Dana SALTER, Plaintiff, v. MONTGOMERY ASSOCIATION OF RETARDED CITIZENS, Defendant Case No. 2:18-cv-605-MHT-SMD United States District Court, M.D. Alabama, Northern Division Signed March 25, 2019 Doyle, Stephen M., United States Magistrate Judge ORDER *1 Before the Court is Defendant's Motion to Compel (Doc. 18) Plaintiff to respond to its discovery requests and to produce Rule 26 initial disclosures. In the motion, Defendant reported that Plaintiff has not provided any disclosure of initial evidence as required by Fed. R. Civ. P. 26(a) since first filing her initial complaint on June 25, 2018. Id. Defendant also reported that Plaintiff has failed to respond or otherwise object to its interrogatories and requests for production since first serving Plaintiff with them on October 22, 2018. Id. Pursuant to Fed. R. Civ. P. 37, Defendant certified that it has, in good faith, attempted to confer with Plaintiff multiple times in an effort to resolve the matter without resorting to court intervention. Id. In response to the Court's Order (Doc. 21) to show cause why Defendant's Motion to Compel should not be granted, counsel for Plaintiff filed, on January 24, 2019, a Motion (Doc. 22) requesting an extension of time to respond to Defendant's discovery requests or, in the alternative, permission to withdraw as attorney of record for Plaintiff. Id. In the filing, counsel for Plaintiff claims she has not communicated with Plaintiff since at least October 22, 2018. Id. Counsel for Plaintiff also seems to be of the erroneous belief that the Court's Order to show cause (Doc. 21) was actually an order granting Defendant's Motion to Compel (Doc. 18), stating that she is responding “pursuant to this Honorable Court's Order granting of Defendant's Motion to Compel.” (Doc. 22) at 1. Regardless, forty-five days have elapsed since counsel for Plaintiff filed her request asking for a thirty-day extension, so Plaintiff's Motion (Doc. 22) is due to be denied as moot. Plaintiff's counsel has requested, in the alternative, to withdraw as attorney of record for Plaintiff. (Doc. 22). According to Local Rule 83.1, an attorney may be granted permission by the Court to withdraw from representation of a party after giving formal motion and notice to such parties and to opposing counsel. General Local Rule 83.1. Complete lack of communication with a client for an extended period of time may provide sufficient grounds for withdrawal. See, e.g., Albertie v. Words to Works Ministries, Inc., No. 3:12-cv-923-J-34JBT, 2014 WL 12697313, at *1 (M.D. Fla. 2014). However, courts usually require more extensive evidence of the attorney's attempts to locate and notify the client before granting a motion to withdraw. See, e.g., Thornell v. Performance Imports, LLC, No. 2:16-cv-00397-JHE, 2018 WL 747849, at *1-2 (N.D. Ala. 2018); see also Cardenas v. Colvin, No. 1:15-cv-01939-SKO, 2016 WL 6896311, at *3 (E.D. Calif. 2016); in re Fosamax Prods. Liab. Litig., No. 06 MD 1789, 2012 WL 2122166, at *1-2 (S.D.N.Y. 2012). Here, counsel for Plaintiff has not demonstrated that she has provided notice to her client and to opposing counsel of her intent to withdraw as counsel for Plaintiff. Counsel has also not provided the Court with any evidence substantiating her claim that she has “made numerous attempts by phone, email, and post mail” to contact her client. (Doc. 22) at 1. Accordingly, Plaintiff's request to withdraw is due to be denied at this time. Having addressed Plaintiff's requests within her Response (Doc. 22) to Defendant's Motion to Compel (Doc. 18), the undersigned turns to the substance of the Defendant's Motion. *2 On February 8, 2019, Defendant filed a Reply (Doc. 23) to Plaintiff's Motion (Doc. 22). In its reply, Defendant asks the Court to deny Plaintiff's request for more time and to sanction Plaintiff, pursuant to Fed. R. Civ. P. 37(a)(5)(A) and 37(d)(3), by awarding attorney's fees and expenses and by dismissing the action. (Doc. 23) at 2. Defendant argues it has incurred substantial costs and expenses “including, but not limited to, preparing its Motion to Compel and the present Reply.” Id. at 5. Defendant argues it is entitled to reimbursement for its reasonable expenses, including attorneys’ fees, associated with drafting and prosecuting its Motion to Compel. Id. Defendant further argues that dismissal is an appropriate sanction in this case based