Vander Boegh v. Harless et al, No. 5:2018cv00123 - Document 61 (W.D. Ky. 2022)
Court Description: MEMORANDUM OPINION & ORDER signed by Senior Judge Thomas B. Russell on 2/23/2022. Denying 45 Motion for Extension of Time to Complete Discovery; denying 45 Motion for Extension of Time to File; granting 47 Motion to Dismiss; denying 54 Motion to Vacate 56 MOTION for Leave to file a Sur-Reply; denying 59 MOTION to Vacate MOTION to Strike, granting 60 MOTION to Strike and Substitute. cc: Counsel, plaintiff pro se(KJA)
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Vander Boegh v. Harless et al Case 5:18-cv-00123-TBR-LLK Document 61 Filed 02/23/22 Page 1 of 14 PageID #: 430 Doc. 61 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY PADUCAH DIVISION CIVIL ACTION NO. 5:18-CV-123-TBR GARY S. VANDER BOEGH, PLAINTIFF v. BRANDI HARLESS, et al., DEFENDANTS MEMORANDUM OPINION & ORDER This matter is before the Court on various motions filed by the parties: Motion for Extension of Deadlines, [DN 45], to which no response has been filed; Motion to Dismiss [DN 47], which is fully briefed, [DN 52; DN 53]; First Motion to Vacate [DN 54], to which Defendants have filed a response, [DN 55]; File a Sur-Reply, [DN 56], which is fully briefed, [DN 57; DN 58 Motion for Leave to Motion for Court Order to Vacate and/or Remove or to Strike Out the Plaintiff s Answers in the September 17, 2020 Interrogatory as Per Federal Rule Of Civil Procedure 36 (B) and All Irrelevant Documents/Exhibits, [DN 59]. In response to this last motion, Defendants filed a Substitute Exhibit B [DN 41-2] to [DN 60]. For the reasons set forth below, the Court will grant Motion to Strike and Substitute, [DN 60], and deny the remaining motions. 1 Dockets.Justia.com Case 5:18-cv-00123-TBR-LLK Document 61 Filed 02/23/22 Page 2 of 14 PageID #: 431 I. BACKGROUND On August 10, 2018, Plaintiff filed this case alleging Fourth and Fourteenth Amendment violations pursuant to 42 U.S.C. ยง 1983, as well as false arrest, false imprisonment, assault, battery, and malicious prosecution claims under state law. [DN 1]. The Court then entered a scheduling order. [DN 16]. Pursuant to that order, all discovery was scheduled to conclude by November 1, 2019, id., responses to Defendants Interrogatories and Requests for Production due on February 24, 2019. [DN 41-1]. Plaintiff did not respond by this date. On April 23, 2019, all deadlines, including the discovery deadlines, were vacated at Plaintiff s request due to his health conditions. [DN 17; DN 29]. During the stay, Plaintiff filed an Emergency Motion to Depose Material Witness, [DN 26], which was denied, [DN 29]. On May 26, 2020, the Court entered a second scheduling order. [DN 32]. That order required all fact discovery to be completed by January 1, 2021 and all discovery to be completed no later than April 15, 2021. Id. Plaintiff was required to respond to discovery requests by June 19, 2020. Plaintiff did not respond by this date. On July 9, 2020 Plaintiff filed a motion for Extension of Time to Complete Discovery, [DN 33], which was granted, providing Plaintiff thirty days from the entry of that order to complete his responses, [DN 34]. On August 12, 2020, following the expiration of this deadline, Plaintiff filed another Motion for Extension of Time to Complete Discovery, [DN 35], which was also granted. [DN 37]. Plaintiff had an additional thirty days from the entry of that order to complete his responses. Id. extensions shall be granted absent any new information not available to the Parties at the filing of Id. at 1. 2 Case 5:18-cv-00123-TBR-LLK Document 61 Filed 02/23/22 Page 3 of 14 PageID #: 432 On September 17, 2020, Plaintiff served his responses. [DN 41-2]. On September 25, 2020, Defendants provided Plaintiff with their objections were evasive, incomplete, or non-responsive. [DN 41, p. 3; DN 41-3]. Plaintiff requested a response to their objections by no later than October 9, 2020. [DN 41-3]. Plaintiff alleged they did not receive therefore agreed to allow him to respond by November 6, 2020. [DN 41-5]. Plaintiff did not respond. the Court. On December 11, 2020, this Court granted leave for Defendants to file a Motion to Compel. [DN 40]. Defendants filed their motion on December 18, 2020. [DN 41]. On January 14, 2021, Plaintiff filed his response, [DN 43]. Defendants filed a reply, [DN 43], and the matter was submitted to United States Magistrate Judge Lanny King for review. On May 13, 2021, to Compel and ordered Plaintiff to supplement his discovery responses on or before June 12, 2021. 