Garcia v. Alicare Medical Management

2010 DNH 184

• Court: District Court, D. New Hampshire
• Decided: October 19, 2010
• Docket: CV-10-26-JL
• Status: Published

Opinion

Garcia v . Alicare Medical Management CV-10-26-JL 10/19/10

UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Peter Garcia

v. Civil N o . 10-cv-26-JL Opinion N o . 2010 DNH 184 Alicare Medical Management

SUMMARY ORDER

Defendant Alicare Medical Management has moved for judgment

on the pleadings, see Fed. R. Civ. P. 12(c), in this case

alleging that Alicare violated the Americans with Disabilities

Act (“ADA”) by refusing to hire plaintiff Peter Garcia for a

medical director position because he is hard of hearing. See 42

U.S.C. § 12112 (prohibiting “discriminat[ion] against a qualified

individual on the basis of disability in regard to job

application procedures, the hiring . . . of employees,” and other

employment-related matters). Alicare argues that the case should

be dismissed because Garcia, who is appearing pro s e , has not

made an initial disclosure of his alleged damages computation as

required by Fed. R. Civ. P. 26(a)(1)(A)(iii). This court has

subject-matter jurisdiction over the case under 28 U.S.C. § 1331

(federal question).

The motion is denied. As an initial matter, Alicare should

have brought its motion under Fed. R. Civ. P. 37(c), since the motion is really a request for dismissal based on Garcia’s

alleged “fail[ure] to provide information . . . as required by

Rule 26(a),” id., not a motion for judgment on the pleadings

under Rule 12(c). Where a party violates Rule 26(a), and the

violation is neither “substantially justified” nor “harmless,”

Rule 37(c) gives the court discretion to choose from a wide range

of possible sanctions. See Fed. R. Civ. P. 37(c)(1)(A)-(C)

(incorporating other sanctions listed in Fed. R. Civ. P.

37(b)(2)(A)(i)-(vi)). Dismissal is the harshest of those

sanctions, see Ortiz-Lopez v . Sociedad Espanola de Auxilio Mutuo

y Beneficiencia de P.R., 248 F.3d 2 9 , 34 (1st Cir. 2001), and

thus requires a “robust” justification. Cruz-Vazquez v .

Mennonite Gen. Hosp., Inc., 613 F.3d 5 4 , 58 n.1 (1st Cir. 2010).

In this case, Alicare is correct that Garcia failed to

provide a damages computation in his initial disclosures, as

required by Rule 26(a). But Garcia eventually provided such a

computation to Alicare in a letter sent two weeks before this

motion was filed (and with the case still in its early stages).

See document n o . 16-3. Specifically, Garcia disclosed that

“compensatory damages are the only type of damages . . . which

have occurred up to this point” and that those alleged

“compensatory damages would be the difference between the salary

I would have received as the medical director at Alicare and my

2 ‘earnings’ over the time period from other activities.” Id.

Garcia produced documentation of his earnings, but explained that

he could not compute the salary information for the medical

director position because Alicare had not yet produced that

information in response to his discovery requests.

Alicare has not identified any appreciable harm that it has

suffered from Garcia’s late disclosure of his damages

computation. As far as the record indicates, the late disclosure

was harmless. Moreover, while Alicare’s delay in producing the

salary information for the medical director position did not

excuse Garcia from making an initial disclosure “based on the

information then reasonably available” to him, Fed. R. Civ. P.

26(a)(1)(E), it is nonetheless worth noting that Garcia is a pro

se litigant1 and appears to have been proceeding under the mis-

impression that he could wait for Alicare’s production. Rule

37(c) is expressly designed “to avoid unduly harsh penalties in a

variety of situations,” including “the lack of knowledge of a pro

se litigant of the requirement to make disclosures.” Fed. R.

Civ. P. 37(c), advisory committee notes (1993).

1 Alicare notes that Garcia is a lawyer (as well as a doctor), but he is not admitted to the bar of this court, does not appear to be actively practicing law, and is not appearing here in that capacity.

3 This court therefore concludes that dismissal would be an

inappropriate sanction under Rule 37(c) for Garcia’s late

disclosure of his damages computation. Alicare has not requested

any other sanction and, in any event, this court would not be

inclined to grant even a lesser sanction, since Garcia’s

discovery violation was harmless. Alicare’s motion for judgment

on the pleadings2 is accordingly DENIED.

In briefing that motion, the parties also addressed a number

of other ongoing discovery disputes, including a dispute over the

location of Garcia’s deposition and a dispute over Alicare’s

refusal to produce responsive documents without a protective

order as to confidentiality. To keep the discovery process on

track, the court orders Garcia to make himself available for a

deposition by oral examination, see Fed. R. Civ. P. 3 0 , to be

conducted in New Hampshire (Garcia’s chosen forum for this

litigation) on a date mutually agreeable to the parties, but no

later than December 3 1 , 2010 (unless the parties agree or already

have agreed to other arrangements for the deposition). In

addition, the court orders Alicare to file a proposed protective

order by October 2 7 , 2010, see Fed. R. Civ. P. 26(c), which shall

include reciprocal confidentiality protection for both parties.

2 Document n o . 1 5 .

4 Garcia shall file his objections, if any, to that proposed order

by November 5 , 2010.

SO ORDERED.

y^jV^rs^ Joseph N. Laplante rnited States District Judge

Dated: October 1 9 , 2010

cc: Peter Garcia, pro se Naomi L . Mooney, Esq.