United States District Court, S.D. Indiana, Indianapolis Division
Jane Magnus-Stinson, Chief Judge
matter is before the Court on Defendant's Motion to
Dismiss for failure to prosecute and for failure to comply
with the Court's orders. [Filing No. 58.] For
the reasons described herein, the Court
GRANTS Defendant's Motion and concludes
that Plaintiff Felicia Dearman's Complaint must be
dismissed with prejudice.
March 8, 2017, Ms. Dearman filed her Complaint in this Court,
alleging a claim pursuant to the Family and Medical Leave Act
of 1993, (the “FMLA”). [Filing No.
1.] Ms. Dearman's Complaint invoked this Court's
federal question jurisdiction, alleging that Defendant
Hostess Brands, LLC, (“Hostess”)
violated the FMLA by terminating her employment in
retaliation for requesting and taking FMLA leave, or, in the
alternative, by failing to give her leave to which she was
entitled under FMLA. [Filing No. 1 at 2-3];
see29 U.S.C. § 2615. Throughout the subsequent
discovery process, Hostess sent several emails to Ms.
Dearman's counsel and ultimately filed several motions
with this Court alleging that Ms. Dearman's responses to
Hostess' discovery requests were inadequate.
Hostess' First Set of Interrogatories and Document
2017, discovery in the case commenced, beginning with Hostess
serving written discovery requests on Ms. Dearman, and Ms.
Dearman responding on July 21, 2017. [Filing No.
37-1; Filing No. 37-2.] On August 7, 2017,
Hostess sent a letter to Ms. Dearman's counsel alleging
that her responses to Hostess' first set of
interrogatories and document requests were deficient, and
requesting that Ms. Dearman respond to Hostess by August 16,
2017. [Filing No. 37-3.] Hostess specifically
highlighted Ms. Dearman's allegations that Hostess'
request for the production of her bills and cell phone
records were irrelevant, and requested a response on the
matter within two days. [Filing No. 37-3 at 5.]
August 16, 2017, Hostess contacted Ms. Dearman to determine
whether she would “be providing responses to the . . .
issues” that Hostess raised in its August 7, 2017
letter. [Filing No. 37-4.] Hostess again highlighted
the issue of Ms. Dearman's phone bills and call records,
and requested an update on Ms. Dearman's position on the
matter by the close of business. [Filing No. 37-4 at
1.] On August 30, 2017, Hostess advised the Court that
Ms. Dearman's counsel had telephonically agreed that Ms.
Dearman would produce her phone records and cell phone for
inspection, but that Ms. Dearman had otherwise failed to
respond to Hostess' August 7, 2017 letter. [Filing
No. 27 at 2-3.]
September 7, 2017, the Magistrate Judge held a discovery
conference and ordered Ms. Dearman to serve supplemental
discovery responses by September 14, 2017. [Filing No.
32.] Ms. Dearman served supplemental discovery responses
on Hostess on September 14, 2017; however, her responses did
not address the production of her phone records and cell
phone. [Filing No. 37-5.]
Documents Referenced During Ms. Dearman's
September 27, 2017, following Ms. Dearman's deposition
taken a few days prior, Hostess sent an email to Ms.
Dearman's counsel regarding several documents that Ms.
Dearman allegedly referenced during her deposition, but had
not produced to Hostess up to that point in discovery. In its
email to Ms. Dearman's counsel, Hostess requested
“updated interrogatory responses that include the
additional healthcare providers Ms. Dearman identified in her
deposition, ” along with “a copy of the email
with Bill Hagen that Ms. Dearman testified to having related
to a request for vacation on July 9, 2016 as soon as
possible.” [Filing No. 37-6 at 2.] In
addition, Hostess stated that, “[g]iven her testimony
regarding the document requests generally, please confirm
that Ms. Dearman has actually made a real effort to search
for and has provided all responsive documents in her
possession, custody or control that are called for by
Defendant's document requests at your earliest
convenience.” [Filing No. 37-6 at 2.]
November 2, 2017, Hostess sent a follow up email to Ms.
Dearman's counsel, stating that it had not received a
response to its September 27, 2017 email and reiterating
Hostess' request for the documents identified in the
September 27, 2017 email. [Filing No. 37-6 at 1.]
November 21, 2017, Hostess filed a Motion to Compel, arguing
that Ms. Dearman had not: (1) “provided supplemental
responses to Interrogatory No. 4 and the accompanying medical
authorization forms, ” (2) “produced her phone
records, ” and (3) “searched for and/or produced
the emails and other documents referenced” by Hostess
in the September 27, 2017 email. [Filing No. 37 at
4.] Ms. Dearman opposed the Motion to Compel.
[Filing No. 42.]
December 22, 2017, the Magistrate Judge found that Ms.
Dearman had not “demonstrated her full compliance with
discovery obligations” and ordered her to
“conduct additional searches for responsive documents
and provide them” to Hostess. [Filing No. 45 at
1- 2.] The Magistrate Judge awarded Hostess
$750.00 in attorneys' fees for bringing the motion to
compel. [Filing No. 45 at 10.]
January 5, 2018, Ms. Dearman's counsel emailed Hostess
and stated that Ms. Dearman had “conducted a diligent
search and has produced all documents” responsive to
Hostess' request for “Documents related to
Employment by Hostess, ” “Social Media Documents,
” and “Documents Related to Unemployment/DOL,
” and would imminently produce “Tax