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Coon v. Southwestern Vermont Medical Center

United States District Court, D. Vermont

October 2, 2014

Donald J. Coon, Plaintiff,
Southwestern Vermont Medical Center, Shea Family Funeral Homes, Lon McClintock, Esq., Defendants.


JOHN M. CONROY, Magistrate Judge.

On June 25, 2013, Plaintiff Donald J. Coon, proceeding pro se, commenced this action against several Defendants, including Defendant Shea Family Funeral Homes ("Shea"). The remaining claims in this matter are against Shea only. They are: (1) common-law conversion by repossession of a grave stone installed by Shea; (2) intentional infliction of emotional distress for grave desecration and the removal of the grave stone; and (3) breach of contract for overcharging for professional funeral services. Mr. Coon sought summary judgment in his favor on those claims (Doc. 105), which the Court denied in an Opinion and Order filed on July 16, 2014. (Doc. 164.)[1] Currently pending is Shea's Motion to Dismiss as a Sanction for Plaintiff's Failure to Comply with Discovery Order (Doc. 154).

All parties have consented to direct assignment to the undersigned Magistrate Judge. (Docs. 4, 10, 11, 48.) The Court received the parties' additional briefing (Docs. 190, 197) in response to the Court's Order dated July 30, 2014 (Doc. 180). The Court held a hearing on Shea's Motion to Dismiss on September 25, 2014; Mr. Coon did not appear for the hearing. For the reasons that follow, the Court GRANTS Shea's Motion to Dismiss (Doc. 154).


It is unnecessary here to recount Mr. Coon's factual allegations in complete detail. In brief, Mr. Coon claims that in January 2010, his half-sister Joanne Becker murdered their mother, Joan Marie Hunt, at Southwestern Vermont Medical Center. Mr. Coon also claims that after Ms. Hunt died, Ms. Becker hired Shea to cremate the remains before any autopsy could be performed. In addition, Mr. Coon claims that Shea wrongly concluded that a balance was due for the services it provided (including provision of a grave marker), and that, after the balance went unpaid, Shea desecrated Ms. Hunt's grave and removed the grave marker. Mr. Coon says that he suffered emotional distress as a result of the alleged desecration and the removal of the grave marker, and seeks damages on the order of several million dollars.

Procedural History

On March 7, 2014, Shea filed its Answer (Doc. 89) to Mr. Coon's Amended Complaint (Doc. 17). On March 13, 2014, Shea mailed to Mr. Coon copies of a number of documents, including Shea's First Set of Interrogatories and Requests to Produce. (Doc. 95.) On April 1, 2014, the Court entered a Discovery Schedule/Order. (Doc. 102.) That Order set an April 15, 2014 deadline for Mr. Coon's initial disclosures. The Order also included, among other things, the following additional deadlines: (1) interrogatories and requests for production by September 30, 2014; (2) depositions of all non-experts by August 15, 2014; (3) Mr. Coon's expert witness reports by April 20, 2014 and depositions of Mr. Coon's expert witnesses by May 20, 2014; (4) Shea's expert witness reports by June 20, 2014, and expert depositions by July 20, 2014; and (5) all discovery completed by November 7, 2014. ( Id. at 1.)

On April 18, 2014, Mr. Coon filed a "Motion for Judgment as a Mat[t]er of Law" along with affidavits and multiple exhibits. (Doc. 105.) One of the attachments to that filing is a 45-page collection of medical-related documents. (Doc. 105-19.) For example, there is a September 4, 2013 letter apparently from "W. Marvin Day, RPAC" describing Mr. Coon's "significant amount of medical issues [in] the last several years." ( Id. at 1.) There are also two pages of scanned business cards or appointment reminders at various health providers. ( Id. at 5-6.) Mr. Coon identifies Marvin Day as his "old primary care" doctor, and "Chris Thomas MD" as his "newer primary." ( Id. at 44.)[2]

