The opinion of the court was delivered by: Paul L. Friedman United States District Judge
This matter is before the Court on the defendants' motion for sanctions against the plaintiff, Rodney Bradshaw, along with their motion to strike the plaintiff's memorandum in opposition to the defendants' motion for sanctions. The defendants seek dismissal of this case (or, in the alternative, other severe sanctions) due to the plaintiff's failure to obey a discovery order, along with other conduct by the plaintiff that the defendants contend has protracted this action and forced them to expend time and resources. The defendants also maintain that the plaintiff's memorandum opposing their motion for sanctions impermissibly discloses matters discussed during mediation, in violation of the local rules of this Court. Upon consideration of the parties' submissions, the relevant legal authorities, and the entire record in this case, the Court will strike the plaintiff's opposition memorandum from the record and will grant in part and deny in part the defendants' motion for sanctions.*fn2
Plaintiff Rodney Bradshaw brought this action against the defendants under the Equal Credit Opportunity Act of 1972 ("ECOA"), 15 U.S.C. § 1691, claiming that he has been discriminated against because of his race. See Second Amended Complaint [Dkt. No. 34-2]. The plaintiff originally was represented in this action by attorney James W. Myart, Jr., who was counsel for Mr. Bradshaw until January 2008, after Mr. Myart's application to renew his membership in the bar of this Court was rejected.
The defendants served their first set of interrogatories and requests for production on the plaintiff in July 2006, in accordance with the Court's Scheduling Order. Mem. at 2. The plaintiff did not respond within the thirty-day deadline established by the Scheduling Order, and only after being reminded by the defendants of this missed deadline did he supply his responses, eleven days late. Id. at 2-3. The defendants found the plaintiff's responses to the discovery requests to be inadequate: many of the interrogatory responses were blank, incomplete, or non-responsive (without the plaintiff having offered any objections to the queries), and the plaintiff's responses to the requests for production contained hundreds of documents without any indication of which documents related to which request. Id. at 3-4. The defendants promptly sent a letter to plaintiff's counsel detailing the deficiencies in the plaintiff's responses, and offering the plaintiff additional time to supplement them. That time came and went without the plaintiff furnishing the requested materials or responding to the defendants' attempts to confer telephonically with his counsel about the matter. Id. at 4; see id., Exhs. 1-7.
Having received nothing from the plaintiff, and being unwilling to allow more time for compliance in view of the plaintiff's non-responsiveness, the defendants filed an expedited request for a teleconference to discuss the impasse. See Docket No. 54. This case subsequently was referred to Magistrate Judge John Facciola for the management of discovery. See Referral Order (Oct. 11, 2006). After receiving submissions from the parties and conducting proceedings in early December of 2006, Magistrate Judge Facciola issued an Order on December 22, 2006, directing plaintiff's counsel, by January 5, 2007, to supplement his deficient interrogatory responses and to correlate each document he had provided in response to the defendants' production requests with the appropriate request. Order ¶¶ 3-4, 7 (Dec. 22, 2006).
The January 5 deadline passed, once again, with nothing forthcoming from the plaintiff. After an additional week went by with still no word from the plaintiff, the defendants filed a motion for sanctions. See Docket No. 60. Plaintiff's counsel obtained two extensions of time in which to respond to this motion. See Minute Order (Jan. 23, 2007); Minute Order (Feb. 2, 2007). He then sought a third extension, which - for the first time - also requested an extension of time in which to supply his still-outstanding discovery responses. See Docket No. 64. Magistrate Judge Facciola granted this motion and set February 23, 2007, as the deadline for delivery of the plaintiff's supplemental discovery responses. See Minute Order (Feb. 16, 2007).
Late in the day on February 22, 2007, plaintiff's attorney, Mr. Myart, attempted but failed to ship the outstanding discovery materials to the defendants via overnight shipping. Although Mr. Myart faxed the plaintiff's supplemental interrogatory responses to the defendants on that date, the remainder of the discovery materials was not shipped until February 23. Because these materials would not reach the defendants by the court-ordered deadline - that same day - Mr. Myart filed an "emergency motion" to further enlarge the time in which to deliver discovery to the defendants. See Docket No. 65. The materials ultimately arrived on February 26, and on February 27 the Magistrate Judge issued a Minute Order granting the plaintiff's emergency motion nunc pro tunc. A separate Minute Order issued that same day observed that the plaintiff now appeared to have complied with the Court's discovery deadlines. Minute Order (Feb. 27, 2007).
