The opinion of the court was delivered by: Susan K. Lee United States Magistrate Judge
Before the Court is the motion of Plaintiff, Carolyn R. Matthews, to dismiss pursuant to Fed. R. Civ. P. 41(a)(2) [Doc. 27], with a supporting memorandum [Doc. 28] and affidavit [Doc. 29]. Defendant, the Tennessee Board of Probation and Parole, has filed a response in opposition to Plaintiff's motion [Doc. 30 & 33], with a supporting memorandum [Doc. 31] an affidavit and supporting evidence [Doc. 32 & 32-2]. Consequently, Plaintiff's motion to dismiss is now ripe. For the reasons which follow, Plaintiff's motion to dismiss this action pursuant to Fed. R. Civ. P. 41(a)(2) [Doc. 27] will be DENIED.
Plaintiff filed her complaint on February 28, 2007, asserting claims of racial and sexual discrimination under Title VII [Doc. 1]. The matter was originally set for trial on April 22, 2008, after a scheduling conference with counsel for the parties on June 20, 2007 [Doc. 8]. On February 1, 2008, the parties filed a joint motion to modify the Court's scheduling order and continue the jury trial [Doc. 10]. After a hearing and scheduling conference concerning the parties' joint motion on February 29, 2008, the parties agreed to a new scheduling order, which was entered on March 6, 2008 [Doc. 14].
Pursuant to the Court's amended scheduling order, Defendant timely filed its motion for a summary judgment under Fed. R. Civ. P. 56 on May 7, 2008 [Doc. 15]. On May 29, 2008, Plaintiff filed a motion for an extension of time to complete discovery [Doc. 23] and a motion for an extension of time to file a response to Defendant's motion for summary judgment [Doc. 24]. In her motion to extend discovery, Plaintiff sought an extension of the March 21, 2008 deadline for the completion of all discovery in order to take the deposition of John Patterson ("Patterson") [Doc. 23]. The Court denied Plaintiff's motion for an extension of the discovery deadline concluding Plaintiff had not shown her failure to timely take Patterson's deposition was the result of "excusable neglect" under Fed. R. Civ. P. 6(b)(2) [Doc. 26 at 2-3]. The Court also denied Plaintiff's motion for an enlargement of time to respond to Defendant's motion for summary judgment finding Plaintiff had not satisfied the requirements of Fed. R. Civ. P. 56(f) [id. at 5-6]. However, in the interests of justice, the Court permitted Plaintiff until Monday, June 9, 2008, in which to respond to Defendant's motion for summary judgment [id. at 6-7]. Plaintiff, however, did not file a response to Defendant's summary judgment motion.
On June 15, 2008, Plaintiff filed the instant motion to dismiss under Rule 41(a)(2) [Doc. 27]. Defendant filed its response in opposition to Plaintiff's motion on June 18, 2008 [Doc. 30 & 33].*fn1
Attached to Plaintiff's motion is the affidavit of Karen Barrett ("Barrett"), dated June 17, 2008 [Doc. 29]. Barrett is the secretary for Plaintiff's counsel, attorney Robin Flores ("Flores") [id. at 1, ¶ 2]. As part of her duties, Barrett keeps Flores' electronic calendar [id.]. Barrett's affidavit states:
3. I did attempt to contact Mr. Holt's office at least twice to try to schedule depositions for Mr. Patterson. I did not personally speak with Mr. Holt. When the telephone calls were answered I would ask for an assistant to Mr. Holt[.] I left two messages one with a lady and one on a voice mail.
4. Another issue with scheduling Mr. Patterson's deposition was the lack of time with Mr. Flores' hectic schedule. During the month of April Mr. Flores was preparing for a highly publicized murder trial, which ended up being cancelled the day of. Mr. Flores was also preparing for depositions, in which he had two days in April set aside for, in regards to another federal court case. In the month of May Mr. Flores was trying to prepare for two separate murder trials in the Hamilton County Criminal Court, one of which was to be heard the third week of May and ended up being continued to the third week of June due to an expert witness was not prepared and the other trial which was to begin the third week of June which is now rescheduled to July because the murder trial that was to be held in May was rescheduled by Judge Blackwood to be heard in the same week of the trial originally to be held in June. Mr. Flores also had three days of May set aside for depositions with the City Attorney's office on a police brutality case which will be heard in the Hamilton County Circuit Court.
Attached to Defendant's response to Plaintiff's motion is the affidavit of Gregory W. Holt ("Holt"), dated June 18, 2008 [Doc. 32]. Holt is an Assistant Attorney General with the state of Tennessee and is the lead attorney representing the Defendant in this action [id. at 1, ¶¶ 2, 3]. Holt's affidavit states:
4. At no time since prior to May 29, 2008, did I receive any correspondence from Mr. Robin Flores . . . or from anyone connected with his office regarding the deposition of John Patterson.
5. At no time prior to May 29, 2008 did Mr. Flores or anyone connected with his office contact me requesting a date and time to ...