United States District Court, E.D. Tennessee, Knoxville
BRANDON T. CARDEN, individually and as next of kin of the decedent, Plaintiff,
DAVID GERLACH, individually, Defendant.
MEMORANDUM AND ORDER
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.
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.
POSITIONS OF THE PARTIES
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.
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.
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.
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.
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.
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
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.
Rule of Civil Procedure 37 governs the use of sanctions with
respect to discovery failures. Rule 37(b)(2) provides as
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 ...