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Barrett v. McDanel

June 8, 2007


The opinion of the court was delivered by: Ambrose, Chief District Judge



Following the close of discovery and after the Defendants had begun preparing motions for summary judgment, Plaintiff filed the pending Motion for Voluntary Dismissal pursuant to Rule 41(a)(2). Though she concedes that her Motion is prompted by her inability to withstand summary judgment, she seeks dismissal without prejudice and seemingly intends to prosecute these claims in a second, already pending, litigation. Dismissal without prejudice would, at this procedural juncture, cause substantial prejudice to the Defendants. Accordingly, the Motion for Voluntary Dismissal is granted, with prejudice, under the conditions set forth below.



Plaintiff Vicky Barrett ("Barrett") commenced this action on July 25, 2006 naming as Defendants her employers Vesuvius McDanel and Vesuvius USA (collectively referred to as "Vesuvius"), McDanel Advanced Ceramics Technologies, LLC (referred to as "McDanel"), incorrectly identified in the caption as "McDanel Advanced Technologies, Inc," Poppy Advanced Technologies Inc. and Poppy Advanced Ceramics Technologies, LLC. She brought suit under Title VII and the Pennsylvania Human Relations Act ("PHRA"). She claimed that the Defendants had harassed and discriminated against her on the basis of her race, sex and gender and then had retaliated against her once she objected to such behavior.

Since its inception, this case has been plagued by Barrett's, or more precisely her counsel's, failure to abide by discovery deadlines and Court Orders. I take the time to document these failings because Barrett now comes to the Court at this late juncture asking that her case be dismissed without prejudice.

A deadline for discovery was initially set for March 31, 2007. At a minimum, the parties had 180 days of discovery on a routine, non-complex employment discrimination case. Given that the Complaint was filed in July, and in light of the mandatory initial disclosures required by Rule 26(a)(1) of the Federal Rules of Civil Procedure, the parties arguably had more than 180 days. Certainly this should have been ample time.

It was clear, however, early on in this process that counsel for Barrett struggled to meet established timelines. For instance, Barrett missed the deadline for serving her Responses to Request for Admissions. Accordingly, she had to file a Motion to Withdraw Answers to Request for Admissions. See Docket No. [24]. Counsel for Barrett explained that her heavy caseload and demands upon her staff caused her to miss her deadline. I granted the request and permitted her to withdraw the deemed admissions. See Docket No. [27].

Discovery problems continued as I thereafter received a Motion for Sanctions from McDanel. See Docket No. [30]. McDanel sought to recover fees and costs incurred when Barrett failed to appear at a previously scheduled deposition. McDanel had noticed the deposition well in advance and heard no objections from counsel for Barrett. On the eve of the deposition, in an attempt to confirm that Barrett and her counsel would be attending, counsel claimed that she was unaware of the deposition and could not assure that her client would attend. Despite my empathy for McDanel's frustration, and my own growing frustration with counsel for Barrett, I declined to award costs and fees. See Docket No. [36]. I did so in order to avoid penalizing Barrett for what I viewed to be the responsibility and fault of her attorney.

Barrett then asked for an extension of the discovery period. Though more than eight months had transpired since the filing of the Complaint, counsel for Barrett complained that she needed additional time for the completion of discovery. See Docket No. [33]. Apparently, she had failed to timely respond to Vesuvius's First Request for Admissions, Request for Production of Documents and Interrogatories, which had been sent on February 15, 2007. Counsel for Barrett blamed her failure to timely respond upon "illness" and "staff shortages."

She requested thirty additional days within which to respond to Vesuvius's outstanding discovery requests and an additional ninety days to engage in discovery regarding claims she intended to bring into the litigation by virtue of an Amended Complaint. She represented that she would be filing a Motion for Leave to Amend "within the next week." See Docket No. [33], p. 3. This representation was made on March 23, 2007.

Significantly, no Motion for Leave to Amend was filed "within the next week," or indeed ever. Nevertheless, in what in hindsight has shown to be too lenient an approach to counsel for Barrett's behavior, I granted an additional thirty days of discovery. See Docket No. [34]. I also clearly instructed Barrett to respond to Vesuvius's outstanding discovery requests by no later than April 3, 2007. Id. I then set a firm date for a Settlement Conference.

At the Settlement Conference held on May 2, 2007, McDanel explained its intention to file a motion for summary judgment. When queried as to what evidence Barrett had produced during discovery to defeat the intended motion, counsel for Barrett conceded that she had none and that she basically had not conducted much in the way of discovery. She then pleaded for an additional discovery period, which I declined to entertain. I then set firm deadlines for the filing of the motion for summary judgment and the response. The parties were instructed that no extensions to these deadlines would be granted. See Docket No. [37]. I also learned that Barrett still had ...

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