United States District Court, W.D. Tennessee, Western Division
TREENA N. CLEABORN, Plaintiff,
SHELBY COUNTY BOARD OF EDUCATION, ANNIECE GENTRY, CHANTAY BRANCH, CECILIA BARNES, GREGORY GLENN, ANTHONY KRONE, and LATERICA ROSE, Defendants.
REPORT AND RECOMMENDATION ON DEFENDANTS' MOTION
TO DISMISS, OR IN THE ALTERNTIVE, TO ORDER PLAINTIFF TO
APPEAR FOR DEPOSITION AND EXTEND DEADLINES
K. VESCOVO CHIEF UNITED STATES MAGISTRATE JUDGE
the court is the August 13, 2019 motion of the defendants,
Shelby County Board of Education (“SCBOE”),
Principal Anniece Gentry, Chantay Branch, Cecilia Barnes,
Gregory Glenn, Anthony Krone, and LaTerica Rose
(collectively, “Defendants”), pursuant to Rules
37 and 41 of the Federal Rules of Civil Procedure, to dismiss
the complaint of the plaintiff, Treena Nicole Cleaborn
(“Cleaborn”), as a sanction for failing to comply
with the court's discovery order of July 10, 2019 which
required Cleaborn to appear and be deposed on or before
August 9, 2019. (Defs.' Mot. to Dismiss, ECF No. 103.) On
August 27, 2019, Cleaborn filed a response in opposition.
(Pl.'s Resp. in Opp., ECF No. 105.) On April 30, 2018,
this case was referred to the United States Magistrate Judge
for management and for all pretrial matters for determination
and/or report and recommendation as appropriate. (ECF No.
18.) For the reasons that follow, it is recommended that the
Defendants' motion to dismiss be granted and that this
case be dismissed in its entirety.
a Title VII employment discrimination case filed by Cleaborn
pro se in the Circuit Court of Shelby County,
Tennessee on August 8, 2018. (ECF No. 1-2.) This case was
removed by Defendants to the District Court for the Western
District of Tennessee on August 31, 2018. (Notice of Removal,
ECF No. 1.) Cleaborn filed an amended complaint on September
25, 2018. (Am. Compl., ECF No. 12.) This case has been
referred to the United States Magistrate Judge for all
pretrial matters. (Order of Ref., ECF No. 18.)
Scheduling Order, entered on December 3, 2018, set July 6,
2019, as the deadline for completing depositions and all
discovery. (ECF No. 34.) According to the unopposed motion of
the Defendants to extend the discovery deadline, the
Defendants requested that Cleaborn be deposed on June 5 or 6,
2018, but Cleaborn responded that she would be out of town
and would let counsel know when she would be available.
(Defs.' Mot. to Extend, ECF No. 87-1.) When Cleaborn
failed to follow through, the Defendants noticed her
deposition on May 31, 2019 for June 6, 2019, (Notice of
Depo., ECF No. 84), but Cleaborn failed to show. (Defs.'
Mot. to Extend, ECF No. 87.) On July 10, 2019, the court
granted the Defendants' motion to extend the discovery
deadline to August 9, 2019 for the limited purpose of
deposing Cleaborn and ordered Cleaborn to appear and be
deposed on or before August 9, 2019. (Order, ECF No. 93.) In
addition, the court warned Cleaborn that failure to comply
would lead to dismissal of her complaint.
to the Defendants' instant motion, Cleaborn failed to
communicate with defense counsel to schedule her deposition.
(Defs.' Mot. to Dismiss 2, ECF No. 103.) The Defendants
filed a Notice to Take Deposition of Treena Nicole Cleaborn
pursuant to Rule 30 of the Federal Rules of Civil Procedure
on August 2, 2019. (Depo. Notice, ECF No. 100.) The Notice to
Take Deposition set the date and time of the deposition for
Friday, August 9, 2019 and stated the location of the
deposition as being the Shelby County Board of Education, 160
South Hollywood, Memphis, Tennessee 38112. (Id.)
