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Johnson v. City of Birmingham

United States District Court, N.D. Alabama, Southern Division

March 4, 2019

CITY OF BIRMINGHAM, ALABAMA, et al., Defendants.



         On January 23, 2019, Defendants City of Birmingham, Alabama, and Officer Ivey Nicole Jackson (the “City Defendants”) renewed their motion to dismiss this case with prejudice for want of prosecution. (Doc. 56). Although he had not joined in the original motion, Defendant Torrey Gibbs (“Gibbs”) has joined in these Defendants' renewed motion. (Doc. 57). The undersigned provided a February 7, 2019 deadline for Plaintiff Quiandra Johnson (“Johnson”) to respond. (Doc. 58). However, Johnson did not comply with that deadline, instead filing a response twelve days after it had passed. (Doc. 60). Gibbs has filed a reply in support of the City Defendants' motion. (Docs. 61). For the reasons stated below, the City Defendants' motion to dismiss, (doc. 56), is due to be GRANTED.

         I. Background

         At the outset of this case, Johnson was represented by counsel. On May 2, 2018, her counsel moved to withdraw. (Doc. 41). Counsel attached a letter from Johnson dated the same day stating Johnson was terminating the attorney-client relationship and requesting the return of her file. (Doc. 41-1). Counsel represented to the court that she had provided a copy of her motion to withdraw to Johnson and informed her of her right to object within fourteen days. (Doc. 41 at 2). Johnson did not object, and the undersigned granted the motion to withdraw on May 21, 2018. (Doc. 42).

         Subsequently, Johnson refused in large part to participate in this case. On October 1, 2018, the City and Officer Jackson moved to compel discovery responses from Johnson and from Officer Gibbs, which at that point were more than fifty days late. (Doc. 45). The undersigned set an opposition deadline, (doc. 46), but neither party responded. The undersigned granted the motion to compel on October 18, 2018, ordering discovery responses by November 1, 2018. (Doc. 47).

         On November 2, 2018, the City Defendants moved to dismiss the complaint for lack of prosecution. (Doc. 49). According to the City Defendants, Johnson had not complied with the order and had refused to produce responses, sit for her deposition, or participate in the lawsuit at all without an attorney. (Id. at 1-3). The City Defendants claimed that Johnson has communicated her refusal to sit for her deposition in multiple phone calls and her refusal to participate in the case in one phone call. (Id. at 2-3).

         The undersigned held a hearing on the motion to dismiss on November 28, 2018. Although the order setting the hearing noted in bold, underlined text that “Plaintiff is required to attend the hearing, ” (doc. 52), and one of the undersigned's law clerks had called Plaintiff to inform her of the date and time of the hearing and that she was required to attend, Plaintiff did not appear at that hearing. The undersigned's staff called Plaintiff to determine whether she planned to attend, ultimately placing her on speakerphone in open court. Because Plaintiff stated she intended to pursue the case and was looking for new counsel, the undersigned reset the hearing on the motion to dismiss, providing “one final opportunity to address the motion to dismiss for failure to prosecute.” (Doc. 53) (emphasis in original).

         On December 18, 2018, the undersigned held the reset hearing. Johnson appeared at this hearing in person, stating she had not found counsel but intended to keep looking. The undersigned informed Johnson that regardless of whether she had found counsel, she was responsible for prosecuting this case, including through providing discovery responses to Defendants and sitting for her deposition, and Johnson acknowledged that obligation. The undersigned entered an order the same day stating the following:

Under Fed.R.Civ.P. 41(b), the court may dismiss a case when “the plaintiff fails to prosecute or comply with these rules or a court order.” Dismissal with prejudice, as the moving defendants request, “is an extreme sanction that may be properly imposed only when: (1) a party engages in a clear pattern of delay or willful contempt (contumacious conduct); and (2) the district court specifically finds that lesser sanctions would not suffice.” Betty K Agencies, Ltd. v. M/V MONADA, 432 F.3d 1333, 1338 (11th Cir. 2005) (emphasis in original, citation omitted). Although Johnson's refusal to cooperate in discovery and failure to attend the previous hearing might support a clear pattern of delay, the undersigned does not believe that the conduct Johnson has demonstrated is sufficiently egregious to merit dismissal with prejudice. Therefore, the Moving Defendants' motion, (doc. 49), is DENIED. However, Plaintiff is warned that her past conduct will be considered if she fails to abide by her discovery obligations and the issue is before the court again.

(Doc. 54 at 2) (emphasis added).

         On January 23, 2019, the City Defendants filed the instant motion. (Doc. 56). The City Defendants allege that on December 28, 2018, they re-noticed Johnson's deposition for January 23, 2019. (Id. at 2; doc. 56-2). However, Johnson spoke with counsel for the City Defendants on January 22, 2019 - the day before her deposition was scheduled - and informed them that she would not attend the deposition because she had a mandatory class on the date of the deposition. (Id. at 2-3). The City Defendants state the call “ended abruptly, ” and Johnson did not appear at her scheduled deposition. (Id.). The undersigned set a February 7, 2019 deadline for Johnson to respond to the motion to dismiss. (Doc. 58).

         On January 25, 2019, Johnson filed a one-page motion - dated January 18, 2019, but postmarked January 23, 2019 - asking the court to reschedule the deposition. (Doc. 59). The motion indicated the scheduled date “is critical for [Johnson's] attendance in class.” (Id.). Johnson did not otherwise respond to the motion to dismiss by the deadline set out in the order.

         On February 19, 2019, Johnson filed her opposition to the motion to dismiss. (Doc. 60). Johnson begins her response by defending the adequacy of her complaint under the Federal Rules of Civil Procedure, which is not at issue here. (Id. at 1). She continues by disputing that the phone call with the City Defendants' counsel ended abruptly, but she does not dispute that she refused to sit for her scheduled deposition. (Id. at 1-2). Finally, Johnson notes that she submitted discovery responses as ordered, which she says shows she is “abiding by the procedures that are in my control.” (Id.).

         II. ...

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