1 [DN 46]. Plaintiff failed to so do, and Defendants filed the present Motion to Dismiss, seeking dismissal of the case for failure 47]. Plaintiff then filed a motion to stay any further discovery pending resolution of his ongoing medical issues. [DN 48]. He stated in his motion that he had attached a letter from his treating physician; however, no such letter was attached. Id. On June 28, 2021, Defendants responded in opposition to the Motion to Stay, [DN 49]. Plaintiff failed to file a reply. On August 24, 2021, the Court entered an order directing Plaintiff to file a reply by September 9, 2021 and to file any relevant medical records under seal. [DN 50]. Plaintiff failed to do so. As a result of 1 In the meantime, the defendants filed their motion seeking an extension of the discovery deadlines, in which they noted the pending Motion to Compel. [DN 45]. 3 Case 5:18-cv-00123-TBR-LLK Document 61 Filed 02/23/22 Page 4 of 14 PageID #: 433 1]. In that same order, the Court entered a briefing schedule to ensure full briefing of Id. The Court warned Plaintiff that his failure to respond would result in dismissal of the case. Id. Plaintiff then filed a response, and that matter is now fully briefed and ripe for review. However, before the Court could rule on this motion, Plaintiff filed his First Motion to Vacate, [DN 54], and Motion for Leave to File a Sur-Reply, [DN 56]. Those motions are now ripe for review. In the meantime, Plaintiff also filed his Second Motion to Vacate, [DN 59]. The Court addresses each pending motion in turn. II. ANALYSIS A. Motion for Leave to File a Sur-Reply, [DN 56] The Court -Reply, [DN 56]. In his motion, Plaintiff asks the Court for leave to file a sur-reply brief, filed in support of their Motion to Dismiss. Id. For support, Plaintiff notes that Defendants . Id. at 1. Plaintiff Id. at 2. The decision to allow a party to file a surShelby County, 551 See Key v. 262, 264 (6th Cir. 2014) (citations omitted). Sur-replies may be w]hen new submissions and/or arguments are included in a reply brief, and a nonmovant ability to respond to the new evidence has been Id. at 265 (quoting Seay v. Tenn. Valley Auth., 339 F.3d 454, 481 (6th Cir. 2003)). However, it is not an abuse of discretion to deny leave to file a sur- where the opposing Liberty Legal 4 Case 5:18-cv-00123-TBR-LLK Document 61 Filed 02/23/22 Page 5 of 14 PageID #: 434 Foundation v. National Democratic Party of the USA, Inc., 875 F.Supp.2d 791, 797 (W.D. Tenn. 2012) (citations omitted); see also Key, 551 at 265. Further, sur- are highly disfavored, as they usually are a strategic effort by the nonmoving party to have the last word on a matter Liberty Legal Foundation, 875 F.Supp.2d at 797 (quoting In re Enron Corp. Secs., 465 F.Supp.2d 687, 691 n.4 (S.D. Tex. 2006)) (internal quotation marks omitted). As noted above, Plaintiff wishes to file a sur-reply to respond to certain cases cited in Key, t 265. In fact, each of the cases cited in Defendants Court therefore finds that Plaintiff had an adequate opportunity to respond to this case law in his response brief. Accordingly, the Court finds that a sur-reply would be inappropriate and will B. First Motion to Vacate, [DN 54], and Second Motion to Vacate, In his First Motion to Vacate, Plaintiff references his answers to interrogatories and asks full knowledge that the plaintiff should only give the last 4 digits of the plai is asking for all medical, when only the medical that pertains to this case should be given to the Id. Plaintiff therefore asks the Court to grant his Motion to Vacate and this case. Id. In their response, Defendants note that Plaintiff provided his date of birth and social security number in response to their first interrogatory. [DN 55, p. 1]. As Defendants note in 5 Case 5:18-cv-00123-TBR-LLK Document 61 Filed 02/23/22 Page 6 of 14 PageID #: 435 [t]he discovery of background information such as name, address, telephone number, and social security number is considered routine information in almost all civil discovery Lamb v. Hazel, 5:12-CV-00070-TBR, 2013 WL 1411239, at *3 (W.D. Ky. Apr. 8, 2013) (quoting Breslin v. Dickinson Tp., 1:09-CV-1396, 2011 WL 1900448, *1 (M.D. Pa. May 19, 2011)) (internal quotation marks omitted). Thus, to the extent Plaintiff asks the Court through discovery, his motion will be denied. certain medical records, the Court has already addressed that issue. As the Court has already explained, Plaintiff waived any privacy rights regarding his medical records when he put his medical conditions at issue by filing the instant action. [DN 46, p. 9 (citing Maday v. Pub. Librs. of Saginaw, 480 F.3d 815, 821 (6th Cir. 2007)]. , and his motion will therefore be denied. In both his First and Second Motions to Vacate, Plaintiff asks the Court to strike the sensitive personal information listed in his answers to discovery responses, including his social security number and date of birth. See [DN 41-2]. The filing of such sensitive information violates Federal Rule of Civil Procedure 5.2. Defendants have acknowledged this error in their Motion to Strike and Substitute, [DN 60], and they have submitted a redacted version of the discovery responses. [DN 60-1]. They ask the Court to strike the unredacted exhibit, [DN 41-2], and substitute the redacted version, [DN 60-1], in its place. Motion to , [DN 54; DN 59], as moot to the extent he seeks to strike the unredacted exhibit. 6 Case 5:18-cv-00123-TBR-LLK Document 61 Filed 02/23/22 Page 7 of 14 PageID #: 436 In his Second Motion to Vacate, Plaintiff also asks the Court to strike from the record the exhi -Reply, [DN 57-1]. This exhibit is a Candidate Information sheet, which shows that he is running for County Judge Executive in McCracken County, Kentucky. Id. Defendants attached this to their response brief to demonstrate that Plaintiff has successfully completed his paperwork for his candidacy, which contradicts his claims that he cannot complete discovery in this case due to his health conditions. See [DN 57, p. 4, n.1]. Plaintiff argues that information is irrelevant. He does not cite any law in support of his request. However, under Federal Rule of Civil Procedure e court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. The Court finds that the exhibit is not so redundant, immaterial, impertinent, or scandalous to warrant being stricken from the record. Further, the Court finds that the document is relevant to the issue of whether Plaintiff has ers and discovery deadlines. therefore be denied to the extent he seeks to strike the exhibit from the record. Plaintiff also asks the Court to strike from the record sixty-one pages of Facebook records . 4]. Plaintiff does not identify where these Facebook records are located in the record, and no such documents are attached to the pending motions. wishes to strike. Without that information, the Court cannot find that the alleged Facebook filings Second Motion to Vacate will therefore be denied to the extent he seeks to strike sixty-one pages of Facebook records. 7 Case 5:18-cv-00123-TBR-LLK Document 61 Filed 02/23/22 Page 8 of 14 PageID #: 437 C. Defendants argue for dismissal under Federal Rules of Civil Procedure 41(b) or 37. Under Rule 41(b), the Court may [i]f the plaintiff fails to prosecute or to comply with [the Federal Rules of Civil Procedure] Similarly, under Rule 37, the Court may impose a variety of sanctions against a party that fails to cooperate in discovery, including ing Fed. R. Civ. P. 37(b)(2)(A)(v). When determining whether to dismiss a claim under Rule 41(b) or Rule 37(b), the Court considers the following factors: willfulness, bad faith, or fault; (2) whether dismissed party was warned that failure to cooperate could lead to dismissal; and (4) whether less drastic sanctions were imposed or considered before dismissal was ordered. United States v. Reyes, 307 F.3d 451, 458 (6th Cir. 2002) (quoting Knoll v. Am. Tel & Tel. Co., 176 F.3d 359, 363 (6th Cir. 1999)). The Court addresses each of these factors in turn. In doing so, the Court is mindful that dismissal under Rule 41(b) is appropriate only conduct by the plaintiff , 529 F.3d 731, 736 (6th Cir. 2008) (quoting Wu v. T.W. Wang, Inc., 420 F.3d 641, 643 (6th Cir. 2005)); see also Carter v. City of Memphis, 636 F.2d 159, 161 (6th Cir. 1980). Contumacious conduct is defined as Id. at 737 (quoting Webster s Third New International Dictionary 497 (1986)). respond