CHIQUITAROSE GIVINS, Plaintiff, v. D&C FOODS, INC., Defendant CASE NO. 1:24cv89-RH-ZCB United States District Court, N.D. Florida Filed January 08, 2025 Hinkle, Robert L., United States District Judge ORDER DISMISSING THE ACTION AND AWARDING EXPENSES *1 In this action the plaintiff and her attorneys have repeatedly ignored the governing rules and court orders, failing to make discovery essential to the defendant's preparation for trial. No sanction short of dismissal would be sufficient to bring about the plaintiff's compliance. The plaintiff was ordered to attend a hearing on these matters but failed to do so despite being notified that failure to comply would result in dismissal. The attorneys have blamed the plaintiff but bear substantial responsibility, including for violating court orders. This order dismisses the action and assesses against the attorneys a portion of the fees the defendant incurred because of their conduct. I The plaintiff Chiquitarose Givins filed this action against the defendant D&C Foods, Inc., which operates a Wendy's restaurant where Ms. Givins worked. In the complaint, Ms. Givins alleged her supervisor learned she was gay and immediately cut her hours. Ms. Givins alleged the supervisor “sent me text messages calling me derogatory names associated with my sex/sexual identity.” ECF No. 1-1 at 4 ¶ 16. Somewhat incongruously, Ms. Givins also alleged the supervisor, a woman, “made a move on me and I declined.... She made my accepting her relationship demands a condition of employment.” Id. at 5 ¶ 20. As requested in the parties' Federal Rule of Civil Procedure 26(f) scheduling report, the scheduling and mediation order, which was entered on July 29, 2024, set the discovery deadline as January 8, 2025, and set the trial for March 31, 2025. See ECF Nos. 10 & 15. Those dates have remained in place. The attorney Daniel H. Hunt signed the complaint and was listed in the 26(f) report as having participated in the attorney conference together with another attorney in his firm, Warren J. Pearson. ECF No. 1-1 at 13; ECF No. 10 at 1. Mr. Pearson filed a notice of appearance and separate notice stating he would be “lead counsel ... responsible for receipt of all documents, conference calls and hearings.” ECF No. 12 at 1. On August 23, 2024, D&C noticed Ms. Givins's deposition for October 24, 2024, a date later moved with Mr. Pearson's agreement to October 25. See ECF No. 33-1 at 2; see also ECF No. 33-2 at 3. On August 28, 2024, D&C served interrogatories and production requests on Mr. Pearson by both mail and email but did not serve Mr. Hunt. See ECF No. 33-1 at 3. Responses were due on September 27, 2024. On September 29, 2024, having received no response, D&C's attorney emailed Mr. Pearson noting that responses were past due and asking for responses by the next day. ECF No. 33-3 at 2. The attorney copied Mr. Hunt on the email. On September 30, Mr. Hunt responded, correctly, that he had not received the discovery requests. Id. at 3. He said he would need a couple of weeks to work on them. Id. D&C's attorney responded to Mr. Hunt by email that same day, saying the discovery had been served on Mr. Pearson because Mr. Pearson had said Mr. Hunt would not be handling the case. Id. at 4. The email asked for discovery responses by October 10 and said if they were not received by that date, D&C would move to compel. The email said this was necessary because Ms. Givins's deposition was scheduled for October 25. *2 Also on September 30, Mr. Pearson responded to the D&C attorney's September 29 email, asserting that he, too, did not receive the discovery requests when they were served in August. See id. at 3. That is unlikely. The email sending the discovery requests became part of an email chain that included responses from Mr. Pearson on the scheduling of mediation and other matters. See, e.g., ECF No. 33-4 at 8–9; see also ECF No. 38 at 5–6. The overall record shows that Mr. Pearson failed to respond not just to these discovery requests but to other communications, including a court order. It is more likely than not that Mr. Pearson received the discovery requests when they were served in August but ignored them. Ms. Givins did not respond to the interrogatories and production requests by October 10. On October 11, D&C moved to compel responses, but D&C did not quote or attach the requests. ECF No. 18. On October 14, an order was entered requiring D&C to file the requests and requiring Ms. Givins to respond to the motion to compel by October 25—the deadline that would have applied under Local Rule 7.1 anyway. ECF No. 19. The order directed Ms. Givins to “file any responses she serves by that time to the interrogatories and production requests.” Id. at 1. An order of that kind almost always leads to discovery responses from a party who has not responded to discovery requests as required. But not this time. Ms. Givins neither provided discovery responses nor responded to the motion to compel. The order was provided to Mr. Pearson and Mr. Hunt through the court's electronic filing system, but they ignored the order. If not willful contempt, this showed an inexcusable failure to have in