Motion to Dismiss Plaintiff Laina Frazier for Failure to Prosecute — Adams v. Mass General Brigham (D. Mass.)
- Date
- 2023-10-20
Summary
Defendant Mass General Brigham Incorporated's motion to dismiss pro se Plaintiff Laina Frazier for failure to prosecute, filed February 13, 2024 as Document 199 in Tyler Adams, et al. v. Mass General Brigham Incorporated, Civil Action No. 1:21-cv-11686, in the U.S. District Court for the District of Massachusetts. Citing Fed. R. Civ. P. 37(d) and Fed. R. Civ. P. 41(b), MGB states that the plaintiff did not respond to a court-ordered Phase 2 Questionnaire due January 29, 2024 and did not oppose its Phase 1 Motion for Summary Judgment (Dkt. 148). The motion argues that dismissal with prejudice is an appropriate sanction and cites First Circuit and District of Massachusetts decisions. A Local Rule 7.1 certification states that counsel for the represented plaintiffs will not oppose the motion. It is signed by Lynn A. Kappelman of Seyfarth Shaw LLP.
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Case 1:21-cv-11686-FDS Document 199 Filed 02/13/24 Page 1 of 5
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
TYLER ADAMS, et al.,
Plaintiffs,
Civil Action No. 1:21-cv-11686
v.
MASS GENERAL BRIGHAM
INCORPORATED,
Defendant.
DEFENDANT’S MOTION TO DISMISS PLAINTIFF
LAINA FRAZIER FOR FAILURE TO PROSECUTE
(UNOPPOSED BY ALL COUNSEL FOR THE REPRESENTED PLAINTIFFS)
Pursuant to Fed. R. Civ. P. 37(d) and Fed. R. Civ. P. 41(b), Defendant Mass General
Brigham Incorporated (“MGB”) files this Motion to Dismiss Pro Se Plaintiff Laina Frazier, with
prejudice, for failure to respond to a court-ordered Phase 2 Questionnaire and for failure to
prosecute her claims.
RELEVANT BACKGROUND
1. On October 20, 2023, the Court entered the Phase 2 Scheduling Order (Dkt. 176-1)
and directed Plaintiffs to submit written responses to MGB’s Phase 2 Questionnaire within 30 days
of service. Dkt. 178.
2. MGB served the Phase 2 Questionnaire on Plaintiff Frazier on December 28, 2023
by first-class mail and email. See Exhibit (“Exh.”) A.
3. Pursuant to the Court’s Order at Dkt. 178, Plaintiff Frazier’s completed Phase 2
Questionnaire was due to MGB on January 29, 2024, and MGB notified Plaintiff Frazier of that
due date in its correspondence to her on December 28, 2023. See Exh. A.
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4. To date, Plaintiff Frazier has failed to respond at all to MGB’s Phase 2
Questionnaire or to produce any of the attendant responsive documents.
5. Plaintiff Frazier never opposed MGB’s Phase 1 Motion for Summary Judgment
(Dkt. 148).
ARGUMENT
Plaintiff Frazier willfully refuses to respond to discovery requests or to prosecute her case.
Dismissal of Plaintiff Frazier’s claims is appropriate pursuant to both Fed. R. Civ. P. 37(d) and
Rule 41(b). Rule 37 authorizes the Court to order sanctions for failure to serve answers to
discovery requests. “In determining the appropriate sanction, if any, a court should ‘consider the
totality of events and then choose from the broad universe of available sanctions in an effort to fit
the punishment to the severity and circumstances of the violation.’” United States v. Pfizer, Inc.,
188 F. Supp. 3d 122, 136 (D. Mass. 2016) (quoting Young v. Gordon, 330 F.3d 76, 81 (1st Cir.
2003)). Pursuant to their “wide discretion in choosing sanctions for discovery violations,” district
courts frequently use dismissal “not merely to penalize those whose conduct may be deemed to
warrant such a sanction, but to deter those who might be tempted to such conduct in the absence
of such a deterrent.” Samaan v. St. Joseph Hosp., 670 F.3d 21, 36 (1st Cir. 2012); Nat’l Hockey
League v. Metro. Hockey Club, Inc., 427 U.S. 639, 643 (1976).
Rule 41 further reinforces the Court’s “‘inherent power to dismiss case[s] sua sponte for
failure to prosecute,’ so as to facilitate ‘the efficient and expedient resolution of cases.’” Brown v.
