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Davis v. McDonald

United States District Court, D. Colorado

May 29, 2018

CELINA R. DAVIS, Substituted for DUANE S. DAVIS, Deceased, Plaintiff,
v.
ROBERT A. MCDONALD, Secretary Department of Veterans Affairs Defendant.

          ORDER SUSTAINING PLAINTIFF'S OBJECTION AND OVERRULING THE JUNE 27, 2017 RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          William J. Martínez United States District Judge.

         Plaintiff Duane Davis (“Mr. Davis”) brought claims under Title VII of the Civil Rights Act of 1964 and the Rehabilitation Act of 1973 against Robert McDonald (“Defendant”) in his official capacity as Secretary of the Department of Veterans Affairs. This matter is before the Court on the June 27, 2017 sua sponte Recommendation by U.S. Magistrate Judge Kathleen M. Tafoya (“Recommendation, ” ECF No. 57) that the case be dismissed with prejudice for failure to serve verified responses to written discovery, repeated failure to comply with the Federal Rules of Civil Procedure and this District's Local Rules, and failure to prosecute.

         Mr. Davis filed an Objection to the Recommendation. (“Objection, ” ECF No. 58.) Defendant then filed a Response to Plaintiff's Objections (“Response, ” ECF No. 63) and the Court set a hearing on December 15, 2017 to discuss the Recommendation with the parties. (ECF No. 70.) During that hearing, the Court ordered Defendant to file his proposed sanction in lieu of dismissal with prejudice and ordered Mr. Davis to respond with his suggestion, if any, of an alternative form of sanction. (ECF No. 71.)

         Before the Court issued a ruling on Judge Tafoya's Recommendation regarding sanctions, Mr. Davis passed away. His attorney, Mr. John Davis (“Plaintiff's counsel”), filed a Suggestion of Death and Motion for Substitution of party (ECF No. 78), which the Court granted (ECF No. 79). The Court determined that the interests of Mr. Davis in this litigation have been transferred to his wife, Celina Romero Davis (“Plaintiff”), and substituted her as the real party in interest and the plaintiff in this action. (ECF No. 79.)

         For the reasons set forth below, the Plaintiff's Objection is sustained, the Magistrate Judge's Recommendation is overruled, and the Court applies sanctions other than dismissal with prejudice.

         I. BACKGROUND

         Neither party objects to the recitation of facts set forth by the Magistrate Judge in the June 27, 2017 Recommendation. (ECF No. 57 at 1-4.) Accordingly, the Court adopts and incorporates that portion of the Recommendation as if set forth herein.

         Briefly, Mr. Davis filed this action on July 16, 2015 (ECF No. 1)[1] and Judge Tafoya held a scheduling conference on January 20, 2016 (ECF No. 23). On April 26, 2016, the parties filed a joint motion for a status conference, because Plaintiff's counsel had been advised by his physician to refrain from practicing law for a minimum of 90 days due to his ill health and was thus unable to participate in discovery. (ECF No. 26 at 2, ¶ 5.) Judge Tafoya continued the case deadlines for nearly four months. (ECF No. 28.) On September 12, 2016, Defendant filed an unopposed motion to amend the scheduling order because although Defendant had recently received copies of some of Mr. Davis's medical records requested in January 2016, Defendant had not received responses to the other discovery requests issued in January 2016. (ECF No. 29 at 2, ¶ 8.) Judge Tafoya granted the motion and continued all case deadlines for another month. (ECF No. 31.) On October 6, 2016, Defendant filed a motion to compel the production of these same documents. (ECF No. 32.) After a hearing, Judge Tafoya granted the motion to compel on November 1, 2016. (ECF No. 38.) Judge Tafoya also extended the case deadlines by another 45 days. (Id.)

         On March 13, 2017, the parties filed another motion to amend the scheduling conference because of Plaintiff's counsel's health issues and inability to participate in discovery. (ECF No. 41.) Judge Tafoya again granted the motion and extended all case deadlines for 45 days. (ECF No. 43.)

         On May 2, 2017, Defendant filed his second motion to compel discovery because Plaintiff's counsel had failed to respond to discovery requests served more than four months prior. (ECF No. 44.) Mr. Davis did not respond to the motion to compel. (ECF No. 57 at 3.) Judge Tafoya held a hearing on the motion to compel on June 14, 2017. (Id.) During the hearing, Plaintiff's counsel apologized to the Court and Defendant, but claimed that Mr. Davis had provided everything he had to the Defendant. (Id.) Plaintiff's counsel also agreed to respond to the discovery responses by June 19, 2017, and Judge Tafoya awarded Defendant costs and attorneys' fees against Plaintiff's counsel. (ECF No. 53.) Additionally, Judge Tafoya warned Plaintiff's counsel that failure to comply with the Court's orders and further failure to respond to discovery requests would result in a recommendation that the case be dismissed with prejudice. (Id.) On June 26, 2017, Defendant filed a status report advising Judge Tafoya that the discovery ordered to be produced had not been received and Plaintiff's counsel had not communicated with Defendant regarding the outstanding discovery. (ECF No. 56.)

         Judge Tafoya then recommended that the case be dismissed with prejudice pursuant to Federal Rule of Civil Procedure Rule 37(b).

         II. LEGAL STANDARDS

         A. Standard Of Review

         When a magistrate judge issues a recommendation on a dispositive matter, Federal Rule of Civil Procedure 72(b)(3) requires that the district judge “determine de novo any part of the magistrate judge's [recommendation] that has been properly objected to.” Fed.R.Civ.P. 72(b)(3). In conducting its review, “[t]he district court judge may accept, reject, or modify the recommendation; receive further evidence; or return the matter to the magistrate judge with instructions.” Id. Here, Mr. Davis filed a timely ...


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