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Carden v. Gerlach

United States District Court, E.D. Tennessee, Knoxville

February 28, 2018

BRANDON T. CARDEN, individually and as next of kin of the decedent, Plaintiff,
v.
DAVID GERLACH, individually, Defendant.

          MEMORANDUM AND ORDER

         This case is before the undersigned pursuant to 28 U.S.C. § 636, the Rules of this Court, and the referral Order [Doc. 62] of the Chief District Judge.

         Now before the Court is Defendant David Gerlach's Motion for Sanctions [Doc. 55]. The parties appeared telephonically before the Court on February 16, 2018, for a motion hearing. Attorney Richard Brooks appeared on behalf of Plaintiff. Attorneys Jerome Melson and John Kiser appeared on behalf of Defendant Gerlach. Accordingly, for the reasons further stated below, the Court GRANTS IN PART AND DENIES IN PART Defendant's Motion [Doc. 55].

         I. POSITIONS OF THE PARTIES

         In his Motion [Doc. 55], Defendant Gerlach moves for entry of an order dismissing this action as a sanction due to Plaintiff's failure to cooperate in discovery and for violation of the Court's December 22, 2017 Order. Defendant argues that he served Plaintiff with written discovery on October 19, 2017, which sought, among other matters, computation of Plaintiff's damages. Defendant asserts that information regarding the computation of damages was not provided in Plaintiff's initial disclosures. Defendant submits that Plaintiff provided his deposition on November 20, 2017, and acknowledged that he had not yet provided responses to the written discovery. In December 2017, defense counsel inquired about the status of written discovery multiple times. Defendant states that on December 21, the parties participated in a telephonic conference with the undersigned regarding the outstanding discovery. Defendant states that the undersigned ordered Plaintiff to respond to the discovery requests by January 5, 2018. Defendant continues that Plaintiff emailed his responses on January 4, 2018, but that Plaintiff did not sign his discovery responses and that his responses were not under oath in clear violation of the express language in Federal Rule of Civil Procedure 33. Further, Defendant submits that Plaintiff failed to provide any information in response to Interrogatories 16 and 17, which seek disclosure of the computation of each category of damages. Defendant asserts that dismissal is appropriate given Plaintiff's repeated failures to cooperate in discovery and for his failure to comply with the Court's December 22 Order.

         In response [Doc. 60], Plaintiff states that he and his counsel have had difficulty communicating because he (Plaintiff) did not have a cell phone until January 5, 2018. He asserts that Defendant's requested sanction of dismissal is excessive. He explains that his responses to discovery were not willfully intended to be evasive and incomplete and that when he answered, “I don't know, ” he was following the direction given by defense counsel during his deposition. Plaintiff argues that Defendant does not explain how he will be prejudiced. Plaintiff asserts that he was given notice in the Court's December 22 Order that discovery abuses could lead to sanctions, including dismissal, but other than the Court's statement, less drastic sanctions have not been imposed or ordered. Plaintiff argues that less severe sanctions would be adequate to impress the importance of timely communications and participating in the case going forward. Further, Plaintiff states that a copy of the verification was emailed to Defendant on January 26, 2018. Plaintiff explains that computation of damages in this case is challenging and that it is very difficult to put a price on someone's life. Plaintiff argues that he does not have concrete knowledge of his father's work history.

         Defendant filed a Reply [Doc. 61], asserting that Plaintiff's verification page was served on January 26, 2018, and was ineffective because it was served three weeks passed the Court's deadline for responding to discovery. Further, Defendant argues that Plaintiff may not avoid his obligation to disclose information regarding the computation of his alleged damages merely because he does not know such information. In addition, Defendant asserts that the four factors applicable to requests for dismissal under Rule 37(b) overwhelmingly support dismissal of this case.

         II. ANALYSIS

         By way of background, on December 21, 2017, the parties appeared telephonically before the Court over a discovery dispute. During the telephonic hearing, the parties agreed that Plaintiff would provide his responses to all outstanding discovery requests on or before January 5, 2018.

         Per the parties' agreement, the Court ordered as follows:

Accordingly, the Court ORDERS Plaintiff to respond to Defendants' discovery requests on or before January 5, 2018, and to respond to Defendants' Motions for Summary Judgment on or before January 12, 2018. The Court grants the Defendants leave to move for sanctions if Plaintiff fails to respond to their outstanding discovery requests by the January 5 deadline. The Court hereby ADMONISHES the Plaintiff that future discovery abuses that approach the magnitude of the previous failure may lead to sanctions, up to and including dismissal of this case. See Fed. R. Civ. P. 37(b)(2)(A)(i)-(vii).[1]

         During the February 16 hearing, Defendant argued that the most significant issue is that Plaintiff did not disclose any calculation with respect to damages until recently. Defendant stated that a few days prior to the hearing, Plaintiff sent him a life expectancy table, but such information is too late. Defendant argued that it received this table weeks after the deadline for discovery had passed. Defendant argued that Plaintiff failed to participate in discovery, the lack of participation was willful, Plaintiff has already been warned by the Court, and Defendant is prejudiced by Plaintiff's actions.

         Plaintiff responded that he lost his father and that he lives in Knoxville, but his counsel does not. Plaintiff stated that he did not have a strong relationship with his father, so he has to rely on a life expectancy table for a figure with respect to damages. He continued that he does not have any taxes for his father and that he did not retain an economist because an economist could not provide an estimate of damages. Defendant replied that Plaintiff knew that there were no taxes and that Defendant only received the life expectancy table two days ago, which was after the discovery deadline.

         Federal Rule of Civil Procedure 37 governs the use of sanctions with respect to discovery failures. Rule 37(b)(2) provides as follows:

(A) For Not Obeying a Discovery Order. If a party or a party's officer, director, or managing agent--or a witness designated under Rule 30(b)(6) or 31(a)(4)--fails to obey an order to provide or permit discovery, including an order under Rule 26(f), 35, or 37(a), the court where the action is ...

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