeting the deadlines set forth in the scheduling order. The court specifically warned the parties that failure to meet the deadlines or to comply with the Federal Rules could result in the imposition of sanctions, including the sanction of dismissal of the case. On September 19, 2012, the court entered a scheduling order which required, among other things, that the parties provide their Rule 26(a)(1) initial disclosures by no later than October 1, 2012. (ECF No. 13.) The scheduling order imposed a discovery deadline of March 18, 2013. On September 24, 2012, the District Judge entered an order setting the case for trial for August 12, 2013. (ECF No. 1 4.) *4 On March 22, 2013, the City filed a Motion to Dismiss Pursuant to Rules 37 and 41. (ECF' No. 20.) The City stated in the motion that it sent Hayes its Rule 26(a) (1) initial disclosures on October 1, 2012, but that Hayes had not provided the City with his initial disclosures as required by the Federal Rules and the scheduling order. The City further stated that it contacted Hayes by phone on March 16, 2013, to ask about the status of his initial disclosures, and that Hayes stated he would provide his initial disclosures on March 17, 2013. However, according to the City, as of March 22, 2013, Hayes had not provided his initial disclosures. The City moved to dismiss the case pursuant to Rules 37 and 41 for failure to prosecute. Hayes filed a response in opposition on April 1, 2013. (ECF No. 24.) Hayes stated that he had been unable to provide his initial disclosures because (1) the City had terminated his employment on January 3, 2012; (2) on October 5, 2012, while attempting to serve the complaint on defendant Officer R. Murphy, Memphis Police OlTicer Colin Berryhill threatened Hayes; (3) on November 29, 2012, his utilities were shut off, thus preventing him from obtaining certain information; and (4) he was still attempting to serve one of the defendants. On August 1, 2013, Hayes filed a Motion to Enlarge Time. (ECF No. 25.) Citing the same reasons set forth in his response to the City's Motion to Dismiss Pursuant to Rules 37 and 41, Hayes asked to extend the discovery deadline to June 22, 2013. In its response, the City argued that Hayes's Motion to Enlarge Time should be denied and that the court should stay proceedings until after the court ruled on the City's pending Motions to Dismiss (the Motion to Dismiss Pursuant to Rules 37 and 41 and a separate Motion to Dismiss for failure to state a claim filed on December 17, 2012). On July 22, 2013, the court entered an order denying without prejudice plaintiffs Motio❑ to Enlarge Time and staying discovery until after the pending Motions to Dismiss were decided. (ECF No. 31.) The court stated that should the motions be denied, the court would at that time consider whether to enter an amended scheduling order. On August 8, 2013, the court ruled on the Motions to Dismiss, (ECF No. 33.) The court denied as moot the Motion to Dismiss Pursuant to Rules 37 and 41. The court granted in part and denied in part the Motion to Dismiss for failure to state a claim. The order also referred to the magistrate judge all pretrial matters. On August 20, 2013, defendant Larry Godwin filed a Motion to Dismiss Pursuant to Rule 12(bit4) and (5) of t he Federal Rules of Civil Procedure. (ECF Nos. 35, 36.) Hayes did not file a response to the motion. On January 9, 2014, the undersigned magistrate judge submitted a report and recommendation. recommending that Godwin Case 3:16-cv-02483 Document 15-1 Filed 03/17/17 Page 30 of 38 PageID #: 91 Hays v. Wharton, Not Reported in F.Supp.3d (2014) 2014 WL 3535730 be dismissed without prejudice due to Hayes's failure to serve Godwin within the time required under Federal Rule of Civil Procedure 4(m). (ECF No. 50.) Over Hayes's objections, the District Judge adopted the report and recommendation. WET No. 57.) *5 On May 22, 2014, the court entered an Order Compelling Plaintiff to Provide His Initial Disclosures and Amending Scheduling Order. (ECF No. 59.) The court stated in that order: It is unclear from the record whether plaintiff has ever provided the defendants with his initial disclosures as required by the scheduling order and Federal Rule of Civil Procedure 26(a)(1). Rule _20(a)111 requires a party to provide to the other parties the following information: ( i) 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; (ii) a copy or a description by category and location of all documents, electronically stored i nformation, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment; (iii) a computation of each category of damages claimed by the disclosing party-who must also make available for inspection and copying as under Rule 34 the documents or other evidentiary material, unless privileged or protected from disclosure, on which each computation is based, including materials bearing on the nature and extent of injuries suffered. 