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Dearman v. Hostess Brands, LLC

United States District Court, S.D. Indiana, Indianapolis Division

July 13, 2018

Felicia Dearman, Plaintiff,
v.
Hostess Brands, LLC, Defendant.

          ORDER

          Hon. Jane Magnus-Stinson, Chief Judge

         This 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.

         I. Background

         On 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.

         A. Hostess' First Set of Interrogatories and Document Requests

         In May 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.]

         On 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.]

         On 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.]

         B. Documents Referenced During Ms. Dearman's Deposition

         On 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.]

         On 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.]

         On 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.]

         On 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.]

         On 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 Returns/Payroll ...


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