United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON MOTION TO DISMISS
ALLISON D. BURROUGHS U.S. DISTRICT JUDGE
David Guldseth (“Guldseth”) brings this action
pursuant to Massachusetts General Laws Chapter 93A alleging
that Defendants Family Medicine Associates, LLC and Gregory
Bazylewicz, MD (“Defendants”) lured him to
Massachusetts under the guise that he would take over the
practice of a retiring Family Medicine Associate physician
and subsequently failed to deliver said practice. [ECF No. 1
(“Compl.”) ¶ 1]. Presently before the Court
are Defendants’ motion to dismiss for failure to
prosecute, [ECF No. 35], and Guldseth’s opposition and
Motion to Expedite, [ECF No. 36]. According to Defendants,
Guldseth has failed to comply with this Court’s August
20, 2019, Order, [ECF No. 33], which compelled Guldseth to
respond to Defendants’ requests for production and
interrogatories and to appear for a deposition. [ECF No. 35
at 1]. For the reasons set forth below, Defendants’
motion to dismiss [ECF No. 35] is DENIED.
Guldseth’s “Motion to Expedite the Production of
Documents, ” [ECF No. 36], is likewise DENIED.
Guldseth is ordered to provide three additional reasonable
dates when he would be available for deposition by October 1,
parties are reminded at the outset that there is a discovery
schedule in place, which anticipated fact discovery closing
by October 30, 2019. [ECF No. 22]. The Court assumes that the
parties are complying with that schedule.
October 27, 2017, Guldseth filed a complaint, alleging that
Defendants violated Massachusetts General Laws Chapter 93A
when they lured him to Massachusetts with the promise of
transferring a retiring physician’s practice to him and
subsequently failed to provide that practice. [Compl. ¶
1]. Defendant Family Medicine Associates, LLC answered on
February 15, 2018. [ECF No. 6]. Guldseth failed to serve
Defendant Bazylewicz. The Court then proposed a Scheduling
Conference, [ECF No. 7], which was postponed on numerous
occasions due to Guldseth’s failure to attain legal
representation. [ECF Nos. 10, 12, 16, 18]. While that
Conference was being postponed, Family Medicine Associates,
LLC moved to dismiss the claim against Bazylewicz. [ECF No.
25]. The Court granted that motion in part, but allowed
Guldseth an opportunity to serve Bazylewicz. [ECF No. 27].
Bazylewicz answered on June 7, 2019. [ECF No. 28]. In June,
Guldseth also responded to Defendants’ first set of
interrogatories with short, handwritten answers to some of
their questions. [ECF No. 31].
August 2019, Defendants moved to compel Guldseth to respond
to requests for production and interrogatories and to appear
for a deposition. [ECF No. 32]. Citing Guldseth’s
failure to oppose, the Court granted that motion on August
20, 2019. [ECF No. 33]. Guldseth was given until August 27,
2019, to provide three dates in September when he would be
available for deposition. [Id.]. He also had until
September 3, 2019, to respond to all interrogatories,
requests for admission, and requests for production.
did not satisfy the terms of the Court’s August 20
Order. On September 10, 2019, Defendants moved to dismiss for
failure to prosecute under Rule 41(b) of the Federal Rules of
Civil Procedure. [ECF No. 35]. Guldseth responded in
opposition on September 16, 2019, and provided September 19,
20, and 23 as potential dates to be deposed. [ECF No. 36].
41(b) provides that, “[i]f the plaintiff fails to
prosecute or comply with . . . a court order, a defendant may
move to dismiss the action or any claim against it.”
Fed.R.Civ.P. 41(b). “Courts should only impose this
severe sanction where the plaintiff’s conduct is
‘extreme.’” Humphrey v. Comoletti,
No. 15-cv-14170, 2018 WL 2709205, at *2 (D. Mass. June 5,
2018) (quoting Chamorro v. Puerto Rican Cars, Inc.,
304 F.3d 1, 4 (1st Cir. 2002)). “[E]xtreme misconduct
comes in many shapes and forms, ranging from protracted
foot-dragging to defiance of court orders to ignoring
warnings to other aggravating circumstances.”
Chamorro, 304 F.3d at 4–5. Still,
“dismissal orders typically are measures of last
resort, reserved for extreme cases.” Torres-Vargas
v. Pereira, 431 F.3d 389, 393 (1st Cir. 2005).
Guldseth failed to comply with the Court’s August 20
Order, he alleges that he did not receive the Order until
September 10, 2019, and that Defendants have likewise failed
to respond to his discovery requests, including document
requests. [ECF No. 36 at 1]. When faced with the
Defendants’ motion to dismiss, Guldseth immediately
opposed the motion. [ECF No. 36]. At this time, the Court
will not read any bad faith into his previous silence as
compared to his sudden response.
did respond on September 16, 2019, however, Guldseth offered
September 19, 20, and 23 for a deposition. Guldseth is
therefore ordered to provide three additional dates that
would be reasonable for a deposition by October 1, 2019.
motion to dismiss, [ECF No. 35], is DENIED.
Guldseth’s motion to expedite, [ECF No. 36], is
likewise DENIED. The Court reminds the parties that
it has imposed a discovery schedule, which anticipates a
completion of discovery by October 30, 2019. The Court will
assume that both parties are acting in good faith to
effectuate that timeline. The parties are hereby warned that
any further evasion of this Court’s orders may result
in a dismissal or other sanctions. See, e.g.,
Humphrey, 2018 WL 2709205, at *3. Guldseth is
ordered that, by October 1, 2019, he must provide three
additional dates for deposition.