Hathaway, et al. v. City of Memphis, et al., No. 2:2013cv02688 - Document 63 (W.D. Tenn. 2016)

Court Description: ORDER granting 59 Motion to Dismiss for Lack of Prosecution; granting in part and denying in part 61 Motion to Withdraw as Attorney.. Signed by Judge Samuel H. Mays, Jr on 12/27/2016. (Mays, Samuel)
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Hathaway, et al. v. City of Memphis, et al. Doc. 63 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION LAQUITA HATHAWAY and DARRELL ANDERSON, JR., a minor, by and through his Natural Mother and Legal Guardian, LAQUITA HATHAWAY, Plaintiffs, v. CITY OF MEMPHIS, OFFICER GUY HENDREE, OFFICER CHRIS MILLER, OFFICER DARNELL BRIDGEFORTH, OFFICER JOHN BARRETT, OFFICER JOHN DOE, OFFICER JANE DOE, ALL IN THEIR INDIVIDUAL AND OFFICIAL CAPACITIES, and CHIEF TONY ARMSTRONG, IN HIS OFFICIAL CAPACITY, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. 13-02688 ORDER Before the Court are two motions. On December 1, 2016, Defendants City of Memphis, Chris Miller, Guy Hendree, Darnell Bridgeforth, and John Motion to Dismiss. Barrett (“Defendants”) filed a Joint (Defs.’ Jt. Mot. to Dismiss and Mem. in Supp., ECF No. 59 (“Second Mot. to Dismiss”).) On December 12, 2016, in Plaintiffs’ counsel filed a Defendants’ Joint Motion to Dismiss. Response Support of (ECF No. 60 (“Second Mot. to Dismiss Resp.”).) Dockets.Justia.com On December 12, 2016, Plaintiffs’ counsel filed a Motion to Withdraw as Counsel. For the (ECF No. 61 (“Second Mot. to Withdraw”).) reasons discussed below, Dismiss is GRANTED with prejudice. the case is Plaintiff Darrell the Second Motion to The only remaining claim in Anderson, Jr.’s claim for intentional and/or negligent infliction of emotional distress. The Second Motion to Withdraw is GRANTED as to Hathaway and DENIED as to Anderson. I. Background On July 18, 2013, Plaintiffs filed their original complaint in the Circuit Court of Shelby County, Tennessee. No. 1-3 (“Compl.”).) (Compl., ECF The Complaint alleges that on or about July 2, 2013, Memphis Police Department officers Guy Hendree, Chris Miller, Darnell Bridgeworth, and John Barrett (the “Defendant Officers”), while responding to a domestic dispute, used excessive force and arrested Plaintiff Laquita Hathaway without probable cause, in violation of the Fourth Amendment to the U.S. Constitution. allege state-law (Id. at PageID 16–19.) claims against Defendants Plaintiffs also for intentional and/or negligent infliction of emotional distress, negligence, assault and battery, and false arrest/false imprisonment. at PageID 19–22.) case to this Court. (Id. On September 4, 2013, Defendants removed the (Notice of Removal of Civil Action, ECF No. 1.) 2 On October 27, 2015, Defendant Officers filed a motion to dismiss pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted.1 Dismiss and Mem. in Supp., ECF (Def. Officers’ Mot. to No. 20 (“First Mot. to Dismiss”).) The Court entered an amended scheduling order on March 15, 2016. (Am. Scheduling Order, ECF No. 39.) Under the amended scheduling order, the deadline for completing all discovery was October 14, 2016. On May 9, (Id.) 2016, Plaintiffs filed a notice to depositions of Defendant Officers on June 23, 2016. Deps., ECF No. 40.) take the (Notice of On May 10, 2016, Defendant Officers filed a notice to take Hathaway’s deposition on June 29, 2016. to Take Dep. of Pl., ECF No. 41.) (Notice On June 7, 2016, Plaintiffs’ counsel notified defense counsel that he had “lost communication with [his] client.” ECF No. 50 cancelled. (“Mot. (Def. Officers’ Mot. for Sanctions ¶ 11, for Sanctions”).) The depositions were (Id. ¶ 12.) On June 13, 2016, Plaintiffs’ counsel filed a Motion to Withdraw as Counsel and Assert Lien. to Withdraw”).) 