United States District Court, W.D. Washington Seattle.
DEANNA C. THOMAS, et al., Plaintiffs,
EVERETT ASSOCIATION OF CREDIT MEN, INC., et al., Defendants.
ORDER GRANTING DEFENDANTS' MOTION FOR SANCTIONS
RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Defendants Everett
Association of Credit Men, Inc. and Monica Jones's Motion
for Sanctions. Dkt. #22. Defendants set forth evidence that
Plaintiff Deanna C. Thomas has failed to respond to discovery
requests, failed to serve initial disclosures, failed to
respond to Defendants' Motions, and generally failed to
prosecute her case. Id.; see also Dkt. #16.
Defendants argue that Ms. Thomas' conduct warrants the
extreme sanction of dismissal of the action pursuant to Rule
37(d)(3). Dkt. #22 at 5. Defendants also request attorney
fees and costs under Rule 37(d)(3). Ms. Thomas failed to file
a timely response.
March 7, 2018, Plaintiff filed a “Response to
Defendants' Motion re Discovery & Schedule by Request
to Extend Time” signed as briefing and as a declaration
by Plaintiff's counsel, Richard L. Pope, Jr. Dkt. #24. In
that filing, Mr. Pope details a family health crisis that
prevented him from filing a timely response. Id.
Specifically, Mr. Pope says that his daughter had “an
urgent and serious health care crisis on the afternoon of
Monday, March 5, 2018, ” the day that Plaintiffs'
response to the instant Motion was due. Id. at 1.
Mr. Pope indicates that his daughter's health condition
has “reached fairly constant crisis levels in the last
two months, ” with several trips to the hospital.
Id. at 2. He also indicates that he “was in a
high speed collision on I-405 on February 15, 2018, which
totaled his vehicle and left him with significant and
persisting pain from his injuries.” Id. Mr.
Pope requests an extension of two weeks to respond to
Defendants' motion. Id. Mr. Pope addresses the
merits of Defendants' discovery requests, calling them
“clearly excessive, ” but does not deny that his
client has failed to respond to discovery requests, failed to
serve initial disclosures, or failed to respond to
37(d)(3) governs failures to serve answers to discovery
requests and states:
“Sanctions may include any of the orders listed in Rule
37(b)(2) (A)(i)-(vi). Instead of or in addition to these
sanctions, the court must require the party failing to act,
the attorney advising that party, or both to pay the
reasonable expenses, including attorney's fees, caused by
the failure, unless the failure was substantially justified
or other circumstances make an award of expenses
37(b)(2)(A)(v) permits the sanction of dismissal of the
action. Each party opposing a motion has an obligation to
file a response brief. LCR 7(b)(2). “Except for motions
for summary judgment, if a party fails to file papers in
opposition to a motion, such failure may be considered by the
court as an admission that the motion has merit.”
Id. “A motion for relief from a deadline
should, whenever possible, be filed sufficiently in advance
of the deadline to allow the court to rule on the motion
prior to the deadline.” LCR 7(j). “Parties should
not assume that the motion will be granted and must comply
with the existing deadline unless the court orders
otherwise.” Id. “If a true, unforeseen
emergency exists that prevents a party from meeting a
deadline, and the emergency arose too late to file a motion
for relief from the deadline, the party should contact the
adverse party, meet and confer regarding an extension, and
file a stipulation and proposed order with the court.”
Court will first address Mr. Pope's untimely Response and
declaration. The Court is sympathetic to Mr. Pope's
predicament and the health of his daughter. However, the
Court is concerned by several details. First, it appears that
Mr. Pope had not prepared a substantive response to the
instant Motion as of the afternoon of the day the response
was due. If the response had been prepared earlier, Mr. Pope
would simply have attached it to his untimely Response.
Defendant's Motion is not incidental, it is a motion
requesting dismissal as a sanction. Second, the facts as
presented by Mr. Pope-including the “constant
crisis” of his daughter's health-lead the Court to
believe that he should have considered withdrawing from this
case, or reached out to opposing counsel for an extension of
deadlines prior to the instant moment. Finally, when Mr. Pope
did have “a true, unforeseen emergency” on
Monday, March 5, 2018, he should have contacted the adverse
party and attempted to file a stipulation as suggested by
Local Rule 7(j). There is no evidence that this occurred.
Instead, Mr. Pope's response is consistent with
Defendants' characterization of Plaintiff's prior
conduct in this case.
all of that, even if the Court considered Plaintiff's
untimely Response, or permitted Plaintiff additional time to
draft a Response, Plaintiff has not denied Defendants'
claims, instead attacking the merit of the discovery
requests. The Court finds that dismissal of this case without
prejudice is the proper sanction given Plaintiff's
failure to prosecute her case and failure to participate in
discovery. Fees and costs are warranted under Rule 37(d)(3).
reviewed the relevant briefing, the declarations and exhibits
attached thereto, and the remainder of the record, the Court
hereby finds and ORDERS that:
1) Defendants' Motion for Sanctions (Dkt. #22) is
2) The pending Motion to Extend Pretrial Deadlines (Dkt. #19)
is STRICKEN as moot.
3) This case is dismissed without prejudice.
4) Defendants may file a separate motion for reasonable fees
and costs caused by Plaintiff's failures to act as
detailed in the instant Motion no later than seven
(7) days from the date of this Order, and shall note
such Motion under Local Rule 7(d). Such motion shall be
supported by ...