20(a)(1 )(A)(i)-(in ). If plaintiff has not yet provided the defendants with his Rule 26(a )( 1 ) information, he shall do so by no later than Friday, Afar 30, 2014. Plaintiff is hereby warned that failure to comply with any of the court's deadlines, the court's orders, or to cooperate in discovery shall result in his case being dismissed with prejudice. (ECF No. 59 at 3-4) (emphasis in original). The court also imposed a discovery deadline of July 15, 2014, and a dispositive motions deadline of July 22, 2014. The court emphasized that "These deadlines are final deadlines, and will not be modified or extended." (ECF No. 59 at 5) (emphasis in original). The District Judge has re-set the case for trial for November 24, 2014. II. PROPOSED CONCLUSIONS OF LAW R ule 41(b) of the Federal Rules of Civil Procedure provides that lilt' 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." Fed.R.Civ.P. 41(6). "This measure is available to the district court as a tool to effect management of its docket and avoidance of unnecessary burdens on the tax-supported courts and opposing parties." .S1( haler v. City of Defiance Police Dep'f. 520 F.3d 731, 730 (6th Cir.2008) (quoting Knoll v. Al' cti: F. 176 F.3,1 350. 363 (0th Cir.1909) (brackets and internal quotation marks omitted)), A district court therefore -must be given substantial discretion in serving these tasks." Id. (quoting Knoll, 170 F.3d at 363). However, "[d]ismissal 'is a harsh sanction which the court should order only in extreme situations showing a clear record of delay or contumacious conduct by the plaintiff.' Shavers v. Bergh, 510 F. Api)'x 508. 570 (6th Cir.2013) (quoting Carrot v. Bunch, 946 F.2d 451, 454 (0th 01-.1991 ). The Sixth Circuit considers four factors when reviewing a district court's dismissal under Rule 41(b): "(I) whether the party's failure is due to willfulness, bad faith, or fault; (2) whether the adversary was prejudiced by the dismissed party's conduct; (3) whether the dismissed party was warned that failure to cooperate could lead to dismissal; and (4) whether less drastic sanctions were imposed or considered before dismissal was ordered." Richter b. Jim. ,I,ggregates 0',)/7).. 522 F. App's 253, 259 (61.11 Cir.2013) (quoting Knoll. 1 76 F.3d at 363): see also 1;nited States v. Xeres, 307 F.3d 451. 45.1 (0tti Cir.2002); rreetand ,Jimigo, 103 F.3d 1271, 1 277 (6th Cir.1997); Bank Ono of Clereland N./1. r. 916 F.2d 1097, 1073 (6th Cir.1990); F(7111/ r. SPurionoh. No. 4:06-cy -7, 2007 WI. 1574279, at *3 ( L.D.Tenn. May 29, 2007). In order to support a finding of willfulness, bad faith, or fault, "the plaintiffs conduct 'must display either an intent to thwart judicial proceedings or a reckless disregard for the effect of his conduct on those proceedings.' " Koranic r. Tv( a Valivs ct1 Controls, 1.1", 433 F. App's 376. 3D (6111 Cir.201 1) (quoting [Fir I ron,c, Inc., 420 F.3d 041, 643 16th Cir.2005)). Case 3:16-cv-02483 Document 15-1 Filed 03/17/17 Page 31 of 38 PageID #: 92 Hays v. Wharton, Not Reported in F.Supp.3(.1 (2014) 2014 WL 3535730 *6 The court submits that Hayes's complaint should be dismissed with prejudice for failure to prosecute. First, Hayes's failure to provide his Rule 26(a)(1) initial disclosures has been willful and in bad faith. The original scheduling order required the parties to provide their initial disclosures by no later than October 1, 2012, yet as of March 22, 2013 (when the City filed its first Motion to Dismiss Pursuant to Rules 37 and 41), Hayes had not provided his initial disclosures. The court finds that none of the reasons stated in his April 1, 2013 response to the City's motion, either independently or in the aggregate, excused Hayes from complying with the requirement that he provide his