On April 30, 2014, Shea filed a Motion to Compel (Doc. 106), requesting an order compelling Mr. Coon to provide his initial disclosures and expert reports, and to respond to Shea's Interrogatories and Requests to Produce (Doc. 106-1).[3] In an Order dated May 12, 2014 (the "Discovery Order"), the Court granted Shea's Motion to Compel, requiring Mr. Coon to provide initial disclosures and a written response to Shea's Interrogatories and Requests to Produce on or before June 2, 2014. (Doc. 112.) The Court also concluded that "[n]o expert witness disclosure is required as Plaintiff has advised Defendants' counsel that he does not intend to present expert witness testimony at trial." ( Id. at 3.) The Discovery Order also explicitly warned Mr. Coon of the potential consequences of failing to comply with discovery orders, including dismissal in cases of willfulness, bad faith, or reasonably serious fault. ( Id. at 4-5.)

On May 16, 2014, Mr. Coon filed a Motion seeking an extension of time to satisfy his discovery obligations. (Doc. 117.) In a text order dated June 4, 2014, the Court granted Mr. Coon's Motion for an extension, stating: "Plaintiff must fully comply with his discovery obligations as set forth in 112 [the Discovery Order] on or before 6/16/2014. Plaintiff is again reminded that a willful failure to fully comply with discovery obligations under the Federal Rules of Civil Procedure may result in sanctions, including dismissal of this matter." (Doc. 126.)

In a document dated May 12, 2014, Mr. Coon provided Shea with a five-page response to Shea's interrogatories ("First Response"). (Doc. 154-2.) On or about May 29, 2014, Mr. Coon provided Shea with an eight-page document responding to Shea's interrogatories and requests to produce ("Second Response"). (Doc. 154-3.) On June 20, 2014, Mr. Coon filed a Motion for Permission to File all Discovery Through the Court. (Doc. 140.) In that Motion, Mr. Coon asserted that he had provided Shea with numerous documents, but that Shea was "play[ing] games" and not supplying Mr. Coon with discovery, and was instead complaining that Mr. Coon was not "giving them the proper filings the way they need them." ( Id. at 1-2.) On June 25, 2014, the Court denied Mr. Coon's June 20 Motion, stating: "The Court does not get involved in the discovery process except to the extent required by Fed.R.Civ.P. 37." (Doc. 142.)

Also on June 20, 2014, Shea filed a Motion to Extend the Discovery Schedule, asserting that Mr. Coon had failed to comply with the Court's discovery orders, and that due to Mr. Coon's non-compliance, Shea lacked sufficient information to depose Mr. Coon or to retain or disclose an expert witness by the June 20, 2014 deadline. (Doc. 137 at 1.) On July 17, 2014, the Court granted Shea's June 20 Motion, stating:

Depositions of all non-expert witnesses shall be completed on or before 30 days after Plaintiff has fully complied with the disclosure requirements set forth in 112, 126, Orders of 5/12/2014 and 6/4/2014; Defendant's expert witness reports, if any, shall be disclosed on or before 60 days after Plaintiff has complied in full with 112, 126 Orders. Depositions of Defendant's experts must be completed 30 days thereafter.

(Doc. 168.)

Shea filed its 28-page Motion to Dismiss on July 7, 2014. (Doc. 154). The Motion discusses at length various deficiencies in Mr. Coon's discovery responses. Shea asserts that Mr. Coon has failed to supply initial disclosures. ( Id. at 2.) Regarding Mr. Coon's interrogatory responses, Shea asserts that "[t]he bulk of Plaintiff's First and Second Responses are incomplete, evasive, do not comply with the Discovery Order, and do not append copies of most of the requested documents." ( Id. ) Regarding Mr. Coon's responses to Shea's requests to produce, Shea asserts that Mr. Coon's responses "simply do not provide the documents requested, or any documents." ( Id. at 26.)

Mr. Coon filed an opposition to Shea's Motion to Dismiss on July 14, 2014. (Doc. 166.)[4] Shea filed a Reply on July 18, 2014, asserting that, since it filed its Motion to Dismiss listing deficiencies in Mr. Coon's discovery responses, Mr. Coon has made no efforts to supplement or otherwise provide further discovery. (Doc. 170 at 1.) Shea filed a Supplement on July 23, 2014, acknowledging that Mr. Coon had since sent Shea certain materials, but asserting that some of Mr. Coon's disclosures are still too late or noncompliant, and that he is still refusing to provide relevant documents. (Doc. 174.)

