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Kidd v. Itron Inc.

United States District Court, E.D. Kentucky, Central Division

May 30, 2018

ANGELA KIDD, PLAINTIFF,
v.
ITRON, INC., DEFENDANT.

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          EDWARD B. ATKINS UNITED STATES MAGISTRATE JUDGE

         INTRODUCTION

         This matter was referred by the Honorable Gregory F. Van Tatenhove for purposes of establishing deadlines and determining other non-dispositive matters. [R. 18]. On April 3, 2018, the undersigned was informed of an ongoing discovery dispute related to counsel for plaintiff's, Richard Kenniston's, refusal to engage with counsel for defendant. For that reason, a telephone conference was scheduled for April 6, 2018, to discuss the matter. [R. 21]. Counsel for plaintiff failed to appear, and the Court ordered him to show cause for his failure on or before April 16, 2018. [R. 22]. He did not. As a result, the undersigned scheduled another telephone conference for April 30, 2018, at which both counsel for the parties and the plaintiff, Angela Kidd, were ordered to appear. [R. 23]. Although the plaintiff and counsel for defendant appeared, Richard Kenniston, counsel for plaintiff, again failed to appear. [R. 24].

         At the April 30, 2018, telephone conference, the plaintiff was personally informed that her attorney, Richard Kenniston, had repeatedly failed to appear for telephone conferences, and that her case risked dismissal if she failed to proceed as a pro se plaintiff, or engage an attorney on her behalf, and litigate her case.[1] [Id.]. The plaintiff was advised to contact her attorney to inquire about whether he was seeking re-admittance, or whether she should retain new counsel. [Id.]. Finally, the plaintiff was Ordered to file a notice in the Record of the above-styled case within fourteen days confirming her contact with her current attorney or whether, in the alternative, she was obtaining new counsel. [Id.]. She did not.

         ANALYSIS

         Under Fed.R.Civ.P. 37(b)(2)(A), when a party has refused to obey a court order, or has otherwise filed to provide or permit discovery, the Court where the action is pending may issue further just orders, including:

(1) Directing that the matters embraced in the order or other designated facts be taken as established for purposes of the pending action;
(2) Prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters into evidence;
(3) Striking pleadings to any extent;
(4) Staying proceedings until the relevant order(s) are complied with;
(5) Dismissing the pending action in whole or part;
(6) Rendering default judgment against the disobedient party; and/or (7) Treating as contempt of court the failure to obey any order, except an order to submit to a physical or mental examination.

         Although dismissal is the most severe form of sanction available under Fed.R.Civ.P. 37, use of the remedy is reviewed for an abuse of discretion. National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 643 (1976); Regional Refuse Systems, Inc. v. Inland Reclamation Co., 842 F.2d 150, 154 (6th Cir.1988) (“if a party has the ability to comply with a discovery order and does not, dismissal is not an abuse of discretion”). “[D]ismissal is an appropriate sanction where the party's failure to cooperate with the court's discovery orders is due to willfulness”; “[a] willful violation occurs whenever there is a conscious and intentional failure to comply with the court order.” Bass v. Jostens, Inc., 71 F.3d 237, 241 (6th Cir. 1995) (citing Brookdale Mill, Inc. v. Rowley, 218 F.2d 728, 729 (6th Cir.1954)).

         In addition to the willfulness of a party's disobedience, the Sixth Circuit considers three other factors in evaluating whether the district court's dismissal of a case was an abuse of discretion. These include whether the adversary was prejudiced by the dismissed party's failure to obey court orders, whether the disobeying party had been warned that continued disobedience of court orders could lead to dismissal, ...


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