1 References Procedure. to (ECF No. 42 (“First Mot. The motion stated, inter alia, that “Plaintiff “Rules” are to 3 the Federal Rules of Civil [sic] has lost contact with her counsel and has not responded to numerous attempts to reach her by mail, phone, and text.” (Id. ¶ 1.) On July 12, 2016, the Court entered an order granting in part the First Motion to Dismiss. First Mot. to Dismiss”).) Hathaway was arrested (Order, ECF No. 43 (“Order on The order dismissed the claim that without probable cause claims of false arrest and unlawful detention. and Plaintiffs’ (Id. at 14.) It also dismissed Plaintiffs’ claims of excessive force, assault, and battery to the extent those claims relied on events before or during Hathaway’s arrest. (Id.) On September 15, 2016, the Court entered an order that, in relevant part, denied the First Motion to Withdraw. Mot. to Withdraw (“Withdrawal as Counsel Order”).) and The Assert order Lien, stated (Order on ECF that No. 44 allowing Plaintiffs’ counsel to withdraw from representing Hathaway and Anderson because of Hathaway’s conduct would strip both Hathaway and Anderson, her minor son, of representation. (Id. at 4–5.) The proceeds, order also stated that, “[a]s the case if [Plaintiffs’ counsel’s] inability to reach Plaintiffs affects the parties’ ability to proceed consider appropriate relief.” to trial, the Court will (Id. at 6 n.3.) On September 20, 2016, Defendant Officers filed a notice to take Hathaway’s deposition on September 27, 2016. 4 (Notice to Take Dep. of Pl., ECF No. 46.) deposition. Hathaway did not appear for the (See, e.g., Dep. of Laquita Hathaway, ECF No. 50- 1.) On October 12, 2016, Defendant Officers filed a Motion for Sanctions Under Rule 37(d)(3). Because Hathaway had not (ECF No. 50 (“Sanctions Mot.”).) appeared for her properly noticed deposition, the Officers asked that “Plaintiff be sanctioned and that her case be dismissed . . . as she has abandoned her cause of action.” (Id. ¶ 18.) On October 13, 2016, the Court referred the Sanctions Motion to United States Magistrate Judge Diane K. Vescovo. (Order of Reference, ECF No. 52.) On October 25, 2016, Plaintiffs filed a response to the Sanctions Motion. (Pl.’s [sic] Resp. Opposing Def. Officer’s [sic] Mot. to Dismiss and Mem. in Opp’n, ECF No. 53.) On November 4, 2016, the Magistrate Judge entered an Order Granting in Part and Denying in Part Defendant Officers’ Motion for Sanctions under Rule 37. (ECF No. 54 (“Sanctions Order”).) The order denied the Sanctions Motion as to Defendant Officers’ request for a dismissal of Plaintiffs’ case. Magistrate granted Officers’ request reasonable deposition. the expenses (Id.) Motion that for Hathaway related to Hathaway was 5 Sanctions pay (Id. at 8.) as to Defendant Hathaway’s ordered Defendant Officers’ September to pay The 2016 Defendant Officers $131.40 within fourteen days. (Id.) Nothing in the record suggests that Hathaway has made that payment. On November 15, 2016, Plaintiffs’ counsel filed a Motion for Status Conference. (ECF No. 55.) Plaintiffs’ counsel represented that “Hathaway has lost contact with her counsel and has not responded to numerous attempts to reach her by mail, phone, and text,” and that, “[b]ased on information and belief [Hathaway] still resides in Memphis, Tennessee but can not be found.” (Id. ¶ 1.) Plaintiffs’ counsel also represented that he “has hired a private investigator to locate” Hathaway and Anderson, but “[t]o date, only [Anderson] has been located as well [as] Hathaway.” an adult relative of [Anderson] who is not . . . (Id. ¶ 2.) The Court held a status conference on November 23, 2016. (Order 1, ECF No. 58.) abeyance (Id.) the deadlines At that conference, the Court held in set in the Amended Scheduling Order. The Court set a deadline of December 2, 2016 for any motions to dismiss, and a deadline of December 26, 2016 for any appointment of a guardian ad litem for Anderson. (Id.) On December 1, 2016, Defendants filed the Second Motion to Dismiss. Second On December 12, 2016, Plaintiffs’ counsel filed the Motion to Dismiss Response. On December 12, Plaintiffs’ counsel filed the Second Motion to Withdraw. 