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Davis v. Wilkie

United States District Court, D. Colorado

April 15, 2019

CELINA R. DAVIS, Substituted for DUANE S. DAVIS, Deceased, Plaintiff,
v.
HON. ROBERT WILKIE of DOD, SECRETARY OF THE DEPARTMENT OF VETERANS AFFAIRS, in his Official Capacity.[1] Defendant.

          ORDER DISMISSING CASE WITH PREJUDICE FOR FAILURE TO PROSECUTE

          William J. Martinez United States District Judge

         This matter comes before the Court sua sponte regarding Plaintiff Celina R. Davis's failure to prosecute and comply with Court Orders.

         On July 16, 2015, Duane S. Davis (“Mr. Davis”) brought claims against the Honorable Robert Wilkie, Secretary of the Department of Veterans Affairs, in his official capacity (“Defendant”), alleging (1) disability discrimination under the Rehabilitation Act of 1973 (“Rehabilitation Act”; 29 U.S.C. §§ 791 et seq.), (2) retaliation for exercising his rights under both the Rehabilitation Act and Title VII of the Civil Rights Act of 1964 (“Title VII”; 42 U.S.C. §§ 2000e et seq.), and (3) “hostile work environment/constructive discharge.” (ECF No. 1.)

         During the pendency of this lawsuit, however, Mr. Davis passed away. (ECF No. 77.) As a result, Mr. Davis's interests in this litigation transferred to his wife, Celina R. Davis (“Plaintiff”), and the Court subsequently granted her motion to be substituted as the real party in interest and plaintiff in this action. (ECF Nos. 78 & 79.)

         For the reasons set forth below, the Court dismisses this case with prejudice.

         I. PROCEDURAL HISTORY

         A. Background

         Mr. Davis began working at the Denver Regional Office of the Department of Veterans Affairs (“the VA”) in 1988 and continued to work there until he was allegedly forced to retire in 2011. (ECF No. 1 at 2, 11, ¶¶ 6-7, 85.) During his employment at the VA, he was diagnosed with a bad back, hypertension, and swelling of hands, feet and legs due to congestive heart failure. (Id. at 3, ¶¶ 10-12.) Mr. Davis filed this action against Defendant on July 16, 2015. (ECF No. 1.) Mr. Davis and Plaintiff have been represented by John W. Davis (“John Davis” or “Plaintiff's counsel”), who is Mr. Davis's older brother, throughout this lawsuit. John Davis is based in Washington, D.C.

         In the Complaint, filed on July 16, 2015, Plaintiff brings three causes of action against Defendant. First, Plaintiff alleges that Defendant “failed and refused to grant a reasonable accommodation of [Mr. Davis's] medical conditions” in violation of his rights under the Rehabilitation Act. (Id. at 12, ¶ 89.) Second, Plaintiff claims that Mr. Davis was retaliated against for engaging in the VA Equal Employment Opportunity Complaint Process-a protected activity under Title VII and the Rehabilitation Act. (Id. at 12, ¶¶ 91-93.) Finally, Plaintiff alleges that Defendant, “in perpetuating the acts and practices described herein, purposefully made [Mr. Davis's] work environment so hostile, and made his working conditions so intolerable that [Mr. Davis] was forced to resign in order to preserve his physical and mental health.” (Id. at 13, ¶ 95.)

         B. Initial Scheduling Conference

         After two resettings (ECF Nos. 8 & 10), the initial Scheduling Conference was set for December 30, 2015 (ECF No. 12). On December 15, however, the parties filed a joint motion to have the Scheduling Conference moved to a later date. (ECF No. 14.) In the joint motion, the parties explained that the “reason for this request is the need for Plaintiff's counsel to address a serious health matter that prevents him from preparing for and participating in the Scheduling Conference on [December 30, 2015].” (Id. at 1.) The parties also noted that due to attorney John Davis's health problems, they had “not been able to conduct the conference required under Fed.R.Civ.P. 26(f) or to complete the preparation of the proposed Scheduling Order, which must be filed by December 23, 2015.” (Id.)

         On December 16, 2015, the joint motion was granted (ECF No. 16) by United States Magistrate Judge Kathleen M. Tafoya, and the Scheduling Conference was reset for January 20, 2016 (ECF No. 17). The Scheduling Conference was held on that date (ECF No. 23), and the Magistrate Judge issued a Scheduling Order (ECF No. 24). Among other things, the Scheduling Order set an expert witness disclosure deadline of May 16, 2016; a rebuttal expert disclosure deadline of June 16, 2016; a discovery cut-off of August 31, 2016; a dispositive motions deadline of October 3, 2016; and a final pretrial conference on December 13, 2016. (Id. at 8-10.)

