United States District Court, W.D. Kentucky, Owensboro Division
MEMORANDUM OPINION AND ORDER
H. McKinley Jr., District Judge United State District Court
matter is before the Court on a motion by Defendant, Drive-In
of Evansville, to dismiss the claims against it for
Plaintiff's failure to comply with court orders,
destroying evidence, and doctoring evidence [DN 32] and on a
motion by Plaintiff, Tamatha Spencer, for leave to file a
late response to Defendant's motion to dismiss [DN 34].
Fully briefed, these matters are ripe for decision.
18, 2018, Plaintiff, Tamatha Spencer, pro se, filed
a complaint against Defendants, Sonic Drive-In (Drive-In of
Evansville), Scott Market, Nick Richter, Amanda Richter, and
James Caldwell, alleging sexual harassment, sex
discrimination, retaliation, and wrongful termination. On
September 26, 2018, the Court granted Plaintiff's motion
to amend her complaint removing as Defendants three of the
individual managers and granted Defendants' motion to
dismiss Scott Market, the franchise owner, on the grounds
that Title VII does not permit individual liability.
November 19, 2018, the Magistrate Judge held a telephonic
conference and ordered Plaintiff to provide defense counsel
all responses to any outstanding written discovery requests
no later than November 30, 2018. On November 30, 2018,
Plaintiff served responses to Defendant's outstanding
December 7, 2018, Defendant, Drive-In of Evansville, moved to
dismiss the complaint pursuant to Fed.R.Civ.P. 37(b)(2) and
41(b) because of Plaintiff's alleged failures to comply
with discovery orders of the Court, for destroying evidence,
and for doctoring evidence. Defendant contends that
Plaintiff's discovery malfeasance, production of doctored
email documents, and destruction of her calendar evidence
demonstrate Plaintiff's willfulness, bad faith, and
fault. Defendant argues that it has been prejudiced in wasted
time, money, and effort in pursuit of this discovery. As a
result, Defendant now seeks dismissal of Plaintiff's
lawsuit because she has failed to comply with the rules or
the Court's orders governing discovery. Plaintiff did not
timely respond. On January 7, 2019, Plaintiff moved for leave
to file a late response to Defendant's motion to dismiss
and tendered her response.
Sixth Circuit “has held that dismissal under Rule 37 is
the ‘sanction of last resort' that ‘should be
imposed only if the court concludes that the party's
failure to cooperate in discovery was willful, in bad faith,
or due to its own fault.'” Bowlin Constr.
Enterprises, Inc. v. Griffin, 2012 WL 12925380, at *3
(E.D. Ky. Feb. 9, 2012) (quoting Beil v. Lakewood
Eng'g & Mfg. Co., 15 F.3d 546, 552 (6th Cir.
1994)). Similarly, “‘[t]he dismissal of a claim
for failure to prosecute [under Rule 41] is a harsh sanction
which the court should order only in extreme situations
showing a clear record of contumacious conduct by the
plaintiff.'” Schafer v. City of Defiance Police
Dep't, 529 F.3d 731, 736 (6th Cir. 2008) (quoting
Wu v. T.W. Wang, 420 F.3d 641, 643 (6th Cir. 2005)).
In determining whether to dismiss a matter under Rule 37 or
Rule 41, “the Court must consider four factors, no one
of which is dispositive: 1) whether the party's failure
was due to willfulness, bad faith or fault; 2) whether the
adversary was prejudiced by the failure; 3) whether the party
was warned that its failure could lead to the sanction; and
4) whether less drastic sanctions were first imposed or
considered.” Bowlin Constr. Enterprises, 2012
WL 12925380, at *3 (citing Freeland v. Amigo, 103
F.3d 1271, 1277 (6th Cir. 1997)).
is nothing in the record to suggest such a harsh sanction as
dismissal of the case is appropriate under Rule 37(b)(2) or
Rule 41(b). Plaintiff's conduct does not meet the first
prong of the Sixth Circuit's test for dismissal, in that
she did not act “with ‘willfulness, bad faith, or
fault.'” Williams v. Montesi's
Supermarket, 2014 WL 4199541, at *5 (W.D. Tenn. Aug. 25,
2014) (quoting Freeland, 103 F.3d at 1277). To
support a finding that a plaintiff's actions were
motivated by willfulness, bad faith, or fault under the first
factor, the plaintiff's conduct “must display
either an intent to thwart judicial proceedings or a reckless
disregard for the effect of [her] conduct on those
proceedings.” Schafer, 529 F.3d at 737 (citing
Wu, 420 F.3d at 643). Here, Plaintiff complied with
the Magistrate Judge's November 19, 2018 Order
instructing her to respond to any outstanding written
discovery requests no later than November 30, 2018.
“Defendant's insinuations of misconduct and
complaints about a pro se petitioner's less than
perfect responses to discovery do not convince this Court
that” Plaintiff failed to make “a good faith
attempt to comply with discovery requests.”
Williams, 2014 WL 4199541, at *2. Therefore,
dismissal of the case pursuant to Fed.R.Civ.P. 37(b)(2) and
41(b) is not appropriate.
most, Defendant may be entitled to additional discovery or
sanctions based on the content of Plaintiff's answers to
interrogatories and responses to production of documents.
However, Defendant did not comply with Fed.R.Civ.P.
37(a)(1) or 37(d)(1) prior to filing the motion to
dismiss. While Defendant contacted the Magistrate Judge's
office, it does not appear from the record that Defendant
communicated with Plaintiff to settle the discovery dispute
prior to contacting chambers. For example, Fed.R.Civ.P.
37(d)(1) provides that a motion for sanctions for failing to
answer interrogatories or respond to a request for inspection
must include “a certification that the movant has in
good faith conferred or attempted to confer with the party
failing to act in an effort to obtain the answer or response
without court action.” Fed.R.Civ.P. 37(d)(1)(B).
Defendant did not include a certification that it conferred
with Plaintiff regarding the alleged deficiencies in her
responses prior to contacting the Magistrate Judge or filing
the motion to dismiss.
these reasons, the Defendant's motion to dismiss is
denied. Defendant should confer or attempt to confer with
Plaintiff regarding the alleged discovery deficiencies
pursuant to Rule 37(a)(1) and Rule 37(d)(1)(B). If that is
not successful, the Defendant may contact the Magistrate
Judge as instructed in the scheduling order.
the Court's decision on Defendant's motion to
dismiss, the Court need not consider Plaintiffs ...