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Hickman v. Mittas Inn, LLC

United States District Court, D. Massachusetts

October 23, 2018

AYANNA HICKMAN, Plaintiff,
v.
MITTAS INN, LLC, and HAP, INC., Defendants; MITTAS INN, LLC, Cross Claimant,
v.
HAP, INC. Cross Defendant.

          REPORT AND RECOMMENDATION REGARDING MOTIONS OF DEFENDANTS MITTAS INN, LLC AND HAP, INC. TO DISMISS THE COMPLAINT WITH PREJUDICE UNDER F.R.C.P. 37 AND L.R.C.P. 3.1 AND SUPPLEMENTAL MOTIONS SEEKING THE SAME RELIEF (DKT. NOS. 57, 58, 74, 76)

          KATHERINE A. ROBERTSON UNITED STATES MAGISTRATE JUDGE.

         I. Introduction

         Plaintiff AyAnna Hickman (“Plaintiff”) filed suit against Mittas Inn, LLC and HAP, Inc. (collectively, “Defendants”) alleging sexual harassment and retaliation in violation of Title VII of the Civil Rights Act of 1968 as amended and Massachusetts General Laws ch. 151B (“Chapter 151B”), and aiding and abetting in violation of Chapter 151B.

         In or around March 2018, defendant HAP, Inc. filed a motion seeking dismissal of Plaintiff's case as a sanction for her repeated failures to appear for her deposition. Defendant Mittas Inn, LLC filed a motion for leave to join in HAP, Inc.'s motion for dismissal (collectively, “Sanctions Motions”). Defendants' Sanctions Motions were filed after Plaintiff's attorney (with notice to opposing counsel) filed an ex parte motion for leave to withdraw from the case. Concluding that Plaintiff should be notified of the possible consequences of failing to cooperate in discovery before any sanctions were imposed, the court scheduled an April 27, 2018 show cause hearing. At the hearing, the court ordered Plaintiff to cooperate in discovery and told her about the possible consequences of failing to do so, including possible dismissal of her case. Based on a colloquy with Plaintiff about her personal circumstances, the court extended the deadline for completion of non-expert discovery to August 3, 2018. On August 13 and 14, 2018, respectively, Defendants filed supplemental motions seeking dismissal of Plaintiff's complaint for her continuing failure to appear for her deposition and to respond to Defendants' written discovery requests (“Supplemental Sanctions Motions”).[1]

         Defendants' Sanctions Motions and the Supplemental Sanctions Motions have been referred to the undersigned for report and recommendation (Dkt. Nos. 62, 72, 77). See 28 U.S.C. § 636(b)(1). For the reasons set forth below, the court recommends that Defendants' Sanctions Motions be deemed moot and that Defendants' Supplemental Sanctions Motions be GRANTED.

         II. Relevant Background

         Plaintiff filed her complaint on January 11, 2017 (Dkt. No. 1) through counsel (Dkt. No. 2). On May 27, 2017, this court entered a scheduling order setting a November 17, 2017 deadline for the completion of non-expert discovery (Dkt. No. 21). The court extended this deadline for general purposes, first to December 18, 2017 (Dkt. No. 41), then to February 15, 2018 (Dkt. No. 43). On February 8, 2018, the court extended the non-expert discovery deadline to March 19, 2018 for the limited purpose of permitting Defendants to take Plaintiff's deposition. On February 16, 2018, Plaintiff's counsel, having given notice to opposing counsel, filed an ex parte motion to withdraw from the case. On March 22, 2018, HAP, Inc. filed its first Sanctions Motion seeking dismissal of the complaint based on Plaintiff's repeated failure to appear for deposition (Dkt. No. 57), in which Mittas Inn, LLC joined (Dkt. No. 58). At a March 22, 2018 status conference, the court granted the motion by Plaintiff's counsel for leave to withdraw and ruled that a show cause hearing at which Plaintiff would be present should be scheduled (Dkt. No. 59).

         Plaintiff attended the April 27, 2018 show cause hearing by telephone. During the hearing, the court ordered her to cooperate in discovery - i.e., to respond to outstanding document production requests, answer outstanding interrogatories, and appear for her deposition - or face possible dismissal of her case. The court directed Plaintiff to provide Defendants with her an email address for purposes of service of documents and communications about scheduling. Taking into account Plaintiff's pro se status and her representations about her personal circumstances, the court extended to August 3, 2018 the time for plaintiff to comply with basic discovery obligations (Dkt. No. 68).

         Documents submitted to the court show that Defendants noticed Plaintiff's deposition on October 16, 2017; December 6, 2017; February 6, 2018; and March 16, 2018. Plaintiff failed to appear for each of these depositions, several times notifying Defendants that she did not intend to appear on the eve of the scheduled date (Dkt. No. 57-1 at 3-4). At no time did she provide support for her claimed inability to appear. Following the April 27, 2018 show cause hearing, on May 16, 2018, having previously confirmed Plaintiff's email address, defense counsel for Mittas Inn, LLC emailed Plaintiff copies of written discovery requests for which responses were overdue. On May 30, 2018, having previously confirmed that the email address supplied by Plaintiff was valid, defense counsel for HAP, Inc. requested that Plaintiff provide responses to specifically identified outstanding discovery requests and asked for deposition dates (Dkt. No. 75 at 6). Plaintiff did not respond. On June 8, 2018, via email, Hap, Inc.'s defense counsel served a deposition notice on Plaintiff, setting a July 24, 2018 date for her deposition. Plaintiff did not respond. On July 19 and 20, 2018, Hap Inc.'s defense counsel reminded Plaintiff of the July 24, 2018 deposition date. On July 23, 2018, Plaintiff sent counsel an email stating as follows:

Hello Attorney/s [sic],
My sincerest apology, but kindly be advised, I am unable to attend the deposition you have scheduled on July 24th, 2018 due to health related matters concerning myself AND my children. I am not a lawyer. I am unsure who this notice should be sent to.
My child was shot twice from behind, which has gravely affected our lives. In addition, I have a few health challenges as well and I have been treating with several doctors. I pray for your understanding?
Thank you ...

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