         C. First Set of Discovery Requests

          On January 19, 2016, Defendant served Mr. Davis with his first set of discovery requests (“First Set”), which included three requests for production of documents (“RFPs”) and four interrogatories. (ECF No. 32 at 2.)[2] Pursuant to Rules 33(b)(2) and 6(d) (in the versions in effect at that time), Mr. Davis's responses to these discovery requests were due on or before February 22, 2016. After not receiving any responses from Mr. Davis on that date, Defendant's counsel reached out to John Davis on February 24. (Id.) During their conversation, John Davis “indicated that [Mr. Davis] would respond to the First [Set of Discovery] Requests by Wednesday, March 9, 2016.” (Id.)

         On March 10, 2016, however, John Davis informed Defendant that he needed until March 16 to provide Mr. Davis's responses to Defendant's First Set of discovery requests. (Id.) On April 7, Defendant once again reached out to John Davis to inquire about when Mr. Davis would respond to the First Set of discovery requests. (Id. at 2-3.) In their conversation, John Davis “indicated that he had been in poor health and promised to provide responses by April 18, 2016.” (Id. at 3.) John Davis, however, failed to provide the responses by that day. (Id.)

         On April 26, 2016, the parties filed a Joint Motion for Status Conference, advising the Court that “Plaintiff's counsel has been in ill health and has been unable, to date, to participate in discovery.” (ECF No. 26 at 2, ¶ 5.) The parties further informed the Court that John Davis had recently been “advised by his physician to refrain from the practice of law for a minimum of 90 days.” (Id.) The parties also noted that Defendant had “concerns about potential prejudice resulting from further delays” since “[a]t least one VA witness ha[d] retired, ” another had “accepted a job with another federal agency, ” and other witnesses had “moved to new VA positions in other states.” (Id. at 2, ¶ 7.) The parties noted that “[t]hese changes demonstrate that it will be increasingly difficult for the [Defendant] to ensure the availability of critical witnesses as time passes.” (Id.)

         On April 28, 2016, the Magistrate Judge granted the motion in part, and, rather than setting a status conference or a granting a stay, extended the deadlines set forth in the original Scheduling Order by 120 days. (ECF No. 28.) Specifically, the Magistrate Judge extended the expert witness disclosure deadline to September 13, 2016; the rebuttal expert disclosure deadline to October 14, 2016; the discovery cut-off to December 29, 2016; the dispositive motions deadline to January 31, 2017; and the final pretrial conference to April 12, 2017. (Id.)

         The same day as the Magistrate Judge's order, Defendant “once more contacted Plaintiff's counsel, noting that notwithstanding the extension, [Mr. Davis's discovery] responses were still overdue.” (ECF No. 32 at 3.) John Davis, however, “did not respond or otherwise provide documents until approximately two months later, ” when he furnished a response to one of the three RFPs in the First Set. (Id.) Over the next few months, Defendant made several unsuccessful attempts to confer with John Davis about when he would respond to the outstanding discovery requests. (Id.) Finally, on September 9, 2016, John Davis “indicated that he would provide complete responses to the First [Set of Discovery] Requests no later than September 16, 2016.” (Id.) John Davis, however, did not provide the responses by that day. (Id.)

         On September 12, 2016, Defendant filed an Unopposed Motion to Amend the Scheduling Order. (ECF No. 29.) In the motion, Defendant sought an extension of the case deadlines since Defendant had “only recently received copies of some of [Mr. Davis's] medical records that were requested in January 2016” (apparently in reference to the one RFP John Davis had provided to Defendant), and still had “not received responses to other discovery requests propounded in January 2016.” (Id. at 2, ¶ 8.) Defendant's counsel also notified the Court that she had “repeatedly contacted Plaintiff's counsel in February, March, and April of 2016 to inquire about the status of [Mr. Davis's] response to Defendant's January discovery requests. Plaintiff's counsel explained that ill health prevented him from responding to Defendant's discovery requests.” (Id. at 2, ¶ 11.)

         On September 13, 2016, the Magistrate Judge granted Defendant's motion and continued all of the case deadlines for approximately one to two additional months. (ECF No. 31.) In particular, the Magistrate Judge extended the expert witness disclosure deadline to November 14, 2016; the rebuttal expert disclosure deadline to December 13, 2016; the discovery cut-off to January 30, 2017; the dispositive motions deadline to March 2, 2017; and the final pretrial conference to May 2, 2017. (Id.) In the order, the Magistrate Judge expressly stated: “No further extensions of these deadlines will be granted absent extraordinary circumstances.” (Id.)