place a system for learning of, calendaring, and complying with responsibilities and deadlines. The attorneys now attribute the discovery failures to Ms. Givins, but the attorneys alone—not Ms. Givins—had the duty to file a response to the motion to compel, as required by both Local Rule 7.1 and the October 14 order. The failure to respond to the motion is on the attorneys. Because D&C had not received discovery responses, it moved Ms. Givins's scheduled October 25 deposition to November 6 and then, at Ms. Givins's attorneys' request based on a scheduling conflict, to December 3. See ECF No. 33-5. On October 31, D&C moved for sanctions based on Ms. Givins's failure to make discovery or comply with the October 14 order. ECF No. 22. The order of November 1 compelled Ms. Givins to answer the interrogatories by November 8 and produce the requested documents by November 12. ECF No. 23. The order awarded $800 in attorney's fees against Ms. Givins and her attorneys, jointly and severally, and provided the amount of the award could be redetermined on motion. Id. at 3. Neither side moved to redetermine the amount. Mr. Pearson eventually paid the $800, but only after telling Ms. Givins she was required to pay the award, without mentioning that the attorneys, too, had been ordered to pay it. See, e.g., ECF No. 38 at 43. Ms. Givins produced a document and served interrogatory answers, apparently on November 8 and 12, but D&C asserts, almost surely correctly, that they were deficient. In response to an interrogatory asking for all telephone numbers Ms. Givins used to communicate about her employment or the allegations in the complaint, Ms. Givins answered, “None.” See ECF No. 24-3 at 6. This was inconsistent with the complaint's allegation that Ms. Givins received actionable texts—plural—from her supervisor. Either the complaint or the interrogatory answer was wrong. Ms. Givins produced a copy of the charge she filed with the Equal Employment Opportunity Commission but nothing else—no allegedly actionable texts or other documents of substance. Ms. Givins alleged she was “not in possession of any documents responsive to” requests for email or text messages sent to or received from the supervisor or specified other D&C employees. *3 On Tuesday, December 2, 2024, Ms. Givins's attorneys' assistant advised D&C that Ms. Givins would not appear for her long-scheduled December 3 deposition “as she had a family death over the weekend.” ECF No. 33-8 at 1. On December 9, 2024, D&C moved to compel a forensic examination of Ms. Givins's cellular telephone and for sanctions, including dismissal of the complaint. See ECF No. 24. The order of December 10 set a telephonic hearing on the motion for December 13. ECF No. 25. The order directed both Mr. Pearson and Mr. Hunt to call in for the hearing and said they “should be prepared to provide detailed support for the prior cancellations of depositions and failures to make discovery, including, for example, the name and date of death of the relative whose death caused the rescheduling of the plaintiff's deposition on December 3, 2024.” Id. at 1. Requiring attendance by both attorneys and that kind of detail about an asserted death in a family was unusual, but by then the record suggested someone on that side of the case—Ms. Givins or the attorneys or perhaps all of them—might be capable of offering concocted excuses to avoid discovery obligations. Two minutes before the December 13 hearing was scheduled to begin, Mr. Hunt and Mr. Pearson filed a motion for leave to withdraw as Ms. Givins's attorneys. ECF No. 28. They alleged that irreconcilable differences with Ms. Givins created an ethical duty to withdraw. They blamed the failure to handle the case properly on Ms. Givins, saying she had not returned to a mediation after a break and would no longer communicate with them. I read the motion before calling in for the hearing, so the hearing began five minutes late. See ECF No. 29. Mr. Pearson was on the line, but Mr. Hunt was not. After I noted Mr. Hunt had been ordered to call in, Mr. Pearson got word to him, and Mr. Hunt called in roughly 20 minutes after the hearing was scheduled to begin—15 minutes after it actually began. The attorneys doubled down on their assertion the fault rested elsewhere—primarily with Ms. Givins but, at least according to Mr. Pearson, partly with D&C for abusing the discovery process, apparently for insisting that Ms. Givins provide relevant discovery as required by the rules and my prior order. The attorneys were unable to provide information about the alleged death in Ms. Givins's family. I announced on the record that Ms. Givins's attorneys would be allowed to withdraw but would remain subject to possible imposition of sanctions and that Ms. Givins would be required to attend an in-person hearing. On December 20, 2024, an order was entered confirming this result. ECF No. 30. The order set an in-person hearing on all pending motions at noon on January 2, 2025. The order directed the clerk to provide a copy of the order and a notice of hearing to Ms. Givins by email; no physical address was available. The order directed the clerk to call