Rule 26(a)( I) initial disclosures. In its May 22, 2014 Order, the court specifically ordered Hayes to provide his initial disclosures by May 30, 2014, and even quoted the relevant parts of Rule 26(a)( 1). Hayes violated the May 22 Order by failing to provide any of the defendants with his initial disclosures. Second, the defendants undoubtedly have been prejudiced by Hayes's conduct by being denied his initial disclosures for the past twenty-one months, thus preventing the defendants from defending against plaintiffs claims. Third, the court warned Hayes at the scheduling conference and in the May Footnotes 1 22 Order that his failure to comply with any of the court's deadlines, the court's order, or to cooperate in discovery would result in his case being dismissed with prejudice. Finally, the court has carefully considered imposing less drastic sanctions, including awarding attorney's fees. However, it is submitted that under the facts of this case, no sanction short of dismissal would appropriately address Hayes's failure to comply with the court's orders or the requirements imposed by the Federal Rules. III. RECOMMENDATION For the reasons above, it is recommended that the Defendants' Joint Motion to Dismiss With Prejudice for Failure to Prosecute be granted and that the case he dismissed with prejudice. Respectfully submitted, All Citations Not Reported in F.Supp.3d, 2014 WL 3535730 Pursuant to Fed. R.App. P. 3(a), any notice of appeal should be filed in this court. A motion to appeal in forma pauperis then should be filed directly in the United States Court of Appeals for the Sixth Circuit. Unless he is specifically instructed to do so. Plaintiff should not send to this court copies of documents intended for fi ling in the Sixth Circuit. End of Document L'017 Honptdo IR.-ddur nlaint to nnind U rto,i rnment \Pond:: Case 3:16-cv-02483 Document 15-1 Filed 03/17/17 Page 32 of 38 PageID #: 93 Britton v. Nahon, Saharovich & Trotz, PLLC, Not Reported in F.Supp.2d (2008) 2008 WL 782475 2008 WL 782475 Only the Westlaw citation is currently available. United States District Court, W.D. Tennessee, Western Division. Venase BRITTON, Plaintiff, v. NAH ON , SAI IAROVICI & TROTZ, P1 Defendant. No. 07-2443. March 20, 2008. Attorneys and Law Firms Venase V. Britton, Memphis, TN, pro se. Jennifer Short) Hagerman, Lisa A. Kruoicka, Burch Porter & Johnson, Memphis, TN, for Defendant. ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION AND DISMISSING COMPLAINT J. DANIEL BREEN, District Judge. *1 The Plaintiff, Venase Britton, brought the instant pro se race discrimination suit against her former employer, Nahon, Saharovich & Trotz, PLLC ("Nahon"), under Title VII of the Civil Rights Act of 1964, as amended, 42 11-.S.C. § 2000e ci sofi. (Docket Entry ("D.E .") No. 1, Compl.) Britton claims that the law firm denied her permanent employment and fired her in retaliation for having filed a race discrimination lawsuit against a previous employer. (Id 11 2.) She seeks $300,000 in compensatory and $300,000 in punitive damages, and asks to be reinstated by the firm. (hl. 11 4.) On March 3, 2008, Magistrate Judge Tu Pham issued a report and recommendation recommending that the Plaintiffs complaint he dismissed on the basis that she had failed to comply with the Federal Rules of Civil Procedure relating to discovery. (D.E. No. 29.) The Plaintiff has timely filed objections to the magistrate judge's report, and thus, the Court shall "make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. 30)b)(1)(C). BACKGROUND Nahon filed a motion to compel on November 12, 2007, claiming that Britton had failed to include in her Federal R ule of Civil Procedure 26(a) initial disclosures the names, addresses, and telephone numbers of witnesses whose testimony she planned to rely on to support her claims. (D.E. No. 16, Mem. in Supp. Mot to Compel, at 2.) I nstead, the Plaintiff indicated that she would provide these potential witnesses' names at some indefinite point in the future. (D.E. No. 16, Ex. A, at 1.) The Court referred this motion to the magistrate judge, who, on December 19, 2007, directed the Plaintiff to provide complete initial disclosures as required by It ale 2_60,1( I). (D.E. No. 20.) The undersigned affirmed the magistrate judge's order on January 4, 2008. (D.E. No. 23.)2 On January 18, 2008, the