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Noreen Wake v. National Railroad Passenger Corporation D/B/A Amtrak

March 15, 2013


The opinion of the court was delivered by: Paul W. Grimm United States District Judge


This Memorandum Opinion addresses Defendant National Railroad Passenger Corporation d/b/a Amtrak's ("Amtrak") Motion for Sanctions, ECF No. 22; Plaintiff Noreen Wake's Opposition, ECF No. 23; and Defendant's Reply, ECF No. 24. I find that a hearing is unnecessary in this case. See Loc. R. 105.6. For the reasons stated herein, Defendant's Motion for Sanctions is GRANTED. Plaintiff shall appear for her deposition no later than March 29, 2013, unless Defendant agrees to another date, in which case that date will be binding. Additionally, having stated that Plaintiff has "elected" not to file her Federal Rule of Civil Procedure 26(a)(2) disclosures, Plaintiff is hereby precluded from offering on a motion, at a hearing, or at trial any evidence from a witness for whom Rule 26(a)(2) disclosures*fn1 are required, including all expert witnesses who may present evidence under Federal Rule of Evidence 702, 703, or 705, and all hybrid witnesses for whom a disclosure is required under Rule 26(a)(2)(C). See Fed. R. Civ. P. 37(c)(1).

Additionally, Defendant's request for attorney's fees and costs incurred in filing the present Motion for Sanctions is GRANTED, and these fees and costs are to be paid by Plaintiff's attorney, not by Plaintiff. Defendant is ORDERED to file an itemization of fees and costs associated with preparing the present Motion for Sanctions no later than March 29, 2013. Plaintiff may file any objections no later than April 12, 2013. Defendant may file a response to Plaintiff's objections, if any, no later than April 19, 2012. Defendant is directed to refer to Appendix B of this Court's Local Rules, which provides rules and guidelines for determining attorney's fees in cases such as this. Appendix B is available on the Court's website at


Plaintiff's claim against Defendant sounds in negligence. See Compl., ECF No. 1. Specifically, Plaintiff alleges that due to Defendant's negligent failure to provide a step stool to passengers while disembarking a train car, Plaintiff fell onto the train tracks while stepping from the final step of the train down to the train platform, resulting in "serious and permanent injuries." Id. at 4. During the course of discovery, a number of disputes arose between the parties and the case was referred by the Judge previously assigned to the case to Magistrate Judge Schulze to resolve all discovery issues. See Docket.

On June 20, 2012, Defendant served Plaintiff its First Set of Requests for Documents and on June 26, 2012, Defendant served Plaintiff its First Set of Interrogatories. Def.'s Mot. 5. Plaintiff failed to respond to Defendant's discovery requests. Id. Subsequently, on September 5, 2012, Defendant filed a Motion to Compel, ECF No. 10. Judge Schultz granted Defendant's Motion and ordered Plaintiff "to provide complete discovery responses by October 19, 2012." Sept. 24, 2012 Paperless Order, ECF No. 14. Thereafter, Plaintiff filed a Motion for Extension of Time to file her Rule 26(a)(2) disclosures, ECF No. 17. In its Opposition to Plaintiff's Motion for Extension of Time, Defendant argued that permitting the extension of time would result in prejudice to the Defendant, especially in light of the fact that Plaintiff already had multiple opportunities to file her disclosures, yet failed each time to do so in a timely fashion. Def.'s Opp'n to Pl.'s Mot. for Extension of Time 6--8, ECF No. 18. Judge Schulze held a telephone hearing on November 27, 2012 to discuss these issues and during that hearing, Defendant also complained that Plaintiff had not responded to its requests to schedule Plaintiff's deposition. On November 27, 2012, Judge Schulze granted Plaintiff's Motion for Extension of Time, and instructed Plaintiff to provide Defendant with deposition dates no later than November 30, 2012, and to provide to Defendant her Rule 26(a)(2) disclosures by December 7, 2012. Nov. 27, 2012 Paperless Order, ECF No. 20. Judge Schulze also extended the discovery deadline to February 5, 2013. Id.

Currently pending is Defendant's Motion for Sanctions, ECF No. 22. In its Motion, Defendant raises three specific arguments: (1) that Plaintiff "failed to file a 26(a)(2) [d]isclosure on December 7, 2012" and failed to comply with the Court's November 27, 2012 Order requiring her to do so; (2) that Plaintiff "failed to respond to Defendant's request to depose Plaintiff on November 30, 2012 as ordered by the Court"; and (3) that Plaintiff's "answers to Interrogatories and Requests for Production of Documents are incomplete and deficient."*fn2 Def.'s Mot. 1--2. Defendant further argues that "Plaintiff's evasive discovery tactics . . . have cost the Parties additional time for discovery and denied Defendant a reasonable opportunity to complete discovery," resulting in prejudice to Defendant. Id. at 2. As such, Defendant requests "attorney's fees and costs for the filing of [its] motion, the prior motion to compel, and the opposition to Plaintiff's motion to extend time to file an expert disclosure." Id. at 9.

In opposition, Plaintiff argues that "[t]he [D]efendant has fabricated a dispute to hide the fact that it has not fully complied with [d]iscovery to this point." Pl.'s Opp'n 1. Plaintiff purports to have "followed the Court's Order and . . . complied with all requests," because (1) "[c]hoosing to file a 26(a)(2) [d]isclosure is not a mandatory Order" and "Plaintiff "elected not to file the [d]isclosure"; (2) "[D]efendant failed to follow through" with Plaintiff's alleged immediate reply to Defendant's inquiry as to a deposition date; and (3) the determination that "discovery responses are incomplete and deficient is subjective and relative to [Plaintiff]'s information, knowledge and actual possession," and therefore, "Plaintiff fully complied to the best of her ability." Id. at 2.

In reply, Defendant correctly points out that there "are several sections to [Rule] 26(a)(2) disclosures" and argues that Plaintiff has failed to make any of the required disclosures for either witnesses required to provide a written report (i.e., retained experts) pursuant to Rule 26(a)(2)(B), or as to any "hybrid witness," such as a treating physician, whose testimony is governed by Rule 26(a)(2)(C). Def.'s Reply 2. Defendant argues that Plaintiff has failed to make the mandatory disclosures pursuant to Rule 26(a)(2)(C) and has failed to provide a "summary of the facts and opinions to which the" treating physician is to testify. Id. Additionally, Defendant argues that contrary to Plaintiff's assertions, she has simply not responded to Defendant's repeated attempts to secure a deposition date and has never cured the deficiencies in her original discovery responses. Id. at 2--3.


A.Plaintiff's failure to appear for her deposition

Pursuant to Fed. R. Civ. P. 37(b)(2)(A), the District Court may impose just sanctions upon a party to failing to obey discovery orders. Sanctions available to the District Court include, but are not limited to:

(i) directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims; (ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence; (iii) striking pleadings in whole or in part; (iv) staying further proceedings until the order is obeyed; (v) dismissing the action or proceeding in whole or in part; (vi) rendering a default judgment against the disobedient ...

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