CitiMortgage, Inc., 2016 WL 9224077, at *1 (D. Mass. Aug. 25, 2016) (quoting Dietz v. Bouldin,
136 S. Ct. 1885, 1892 (2016)). “[The First Circuit] has long recognized that dismissal either for
failure to comply with discovery orders or lack of prosecution is a matter within the discretion of
the district court…” Damiani v. Rhode Island Hosp., 704 F.2d 12, 17 (1st Cir. 1983) (“[T]he claim
2
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of abuse of discretion [in cases dismissed on these grounds] has not received a sympathetic ear
from us. In fact, since 1964 we have upheld dismissals in all cases but one.”); Otolo v. Potter, 2011
WL 13248446, at *1 (D. Mass. July 12, 2011) (“The authority of a federal trial court to dismiss a
plaintiff's action with prejudice because of her failure to prosecute is well-established and is
necessary in order to prevent undue delays in the disposition of pending cases and to avoid
congestion in the calendars of the District Courts.”). Notably, “[t]here is nothing in [Rule 37(d)]
that states or suggests that the sanction of dismissal can be used only after all other sanctions have
been considered or tried.” Damiani, 704 F.2d at 15 (“Dismissal would also encourage other parties
to take their discovery obligations seriously.”); see also Corchado v. Puerto Rico Marine Mgmt.,
Inc., 665 F.2d 410, 413 (1st Cir. 1981), cert. denied 459 U.S. 826 (1982) (dismissing claims due
to several missed discovery deadlines and failure to attend a pretrial conference, noting, “A District
Court may dismiss a complaint for failure to prosecute even without affording notice of its
intention to do so or providing an adversary hearing before acting.”) (quoting Link v. Wabash R.R.
Co., 370 U.S. 626, 633 (1962).
Dismissal is the appropriate sanction here. Plaintiff Frazier has stopped prosecuting her
claims. She did not oppose MGB’s Phase 1 Motion for Summary Judgment, and now she has not
responded at all to MGB’s Phase 2 Questionnaire. MGB has been prejudiced by Plaintiff Frazier’s
delinquency because it cannot defend itself fully against her claims or prepare to take her
deposition because she has refused to produce information and documentation to which MGB is
entitled under the Rules. The Court should dismiss Plaintiff Frazier’s claims with prejudice. See
Enlace Mercantil Internacional, Inc. v. Senior Indus., Inc., 848 F.2d 315, 316 (1st Cir. 1988) (Rule
41(b) “authorizes a district court to dismiss a case with prejudice to punish a plaintiff for failure to
prosecute.”); Humphrey v. Comoletti, Civ. A. No. 15-cv-14170-ADB, 2018 WL 2709205, at *3
3
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Case 1:21-cv-11686-FDS Document 199 Filed 02/13/24 Page 4 of 5
(D. Mass. June 5, 2018) (dismissing complaint with prejudice for failure to prosecute and failure
to timely respond to discovery or comply with discovery orders).
CONCLUSION
For the reasons stated above, MGB respectfully requests that the Court dismiss Plaintiff
Frazier’s claims, in their entirety, with prejudice, and grant such other relief as the Court deems
just and proper.
Dated: February 13, 2024 MASS GENERAL BRIGHAM
INCORPORATED
By Its Attorneys,
Respectfully Submitted,
/s/ Lynn A. Kappelman
Lynn A. Kappelman (BBO# 642017)
Katherine E. Perrelli (BBO# 549820)
Kristin McGurn (BBO# 559687)
Dawn Reddy Solowey (BBO# 567757)
SEYFARTH SHAW LLP
Seaport East
Two Seaport Lane, Suite 1200
Boston, MA 02210-2028
kperrelli@seyfarth.com
lkappelman@seyfarth.com
kmcgurn@seyfarth.com
dsolowey@seyfarth.com
TEL: (617) 946-4800
FAX: (617) 946-4801
4
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Case 1:21-cv-11686-FDS Document 199 Filed 02/13/24 Page 5 of 5
CERTIFICATION PURSUANT TO LOCAL RULE 7.1
I hereby certify pursuant to Local Rule 7.1(a)(2) that, on February 12, 2024, counsel for
Defendant attempted to confer with Plaintiff Frazier by email and phone in order to resolve or
narrow the issues presented in this motion, but she did not answer or respond. On February 11,
2024, counsel for Defendant conferred in good faith with Plaintiffs’ counsel, Ryan McLane, and
Attorney McClane indicated that he will not oppose this motion. On February 12, 2024, counsel
for Defendant conferred in good faith with counsel for Plaintiffs Orfanos and Saccoccio, Richard
Chambers, and Attorney Chambers indicated that he will not oppose this motion.
/s/ Lynn A. Kappelman
Lynn A. Kappelman
CERTIFICATE OF SERVICE
I, Lynn A. Kappelman, certify that on February 13, 2024, I caused a true and accurate copy
of the foregoing document to be filed and uploaded to the CM/ECF system, and I further caused a
copy to be served upon Plaintiff Laina Frazier by email and first-class mail.
/s/ Lynn A. Kappelman
Lynn A. Kappelman
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