on Plaintiff's “willful disregard[ ] of her duties” and “refus[al] to pursue the lawsuit she instigated.” Id. at 9. Even though Defendant's Reply (Doc. 23) is not styled as a Motion for Sanctions, the undersigned construes it as such. The Federal Rules of Civil Procedure require each party to provide to the other certain initial discovery disclosures without waiting for a discovery request. See Fed. R. Civ. P. 26(a)(1)(A). Additionally, the Rules requires a party to provide its answers and any objections to interrogatories from the other party within thirty days of being served with the interrogatories. See Fed. R. Civ. P. 33(b)(2). If a party fails to cooperate in discovery, a party may move for an order compelling disclosure. See Fed. R. Civ. P. 37(a)(1). If the motion is granted, the court must require the uncooperative party to pay the movant's reasonable expenses in making the motion, to include attorney's fees. See Fed. R. Civ. P. 37(a)(5)(A). However, the court must not order reimbursement if the party's nondisclosure was substantially justified. Id. Here, Defendant has made a prima facie showing that Plaintiff has failed to comply with Fed. R. Civ. P. 26(a)(1)(A) and 33(b)(2). (Doc. 18). The burden, then, is on Plaintiff to provide a reasonable justification why she has failed to comply with the rules. See in re Chase & Sanborn Corp., 872 F.2d 397, 400 (11th Cir. 1989). Counsel for Plaintiff claims she has been unable to contact her client for at least five months. (Doc. 22). However, counsel must go beyond mere assertion and adduce evidence in support of her claim that she has made all reasonable efforts to comply. See U.S. Hayes, 722 F.2d 723, 725 (11th Cir. 1984). Additionally, counsel for Plaintiff is not disputing the appropriateness of Defendant's discovery requests, but simply claiming an inability to comply. (Doc. 14). However, it is not clear to the undersigned that, from counsel's bare assertion, she has in good faith made all reasonable efforts to either contact her client or comply with the discovery rules. In support of this conclusion, the undersigned notes that Defendant, in its Reply, states that Plaintiff's counsel “has not made any effort” to convey to Defendant that she has been unable to contact her client prior to filing her Response. (Doc. 23) at 6. Had Plaintiff's counsel been unable to contact Plaintiff and thereby obtain the relevant discovery, Plaintiff's counsel should have communicated that to Defendant. Accordingly, the undersigned finds that Plaintiff has failed to provide reasonable justification for noncompliance and, therefore, Defendant's Motion to Compel (Doc. 18) is due to be granted. Having concluded that Defendant's Motion to Compel (Doc. 18) should be granted, the undersigned turns to Defendant's request for reasonable costs and attorney's fees. (Doc. 23). An assessment of reasonable costs and attorney's fees is one of the lesser sanctions contemplated by the Federal Rules. See Devaney v. Continental Am. Ins. Co., 989 F.2d 1154, 1159-60 (11th Cir. 1993). “The district court has ‘broad, although not unbridled, discretion in imposing sanctions’ under Rule 37.” Chase, 872 F.2d at 400. However, “[a] reading of the Rule leads to the inescapable conclusion that the award of expenses is mandatory against a party whose conduct necessitated a motion to compel discovery, and/or against the attorney who advised such conduct, ‘unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust.’ ” See Merritt v. Int'l Broth. Of Boilermakers, 649 F.2d 1013, 1019 (5th Cir. 1981) (citing Fed. R. Civ. P. 37(a)(4)). The Supreme Court has clarified that an individual's discovery conduct should be found “substantially justified” under Rule 37 if it is a response to a “genuine dispute, or if reasonable people could differ as to the appropriateness of the contested action.” Devaney v. Continental Am. Ins. Co., 989 F.2d 1154, 1163 (11th Cir. 1993) (citing Pierce v. Underwood, 487 U.S. 552, 565 (1988)). *3 Here, there is no dispute that Plaintiff has failed to either provide initial disclosures or respond at all to Defendant's interrogatories and requests for production. Counsel for Plaintiff merely avers that she has been unable to contact her client and requests additional time to reach her client. (Doc. 22). She does not attempt to explain her failure to provide pre-discovery disclosures on or before