On July 30, 2014, the Court ordered counsel for Shea to file an affidavit under L.R. 26(d)(1), and further ordered the parties to submit memorandums addressing the four factors governing dismissal of actions under Rule 37. (Doc. 180.) Mr. Coon filed a response on August 7, 2014. (Doc. 190.) Shea filed the requested affidavit (Doc. 198) and memorandum (Doc. 197) on August 14, 2014.

Meanwhile, on August 4, 2014, Mr. Coon filed an "Update of Discovery" (Doc. 183), and a "Respon[s]e to [Defendants'] Discovery Complaint for 11th Time" (Doc. 184). On August 7, 2014, Mr. Coon filed a "Request for Judge to Reconsider Dismissal of Case as a Sanction." (Doc. 191.) Shea filed responses to those filings on August 14, 2014. (Docs. 193, 195, 196.) Mr. Coon filed a consolidated response to Shea's August 14, 2014 filings on August 20, 2014. (Doc. 199.)

As noted above, the Court held a hearing on Shea's Motion to Dismiss on September 25, 2014. The hearing was originally scheduled for September 5, 2014 (Doc. 192), but was rescheduled for September 25, 2014 in light of Mr. Coon's assertions regarding his health. ( See Docs. 201-204.) The Court has not found any of those assertions sufficient to warrant a stay of this case or a delay in ruling on Shea's Motion to Dismiss. ( See Docs. 210, 211.) Mr. Coon did not appear at the September 25 hearing.


Shea brings its Motion to Dismiss under Fed.R.Civ.P. 37(a), 37(d), and Local Rule 26(d). (Doc. 154 at 1.) Shea asserts that Mr. Coon's suit should be dismissed with prejudice for Mr. Coon's failure to comply with the Court's May 12, 2014 Order (Doc. 112), as modified by the Court's June 4, 2014 Order (Doc. 126). Since Shea is arguing that Mr. Coon has failed to comply with a court order, the Court treats the Motion as also being brought pursuant to Fed.R.Civ.P. 37(b)(2)(A)(v).

Under Fed.R.Civ.P. 37(b)(2)(A)(v): "If a party... fails to obey an order to provide or permit discovery... the court where the action is pending may issue further just orders, " including "dismissing the action or proceeding in whole or in part." The court has "wide discretion" when imposing sanctions under Rule 37. World Wide Polymers, Inc. v. Shinkong Synthetic Fibers Corp., 694 F.3d 155, 159 (2d Cir. 2012) (internal quotation marks omitted). Dismissal is a severe sanction, "to be deployed only in rare situations, " but at the same time, sanctions must be perceived as a credible deterrent to prevent a "pretrial quagmire" that might "engulf the entire litigative process." Cine Forty-Second Street Theatre Corp. v. Allied Artists Pictures Corp., 602 F.2d 1062, 1064 (2d Cir. 1979). "The severe sanction of dismissal with prejudice may be imposed even against a plaintiff who is proceeding pro se, so long as a warning has been given that noncompliance can result in dismissal." Valentine v. Museum of Modern Art, 29 F.3d 47, 50 (2d Cir. 1994) (per curiam).

Dismissal pursuant to Rule 37 is governed by the following non-exclusive factors: "(1) the willfulness of the non-compliant party or the reason for noncompliance; (2) the efficacy of lesser sanctions; (3) the duration of the period of noncompliance; and (4) whether the non-compliant party had been warned of the consequences of... noncompliance." World Wide Polymers, 694 F.3d at 159 (ellipsis in original) (internal quotation marks omitted). The Court is mindful of the need to "disclose its deliberative path" and to assess each of the factors. See Baptiste v. Sommers, No. 13-3079-cv, 2014 WL 4723272, at *3-4 (2d Cir. Sept. 24, 2014) (per curiam) (same requirement with respect to the factors relevant to a Rule 41(b) dismissal).

I. Mr. Coon's Noncompliance

The Court begins by reviewing the history of discovery in this case in ...

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