United States District Court, S.D. Alabama, Southern Division
REPORT AND RECOMMENDATION
BRADLEY MURRAY UNITED STATES MAGISTRATE JUDGE
BELO action has been referred to the undersigned, in
accordance with 28 U.S.C. § 636(b)(1)(B) and S.D. Ala.
GenLR 72(a)(2)(S), for appropriate action. For the reasons
stated herein, it is recommended that, at a minimum, the
Court dismiss this action without prejudice based upon
Plaintiff's failure to prosecute this action and comply
with the Court's orders dated May 29, 2019 (Doc. 30),
August 14, 2019 (Doc. 36) and August 28, 2019 (Doc. 38).
Alternatively, it is recommended that the Court
GRANT the Defendants' motion for
sanctions and dismissal of case with prejudice (Doc, 37) and
dismiss this action with prejudice, as an appropriate
sanction under Federal Rule of Civil Procedure
37(b)(2)(A)(v), because no other sanction will suffice in
light of Plaintiff's blatant disregard for his discovery
BELO action was transferred to this Court from the Eastern
District of Louisiana at the end of 2018. (See Docs.
6-7.) Plaintiff was initially represented by Nathan L. Nelson
of the Downs Law Group (see Docs. 18-19); at the end
of April of 2019, however, Gabriel Hawa from the Downs Law
Group appeared pro hac vice for Navarro and began
representing him in this Court (see Doc. 29). Mr.
Hawa entered his appearance shortly after this Court stayed
all BELO cases in this District pending entry of a global
BELO Case Management Order (“CMO”). (Compare
Id. with Doc. 28 (order staying case entered on April
Court entered its BELO CMO on May 29, 2019. (Doc. 30). In
relevant measure, the CMO sets a discovery completion date of
12 months from the docketing date of the CMO in all BELO
cases, like the present one, that already had been
transferred to this District (see id., ¶ 8, at
5) and apprised each Plaintiff of certain self-executing
discovery responsibilities (see id., ¶ 8.b., at
6-7 (“Within forty-five (45) days of the docketing
date, plaintiff shall produce to the BP defendants (a) all
medical records, and (b) records that support causation . .
., other than those documents previously produced pursuant to
(II)(1)(A) of the BELO Cases Initial Proceedings Case
Management Order, entered by Magistrate Judge Joseph C.
Wilkinson, Jr., in the Eastern District of Louisiana on
January 30, 2015, if any. Further, plaintiff will execute the
authorizations attached to this Order and produce
them to the BP defendants at the same time.”)). The CMO
also sets forth certain discovery limits (e.g., a
total of 25 interrogatories and requests for admission and 35
requests for production) and provides that responses to
interrogatories are due within 45 days of service while
responses to requests for production and admission are due
within 30 days of service. (Doc. 30, ¶ 10, at 7-8).
the CMO, Plaintiff's self-executing discovery
responsibilities were to be
“performed/accomplished” by not later than July
15, 2019. In addition, on July 1, 2019, the
Defendants filed notice of their service of first
interrogatories and requests for production on June 30, 2019
(Doc. 31), making Mr. Navarro's responses to the
interrogatories due not later than August 14, 2019 and his
responses to the requests for production due not later than
July 30, 2019 (compare Id. with Doc. 30, ¶ 10).
days after Plaintiff was to have provided the Defendants with
the executed authorizations and any available records not
previously produced outlined in ¶ 8.b. of the CMO, that
is, on July 25, 2019, Plaintiff's counsel filed an ex
parte motion to withdraw as counsel of record without
substitution and to stay proceedings (Doc. 32). This motion
was set down for a telephone conference on August 13, 2019.
(See Docs. 33 & 35). Before the conference was
conducted, the Defendants filed a response opposing the
requested stay of proceedings (Doc. 34). After hearing from
Gabriel Hawa, Esquire, and Plaintiff Gilberto Navarro at some
length by telephone, the undersigned entered an Order on
August 14, 2019 granting the motion to withdraw because of
the “extreme difficulties” counsel for Plaintiff
were experiencing in “successfully communicating”
with their client regarding “his responsibilities in
this litigation[, ]”-which the undersigned found
apparent on the face of the record since the Defendants had
not received the executed authorizations or supplemental
records set forth in ¶ 8.b. of the CMO nor
Plaintiff's responses to propounded written requests for
production-and because of anticipated future similar
difficulties litigating this action since Mr. Navarro resides
in the Northeast (Lawrence, Massachusetts) instead of the
Gulf Coast. (Doc. 36, at 1-3.) At the same time, however, the
undersigned specifically denied the request for a stay and
informed Mr. Navarro that he was
responsible for ensuring that this case stays on track and
that he meets all deadlines and responsibilities set forth in
the CMO. To this end, the Court specifically ORDERS Plaintiff
to respond to all outstanding discovery (the interrogatories
and requests for production propounded by Defendants on June
30, 2019) and CMO deadlines (specifically, the deadline to
provide executed authorizations and supplemental records) not
later than August 23, 2019.
(Id. at 3 (footnote omitted)). Plaintiff was
specifically informed that if the packet of information he
stated on the telephone conference that he was going to fax
to defense counsel by the end of business on August 14, 2019
did not contain everything identified in the Order
(e.g., his responses to the Defendants'
propounded requests for production and interrogatories), he
was to produce all such information to the Defendants
“not later than August 23, 2019” and that
“any failure to respond as ordered herein may lead to
the imposition of sanctions as outlined in Rule
37(b)(2)(i)-(vii) of the Federal Rules of Civil
Procedure.” (Id. n.3).
of producing all information outlined in the August 14, 2019
Order by August 23, 2019, Plaintiff eschewed this directive,
as outlined in Defendants' motion for sanctions and
dismissal of case with prejudice (Doc. 37), by failing to
serve his responses to the Defendants' propounded
interrogatories and requests for production of documents
(see Id. at ¶¶ 5 & 7). The filing of
this motion for sanctions prompted the undersigned to enter a
show cause order on August 28, 2019. (Doc. 38).
Mr. Navarro is ORDERED TO SHOW CAUSE in writing, not later
than September 11, 2019, why this Court should not dismiss
his action with prejudice as a sanction for his failure to
comply with the undersigned's August 14, 2019 Order by
responding to all outstanding discovery by not later than
August 23, 2019.
Mr. Navarro is also specifically ADVISED
that should he fail to file a written response to this order
by not later than September 11, 2019, it will be
undersigned's additional (or, perhaps, sole)
recommendation that this action be dismissed without
prejudice on account of his failure to prosecute and comply
with the orders of this Court.
(Id. at 2 (internal citation omitted)). To date,
this Court has not received a written response from Mr.
Navarro to its August 28, 2019 show cause order.