         D. First Motion to Compel Discovery

         On September 22, 2016, Mr. Davis provided written responses to Defendant's interrogatories, and stated that his responses to the remaining RFPs were forthcoming. (ECF No. 32 at 4.) On September 27, Defendant contacted John Davis to inquire when Defendant might expect to receive Mr. Davis's responses to the outstanding RFPs. (Id.) Having received no reply, Defendant “again contacted Plaintiff's counsel on October 3, 2016, advising him that if he did not either provide the remaining RFP responses or advise as to his availability to set an informal discovery conference by October 5, 2016, ” Defendant would file a motion to compel discovery. (Id.) Plaintiff's counsel did not respond and thus, on October 6, 2016, Def endant filed a Motion to Compel Discovery. (ECF No. 32.) In the motion, Defendant asked the Court to compel the production of documents that Defendant had requested from Mr. Davis almost ten months prior. (Id.)

         On October 20, 2016, Mr. Davis filed a response to Defendant's Motion to Compel Discovery. (ECF No. 35.) In the response, Mr. Davis conceded that he had “failed to timely and properly respond to Defendant's discovery responses, ” but offered various excuses. (Id. at 1-2.) In particular, Plaintiff noted that Mr. Davis's “frequent hospitalizations and [Plaintiff's] counsel's extended illness between August 2015, and August 2016, have been the major factors in the delay.” (Id. at 2.) Moreover, Mr. Davis noted that the “other delays that were occasioned subsequent to Plaintiff's counsel's return in July from his medical hiatus had to do with the fact that in July and August 2016, counsel suffered the deaths of three young Black men close to counsel (two were murdered, and one died of a drug overdose).” (Id.) On the same day, Mr. Davis provided Defendant “with responses to the last of Defendant's unanswered discovery requests served January 19, 2016.” (ECF No. 37 at 1; see also ECF No. 35 at 2.)

         On October 27, 2016, Defendant informed the Court that Mr. Davis's discovery responses appeared to be incomplete and provided the Court with several examples. (ECF No. 37 at 2-3.) For instance, Defendant noted how in Mr. Davis's response to an interrogatory asking him to identify all of his private medical providers for the last ten years, Mr. Davis listed three private medical providers. (Id. at 2.) In his response to Defendant's first RFP, however, Mr. Davis had listed four private medical providers. (Id.)

         On November 1, 2016, the Magistrate Judge held a hearing on Defendant's Motion to Compel Discovery. (ECF No. 38.) During the hearing, the Magistrate Judge granted Defendant's motion and extended the case deadlines for yet another 45 days. (Id.) Specifically, the Magistrate Judge extended the expert witness disclosure deadline to December 14, 2016; the rebuttal expert disclosure deadline to January 13, 2017; the discovery cut-off to March 15, 2017; the dispositive motions deadline to April 17, 2017; and the final pretrial conference to June 14, 2017. (Id.)

         E. Second Set of Discovery Requests

         On December 20, 2016, Defendant served Mr. Davis with his Second Set of Written Discovery (“Second Set”), along with a reminder that Mr. Davis's responses were due on January 19, 2017, which was three day's before Defendant was to take his deposition. (ECF No. 44 at 2.)[3] Defendant's counsel further informed Mr. Davis “that because she expects to refer to [Mr. Davis's] responses to Defendant's Second Set during his deposition, Defendant will not agree to any extension of time to respond.” (Id.)

         On January 4, 2017, Defendant e-mailed John Davis, reminding him that Mr. Davis's deadline to respond to the Second Set was January 19. (Id.) Defendant repeated this reminder on January 9, January 11, and January 17. (Id. at 3.) On January 20, John Davis advised Defendant that “due to circumstances beyond our control, we were unable to complete [Mr. Davis's] responses to Defendant's Second [Set of] discovery requests.” (Id.) However, John Davis stated that he would have Mr. Davis's responses to the Second Set “completed by early next week.” (Id.) On January 23, Defendant took Mr. Davis's deposition without the benefit of having his responses to the Second Set. (Id.)

         At his deposition, Mr. Davis agreed to provide Defendant with his responses to the Second Set by February 6, 2017. (Id.) On February 14, however, John Davis contacted Defendant, “stating that he has been ‘seriously under the weather,' but is now ‘up and around, '” and that he “promises to deliver responses no later than February 17th.” (Id.) On February 24, John Davis's assistant e-mailed Defendant's counsel, informing her that John Davis had been “hospitalized on February 21st with acute bronchitis, and is scheduled to return to work on February 27th.” (Id.)

         On March 13, 2017, two days before the discovery cut-off, the parties filed another Joint Motion to Amend Scheduling Order, again because of John Davis's health issues and inability to participate in discovery. (ECF No. 41.) The Magistrate Judge granted the motion and extended the case deadlines for yet another 45 days. (ECF No. 43.) In particular, the Magistrate Judge extended the discovery cutoff to May 1, 2017; the dispositive motions deadline to June 1, 2017; and the final pretrial conference to July 31, 2017. (Id.)