6 2016, II. Jurisdiction Plaintiffs’ U.S.C. § 1983. remaining include violations of 42 (See Compl. at PageID 17–18; Order on First Mot. to Dismiss 14.) The Court has federal-question jurisdiction under 28 U.S.C. § 1331. over claims Plaintiffs’ The Court has supplemental jurisdiction remaining state-law claims under 28 U.S.C. § 1367 because they derive from a “common nucleus of operative fact” with the federal-law claims. See 28 U.S.C. § 1367; United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 725 (1966). III. Standard of Review A. Second Motion to Dismiss Defendants’ Motion to Dismiss invokes Rules 37(d)(3) and 37(b)(2)(A)(i)–(vi) and seeks dismissal of “[Hathaway’s] case.” (Second Mot. to Dismiss 5.)2 Under Rule 37(d)(1)(A), a court may, on motion, order sanctions if “a party . . . fails, after being served with proper notice, to appear for that person’s deposition.” Rule 37(d)(3) states that the sanctions “may include any of the orders listed in Rule 37(b)(2)(A)(i)–(vi).” That list includes “dismissing the action or proceeding in whole 2 The Second Motion to Dismiss repeatedly refers to “Plaintiff Hathaway” and makes no representations about Anderson. The Court construes the Second Motion to Dismiss as seeking dismissal of Hathaway’s remaining claims, and not Anderson’s remaining claim. 7 or in part.” Fed. R. Civ. P. 37(b)(2)(A)(v). Under Rule 37(d)(3), “the court must require the party failing to act, the attorney advising that party, or both to pay the reasonable expenses, unless including the attorney’s failure was fees, caused substantially by the justified failure, or other circumstances make an award of expenses unjust.” Imposing sanctions is within the Court’s discretion. See, e.g., S. Wabash Commc’ns, Ltd. v. Union Cty. Broad. Co., 69 F. App’x 285, 292 (6th Cir. 2003). To consider dismissal as a discovery sanction, courts look to four factors: “‘(1) whether the party’s failure is due to willfulness, bad faith, or fault; (2) whether the adversary was prejudiced by the dismissed party’s conduct; (3) whether the [plaintiff] was warned that failure to cooperate could lead to dismissal; and (4) whether less drastic sanctions dismissal was ordered.’” were imposed or considered before United States v. Reyes, 307 F.3d 451, 458 (6th Cir. 2002) (quoting Knoll v. Am. Tel. & Tel. Co., 176 F.3d 359, “[o]nly system’s 363 when (6th the strong merits . . . .” Cir. 1999)). aggravating Dismissal factors predisposition to is outweigh resolve appropriate the cases judicial on the Reese Corp. v. Rieger, 201 B.R. 902, 904 (E.D. Mich. 1996) (citing Meade v. Grubbs, 841 F.2d 1512, 1520 n.7 (10th Cir. 1988)). 8 B. In requests the Second Motion to Withdraw Second Motion “permission Plaintiff [sic].” to to Withdraw, withdraw as Plaintiffs’ Counsel of (Second Mot. to Withdraw 1.) counsel Record for “[A]ttorney withdrawal issues are committed to the court’s discretion[.]” Brandon v. Blech, 560 F.3d 536, 537 (6th Cir. 2009). In relevant part, Tennessee Rule of Professional Conduct 1.16(b) states that, “[e]xcept as stated in paragraph (c), a lawyer may withdraw from representing a client if . . . withdrawal can be accomplished without material adverse effect on the interests of the client[.]” Professional Conduct 1.16(c), Under Tennessee Rule of “[a] lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating a representation. When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation.” IV. Analysis