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Cochran v. Volvo Group North America, LLC

United States District Court, M.D. North Carolina

May 28, 2014

RICHARD COCHRAN, et al., Plaintiffs,
v.
VOLVO GROUP NORTH AMERICA, LLC, VOLVO TRUCKS NORTH AMERICA, INC., Defendants.

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

JOI ELIZABETH PEAKE, Magistrate Judge.

This matter comes before the Court on a Motion to Compel and for Sanctions [Doc. #131] filed by Defendant Volvo Group North America, LLC ("Defendant Volvo"). Defendant Volvo seeks dismissal of all claims brought by nine of the Plaintiffs in this case, as a sanction for their failure to comply with this Court's discovery order of December 11, 2013 [Doc. #128]. The Court held a telephone conference on the Motion on March 11, 2014. Attorney Corey Fein appeared for Plaintiffs, and Attorney Chad Hansen appeared for Defendant Volvo. For the reasons set out below, the Court recommends that all claims filed by these nine Plaintiffs be dismissed without prejudice pursuant to Federal Rules of Civil Procedure 37 and 41(b).

I. Facts and Procedural History

Plaintiffs in this case originally sought certification of a class, but those requests were denied. The case is therefore proceeding as to the individual claims asserted by the named Plaintiffs. The Court conducted a discovery scheduling hearing on December 10, 2013, regarding the schedule for discovery for the individual claims. Following the hearing, the Court entered an Order granting a prior Motion to Compel by Defendant Volvo, and ordering Plaintiffs to "provide full and complete responses to Defendant Volvo's Interrogatories and Requests for Production of Documents no later than 14 days prior to each individual Plaintiff's noticed deposition." (December 11, 2013 Order at 2.) In addition, the Court adopted a procedure whereby Defendant Volvo would notice each Plaintiff's deposition by January 27, 2014. (Id. at 2-3.) Defendant Volvo now contends that nine Plaintiffs failed to respond or appear as required. During the telephone hearing on the present Motion to Compel, counsel for Plaintiffs noted that he did not wish to be heard in opposition to the Motion. Counsel for Plaintiffs agreed that these nine Plaintiffs knew that their claims would be dismissed for failing to participate in discovery, but that they had made the decision not to participate after the request to proceed as a class action was denied. During the telephone hearing, the Court noted that findings of noncompliance would need to be made as to each of the nine Plaintiffs. Therefore, the parties subsequently submitted a Joint Supplement setting out specific information as to each of these nine Plaintiffs. Therefore, based on the evidence presented in the Joint Supplement by agreement of the parties, the Court makes the following findings of fact with regard to each of these nine Plaintiffs.

A. Frank Beatty III

On November 14, 2012, Mr. Beatty was served with Defendant's First Set of Interrogatories to New Plaintiffs and Defendant's First Set of Requests for Production to New Plaintiffs.[1] On December 17, 2012, Plaintiffs served their Answers to Defendant's First Set of

Requests for Production on behalf of all new Plaintiffs. These Answers were served on behalf of all new Plaintiffs and contained little substantive information on behalf of Mr. Beatty; instead, many responses stated that Plaintiffs would later supplement their responses. On June 24, 2013, Mr. Beatty served Defendant Volvo with supplemental answers, but again failed to fully and completely supplement interrogatories and produce all documents responsive to Defendant Volvo's document requests.

On January 27, 2014, Plaintiffs' counsel was served with a notice of deposition for Mr. Beatty to occur on March 6, 2014. However, Mr. Beatty failed to supplement or otherwise provide complete answers to written discovery 14 days prior to that date, as required by this Court's Order. In addition, Mr. Beatty refused to appear for his noticed deposition. According to the Joint Supplement, Plaintiffs' counsel's office spoke with Mr. Beatty, most recently on February 19, 2014, and informed him that his refusal to appear for his noticed deposition would likely result in dismissal of his case. Mr. Beatty indicated that he understood, but nevertheless failed to appear.

B. Ronnie Chosewood

On November 14, 2012, Mr. Chosewood was served with Defendant's First Set of Interrogatories to New Plaintiffs and Defendant's First Set of Requests for Production to New Plaintiffs. On December 17, 2012, Plaintiffs served their Answers to Defendant's First Set of Interrogatories and Responses to Defendant's First Set of Requests for Production on behalf of all new Plaintiffs. These Answers did not include any responses specific to Mr. Chosewood for any interrogatory, and many responses that were applicable to all Plaintiffs were comprised simply of a promise to later supplement. Mr. Chosewood has not served Defendant Volvo with any supplemental responses to any interrogatory. Further, Mr. Chosewood has only produced a nominal 145 pages in response to Defendant Volvo's Requests for Production and has failed to comply with his obligation to produce all documents responsive to Defendant Volvo's document requests.

On January 27, 2014, Plaintiffs' counsel was served with a notice of deposition for Mr. Chosewood to occur on March 7, 2014. However, Mr. Chosewood failed to supplement or otherwise provide complete answers to written discovery 14 days prior to that date, as required by this Court's Order. In addition, Mr. Chosewood has refused to appear for his noticed deposition. Plaintiffs' counsel's office spoke with Mr. Chosewood, most recently on February 6, 2014, and informed him that his refusal to appear for his noticed deposition would likely result in dismissal of his case. Mr. Chosewood indicated that he understood but nevertheless failed to appear.

C. Tom Dougherty

On November 14, 2012, Mr. Dougherty was served with Defendant's First Set of Interrogatories to New Plaintiffs and Defendant's First Set of Requests for Production to New Plaintiffs. On December 17, 2012, Plaintiffs served their Answers to Defendant's First Set of Interrogatories and Responses to Defendant's First Set of Requests for Production on behalf of all new Plaintiffs. These Answers did not include any responses specific to Mr. Dougherty for any interrogatory, and many responses that were applicable to all Plaintiffs were comprised simply of a promise to later supplement. Mr. Dougherty has not served Defendant Volvo with any supplemental answers to any interrogatory. Further, Mr. Dougherty has not produced any documents in response to Defendant Volvo's Requests for Production. Plaintiffs' counsel sent Mr. Dougherty letters regarding his obligation to produce documents in response to Defendant Volvo's discovery requests, most recently in November of 2012. Plaintiffs' counsel's last communication with Mr. Dougherty was a phone call on January 14, 2013, when Mr. Dougherty stated that he did not want to participate in discovery.

On January 27, 2014, Plaintiffs' counsel was served with a notice of deposition for Mr. Dougherty to occur on March 10, 2014. Plaintiffs' counsel then learned through another client that Mr. Dougherty died in December 2013. Plaintiffs' counsel contacted Mary Jo Jensen Carter, the attorney for Mr. Dougherty's estate, and informed her that the claims will likely be dismissed without prejudice. Plaintiffs' counsel also informed Mr. Dougherty's estate that the estate may re-file these claims in Mr. Dougherty's home state should it wish to do so. Defendant Volvo ...


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