Ms. Givins to notify her of the email and the order and to offer to read the order to her. The clerk complied, sending copies by email and leaving a recorded telephone message when Ms. Givins did not answer a call. See ECF No. 32. The December 20 order directed Ms. Givins to attend the hearing and said that if she failed to do so, the case would be dismissed. *4 Later that same day, December 20, D&C filed another motion for sanctions, including a request for $28,926.50 in attorney's fees for time spent on the discovery issues and motions, plus $636.95 for airfare for its attorney to attend the January 2 hearing. See ECF No. 33. An order was entered on December 23, 2024, confirming that the new motion, too, would be heard at noon on January 2, 2025. ECF No. 34. As directed, the clerk again notified Ms. Givins by email and recorded telephone message. ECF No. 36. The order said Ms. Givins, for herself, and Mr. Pearson and Mr. Hunt, for themselves but not as Ms. Givins's attorneys, could file written responses to the motion for sanctions by 10:00 a.m. on the day of the hearing, January 2. The order repeated the requirement for Ms. Givins to attend the hearing and said Mr. Hunt and Mr. Pearson could appear but were not required to do so. The order said the motion for sanctions would be taken under advisement—would be deemed submitted—at the close of the hearing on January 2 based on any written responses filed by 10:00 a.m. that day and any presentations at the hearing. Mr. Pearson, for himself and Mr. Hunt, filed a written response to the sanctions motion at 9:47 a.m. on January 2. ECF No. 37. Consistent with the attorneys' position at the December 13 hearing, the response put most of the blame for the discovery failures on Ms. Givins. The response also asserted, for the first time, that the failures were attributable to the hurricanes that came ashore in Florida on September 26 and October 9, 2024. The response referred to and quoted exhibits but attached none. Mr. Pearson submitted an affidavit and exhibits at 11:52 a.m., nearly two hours after the deadline and just eight minutes before the hearing was scheduled to begin. ECF No. 38. Ms. Givins did not appear at the January 2, 2025 hearing. Mr. Hunt appeared; Mr. Pearson did not. D&C and Mr. Hunt presented argument. The entire record, including Mr. Pearson's timely and untimely January 2 filings, have been fully considered. II Under Federal Rule of Civil Procedure 37(a)(5)(A), if a motion to compel discovery is granted, the party or attorney whose conduct necessitated the motion “must” be ordered to pay the reasonable expenses incurred in making the motion, including attorney's fees, unless the moving party filed the motion without attempting in good faith to obtain the discovery without court action, or the failure to make discovery was “substantially justified,” or “other circumstances make an award of expenses unjust.” Unless these conditions are met, an award of expenses is “mandatory.” Devaney v. Cont'l Am. Ins. Co., 989 F.2d 1154, 1162 (11th Cir. 1993) (citing Merritt v. Int'l Bhd. of Boilermakers, 649 F.2d 1013, 1019 (5th Cir. Unit A June 1981)). A position is “substantially justified” if it results from a “genuine dispute, or if reasonable people could differ as to the appropriateness of the contested action.” Pierce v. Underwood, 487 U.S. 552, 565 (1988) (citations, quotation marks, and brackets omitted); Devaney, 989 F.2d at 1163. For this purpose, “an evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond.” Fed. R. Civ. P. 37(a)(4). Under Federal Rule of Civil Procedure 37(b)(2)(A), if a party fails to obey an order to provide discovery, “the court where the action is pending may issue further just orders.” These may include “dismissing the action or proceeding in whole or in part.” Fed. R. Civ. P. 37(b)(2)(A)(v). *5 Dismissal is appropriate only “when a plaintiff's recalcitrance is due to willfulness, bad faith, or fault.” Phipps v. Blakeney, 8 F.3d 788, 790 (11th Cir. 1993). Simple negligence or misunderstanding is insufficient. Malautea v. Suzuki Motor Co., Ltd., 987 F.2d 1536, 1542 (11th Cir. 1993). Dismissal is reserved for “flagrant disregard for the court and the discovery process.” Aztec Steel Co. v. Fla. Steel Corp., 691 F.2d 480, 481 (11th Cir. 1982). In addition, dismissal with prejudice is proper only when there is a clear record of willful misconduct, and only on a finding that a lesser sanction would be inadequate. Zocaras v. Castro, 465 F.3d 479, 483 (11th Cir. 2006); Betty K Agencies Ltd. v. MV Monada, 432 F.3d 1333, 1337–38 (11th Cir. 2005). Dismissal is a last resort and should be ordered sparingly, only when no other sanction is reasonably likely to bring about compliance. See, e.g., Malautea, 987 F.2d at 1542. III Ms. Givins's failure to attend the January 2 hearing suggests she has chosen to abandon the case. Whether treated as abandonment, failure to prosecute, or the appropriate sanction for failure to comply with discovery orders, the result is the same: the action should now be dismissed. The case has reached the point where no other sanction has a reasonable chance to bring about compliance. The record shows