Briefing continued on the defendants' motion for sanctions, however, and in a September 2007 opinion Magistrate Judge Facciola vacated his extension of the January 5, 2007 deadline by which the plaintiff was supposed to have supplied his supplemental discovery materials. Judge Facciola explained that because the plaintiff did not request an extension until after the deadline had already passed, under the Federal Rules of Civil Procedure his request "had to be accompanied by a motion establishing that the failure to act in accordance with the deadlines was 'the result of excusable neglect.'" Memorandum Opinion at 3 (Sept. 11, 2007) (quoting Fed. R. Civ. P. 6(b)). The Magistrate Judge ruled that for the plaintiff to be considered in compliance with the December 2006 discovery order, he would need to submit a motion for leave to file that established "excusable neglect" for the missed deadline. Id. at 4. The plaintiff was given a deadline of October 1, 2007, for any such motion. In the meantime, Judge Facciola denied without prejudice the defendants' motion for sanctions. Id.
At this point in the case, a series of extensions and stays ensued, driven at first by motions for continuances filed by Mr. Myart in which he claimed that medical incapacitation temporarily prevented him from continuing with the case. See, e.g., Docket Nos. 75, 84. Magistrate Judge Facciola ultimately extended the deadline for the plaintiff's motion for leave to file until early December 2007. See Minute Order (Nov. 13, 2007). The plaintiff through counsel sought to extend this new deadline, again based on considerations relating solely to Mr. Myart. See Docket No. 92. By the time of this request, however, Mr. Myart's application to renew his membership in the bar of this Court had been denied.*fn3 The Magistrate Judge therefore extended the deadline for the plaintiff's motion to February 22, 2008, "so as to provide [the plaintiff] with an opportunity to obtain new counsel[.]" Memorandum Order at 2 (Jan. 11, 2008). The plaintiff was advised that his failure to comply with this deadline might result in the dismissal of his case. Id. At the Court's direction, a copy of this Memorandum Order was mailed directly to the plaintiff.
Some months later, replacement counsel was appointed for plaintiff,
exclusively for the purpose of mediation, see Order (July 2, 2008),
which ultimately proved unsuccessful. With respect to other matters,
the plaintiff was unable to find replacement counsel; as a result, he
notified the Court on April 21, 2008 that he was electing to continue
pro se. See Docket Nos. 99, 101, 102 (letters from plaintiff to the
Court). Proceeding on his own, the plaintiff sought and obtained a
further extension of the deadline for his motion establishing
excusable neglect. See Minute Order (Mar. 28, 2008). Instead of filing
a motion, however, the plaintiff sent a notice informing the Court
that he wished to adopt the position taken by the plaintiffs in the
related case of Hildebrandt v. Johanns, Civil Action No. 04-1423,
where the plaintiffs had been ordered to file the same type of motion
in response to the same events. See Docket No. 105.*fn4
In September 2008, the Magistrate Judge in Hildebrandt
concluded that the plaintiffs' submission failed to establish
excusable neglect or even attempt to do so. See Memorandum Order,
Hildebrandt v. Veneman, Civil Action No. 04-1423 (D.D.C. Sept. 24,
2008). It is not clear whether the plaintiff in this case ever
received notice that the Magistrate Judge in Hildebrandt had rejected
the motion that he sought to adopt here. In any event, the plaintiff
submitted nothing further to the Court on this matter.
Three months later, upon expiration of the final deadline given to the plaintiff for his motion, the Magistrate Judge issued a Memorandum Order declaring that the plaintiff had failed to comply with the December 2006 discovery order, because he had not established excusable neglect for his lack of compliance with that order. Memorandum Order at 2 (Dec. 11, 2008). The Magistrate Judge also granted the defendants leave to re-file their motion for sanctions. Id. at 3. The defendants subsequently renewed their motion, and the plaintiff filed a pro se opposition, to which the defendants replied. The defendants also moved to strike the plaintiff's opposition.