Defendant filed a motion to dismiss Britton's complaint pursuant to Rules 37 and 41 of the Federal Rules of Civil Procedure, claiming that she had still not provided it with the identities of potential witnesses. (D.E. No. 25.) The Court again referred the Defendant's motion to Magistrate Judge Pham, who issued a report recommending dismissal of the complaint. (D.E. No. 29.) The magistrate judge found that the Plaintiff had failed to comply with Federal Rule of Civil Procedure 26(0(1)(2\)(i), despite the Court's Order granting Nahon's motion to compel Britton to disclose the names of those individuals with knowledge of the factual basis of her claims. (Id at 3-5.) The magistrate judge observed that the Plaintiff withheld the names of these individuals, some of whom were employees of Nahon, because she feared that the Defendant might retaliate against them. (Id. at 8.) However, Judge Pham found that there was nothing in the record to support those concerns. (Id.) He also reminded Britton that the Court had instructed her on the importance of complying with the Court's orders and emphasized that it was her responsibility to familiarize herself with its rules and to abide by them. (hi. at 2-3.) Based on the foregoing, the magistrate judge recommended that the Plaintiffs complaint be dismissed pursuant to Federal R tile of Civil Procedure 37, because 1) Britton's discovery violations were willful, 2) the Defendant had been prejudiced by Case 3:16-cv-02483 Document 15-1 Filed 03/17/17 Page 33 of 38 PageID #: 94 Britton v. Nahon, Saharovich & Trotz, PLLC, Not Reported in F.Supp.2d (2008) 2008 WL 782475 those violations because it was prevented from conducting discovery, 3) the Plaintiff received adequate warning of the consequences of her failure to cooperate, and last, 4) any measure less drastic than dismissal would be an inadequate remedy. (Id. at 9-10.) N/I YSIS *2 Because the Plaintiff has filed objections to the magistrate judge's report, the Court will review those portions of the report to which objection has been made de novo, pursuant to 211 F.S.C. 0>6(1 61 ((C). First, Britton claims that the Court is applying an unfair standard to her, because it granted the Defendant's motion to compel, but has not yet ruled on her motion to compel, which was filed approximately one month after Nahon's motion. (D.E. No. 30 at 2-3.) Even if the Court were inclined to grant her motion to compel, however, such a ruling would have no effect on the merits of the Defendant's motion to dismiss. The Plaintiff's discovery obligations are not solely dependant on the compliance of the Defendant with the rules; rather, the parties' obligations are independent of each other. Second, the Plaintiff again contends that the Defendant will retaliate against those witnesses who still work for the law firm, stating that "[Noth plaintiff and defendant may use any party or employee, but any employee named can potentially advantage the defendant and my aim is not to harm or create harm for anyone as is their modus operandi." (H. at 2-3.) The undersigned agrees with Magistrate Judge Pham, however, that the Plaintiff has presented no evidence that the Defendant would retaliate against those employees. Instead, Britton relics on the allegations of her complaint to support her concern: The Court apparently does not view the defendant's piecemeal approach regarding their unwarranted actions toward the plaintiff by first failing to grant employment opportunities extended to individuals having less education and work experience, their offering of part-time employment with a 60 day probationary period after two years of contract employment seeking permanent employment with no disciplinary or job performance issues, and the scenarios plotted before and after meeting with Howard Taube on April 24th to solidify their goal of termination with an insubordination label credible enough to support retaliation concerns based on lying to establish their case, as actions prejudicing the (ht at 4 (emphasis added).) The Plaintiffs claims are still unproven as of now and therefore cannot lend support to her fears of retribution. On pages 3 and 6 of her objections, the Plaintiff appears to finally reveal the identity of at least one of the unknown witnesses, GQ Boller. (hi, at 3, 6.)4 However, it is far from clear that Boller