United States District Court, D. Connecticut
MEMORANDUM OF DECISION ON DEFENDANT'S SECOND
MOTION TO COMPEL AND REQUEST FOR SANCTIONS [ECF No.
VANESSA L. BRYANT UNITED STATES DISTRICT JUDGE.
employment discrimination action was commenced by the
Plaintiff, Kimberly Shaw, on January 11, 2018. The Plaintiff
is a former employee of the Defendant, Yale New Haven
Hospital. Defendant terminated the Plaintiff's employment
in June 2016. Plaintiff alleges that her discharge was
motivated by racial animus and in retaliation for her
complaints about Defendant's conduct in violation of
Title VII of the Civil Rights Act of 1964 codified as 42
U.S.C. 2000e, et al. (“Title VII”) and
the Connecticut Fair Employment Practices Act
(“CFEPA”), Conn. Gen. Stat. 46a-60, et
seq., as well as disability discrimination in violation
of the Americans with Disabilities Act Amendments Act of 2008
(“ADAAA”), codified as amended at 42 U.S.C.
§ 12101 et seq., and Connecticut state law.
Court issued a Scheduling Order in this matter on April 19,
0218. [ECF No. 17]. Pursuant to that Order, the Court set the
deadline to complete discovery for February 28, 2019 and the
dispositive motion deadline for March 29, 2019.
after the Court's Scheduling Order issued, on April 20,
2018, Defendant served Plaintiff with Requests for the
Production of Documents, with responses due May 20, 2018. On
April 26, 2018, Defendant noticed Plaintiff's deposition
for June 14, 2018.
Monday, May 21, 2018, Plaintiff moved, with Defendant's
consent, for a two-week extension to respond to
Defendant's Requests for Production, to June 4, 2018,
citing the Plaintiff's need for “more time to
complete her due diligence and to fully answer in writing
under oath all of the Interrogatories and to respond to the
Requests for Production.” [ECF No. 19 at 1]. The next
day the Court granted Plaintiff's motion. [ECF No. 20].
4, 2018, Plaintiff again moved, with Defendant's consent,
for a further ten-day extension to respond to Defendant's
Requests for Production, to June 14, 2018, citing
Plaintiff's need for “more time to complete her due
diligence and to fully answer in writing under oath all of
the Interrogatories and to respond to the Requests for
Production.” [ECF No. 21]. In neither instance did
Plaintiff comply with Local Rule 7 which requires that a
party seeking an extension of time show good cause why in the
exercise of dur diligence the party was unable to respond
within the time allotted. The next day the Court granted
Plaintiff's motion, in deference to the parties'
consent. [ECF No. 22].
the new discovery request deadline, June 14, 2018, which
coincided with Plaintiff's noticed deposition date,
counsel for Defendant informed Plaintiff's counsel that
the noticed deposition would have to be postponed to allow
time to review Plaintiff's anticipated discovery
responses and requested deposition dates in late June 2018.
14, 2018 came and went with neither service of discovery
responses by Plaintiff on Defendant, nor a third motion to
extend discovery. On June 18, 2018, Defendant's counsel
emailed Plaintiff's counsel, Attorney Michael McMinn, of
Axelrod & Associates, LLC, about the lack of discovery
responses, and informed Plaintiff's counsel that if such
discovery responses were not immediately forthcoming,
Defendant would seek the Court's intervention. When
Attorney McMinn did not respond, Defendant did so on June 22,
2018 by filing a Motion to Compel Plaintiff's responses
to Defendant's April 20, 2018 discovery requests. [ECF
No. 23]. Responses to Defendant's Motion to Compel were
due July 13, 2018. Id.
13, 2018, Plaintiff's counsel filed a motion for a
two-week extension of time to respond to Defendant's
Motion to Compel, until July 27, 2018, citing Plaintiff's
counsel's “utter lack of communication from his
client, ” and noting that Plaintiff's counsel
intended to file a Motion to Withdraw as counsel for
Plaintiff. [ECF No. 24]. Once again, no good cause was shown
for Plaintiff's failure to meet her discovery obligations
as required by Local Rule 7. In the interest of fairness and
the absence of input from Plaintiff, the Court granted
Plaintiff's counsel's Motion for Extension on July
16, 2018, noting an apparent breakdown in the attorney client
relationship, and to afford the Plaintiff an opportunity to
resolve the matter and either appear pro se or
retain other counsel. [ECF No. 25].
31, 2018, four days after Plaintiff's response to
Defendant's Motion to Compel were due, Plaintiff filed a
second motion for a one-day extension of time to respond to
Defendant's Motion to Compel, again citing
Plaintiff's counsel's “utter lack of
communication from his client, ” and noting that
Plaintiff's counsel intended to file a Motion to Withdraw
as counsel for Plaintiff. [ECF No. 26].
August 1, 2018, Plaintiff filed her Opposition to
Defendant's Motion to Compel. [ECF No. 28]. The same day
Plaintiff's counsel also filed an Ex Parte
Motion to Withdraw as Counsel for Plaintiff, citing
“Plaintiff's complete failure to communicate with
her counsel, preventing him from adhering to multiple court
deadlines and preventing him from complying with discovery
requests.” [ECF No. 27 at 1].
September 6, 2018, the Court held an ex parte
teleconference with Plaintiff and Plaintiff's counsel.
[ECF No. 30]. During the teleconference the Court discussed
Plaintiff's responsibilities should she decide to proceed
pro se, and Plaintiff counsel's Motion to
Withdraw. In reliance on Plaintiff's assurances, given at
the teleconference, that she would meet her obligations going
forward, the Court found as moot Defendant's Motion to
Compel. [ECF No. 36]. Following the hearing, the Court mailed
the appropriate forms to proceed pro se to Plaintiff
and invited her to return them if she desired to so proceed.