A. In Second Motion to Dismiss deciding the Second considers the Reyes factors. Motion to Dismiss, the Court When considering willfulness, bad faith, or fault, “the burden of showing that a failure to comply with . . . discovery requests was due to inability, not willfullness or bad faith, rests with the individual against whom sanctions are sought.” Laukus v. Rio Brands, Inc., 292 9 F.R.D. 485, 509 (citing Reyes, 307 F.3d at 458). To justify dismissal with prejudice, the Sixth Circuit has held that the willfulness factor is satisfied only if there is “a clear record of delay or contumacious conduct.” Freeland v. Amigo, 103 F.3d 1271, 1277 (6th Cir. 1997) (citing Carter v. City of Memphis, 636 F.2d 161 (6th Cir. 1980)). plaintiff displays proceedings or a “‘either reckless an Such a record exists where a intent disregard conduct on those proceedings.’” to for thwart the judicial effect of his Shavers v. Bergh, 516 F. App’x 568, 570 (6th Cir. 2013) (quoting Schafer v. City of Defiance Police Dep’t, 529 F.3d 731, 737 (6th Cir. 2008)). This factor supports dismissal. Hathaway has made no showing as to why she did not appear at her noticed depositions. She has not contacted her attorney since at least June 2016 (Mot. to Withdraw ¶ 1; see also Second Mot. to Withdraw ¶ 1), and there Hathaway. is no showing as to why. The burden lies with Her behavior demonstrates a reckless disregard for the effect of her conduct on these proceedings. There is a clear record of delay and contumacious conduct. Defendants have been prejudiced. Defendants’ counsel has “‘waste[d] time, money, and effort in support of cooperation which [Hathaway] was legally obligated to provide.’” Schafer, 529 F.3d at 737 (quoting Harmon v. CSX Transp., Inc., 110 F.3d 364, 368 (6th Cir. 1997)) (alteration in Schafer). 10 Hathaway’s remaining claims include excessive force, assault, and battery. Hathaway’s deposition is important discovery to which Defendants are entitled. Several district courts in this Circuit have found prejudice where a plaintiff failed to appear for a noticed deposition. See, e.g., Vance v. Sec’y, U.S. Dep’t of Veterans Affairs, 289 F.R.D. 254, 257 (S.D. Ohio 2013); Powell v. Cont’l Cas. Co., No. 1:09–cv–710, 2010 WL 5576057, at *2 (S.D. Ohio Nov. 16, 2010); Robinson v. Burnett, No. 1:07-CV-668, 2009 WL 80274, at *4 (W.D. Mich. Jan. 9, 2009). This factor favors dismissal. Hathaway has been warned that failure to cooperate could lead to dismissal. The Sanctions Order warned that “[Hathaway’s] failure to comply with discovery or the court’s orders could lead to other sanctions including dismissal of her complaint.” (Sanctions Order 8.) Since the entry of that order, Hathaway has not resumed communications with her attorney or shown that she would sit for a deposition. She has failed to pay the reasonable expenses specified in the Sanctions Order. The Court’s Withdrawal Order stated that, “if [Plaintiffs’ counsel’s] inability to reach Plaintiffs affects the parties’ ability to proceed to trial, the Court will consider appropriate relief.” (Withdrawal Order 6 n.3.) Hathaway has been warned of the potential consequences of failing to cooperate. favors dismissal. 11 This factor It is unclear whether Hathaway received the Court’s warnings, given that she has avoided her counsel for months. Hathaway’s counsel represents that he has left messages with Hathaway, but the content of those messages is unclear. to Withdraw undisputed, ¶ 1; Second however, that Mot. to Hathaway Withdraw has ¶ failed 1.) to (Mot. It is communicate with her attorney for at least six months. (Mot. to Withdraw ¶ 1; see also Second Mot. to Withdraw ¶ 1.) A party’s failure to avail herself of judicially provided notice made to her counsel does not nullify that notice. Less-drastic alternatives to dismissal would be insufficient. The Sanctions Order imposed lesser sanctions on Hathaway, those and sanctions have been ineffective. This factor favors dismissal. The Reyes factors favor dismissal. about whether the dismissal should The parties disagree be Defendants request dismissal “with prejudice.” 