Shaw v. Yale New Haven Hospital

          MEMORANDUM OF DECISION ON DEFENDANT'S SECOND MOTION TO COMPEL AND REQUEST FOR SANCTIONS [ECF No. 43]

          HON. VANESSA L. BRYANT UNITED STATES DISTRICT JUDGE.

         I. FACTS

         This 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.

         The 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.

         One day 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.

         On 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].

         On June 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].

         Considering 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.

         June 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.

         On July 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].

         On July 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].

         On 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].

         On 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.

         On 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].

         On 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 Plaintiff's deposition.

         A 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 No. 39].

         On December 12, 2018, Defendant's counsel asked Plaintiff's counsel, Attorney McMinn, to provide dates for Plaintiff's deposition, but received no response.

         On 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. 42].

         On 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.

         The 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 respond.

         On 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. 45].

         At the 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.

         Defendant's 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.

         It also 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.^[1] 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.

         After 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 ...