to a discovery request may constitute contumacious conduct ailure to Barron v. Univ. of Mich., 613 Fed.Appx. 480, 484 (6th Cir. 2015) (citations omitted). For example, in Harmon v. CSX Transp., Inc., 110 F.3d 364 (6th Cir. 1997), the Sixth Circuit found a 8 clear record of delay and Case 5:18-cv-00123-TBR-LLK Document 61 Filed 02/23/22 Page 9 of 14 PageID #: 438 contumacious conduct where a plaintiff failed to answer interrogatories, failed to respond to a motion to compel, and failed to comply with the district court s order granting the defendant motion to compel and ordering full and complete responses from the plaintiff. Id. at 368. The Court is also mindful that afford pro se litigants some leniency on matters that require legal sophistication, such as formal pleading rules Thomas v. Liles, No. 3:16-CV251-JHM, 2016 WL 4940343 (W.D. Ky. Sept. 14, 2016) (citing Jourdan v. Jabe, 951 F.2d 108, 110 (6th Cir. 1991). However, same policy does not support leniency from court deadlines and other procedures readily understood by laypersons, particularly where there is a pattern of Id. the lenient treatment generally accorded to pro se litigants has limits. Where, for example, a pro se litigant fails to comply with an easily understood court-imposed deadline, there is no basis for treating that party Id. (quoting Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir. 1996)) (internal quotation marks omitted). With these principles in mind, the Court addresses the four factors outlined above. failure is due to willfulness, bad faith, or fault Reyes, 307 F.3d at 458. For a plaintiff s actions to be motivated by bad faith, willfulness, or fault, his conduct must display either an intent to thwart judicial proceedings or a reckless disregard for the effect of [his] conduct on those proceedings. Wu, 420 F.3d at 643 (quoting Mulbah v. Detroit Bd. of Educ., 261 F.3d 586, 591 (6th Cir. 2001)). Plaintiff bears the burden of showing that his failure to comply was due to inability, not willfulness or bad faith. See Reyes, 307 F.3d at 458 (citation omitted). Thus, it is presumed that dismissal is not an abuse of discretion if the party has the ability to comply with a discovery order but does not. Id. 9 Case 5:18-cv-00123-TBR-LLK Document 61 Filed 02/23/22 Page 10 of 14 PageID #: 439 In the present case, the Court granted three motions for extensions of time to respond to discovery requests, [DN 17; DN 34; DN 37]. It also entered four scheduling orders as respond to discovery requests. [DN 16; DN 32; DN 40; DN 42]. The Court also entered an order compelling Plaintiff to supplement his discovery responses on or before June 12, 2021. [DN 46]. Plaintiff failed to comply with each of these orders. In addition, Plaintiff has provided no reasonable justification for why he has repeatedly disobeyed the discovery responses. See Reyes, 307 F.3d at 458 (noting that the plaintiff failed to proffer anything to overcome the presumption that dismissal is appropriate when the plaintiff had the ability to comply with discovery but failed to do so). For example, Plaintiff claims to have ongoing health issues but failed to produce any documentation of his condition to support that claim, even after being ordered by the Court to do so. [DN 50; DN 51]. failure to comply which was filed in 2018 has dragged on for several years. To date, discovery has not concluded, and, as noted above, Plaintiff , resulting in further delay. At best, this behavior rises to a level of reckless (if not willful) disregard for these judicial proceedings. As such, this factor strongly weighs in favor of dismissal. whether the adversary was prejudiced by the dismissed pa Reyes, 307 F.3d at 458. This factor weighs in favor of dismissal when the [the defendant] to waste time, money, and effort in pursuit of cooperation [the plaintiff] Harmon, 110 F.3d at 368 (6th Cir. 1997). In the present case, caused Defendants to file a motion to compel and a motion to dismiss, in addition to their several 10 Case 5:18-cv-00123-TBR-LLK Document 61 Filed 02/23/22 Page 11 of 14 PageID #: 440 responses to the ongoing discovery disputes and motions for extension of time. They have also been forced to attend multiple teleconferences focused discovery deadlines. These efforts have undoubtedly cost Defendants time and money. Further, failed