or Amber Brady are the only witnesses who Britton must disclose pursuant to Federal M ule of Civil Procedure 266:11( I )(A). While the Plaintiff refers to Boller as "the unnamed witness" on page 3 of her objections, she indicated in her initial disclosures that there were several other unidentified employees that she might call upon to testify on her behalf. (D.E. No. 16, Ex. A, at 1.) Furthermore, she has failed to disclose Boller's contact information or the subject of the witness's information as required by Rule 26(a )( 1)(A). Thus, the Court concludes that Britton has not satisfied her disclosure obligations under the Federal Rules of Civil Procedure. In addition, the Plaintiff was warned on more than one occasion that her failure to comply with orders of the Court could result in dismissal of her lawsuit. CONCLUSION '3 1-laving reviewed Magistrate Judge Phalli's report and recommendation de novo, and the entire record of the proceeding before the magistrate judge, the Court hereby ADOPTS the magistrate judge's report and DISMISSES the Plaintiff's complaint. IT IS SO ORDERED. REPORT AND RECOMMENDATION Case 3:16-cv-02483 Document 15-1 Filed 03/17/17 Page 34 of 38 PageID #: 95 Britton v. Nahon, Saharovich & Trotz, PLLC, Not Reported in F.Supp.2d (2008) 2008 WL 782475 Ti) M. PHA Ni. United States Magistrate Judge. Before the court by order of reference is defendant's Motion to Dismiss Pursuant to Federal Rules of Civil Procedure 37 & 41 and the Court's January 4, 2008 Order, filed January 18. 2008 (D.E.25). The motion was referred to the Magistrate Judge tbr a report and recommendation. For the reasons below, the court recommends that defendant's motion be GRANTED, and that Britton' s complaint be dismissed with prejudice. 1. PROPOSED FINDINGS OF FACT Plaintiff Venase Britton, a contract legal assistant who worked for the law firm of Nahon, Saharovich & Trotz, PLLC (the "Nahon firm"), filed a pro se complaint on June 28, 2007, alleging unlawful retaliation in connection with her termination from employment, in violation of Title VII of the Civil Rights Act of 1964, 42 § 2000c et .wri. On July 9, 2007, the court entered an Order Granting Leave to Proceed In Forma Pauperis, Denying Motion for Appointment of Counsel, Order of Partial Dismissal, and Order to Issue and Effect Service of Process. In that order, the court, among other things, instructed Britton to comply with the rules of the court and warned Britton that "Hailtire to comply with these requirements, or any other order of the Court, may result in this case being dismissed without further notice." On J uly 31, 2007, in response to a motion filed by Britton seeking to amend her complaint and renewing her motion for appointment of counsel, the court entered an order denying Britton's motion and finding that she had failed to comply in several ways with the Federal Rules of Civil Procedure and the court's local rules. The court stated that The Clerk is ORDERED not to accept for filing any further documents submitted by this Plaintiff that are not accompanied by a certificate of service or certificate of consultation as required by the rules. Failure to comply with the requirements of this order, or any other order of the Court, may result in this case being dismissed without further notice. (Order at D.E. 7). On October 18, 2007, the court held a scheduling conference with the parties in person. Due to Britton's pro se status and the court's concerns expressed in the J uly 31 order, the court carefully explained to Britton the significance of the deadlines contained in the scheduling order and the need to comply with the order. In particular, the court described to Britton the type of information she would be required to produce as initial disclosures under R ule 26( a)) I) and emphasized that it was her responsibility as the plaintiff to familiarize herself with the rules and to abide by them. Britton acknowledged to the court that she understood her obligations. On that same date, the court entered a scheduling order that required, among other things, that the parties exchange initial disclosures by November 1, 2007. *4 On November 12, 2007, the Naito') firm filed a motion to compel. In the motion, the Nahon firm stated that on October 24, 2007, Britton produced a document titled "Plaintiff's Venase Britton, Rule 