October 26, 2018, as she had agreed to in the parties’ Rule 26(f) Report. (Doc. 15). Plaintiff's counsel does not explain why she waited until January 24, 2019 to notify Defendant that she could not contact her client. (Doc. 22). In short, Plaintiff offers no legitimate reason for her failure to timely provide discovery as required by the Rules. See, e.g., Giovanno v. Fabec, 804 F.3d 1361, 1364-66 (11th Cir. 2015) (finding default judgment justified where defendant had not contacted his attorney for over a year, defense counsel had not informed the court she had been unable to locate or contact her client, and counsel did not offer any proof of defendant's inability to participate). Accordingly, the undersigned finds that Plaintiff's failure to comply with the discovery rules is not substantially justified. Based on the above facts, the Court would ordinarily be obligated to award Defendant reasonable expenses, including attorney's fees, requested in its Motion for Sanctions (Doc. 23). See Fed. R. Civ. P. 37(a)(5)(A). However, Defendant has not provided the Court any evidence of the amount of expenses it has incurred in prosecuting its Motion to Compel. See Hensley v. Eckerhart, 461 U.S. 424, 437 (1983) (holding that the fee applicant bears the burden of providing evidence of its expenses). While a district court has discretion in determining the amount of the award fee, it is still necessary for the Court to provide a clear explanation of its reasons for deciding that amount. Id. Accordingly, the Court will grant Defendant leave of fourteen days from the date of this Order to supplement its construed Motion for Sanctions (Doc. 23) with a calculation of costs and fees incurred as a result of its Motion to Compel (Doc. 18). Defendant has also asked this Court to sanction Plaintiff by dismissing the case. (Doc. 23). Defendant correctly points out that dismissal is the “most severe” sanction under Rule 37. Id. at 8. A court must find willfulness, bad faith, or fault before exercising that option. See Malautea v. Suzuki Motor Co., 987 F.2d 1536, 1542 (11th Cir. 1993). Alternatively, a court may dismiss under Rule 41(b) if it finds that a party has failed to comply with the rules of civil procedure or a court order. Fed. R. Civ. P. 41(b); see also Fortson v. City of Baldwin, 699 F. App'x 906, 907 (11th Cir. 2017). However, violation of discovery rules caused by simple negligence, misunderstanding, or inability to comply will not justify dismissal. See Malautea, 987 F.2d at 1542. In addition, the Supreme Court has interpreted the Rule 37 requirement of a “just” sanction to represent “general due process restrictions on the court's discretion.” Id. (citations omitted). Due process is secured by the presumption that refusal to provide evidence material to the administration of justice is an admission of the want of merit in the asserted claim. See Hammond Packing Co. v. State of Ark., 212 U.S. 322, 350-51 (1909). Here, counsel for Plaintiff claims she cannot contact her client and, consequently is unable to comply with Defendant's discovery requests. (Doc. 22). While this may be true, the Court and Defendant cannot sit idly by waiting for Plaintiff to prosecute her claim, nor can the Court summarily dismiss Plaintiff's claim without satisfying the requirements of due process. Accordingly, it is ORDERED that Defendant's Motion to Compel (Doc. 18) is GRANTED. It is further ORDERED that Plaintiff shall provide Defendant all required initial disclosures and responses to Defendant's interrogatories and requests for production within five days of this Order. Failure to do so may result in dismissal of Plaintiff's claim for failure to prosecute. Additionally, it is ORDERED that Plaintiff's Motion for Extension of Time to Respond to Discovery (Doc. 22) is DENIED as MOOT and Plaintiff's Motion, in the alternative, to Withdraw (Doc. 22) is DENIED with leave to refile provided the motion is accompanied by sufficient documentary evidence to demonstrate to the Court that counsel has made all reasonable efforts to contact her client. It is further *4 ORDERED that Defendant's construed Motion for Sanctions (Doc. 23) is GRANTED as to an award of reasonable expenses to be determined by the Court upon Defendant's submission, on or before April 8, 2019, of its calculation of its costs and fees incurred. DONE this 25th day of March, 2019.