Arnold v. ADT Sec. Serv., Inc., 09-3565

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Citation: 78 Fed.R.Serv.3d 429,627 F.3d 716
• Docket Number: No. 09-3565,09-3565
• Parties: Cathy ARNOLD; Cynthia Braxton; GaBrielle Doran, Plaintiffs/Appellants, Sheila Craig; Andrea Curns; Shannel Smith; Kevin May, Plaintiffs, Elle J. Sullivant, Interested Party/Appellant, v. ADT SECURITY SERVICES, INC.; Dinesh Chand, Defendants/Appellees, Tyco Fire (NV) Inc., Defendant.
• Decision Date: 14 December 2010

627 F.3d 716
78 Fed.R.Serv.3d 429

Cathy ARNOLD; Cynthia Braxton; GaBrielle Doran, Plaintiffs/Appellants,
Sheila Craig; Andrea Curns; Shannel Smith; Kevin May, Plaintiffs,
Elle J. Sullivant, Interested Party/Appellant,
v.
ADT SECURITY SERVICES, INC.; Dinesh Chand, Defendants/Appellees,
Tyco Fire (NV) Inc., Defendant.

No. 09-3565.

United States Court of Appeals,
Eighth Circuit.

Submitted: Sept. 21, 2010.
Filed: Dec. 14, 2010.

627 F.3d 718

Elle J. Sullivant, argued, Independence, MO, for appellant.

Patrick Francis Hulla, argued, Nicholas James Walker, on the brief, Kansas City, MO, for appellee.

Before WOLLMAN, LOKEN, and HANSEN, Circuit Judges.

WOLLMAN, Circuit Judge.

Cathy Arnold, Cynthia Braxton, GaBrielle Doran, and others not joined in this appeal (collectively, plaintiffs) brought this suit against their former employer, ADT Security Systems, and supervisor, Dinesh Chand (collectively, ADT). The district court ¹ dismissed with prejudice the plaintiffs' claims against ADT and ordered that plaintiffs (excluding Arnold and Braxton) and plaintiffs' counsel, Elle Sullivant, be jointly and severally liable to pay ADT $12,488.00. Arnold, Braxton, and Doran appeal from the dismissal with prejudice of their claims and the denial of their motion for an extension of time to designate experts. Doran and Sullivant appeal from the orders: (1) granting the motion to compel and requiring them to pay $10,988.00 in attorneys' fees and a $100 per day fine; and (2) denying their motion for reconsideration and their motion to stay the imposition of sanctions. We affirm.²

I.

In 2005, Arnold and Braxton filed suit against ADT for racial discrimination, hostile work environment, and negligent infliction of emotional distress. Doran joined the lawsuit as a plaintiff in August 2006. In October 2006, ADT served Doran with initial discovery requests and Arnold and Braxton with supplemental discovery requests. Two years later, discovery remained incomplete, and the case was transferred to the Honorable Gary A. Fenner, United States District Judge for the

627 F.3d 719

Western District of Missouri. At a December 2008 discovery conference, the district court noted the importance of moving the case forward without further delay and established new discovery deadlines. The new schedule required that plaintiffs designate experts by February 10, 2009.³

The district court further ordered plaintiffs to provide the following to ADT by December 23, 2008: (1) executed medical, employment, and tax authorizations; (2) complete and full responses to interrogatories; and (3) all documents that had been requested. Although plaintiffs timely supplemented their discovery responses, their interrogatory responses and document production remained incomplete.⁴ Doran also failed to provide executed authorizations. Shortly thereafter, ADT notified plaintiffs that their responses were deficient and that ADT had requested another telephone conference with the court to resolve the discovery issues.

During the January 20, 2009, telephone conference, the district court ordered plaintiffs to complete the discovery requests by January 30, 2009. It warned plaintiffs that "if they failed to comply with its directives, it would entertain sanctions up to, and including, dismissal of Plaintiffs' claims." D. Ct. Order of Mar. 31, 2009. Moreover, the district court authorized ADT to file a motion to compel discovery. Although plaintiffs supplemented their responses, ADT still found them lacking and thus filed a motion to compel and request for sanctions.

The district court agreed that plaintiffs' discovery responses remained incomplete. It granted the motion to compel and request for attorneys' fees sanctions, but denied the request for sanctions of dismissal. Id. The district court allowed the plaintiffs another two weeks to fully respond to ADT's discovery requests. The district court ordered sanctions in the amount of $100 per day against plaintiffs (excluding Arnold and Braxton) ⁵ and Sullivant to commence on April 16, 2009, and continuing until they completed their responses and produced all necessary documents. Id. at 8.

Plaintiffs moved for reconsideration of and relief from the district court's order imposing sanctions. Plaintiffs also moved to stay the part of the district court's order levying daily fines. Plaintiffs argued that ADT had provided new evidence, that plaintiffs' deficient responses were justified, and that the sanctions were unjust. The district court denied the motions. D. Ct. Order of Apr. 22, 2009.

627 F.3d 720

Thereafter, Sullivant moved to withdraw from the case, citing an inherent conflict of interest, possible violations of professional responsibility, and medical conditions. The district court granted the motion and ordered that Sullivant notify plaintiffs that they were required to obtain new counsel and to attend a June 2009 status conference. D. Ct. Order of May 7, 2009. The district court also sent notice of the status conference to plaintiffs at their addresses listed in the amended complaint. Braxton's notice was returned as undeliverable to the district court, but a certified letter to Braxton was signed for on November 2, 2009, at the same address. The district court dismissed with prejudice Arnold's and Braxton's claims against ADT after they failed to attend the June 2009 status conference. D. Ct. Order of June 22, 2009. Doran informed the district court that she was having car trouble and would miss the status conference. Id. at 1 n. 1. The district court ordered her to obtain new counsel or notify the district court by July 13, 2009, of her intent to proceed pro se. Id. On July 17, 2009, the district court dismissed with prejudice Doran's claims after she failed to comply with the district court's order. D. Ct. Order of July 17, 2009.

II.

A. Motion to Compel and Request for Sanctions

Upon granting a motion to compel, a court must require the party "whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees." Fed.R.Civ.P. 37(a)(5)(A). Such payment must be ordered unless (1) the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action, (2) the nondisclosure was substantially justified, or (3) other circumstances would make the award of expenses unjust. Id. Doran and Sullivant do not appeal from the district court's grant of ADT's motion to compel, but rather argue that ADT did not attempt to confer in good faith and that the district court failed to analyze whether their nondisclosure was substantially justified or whether the award...