She did not, and Plaintiff's counsel, Attorney McMinn,
did not withdraw from this action.
September 10, 2018, the Court referred this action to
Magistrate Judge Robert Richardson for a settlement
conference. [ECF No. 31]. The conference occurred on November
1, 2018, with Attorney McMinn appearing for Plaintiff. [ECF
No. 34]. The case did not settle, although the parties
discussed settlement throughout the month of November. [ECF
Nos. 35, 37].
December 2 and 3, 2018, Plaintiff responded to
Defendant's April 20, 2018 discovery requests and
suggested that Plaintiff would be available for deposition in
mid-to-late January 2019. On December 3, 2018, Defendant
expressed dissatisfaction with Plaintiff's responses to
Requests for Production 30 and 31, which requested
information about Plaintiff's job search efforts
following termination by Defendant, and Plaintiff's
earnings since that time. Defendant requested that
Plaintiff's responses be supplemented by December 7,
2018. Defendant also proposed four deposition dates in
mid-to-late January 2019, but did not re-notice
discovery teleconference was held with the Court on December
5, 2018. Based on this teleconference on December 6, 2018,
the Court once again amended its Scheduling Order to
accommodate Plaintiff's failure to respond to discovery
timely setting a new discovery deadline of March 29, 2019,
and a new dispositive motion deadline of April 30, 2019. [ECF
December 12, 2018, Defendant's counsel asked
Plaintiff's counsel, Attorney McMinn, to provide dates
for Plaintiff's deposition, but received no response.
December 28, 2018, Attorney Eugene Axelrod, of Axelrod &
Associates, LLC, appeared for the Plaintiff in this action,
and Attorney McMinn moved to withdraw, citing his termination
of employment with Axelrod & Associates as of January 1,
2019. [ECF Nos. 40, 41]. The Court granted Attorney
McMinn's Motion to Withdraw on January 2, 2019. [ECF No.
December 28, 2018, Defendant emailed Attorney Axelrod about
Plaintiff's deposition dates, providing three dates in
January, but received no response. Receiving no response from
Plaintiff's counsel regarding Plaintiff's deposition
or supplemental responses to Defendant's Requests for
Production 30 and 31, Defendant filed its second and the
sub judice Motion to Compel, on January 8, 2019.
[ECF No. 43]. The Motion requested the Court compel the
Plaintiff to appear for a deposition and produce documents
adequately responsive to Requests for Production 30 and 31,
see id at 5, and award Defendant its attorneys'
fees and costs occasioned by Plaintiff's discovery
delays. Id. at 5-6.
next day the Court found Plaintiff's counsel's August
1, 2018 Motion to Withdraw, [ECF No. 27], moot.
Plaintiff's response to Defendant's Second Motion to
Compel were due January 29, 2019, but Plaintiff did not
February 5, 2019, the court issued an Order to Show Cause
requiring Plaintiff to appear on March 13, 2019 and show
cause why the relief requested in Defendant's Second
Motion to Compel should not be granted and why the case
should not be dismissed for failure to prosecute. [ECF No.
hearing Plaintiff informed the court she and her family drove
from Georgia to attend the hearing and would be driving back
to Georgia after the hearing. During the Show Cause hearing,
the Court first explained that during the September 6, 2018
ex parte teleconference with Plaintiff and Attorney
McMinn, it was the Court's understanding that Plaintiff
would complete discovery with no further obstacles, yet there
were still outstanding document requests as of March 13,
2019, and Plaintiff had yet to be deposed. [ECF No. 55 at
6-7]. Defendant's counsel explained their efforts to
depose Plaintiff and receive supplemental responses to
Defendant's Requests for production 30 and 31.
Id. at 8-13.
counsel noted that Plaintiff's counsel, Attorney Axelrod,
had asked Defendant's counsel to cancel the Show Cause
hearing, and had explained Plaintiff's failure to
supplement Requests for production 30 and 31 by noting that
one of Plaintiff's email accounts had expired, and
documents that Plaintiff kept in a storage facility had been
sold and were no longer in Plaintiff's possession.
Id. at 12. When Defendant's counsel stated that
ordering Plaintiff's deposition by a date certain, with
dismissal resulting should it not occur, the Court stated,
“I think that is a very fair request on the
defendant's part.” Id. at 22.
came to light during the Show Cause hearing that
Plaintiff's counsel had no signed engagement/retainer
letter with the Plaintiff, had not received any payment from
the Plaintiff for services rendered other than the $400
filing fee, and had not issued a litigation hold letter to
Plaintiff at the start of this action, requiring her to
preserve relevant documents. Id. at 32-38.
Plaintiff's counsel explained that one reason for his
trouble with this case was that since the beginning of 2019
he had taken on 50 additional cases and was looking for
another attorney. Id. at 40. Plaintiff's counsel
also explained that his firm had represented Plaintiff in a
prior action before the Connecticut Commission on Human
Rights and Opportunities (“CHRO”), but that
Plaintiff had not paid fully for services rendered in that
action, which was completed before Plaintiff initiated this
action. Id. at 46-47. Plaintiff explained that when
the case was filed, she only expected Attorney McMinn to do
that and not represent her in this action, and that she was
surprised when Attorney McMinn contacted her about discovery
responses. Id. at 52-53.
further discussions related to the parties' discovery
efforts, or lack thereof, the Court ordered Defendant's
counsel, Plaintiff, and Plaintiff's counsel to file on
the docket all correspondence between Plaintiff ...