26(a )( I) Initial Disclosures," which did not include "the name and, if known, the address and telephone number of each individual likely to have discoverable information that the disclosing party may use to support its claims or defenses," as required by Rule 26(0(11( A ). Instead, Britton's initial disclosures stated that plaintiff "will provide the names of employees of the firm, both past and present, who can vouch for my professionalism as an employee, who may have concerns regarding their own treatment as an employee." According to the motion, defendant's counsel contacted plaintiff by telephone regarding the deficiencies with her initial disclosures. Britton initially agreed to amend her initial disclosures, but then changed her mind and refused to provide, the information unless the Nahon firm agreed to schedule the depositions of any identified individual within a short time period and pay for any expenses related to the depositions. By letter dated November 5, 2007, Britton informed defendant's counsel that "I decline to provide ❑ames without having depositions scheduled within 30 clays, unless demanded by the Court after addressing my concerns, I do understand that you intend to file a Motion to Compel." (Exhibit to Def.'s Mot. to Compel). Britton did ❑ot file a response to the motion to compel as required under Local Rule 7.2(a)(2). As a result, on December 19, 2007, the court entered an order granting the motion to compel, directing Britton to make Case 3:16-cv-02483 Document 15-1 Filed 03/17/17 Page 35 of 38 PageID #: 96 Britton v. Nahon, Saharovich & Trotz, PLLC, Not Reported in F.Supp.2d (2008) 2008 WL 782475 her complete initial disclosures within eleven days, and warning her that "failure to comply with this court's orders or to cooperate in discovery shall result in a recommendation to the District Judge that her case be dismissed with prejudice for failure to prosecute." On December 28, 2007, Britton filed an appeal of the court's December 19 order with the District Judge. Britton's appeal basically reargued her contentions set forth in her complaint. She also stated that "the name[s] of individuals is withheld to protect them from the malicious tactics of the defendant which would leave them an open target because of the defendants' knowledge of who they are." On January 4, 2008, the District Judge affirmed the December 19 order and ordered Britton to comply with that order within eleven days. The court again warned Britton that failure to comply with the court's order or to cooperate in discovery may result in a dismissal of her case with prejudice for failure to prosecute. On January 18, 2008, the Nahon firm filed the instant Motion to Dismiss, asking the court to dismiss the complaint with prejudice based on Britton's failure to comply with the court's orders. Specifically, the Nahon firm states in the motion that since the court's January 4 order, Britton has only provided the defendant with a written response that reiterates her position that she has withheld certain names due to her concern that the Nahon firm may retaliate against these individuals (who are current employees of the defendant). The Nahon firm seeks dismissal of the lawsuit with prejudice due to Britton's intentional non-compliance with the court's orders. Because Britton did not file a response to the motion to dismiss, on February 15, 2008, the court entered an order directing Britton to show cause within eleven clays why the motion to dismiss should not be granted and why her case should not be dismissed with prejudice. The court again warned Britton that failure to comply with the court's orders shall result in a recommendation to the District Judge that her case be dismissed with prejudice. On February 25, Britton filed an Answer By Order to Show Cause for Refusal to Name Witness and Response to Why Case Should Not Be Dismissed, in which she states that "I respect the Court for the opportunity to again restate my position as it relates to the initial disclosures and why I have withheld the identity of the witness to secure their interests as a coworker who would be jeopardized due to her status in having to answer to Ms. Ward and their obligation to the firm." The remainder of Britton's response to the show cause order relates to the merits of her case. It. PROPOSED CONCLUSIONS