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LEBRON v. POWELL

September 5, 2003

ZAIDA LEBRON, PLAINTIFF,
v.
MICHAEL POWELL, CHAIRMAN, FEDERAL COMMUNICATIONS COMMISSION, DEFENDANT.



The opinion of the court was delivered by: John Facciola, Magistrate Judge

MEMORANDUM OPINION

Plaintiff filed this action on November 17, 1999. She complained of discrimination in her employment and retaliation for filing complaints about that discrimination. The case was referred to me for all purposes, including trial, on April 19, 2000, and I initially set a deadline for the end of discovery on August 31, 2000 and a trial date of November 13, 2000. Order of May 18, 2000, # 9.*fn1 The case then took the first of all too many diversions from what should have been the clear and easy path to trial.

BACKGROUND

Initial Discovery Delays Caused by Plaintiff

In 2000, plaintiff was represented by Byron Chapman, Esq. As the deadline for discovery [ Page 2]

approached, the government*fn2 filed Defendant's Status Report to the Court, # 11. In that document, the government reported that it had responded to plaintiff's written discovery demands, but plaintiff had never responded to the government's written discovery demands. Id. at 2. Government counsel, Jane Lyons, Esq. ("Lyons") wrote two letters to plaintiff's counsel asking when production could be expected. She received her answer nine days before discovery was to close when plaintiff's counsel called to say that his hard drive had crashed and that he hoped to have the interrogatory responses by August 22, but he had not received any responsive documents from the plaintiff. Id. Lyons had noticed plaintiff's deposition for August 24, 2000, and plaintiff's counsel suggested delaying it for a week. Id. at 3.

Lyons indicated that once she received responses to her discovery she intended to issue subpoenas for plaintiff's medical records and retain an expert to review the records and conduct an independent medical examination of plaintiff. Id. Lyons also pointed out that plaintiff's counsel had not conferred with her as to filing the joint report required by Local Civil Rule 16.3 and had failed to attend the first scheduling conference, claiming that he had not received notice of it. Id. at 3-4. She proposed revisions of the discovery deadlines and postponement of the pre-trial conference. Id. at 4-5.

A memorandum to my chambers filed by my law clerk indicates that on August 23, 2000 I spoke to counsel who advised me that they were creating a new proposed schedule. They did so, and on September 1, 2000 I issued a revised Scheduling Order. Scheduling Order, # 13. Under this Order, discovery was scheduled to close on October 31, 2000, and trial was set for [ Page 3]

January 8, 2001. Id.

On October 5, 2000, the government filed Defendant's Motion to Compel and for an Award of Expenses, #14. In a memorandum accompanying this document, Lyons reported more derelictions in plaintiff's responses to discovery. She reminded me that at a status conference held on September 1, 2000 (which must have been held over the phone) plaintiff's counsel represented that he would complete all discovery responses and transmit a release for plaintiff's medical records "within a few days." Memorandum in Support of Defendant's Motion to Compel and for an Award of Sanctions at 4.

On September 8, 2000, Lyons received unsigned and unverified responses to interrogatories. Id. Plaintiff flat out refused to answer an interrogatory that asked her to describe the emotional distress she alleged in her complaint. Id. at 5. While she produced documents, she did not file any written response to the government's specific requests.

On September 14, 2000, Lyons re-noticed plaintiff's deposition for September 22 and 25, 2000. Id. In a letter dated September 14, 2000, she reminded plaintiff's counsel of dates set for the independent medical exam by the government's expert, Dr. Carole Giunta. Id. Lyons agreed, however, to a continuation of the deposition upon assurances that Dr. Giunta's examination would proceed and that discovery would be completed in the near future. Id. at 4-5. Plaintiff never appeared, however, for Dr. Giunta's examination and never contacted anyone about her whereabouts. Id. at 6. They tried again, and after being fifty minutes late, plaintiff submitted to the examination. Id.

On September 29, 2000, I held another telephonic status call with counsel to discuss these continuing discovery problems. During that call, I ordered plaintiff's counsel to provide the [ Page 4]

medical release by October 2, 2000 and to respond in full to Lyons' objections to plaintiff's discovery responses by October 4, 2000. Lyons, however, received nothing on either day. Id.

Plaintiff's Voluntary Motion to Dismiss and Subsequent Motion to Withdraw
On October 13, 2000, however, plaintiff filed a voluntary motion to dismiss. Plaintiff's Voluntary Motion to Dismiss, # 15. In that document, she indicated that she suffered from depression and was on medication that affected her ability to think and function. Id. She claimed to have had a series of part-time jobs and was therefore suffering severe mental, emotional, and financial difficulties. Id.

There the matter stood*fn3 until August 2, 2001 when plaintiff, now represented by new counsel, David Branch, Esq., ("Branch"), filed Plaintiff's Motion to Withdraw Plaintiff's Voluntary Motion to Dismiss, # 21. The government opposed, but I granted the application. Order of September 28, 2001, # 25. In an accompanying Memorandum Opinion, I stated, however:

In addition, plaintiff and her new counsel must be more diligent in meeting deadlines and responding to defendant's discovery requests. Upon the issuance of this Order, the case will resume at the exact procedural posture at which the parties left off. Therefore, plaintiff must produce written discovery responses, as requested by defendant's motion to compel of October 5, 2000, within twenty (20) days of the issuance of this Order. At the very least, these responses must include all seven of the items detailed on page eight of defendant's motion, as well as all other document ...

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