to respond to their requests, and they cannot depose him until he files his responses. See Reyes, 307 F.3d at 458 (finding that the United States suffered prejudice because it could not schedule depositions or other discovery without answers to its discovery requests). The Court also notes that Defendants have been required to defend against this stagnant litigation as it continues to drag on, without progress, for several years, through no fault of the defendants. See e.g., Ellison v. Beavers, 5:18-CV-00074-TBR, 2021 WL 1069043, at *2 (W.D. Ky. Mar. 19, 2021). The Court therefore finds that this second factor weighs in favor of dismissal of the instant action. The third factor the dismissed party was warned that failure to cooperate could lead to dismissal Reyes, 307 F.3d at 458. This factor the a case for failure to cooperate. Schafer, 529 F.3d at 737 (quoting Stough v. Mayville Cmty. Sch., 138 F.3d 612, 615 (6th Cir. 1998)) (internal quotation marks omitted). Thus, dismissal is more likely when the plaintiff had prior notice that its action would result in dismissal. Id. a 737. In the present case, Plaintiff was warned on at least one occasion that no further discovery extensions would be granted. [DN 37]. While this is not an express of the circumstances in this case provided adequate notice to Plaintiff. For instance, the Court provided Plaintiff with numerous opportunities to correct his behavior and comply with the 11 Case 5:18-cv-00123-TBR-LLK Document 61 Filed 02/23/22 Page 12 of 14 PageID #: 441 further extensions of time. Nevertheless, he continued to disobey He was also warned that his failure to respond to the Motion to Dismiss could result in dismissal of his suit. [DN 50]. The Court therefore finds that Plaintiff received notice that his refusal to comply with discovery would no longer be tolerated, and this factor therefore weighs in favor of dismissal. Lastly, the Court considers whether less drastic sanctions were imposed or considered before dismissal was ordered. Reyes, 307 F.3d at 458. As noted above, the Court has allowed Plaintiff several extensions of the discovery deadlines and has repeatedly provided Plaintiff with additional time to respond to the ongoing discovery disputes. Nevertheless, Plaintiff has refused to comply with the s. progress that could otherwise have been made in that time. Notably, discovery has not yet been co The Court is at a loss as to what lesser sanction it could impose upon Plaintiff to ensure cooperation in this action, when Plaintiff has disregarded so many of . This fourth factor therefore weighs in favor of dismissal. See, e.g., Ellison, 2021 WL 1069043, at *2. In sum, the Court has considered each of the four factors listed above, and each weigh strongly in favor of dismissing this matter for failure to prosecute under Rule 41(b) or Rule 37. In addition, Plaintiff has been an active litigator in federal and state court. He is well aware of the process in these proceedings. The Court, over time, has been overly generous in allowing Plaintiff some leeway to extend some deadlines. To his credit, he has always accepted the C s 12 Case 5:18-cv-00123-TBR-LLK Document 61 Filed 02/23/22 Page 13 of 14 PageID #: 442 actions in this case have more than crossed the line. Accordingly, the Court will grant D. Motion for Extension of Deadlines, [DN 45] In their Motion for Extension of Deadlines, [DN 45], Defendants represent to the Court requests, and, as a result, Defendants cannot comply with the deadlines set forth in the current scheduling order, Dismiss, [DN 47], as explained above, this motion will be denied as moot. III. CONCLUSION For the reasons set forth above, IT IS ORDERED that: 1. Deadlines, [DN 45], is DENIED as moot. 2. DN 47], is GRANTED. 3. [DN 54], is DENIED. 4. Sur-Reply, [DN 56], is DENIED. 5. to Vacate and/or Remove or to Strike Out the DN 59], is DENIED. 6. ubstitute Exhibit B [DN 41-2] to [DN 60], is GRANTED. 7. The Clerk of Court is DIRECTED to STRIKE [DN 41-2] from the record and substitute [DN 60-1] as an Exhibit to to Compel, [DN 41]. 13 Case 5:18-cv-00123-TBR-LLK Document 61 Filed 02/23/22 Page 14 of 14 PageID #: 443 8. This matter is hereby DISMISSED WITH PREJUDICE and STRICKEN from the cc: Plaintiff, pro se Counsel of Record 14
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