OF LAW *5 Federal Rule of Civil Procedure 37 empowers the court, upon motion, to sanction a party for failing to cooperate in discovery. Sae Fed.R.Civ.P. 37(1- )(2). (c), (d). The rule provides in part as follows: (b)(2) Sanctions in the District Where the Action is Pending. (A) For Not Obeying a Discovery Order. If a party ... fails to obey an order to provide or permit discovery, including an order under Rule 26(0, 35, or 37(a), the court where the action is pending may issue further just orders. They may include the following: (v) dismissing the action or proceeding in whole or in part; ... (c) Failure to Disclose, to Supplement an Earlier Response, or to Admit. (1) Failure to Disclose or Supplement. If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless. In addition to or instead of this sanction, the court, on motion and after giving an opportunity to be heard: ... (C) may impose other appropriate sanctions, including any of the orders listed in Rule 37(b)(2)(A) RI. Thus, Rules 37(h)(2)( and 37(0(f )(C) expressly authorize the court to dismiss an action for a party's failure to comply with a court order compelling discovery and to provide initial disclosures. hi: see also Tech. Rcepliat.t Corp. a. (71 y of "Taylor, Nos. 04-1798. 04-2205, 2000 11.S.App. LEXIS 10590. at *15, 2000 WI, 1792413 (0th Ch. June 28. 20061 (affirmin(2, order of dismissal pursuant to Rule 37( 1:))(2 )); r. Roacticay No. 09-0497. 2001 U.S.App. LLXIS 2251, at *7-ti. 2001 WL 13312$ (0(h Cir. l eb. 5, 2001) ("When dismissal is based upon the failure to provide discovery, the Supreme Court has indicated that dismissal is properly brought under Eed.R.Civ.P. 37(b)") (citing .Societe laternationalc Porn' Part it ipotions harm Gmancrc 'Wes. Rogers, 357 U.S. 197, 210. 78 S.Ct. 1087. 2 L.Ed.2d 1255 ( 1058)). Case 3:16-cv-02483 Document 15-1 Filed 03/17/17 Page 36 of 38 PageID #: 97 Britton v. Nahon. Saharovich & Trotz, PLLC, Not Reported in F.Supp.2c1 (2008) 2008 WL 782475 The court submits that Britton's failure to provide complete initial disclosures as required by the court's orders is neither substantially justified nor harmless. R ule 20(a )(1)( A) provides that "a party must, without awaiting a discovery request, provide to the other parties: (i) 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; ..." Fed.R.Civ.P. 26( a)( 1)( Al( i). Although Britton has identified two names, it is apparent from Britton's various filings that she is aware of other individuals covered by Rule 26(a )(1 1( A )(i) and whose identities she has not disclosed to the defendant. While Rule 26(a)( 1)(A)(i) does not require a party to disclose the names of all individuals who have discoverable information, the rule does require a party to disclose those individuals (along with their contact information, if known, and the subjects of their discoverable information) who the party may use to support its claims or defenses. Based on Britton's incomplete "disclosures" thus far, the Nation firm (and this court) cannot determine whether Britton has disclosed all of the names of individuals who she may use to support her claims or whether any of the names withheld to date may be disclosed by her in the future. Although Britton claims that she has withheld certain names due to her concern that the Nahon firm may retaliate against these individuals, there is nothing in the record to support Britton's retaliation concerns. Britton's piecemeal approach to making initial disclosures is contrary to the spirit of Rule 26(j1)(1)(A), and prejudices the defendant because it has to defend the litigation on a piecemeal basis and without the benefit of receiving this basic information from the plaintiff. *6 In determining what type of sanctions are warranted under Rule 37, the court should consider the following four factors: The first factor is whether the party's failure to cooperate in discovery is due to willfulness, bad faith, or fault: the second factor is whether the adversary was prejudiced by the party's failure to cooperate in discovery: the third factor is whether the party was warned that failure to cooperate could lead to the sanction; and the fourth factor in regard to a dismissal is whether less drastic sanctions were first imposed or considered. Freclaml r. 103 I:.3d 1271. 