Cleaborn responded to the deposition notice the day before
the noticed deposition by filing a “Response to Notice
to Take Deposition, ” in which she stated that
“[d]ue to the fact that Defendant's counsel did not
contact Plaintiff about the date of August 9, 2019, Plaintiff
will not be able to accommodate.” (Pl.'s Resp. to
Notice to Take Depo., ECF No. 101.) Cleaborn did not appear
for her deposition on August 9, 2019 as noticed.
August 13, 2019, the Defendants filed the present motion to
dismiss the complaint as a sanction for failing to comply
with the court's July 10, 2019 order. In her response to
the motion, Cleaborn claims that “Defendant's
counsel has readily lied and intentionally misled this court
with untrue statements, ” and offers no other reason
for her failure to appear. (Resp. to Mot. to Dismiss, ECF No.
a party . . . fails to obey an order to provide or permit
discovery, the court where the action is pending may issue
further just orders. They may include . . . [an order]
dismissing the action or proceeding in whole or in
part.” FED. R. CIV. P. 37(b)(2)(A).
Sixth Circuit regards the sanction of dismissal under Rule 37
for failure to cooperate in discovery to be a “sanction
of last resort.” Beil v. Lakewood Eng'g and
Mfg. Co., 15 F.3d 546, 552 (6th Cir. 1994). Dismissal
may be imposed “only if the court concludes that a
party's failure to cooperate is due to willfulness, bad
faith or fault.” Reg'l Refuse Sys., Inc. v.
Inland Reclamation Co., 842 F.2d 150, 153-54 (6th Cir.
1988). In determining whether to dismiss an action for
failure to cooperate in discovery, the court should consider:
(1) whether the party acted with willfulness, bad faith, or
fault; (2) whether prejudice resulted from the discovery
violation; (3) whether the party had been warned that her
conduct could lead to extreme sanctions; and (4) whether less
drastic sanctions were previously imposed or should be
considered. Mager v. Wisconsin Cent. Ltd., 924 F.3d
831, 837 (6th Cir. 2019) (citing United States v.
Reyes, 307 F.3d 451, 458 (6th Cir. 2002)).
of this action is an appropriate sanction in this case. The
first factor of the Sixth Circuit's test is satisfied
because Cleaborn's failure to appear twice for her
deposition is due to her own willfulness and fault. She has
not offered any reason as to why she was unable to appear for
her deposition on August 9, 2019. She simply chose not to
appear. To dismiss an action with prejudice under Rule 37 the
Sixth Circuit has held that the first factor is satisfied
only if “a clear record of delay or contumacious
conduct” exists. Carpenter v. City of Flint,
723 F.3d 700, 704 (6th Cir. 2013) (quoting Freeland v.
Amigo, 103 F.3d 1271, 1277 (6th Cir. 1997)). Cleaborn
has ignored an order of the court. This course of conduct
constitutes a clear record of delay.
second factor weighs in favor of dismissal. The Defendants
have been prejudiced because they been unable to move forward
in their preparation for trial without the Cleaborn's
deposition. A jury trial is set for October 21, 2019, with a
pretrial conference on October 2, 2019. The dispositive
motion deadline is September 30, 2019. Furthermore, the
Defendants have had to waste time, money, and effort in
pursuit of cooperation that Cleaborn was legally obligated to
provide under the court's order.
third factor is satisfied because Cleaborn was sufficiently
warned that her failure to comply with the court's order
would result in dismissal of her case.
final factor is satisfied because lesser sanctions would not
be appropriate in this case. Cleaborn has twice failed to
appear and be deposed and has failed to abide by an express
order of the court to do so after the first time she failed
to appear. Cleaborn has exhibited a disregard for the
Defendants' repeated requests for her deposition and has
shown contempt for an order of this court. Therefore, the
court recommends dismissal with prejudice under Rule 37 as a
addition, dismissal is warranted under Rule 41(b). That rule
(b) Involuntary Dismissal; Effect. If the plaintiff fails to
prosecute or to comply with these rules or a court order, a
defendant may move to dismiss the action or any claim against
it. Unless the dismissal order states otherwise, a dismissal
under this subdivision (b) and any dismissal not under this
rule - except one for lack of jurisdiction, improper venue,