Sloane v. Thompson

128 F.R.D. 13, 15 Fed. R. Serv. 3d 593, 1989 U.S. Dist. LEXIS 11834, 1989 WL 116986
CourtDistrict Court, D. Massachusetts
DecidedSeptember 22, 1989
DocketCiv. A. No. 83-195-WF
StatusPublished
Cited by1 cases

This text of 128 F.R.D. 13 (Sloane v. Thompson) is published on Counsel Stack Legal Research, covering District Court, D. Massachusetts primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sloane v. Thompson, 128 F.R.D. 13, 15 Fed. R. Serv. 3d 593, 1989 U.S. Dist. LEXIS 11834, 1989 WL 116986 (D. Mass. 1989).

Opinion

MEMORANDUM AND ORDER

WOLF, District Judge.

This is an action in which plaintiff Edith Sloane seeks damages pursuant to the Employee Retirement Income Security Act, 29 U.S.C. § 1001 et seq. (“ERISA”) and under various laws of Massachusetts. The suit arises from the termination of Sloane’s employment at defendant Tab Products Company (“Tab”) and the subsequent refusal of certain defendants to provide medical benefits to which Sloane claims entitlement. In addition to Tab, Sloane has named as defendants several Tab employees, the Tab medical plan, and Banker’s Life Company (“Banker’s Life”), which had contracted with Tab to provide certain administrative services in connection with the medical plan.

Sloane alleges that she was terminated in retaliation for her claim for medical benefits and that the defendants improperly denied her claim pursuant to the applicable medical plan documents. Sloane also asserts that as a result of the defendants’ wrongful termination of employment and denial of medical benefits she has suffered bodily and emotional injury for which she seeks compensatory damages in the amount of $1,000,000. See Amended Complaint 1121 et seq. She also seeks punitive damages, and other monetary relief. Id.

On February 24, 1988, the Tab defendants (Richard Thompson, Carolyn Mitchell, Tab Products Company and Tab Products Medical Plan) filed a motion to dismiss Sloane’s claims for failure to obey a court order requiring plaintiff to submit to a physical examination by February 19, 1988. The motion to dismiss was renewed on May 6, 1988 when plaintiff again failed to com[14]*14ply with a second order of the court requiring plaintiff to attend a scheduled medical examination. Plaintiff opposes the motion to dismiss.

A hearing concerning the motion to dismiss was held on September 19, 1989. Upon consideration of the arguments of the parties, for the reasons stated below, the motion to dismiss for repeated violations of court orders must be allowed.

I. FACTS

The facts relevant to the motion to dismiss are as follows. On December 22, 1987, the court scheduled a status conference in this case for January 11, 1988 and ordered the parties, including Sloane, to attend with their counsel. Prior to the conference, the Tab defendants requested and received permission to be available by telephone rather than to appear in person at the January 11, 1988 conference since they reside in California. On January 11, 1988, the court held the status conference. Sloane did not, however, appear. Since the court had received no notice that Sloane would not appear, the court ordered plaintiff's counsel to file an affidavit and memorandum to show cause why Sloane should not be held in contempt for her failure to attend the conference.

At the January 11, 1988 conference, counsel agreed, and the court ordered, that plaintiff would be examined by defendants’ doctor by February 19, 1988 in order to facilitate trial preparation and settlement discussions. A written order memorializing the directions given on January 11, 1988 concerning this examination, among other things, was entered on January 20, 1988. On January 15, 1988, Tab’s counsel notified plaintiff’s counsel that an examination of Sloane had been scheduled for January 28, 1988 with Dr. Edwin Wyman.

On February 1, 1988, the court decided that, in view of the affidavit of plaintiff’s counsel, no sanction for Sloane’s failure to attend the January 11, 1988 conference would be imposed. The affidavit explained that Sloane found it difficult to leave her home because of her health, and was not able to make the necessary arrangements to attend the conference.

Sloane failed to comply with the court order requiring that she submit to a medical examination by defendants’ doctor by February 19, 1988. Thus, on February 24, 1988, the defendants moved for dismissal of plaintiff’s claims because she disobeyed the court’s order and refused to submit to a physical examination. Plaintiff filed an opposition to this motion on March 7, 1988.

On March 9, 1988, this court again ordered Sloane to attend, by April 8, 1988, a medical examination by the physician designated by defendants. In that Order the court stated, in part, that, “If [Sloane] fails to attend, the court will consider defendants’ motion to dismiss and may grant it.”

On April 5, 1988, plaintiff requested an extension of the time limit imposed by the court’s March 9, 1988 order to allow Sloane to be examined on May 4, 1988. The court solicited a response from defendants. Defendant Banker’s Life replied that it did not oppose the medical examination being deferred until May 4, 1988.

On May 6, 1988, counsel for defendant Tab informed the court that Sloane had refused to appear for the medical examination rescheduled for May 4,1988. Tab also renewed the request that plaintiff’s complaint be dismissed because of Sloane’s refusal to obey the court’s orders.

At the September 19, 1989 hearing plaintiff’s counsel informed the court that she had recently consulted Sloane, who would continue to refuse to submit to a medical examination if again ordered to do so.

II. ANALYSIS

Fed.R.Civ.P. 37(b)(2)(C) provides that a court may issue just and appropriate sanctions, including dismissal, for failure to comply with a discovery order. Fed.R.Civ.P. 41(b) permits a court to dismiss an action for failure to comply with an order of the court. The same considerations are relevant with regard to dismissal under Rules 37(b)(2)(C) and 41(b), both of which are implicated in the instant case. United States v. Pole No. 3172 Hopkinton, 852 F.2d 636, 642 (1st Cir.1988).

[15]*15Dismissal of an action is appropriate when plaintiff’s misconduct is extreme and no lesser sanctions would be truly appropriate. Enlace Mercantil Internacional v. Senior Industries, 848 F.2d 315, 317 (1st Cir.1988). Indicia of “extreme” misconduct include “disobedience of court orders, ignorance of warnings, [and] contumacious conduct,” as well as other aggravating circumstances. Id.

The court has concluded that dismissal is necessary and appropriate in this case because plaintiff’s misconduct has been willful, extreme, and extended; and because the court can not discern an appropriate alternative sanction.

Sloane does not claim, let alone offer evidence, that she has been physically unable to comply with the court’s orders that she be examined. Rather, in her opposition to dismissal, Sloane claims, for the first time, that the court could not order her to submit to a medical exam because the exam was only necessary for settlement purposes. Specifically, Sloane argues that this court’s orders did not and could not comply with Fed.R.Civ.P. 35(a).1

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128 F.R.D. 13, 15 Fed. R. Serv. 3d 593, 1989 U.S. Dist. LEXIS 11834, 1989 WL 116986, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sloane-v-thompson-mad-1989.