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Fleming v. American Airlines, Inc.

United States District Court, S.D. Mississippi, Northern Division

June 21, 2019




         Defendant American Airlines, Inc. (“American”) filed a Motion to Dismiss or in the alternative, Motion to Compel Pre-Discovery Disclosure Requirements and Discovery Responses [14].[1] For the reasons that follow, American's motion to compel is granted, but its motion to dismiss is denied without prejudice.

         I. Facts and Procedural History

         Plaintiff Marcus Fleming says a brown recluse spider bit him on an American flight in September 2016. Compl. [1-1] ¶ 4. Although he sued American in Rankin County Circuit Court, American removed the case to this Court, where the magistrate judge entered a Case Management Order on September 14, 2018. Among other provisions, that Order required the parties to “fully comply with the pre-discovery disclosure requirements of [Federal Rule of Civil Procedure] 26(a)(1)” and Local Rules “16(d) and 26(a) by September 25, 2018.” Order [9] at 2. The Order also set a March 20, 2019 discovery deadline.

         On September 28, 2018, American served discovery requests on Fleming. Nearly three months later, having received neither discovery responses nor Fleming's pre-discovery disclosures, American filed its first Motion to Compel. Mot. [13]. Judge Ball denied that motion for American's failure to participate in a discovery conference as required by the Case Management Order, and on January 9, 2019, Judge Ball held a telephonic discovery conference with the parties to discuss the outstanding discovery issues.

         On January 21, 2019, having still not received either Fleming's pre-discovery disclosures or his responses to its September discovery requests, American filed the instant motion. In it, American asks

for an Order of Dismissal for Plaintiff's Failure to Comply with the Case Management Order entered in this matter on September 14, 2018. In the Alternative, Defendant moves this Court for an Order compelling the Plaintiff to accurately respond to the Pre-Discovery Disclosures [and] Defendant's First Set of Interrogatories and Requests for Production of Documents. Further, Defendant moves that the Court Order that the Plaintiff's objections, if any, to discovery be waived. Finally, the Defendant moves that the Court Order that Plaintiff pays reasonable attorney fees, costs and expenses incurred in filing this Motion.

Mot. [14] at 3. The deadline for Fleming to respond to the motion came and went with no response, and on March 18, 2019, Judge Ball entered a Show Cause Order, requiring Fleming to respond to the motion on or before April 1, 2019. Order [16].

         On April 1, 2019, Fleming filed three documents: a Notice of Service of Response to Interrogatories [17], a Notice of Service of Response to Request for Production [18], and a half-page Response to the Order to Show Cause [19]. In the latter document, Fleming's attorney explains that “[d]ue to the fact that Mr. Fleming has been incarcerated and counsel for Plaintiff has been serving in the state legislature, it has been very difficult for [counsel] to have access to [Plaintiff].” Resp. [19] ¶ 2. He further represented that he had mailed Fleming's discovery responses to Defendant “via first class mail on this date.” Id. ¶ 4.[2]

         Unsure whether Fleming's apparent compliance with the discovery requests mooted American's motion, the Court directed American to file a rebuttal in support of its motion, which American did on April 18. According to American, as of that date, “Plaintiff has yet to provide any documents or information to the Defendant.” Rebuttal [20] at 2. In particular, American notes that, though Fleming's counsel claimed to have mailed discovery responses (but not the long overdue pre-discovery disclosures) on April 1, American had yet to receive them. Its three follow-up emails to Fleming's attorney-on April 1, April 2, and April 9-requesting that the discovery responses be emailed to American's counsel went unanswered. Therefore, citing only cases decided by the Mississippi Supreme Court and Mississippi Court of Appeals, American “renew[ed] its Motion for an Order of Dismissal pursuant to [Federal Rules of Civil Procedure] 41(b) and/or 37(b).” Id. at 4.

         II. Analysis

         Federal Rule of Civil Procedure 37 permits the Court to sanction discovery violations- including failure to make required disclosures or to respond to discovery requests-with an order of dismissal. But

several factors . . . must be present before a district court may dismiss a case with prejudice as a sanction for violating a discovery order: (1) the refusal to comply results from willfulness or bad faith and is accompanied by a clear record of delay or contumacious conduct; (2) the violation of the discovery order must be attributable to the client instead of the attorney; (3) the violating party's misconduct must substantially prejudice the opposing party; and (4) a less drastic sanction would not substantially achieve the desired deterrent effect.

Moore v. CITGO Refining & Chems. Co., L.P., 735 F.3d 309, 316 (5th Cir. 2013) (quoting Doe v. Am. Airlines,283 Fed.Appx. 289, 291 (5th Cir. 2008)) (internal ...

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