         On April 6, 2017, Defendant e-mailed John Davis and also left detailed voice messages on his office and mobile numbers, reminding John Davis that discovery responses to Defendant's Second Set were overdue. (ECF No. 44 at 4.) Defendant repeated this reminder on April 16, 17, and 19. (Id.) On April 20, John Davis e-mailed Defendant, stating that “he is currently working with his client to complete the responses to Defendant's Second Set, but ‘will not have them' until the morning of April 24th.” (Id.) John Davis, however, did not provide the responses by that day. (Id.) On May 1, discovery concluded. (See ECF No. 43.)

         F. Second Motion to Compel Discovery

         On May 2, 2017, Defendant filed a Second Motion to Compel Discovery, advising the Court that Mr. Davis had failed to respond to Defendant's Second Set of discovery requests, which were served on Mr. Davis in December 2016. (ECF No. 44.) The Second Set comprised four RFPs, eight interrogatories, and two requests for admission (“RFAs”). (Id. at 2.) As of May 2, however, Mr. Davis had provided only a partial response to one of the four RFPs. (Id. at 1.) In the motion, Defendant made the following statement:

[Mr. Davis's] repeated and persistent delays are prejudicial to Defendant. This case concerns events that took place in 2010 and late 2011. As a result of [Mr. Davis's] delays, this case has now been in discovery for over 15 months-eight months past the date when it was originally meant to conclude. At least one key witness has moved outside of the subpoena power of this Court since the litigation began. The whereabouts of 13 of [Mr. Davis's] witnesses-most or all of whom were Denver VA employees at the time of the events giving rise to this lawsuit-are no longer known. [Defendant has] had to take three depositions without the benefit of [Mr. Davis's] responses to Defendant's Second Set.

(Id. at 7 (citations omitted).) Therefore, Defendant requested that the Court “compel [Mr. Davis] to respond in full to Defendant's Second Set, deem Defendant's RFAs admitted, and award Defendant [his] reasonable expenses incurred in making [his Second Motion to Compel Discovery].” (Id.)

         While Defendant's Second Motion to Compel Discovery was pending before the Magistrate Judge, Defendant filed an Unopposed Motion to Amend Scheduling Order on May 17, 2017. (ECF No. 46.) In the motion, Defendant informed the Court that, despite repeated reminders, Mr. Davis had still not responded to Defendant's Second Set of discovery requests. (Id. at 1, ¶ 3.) Therefore, Defendant requested that the Court convert the dispositive motion deadline from a fixed date to a floating date 30 days after Mr. Davis had produced the requested discovery responses, and that the final pretrial conference be reset for a later date. (Id. at 2, ¶¶ 5-6.) On May 22, the Magistrate Judge granted Defendant's motion and vacated the June 1, 2017 dispositive motion deadline and the final pretrial conference. (ECF No. 49.) In addition, the Magistrate Judge set a hearing on Defendant's Second Motion to Compel Discovery for June 14. (ECF No. 48.)

         On June 7, 2017, John Davis filed an unopposed motion to attend the hearing by telephone, advising the Court that he “has been unable to travel for several weeks due to [his] heavy schedule.” (ECF No. 50 at 1, ¶ 2.) Moreover, John Davis informed the Court that he was unable to appear in person at the hearing because he was “in the process of completing his fourth opposition to a dispositive motion in as many weeks” and was “also in the middle of an evidentiary hearing before the EEOC in Baltimore.” (Id. at 1, ¶¶ 2-3.) The Magistrate Judge granted the motion the next day. (ECF No. 52.)

         On June 14, 2017, the Magistrate Judge held a hearing on Defendant's Second Motion to Compel Discovery. (ECF No. 53.) The following is the Magistrate Judge's description of what transpired:

During the hearing, the court provided Plaintiff's counsel ample opportunity to explain why [Mr. Davis] was not participating in discovery and prosecuting the case. Plaintiff's counsel apologized to the court and the defendant, [and “admitted to the court . . . that he had failed to respond to Defendant's discovery requests because of his own busy schedule and Plaintiff's counsel's representation that [Mr. Davis] had nothing further to produce”]. The court advised Plaintiff's counsel that, regardless, [Mr. Davis] had a duty to respond to the discovery requests that had been pending since December 2016, and Plaintiff's counsel stated he understood that. Plaintiff's counsel advised he would be able to respond to the discovery responses by June 19, 2017. . . . The court warned Plaintiff's counsel that [Mr. Davis's] failure to comply with the ...

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