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Navarro v. BP Exploration & Production, Inc.

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

September 20, 2019

GILBERTO NAVARRO, Plaintiff,
v.
BP EXPLORATION & PRODUCTION, INC., et al., Defendants.

          REPORT AND RECOMMENDATION

          P. BRADLEY MURRAY UNITED STATES MAGISTRATE JUDGE

         This 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 responsibilities.

         FACTUAL BAKGROUND

         This 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 18, 2019)).

         This 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).

         Under the CMO, Plaintiff's self-executing discovery responsibilities were to be “performed/accomplished” by not later than July 15, 2019.[1] 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).

         Ten 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).

         Instead 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.

         CONCLUSIONS ...


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