1277 i6th Cir.19071; Ilarnian v. PricemuerhouscCoopers, LH' (In re Telvou Corp. Sees LitiK. ). , Nos. 9S-2576, 01-107 , 2004 US. Dist. LIAIS 27290, at *07. 2004 WL 3102729 ( N.1).0hio July 1 6, 2004); ,Inch Ca. v. ITT I; TYGT Corp., No. 03_2060, P0(4 WL 2905407, 2004 I LS. Dist. LEX IS 26155. a t ''' 12-13 (W\'.11). Tenn. June 9. 2004). It is submitted that, based on the four-factor analysis above, defendant's motion to dismiss should be granted. First, Britton's discovery violations are willful. Despite being ordered, pursuant to the scheduling order and the December 19 and the January 4 orders, to provide i nitial disclosures, to date Britton has not complied with these orders. Second, defendant is prejudiced by Britton's discovery violations, as it has been denied t he opportunity to conduct discovery to defend against Britton' s claims and has incurred needless litigation expenses in having to file motions to obtain this discovery. Third, the court has warned Britton multiple times that failure to cooperate in discovery or obey court orders would result in dismissal of her complaint. Fourth, the court has considered imposing other, less drastic sanctions, such as reimbursement of attorney fees and other available sanctions under Fed.R.Civ.P. 37. It is submitted, however, that the sanction of dismissal is appropriate under the circumstances. The defendant has made numerous attempts to obtain the outstanding initial disclosures but has been unsuccessful. The court has ordered Britton to produce her initial disclosures, but she has failed to comply. Thus, no sanction short of dismissal will adequately address Britton's consistent refusal to comply with the court's orders. III. RECOMMENDATION For the reasons above, the court recommends that defendant's motion to dismiss be GRANTED and that Britton's complaint be dismissed with 'prejudice. Case 3:16-cv-02483 Document 15-1 Filed 03/17/17 Page 37 of 38 PageID #: 98 Britton v. Nahon, Saharovich & Trotz, PLLC, Not Reported in F.Supp.2d (2008) 2008 WL 782475 111 Citations Not Reported in F.Supp.2d, 2008 WL 782475 Footnotes 1 Although the magistrate judge referred to the version of Rule 26(a)(1) which became effective December 1, 2007, and the subject of this dispute arose prior to that date, the prior version does not differ in any degree that would alter Judge Pham's analysis or conclusions. The pre-December 1, 2007 version reads: "a party must, without awaiting a discovery request, provide to the other parties ... the name and if known, the address and telephone number of each individual likely to have discoverable information that the disclosing party may use to support its claims or defenses ... identifying the subjects of the information;" and the post-December 1, 2007 version reads: "a party must, without awaiting a discovery request, provide to the other parties ... 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...." 2 The Court would note that in her appeal of the magistrate judge's granting of the Defendant's motion to compel, the Plaintiff mentioned the name of one potential witness, Amber Brody, but did not otherwise comply with Judge Pham's Order or the Federal Rules of Civi l Procedure. 3 See supra note 1. 4 See supra note 2. 5 The undersigned also notes that the Plaintiff states that Magistrate Judge Pham wrongly found that she failed to include the contact information for two other witnesses, as required by Federal Rule of Civi l Procedure 26(a)(1)(A), claiming that she provided that information on page 19 of her Responses to the Defendant's First Set of Interrogatories. (D.E. No. 30 at 4.) However, while she does mention those witnesses on that page, she does not include their addresses and telephone numbers or the subjects of their information. 1 Although Britton did identify two individuals, Amber Brady and Wanda Bilbro, no information was provided regarding their contact information (if known) or the information they possess, as required by Rule 26(a)(1)(A)(i). (Ex. C to Motion to Dismiss). 2 The court notes that these same four factors should be considered when deciding whether to dismiss a case for failure to prosecute pursuant to Fed.R.Civ.P. 41(b). See Tung-Hsiung Wu v. T. In! Wang, Inc., 420 F.3d 641, 643 (6th Cir.2005). End or Docilmfmt hUlIC:=011 rc it--, 1[1 [ toorKpr io! Case 3:16-cv-02483 Document 15-1 Filed 03/17/17 Page 38 of 38 PageID #: 99