willful misconduct—willfulness, bad faith, and fault, not simple negligence or misunderstanding—attributable not just to the attorneys but to Ms. Givins herself. She has shown a flagrant disregard for the court and the discovery process. No sanction short of dismissal is reasonably likely to bring about compliance. Had Ms. Givins appeared on January 2, alternatives could have been considered. But she did not. The discovery period is at its end, and the trial date is near. D&C has been denied all relevant discovery. Delaying the case would be unfair to D&C and, at least as shown by this record, probably would accomplish nothing. The difficulty to this point has not been lack of time but unwillingness to comply with the governing rules and court orders. Enough is enough. This order thus directs the clerk to enter judgment dismissing the action. As a matter of discretion, the order makes the dismissal with prejudice. This probably makes no difference; any new action would be untimely. The decision to make the dismissal with prejudice supports the discretionary attorney's fee rulings set out below. The order does not assess further attorney's fees against Ms. Givins. Had she pursued the action, D&C almost surely would have incurred greater fees defending the action on the merits than it has incurred on the motions that now have resulted in dismissal. Ms. Givins's apparent abandonment of the action at this point does not excuse her prior failure to make discovery and comply with orders, but it does mitigate the harm to D&C. Under these circumstances, an award of additional expenses against Ms. Givins—an award likely to be uncollectible—would be unjust. IV Mr. Pearson and Mr. Hunt both bear significant responsibility for the failures to make discovery and to comply with the November 1, 2024 order. Mr. Pearson, as the designated lead attorney and the attorney with the primary day-to-day role—bears greater responsibility. D&C incurred $28,926.50 in attorney's fees related to discovery issues, not including fees incurred for the January 2 hearing. D&C incurred $636.95 for airfare for its attorney to attend that hearing. Some of those fees were effectively disallowed when $800 was assessed in the November 1 order, and some of the attorney time, while reasonably devoted to the motion, could have been reduced. *6 As an illustration, in a recent, unrelated action in this court, a plaintiff failed to respond to interrogatories and production requests, just as occurred here. I granted a motion to compel and awarded $1,000 in fees, subject to redetermination, the same approach taken here. In response to the order, the defendant said it incurred only $535 on the issue, not $1,000, and the award was adjusted accordingly. See Hudson v. Waffle House, No. 5:19cv297-RH-MJF (N.D. Fla. Jan. 24, 2020) (unpublished order). Different case, different dynamic between the opposing attorneys, different level of familiarity with this court. D&C presented its motion at much greater length and cannot be faulted for doing so. But it could have won with a barebones motion alleging nothing more than that the discovery was served and Ms. Givins failed to respond. From that point, though, more was necessary, including on the motion to compel a forensic examination or to dismiss the case. As set out above, the dismissal mitigates D&C's damages. But D&C won the motion, obtaining a dismissal, and should recover a portion of its fees as a matter of discretion, even if an award is not mandatory. This order eliminates time related to the $800 prior award and reduces the new award based on the mitigating effect of the dismissal and Ms. Givins's partial responsibility for the discovery failures. The resulting award is $3,000 in fees against Mr. Pearson individually, an additional $2,000 in fees against Mr. Hunt individually, and $636.95 in costs against both attorneys jointly and severally. This is a conservative award, far below the fees actually incurred by D&C on these motions. But I conclude, as a matter of discretion, that a greater award would be unjust. V For these reasons, IT IS ORDERED: 1. The motions for sanctions, ECF Nos. 24 and 33, are granted. 2. The clerk must enter a judgment stating, “This action was resolved based on the plaintiff Chiquitarose Givins's abandonment of the action, failure to prosecute, and failure to comply with court orders. All her claims are dismissed with prejudice.” 3. Attorney's fees are awarded against attorney Warren J. Pearson in the amount of $3,000.00. 4. Attorney's fees are awarded against attorney Daniel H. Hunt in the amount of $2,000.00. 5. Costs are awarded against attorneys Warren J. Pearson and Daniel H. Hunt, jointly and severally, in the amount of $636.95. 6. The clerk must close the file, but jurisdiction is retained (a) to award costs in the ordinary course, separate and apart from the award made by this order, see 28 U.S.C. § 1720, and (b) to enter judgment for the attorney's fees and costs awarded by this order. The defendant D&C Foods, Inc. may move for entry of judgment on an award made by this order if the award is not paid by February 3, 2025. SO ORDERED on January 8, 2025.