5.) with prejudice. (Mot. to Dismiss Plaintiff’s counsel states that, “in an effort to protect the claims of [Anderson], a minor,” the Court should sanction Hathaway “in the form of a dismissal without prejudice.” (Second Mot. to Dismiss Resp. ¶ 2 (emphasis removed).) Dismissal of Hathaway’s claims with prejudice is appropriate here. First, given Hathaway’s lengthy and reckless disregard effect of the of her 12 conduct on this litigation, dismissal Williams with v. 3:08-1007, prejudice Select 2010 is the Specialty WL 93103, proper remedy. Hosp.-Nashville, at *3 (M.D. Tenn. See, Inc., Jan. e.g., No. 7, CIV. 2010) (“Dismissal . . . with prejudice is appropriate in light of the plaintiffs’ lack of interest in the action, the hardship it would cause the defendant to face the prospect of defending a future action based on allegations which it has attempted to defend against in this action, the impasse in discovery caused by the plaintiffs’ refusal to participate in discovery, and the needless expenditure of resources by both the Court and the defendant caused Anderson’s by claims the can plaintiffs' be dismissed with prejudice. for intentional and/or pursued conduct.”). even if Second, Hathaway’s are Anderson’s sole remaining claim is negligent infliction of emotional distress, based on the allegation that he observed the Defendant Officers physically Withdrawal Order 5.) harming his mother. (Compl. ¶¶ 34–35; Anderson can pursue that claim even if Hathaway’s claims are dismissed. The Second Motion to Dismiss is GRANTED. remaining claims are DISMISSED with prejudice. Hathaway’s The only claim remaining in the case is Anderson’s claim for intentional and/or negligent infliction of emotional distress. 13 B. Second Motion to Withdraw The Second Motion to Withdraw, like the first, represents that Hathaway “has lost contact with her counsel of record, failing to respond to the numerous attempts to reach her by mail, phone, and text.” (Second Mot. to Withdraw ¶ 1.) The Second Motion to Withdraw represents that Anderson “was located but will not speak with” Plaintiffs’ counsel. The Court is dismissing Hathaway’s (Id. ¶ 2.) claims. Allowing Plaintiffs’ counsel to withdraw from representing Hathaway would not cause a material adverse effect on Hathaway’s interests. The Court has not dismissed Anderson’s claim. Allowing Plaintiffs’ counsel to withdraw from representing Anderson would cause a material adverse effect on Anderson’s interests. As a minor, Anderson cannot proceed with his claims pro se. See, e.g., Fed. R. Civ. P. 17(c)(2). Under Federal Rule of Procedure 17(c)(2), “[t]he court must appoint a guardian ad litem—or issue another appropriate order—to protect a person who is unrepresented in an action.” minor or incompetent If the Court allowed Plaintiffs’ counsel to withdraw from representing Anderson, the Court would have to secure alternative representation. Plaintiffs’ counsel may not withdraw from representing Anderson. The Second Motion to Withdraw is GRANTED as to Hathaway and DENIED as to Anderson. 14 V. Conclusion The Second Motion to Dismiss is GRANTED with prejudice as to Hathaway’s claims. The only remaining claim is Anderson’s claim for intentional and/or negligent infliction of emotional distress. The Second Motion to Withdraw is GRANTED as to Hathaway and DENIED as to Anderson. So ordered this 27th day of December, 2016. /s/ Samuel H. Mays, Jr. SAMUEL H. MAYS, JR. UNITED STATES DISTRICT JUDGE 15