United States District Court, D. Massachusetts
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.
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.
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
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
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).
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).
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 ...