United States District Court, W.D. Arkansas, Fayetteville Division
OPINION AND ORDER
HOLMES, III CHIEF U.S. DISTRICT JUDGE
the Court are Defendant Monster Energy Company's motion
(Doc. 49) to dismiss Plaintiff's complaint and brief
(Doc. 50) in support of its motion. Plaintiff filed a
response (Doc. 55) in opposition and a brief (Doc. 56) in
support of her response. Separately, Plaintiff filed a motion
(Doc. 51) for relief from the Court's order (Doc. 47),
but did not file a brief in support of her motion as required
by Local Rule 7.2. Defendant filed a response (Doc. 52) in
opposition and a brief (Doc. 53) in support of its response.
Defendant seeks dismissal of Plaintiff's complaint
pursuant to Federal Rules of Civil Procedure 37 and 41 for
Plaintiff's failure to comply with the Court's order
requiring Plaintiff to submit to a medical examination into
the existence and extent of her alleged seafood allergy.
Defendant also requests attorney's fees and costs
resulting from Plaintiff's actions. Plaintiff seeks
relief from the Court's order so that she may undergo a
medical examination at a different location of her choosing.
For the reasons set forth below, Defendant's motion will
be granted in part and denied in part, and Plaintiff's
motion will be denied.
asserts several claims against Defendant for violations of
the Americans with Disabilities Act (ADA), Title VII of the
Civil Rights Act of 1964 (Title VII), the Age Discrimination
in Employment Act (ADEA), and the Arkansas Civil Rights Act
(ACRA). With respect to her disability-based claims,
Plaintiff asserts that she has a severe allergy to seafood
that qualifies as a disability and that Defendant has
discriminated against her and refused to reasonably
accommodate her on the basis of this disability. The parties
have engaged in discovery and at this point there is no
admissible objective evidence of Plaintiff's allergy.
Even Plaintiff's physician and proposed expert, Dr. Tina
Merritt, whose diagnosis of Plaintiff's seafood allergy
the Court found to be an unreliable expert opinion, testified
that absent from her opinion is an objective medical basis to
support her recommendations and conclusions. (Doc. 36-1, pp.
13-14; Doc. 36-1, p. 19; Doc. 36-1, p. 20).
April 23, 2018, Defendant filed a motion (Doc. 33) to require
Plaintiff to submit to an independent medical examination to
obtain evidence regarding her claimed seafood allergy. On
August 30, 2018, the Court entered an order (Doc. 47)
requiring Plaintiff to submit to a skin-prick test at the
direction of Dr. Bell. The Court further ordered that it was
not within Plaintiff's discretion to unilaterally
determine whether the clinic was safe as a testing location.
The primary purpose of this examination was to determine
whether Plaintiff has a legitimate seafood allergy. In its
order, the Court issued a clear warning that “failure
to comply with [the] order will result in an appropriate
sanction, including dismissal.” (Doc. 47, p. 10).
parties conferred and agreed that Plaintiff would undergo
skin-prick test at Dr. Bell's clinic on September 14,
2018. (Doc. 49-1). On September 14, Plaintiff appeared at the
clinic for the test as ordered. Thereafter, she discovered a
decorative aquarium inside the lobby of Dr. Bell's
clinic. Plaintiff grew angry and refused to enter the clinic
because of the “God damn fish tank.” (Doc. 49,
Ex. 2-A, Video: Hedberg Clinic Parking Lot on September 14,
2018 (2018) (on file with Court)). Plaintiff repeatedly
shouted that the aquarium would cause her to suffer an
allergic reaction. The clinic staff attempted to accommodate
Plaintiff's fears by allowing her to access the employee
entrance at the back of the clinic. Plaintiff still refused
to enter the clinic, loudly cursing about the fish tank and
accusing the clinic staff of dishonesty. Plaintiff also
vehemently described the situation as a matter of life or
death because the skin-prick test could cause her to fall
into a coma. She stated that a skin-prick test could cause
her die within two minutes, and she refused to die from an
examination by Dr. Bell. Plaintiff yelled that she would
“cause a freaking scene” because if
“y'all put that on my skin, I can go into a coma
and I can die.” (Doc. 49, Ex. 2-A, Video: Hedberg
Clinic Parking Lot on September 14, 2018 (2018) (on file with
Court)). Plaintiff ultimately did not undergo the skin-prick
on September 14, 2018, and no medical examination occurred
two weeks later, on September 27, 2018, Plaintiff filed a
motion seeking leave from the Court's order. In her
motion, Plaintiff seeks permission to undergo an examination
at a location of her choice, and not at Dr. Bell's
clinic. On September 27, 2018, Defendant filed the instant
motion seeking sanctions under Federal Rules of Civil
Procedure 37 and 41 for Plaintiff's failure to comply
with the Court's order. Specifically, Defendant seeks
dismissal of Plaintiff's complaint and attorney's
fees and costs that flow from Plaintiff's violation of
the Court's order.
argues that the Court's analysis of Defendant's
motion should be limited to Federal Rule of Civil Procedure
37(b) because Plaintiff violated a discovery order. To
support her argument that Rule 37 provides the exclusive
avenue for any sanction for her violation of the Court's
order, Plaintiff cites Sentis Group, Inc., Coral Group,
Inc. v. Shell Oil Co., 559 F.3d 888, 899-900 (8th Cir.
2009) (citing Societe Internationale Pour Participations
Industrielles Et Commerciales, S.A. v. Rogers, 357 U.S.
197, 207 (1958)). Although Plaintiff correctly identifies an
important distinction between the analysis under Rules 37 and
41, Sentis does not stand for the proposition that
the Court must only consider sanctions pursuant to Rule 37.
See Id. at 899-900. Instead, Sentis
cautions that a Rule 37 analysis must not blend within it an
inherent-authority analysis under Rule 41. See Id.
at 899 (“[T]he guidance from [Soceiete
Internationale] is clear, and we emphasize the better
practice is to apply Rule 37 where appropriate and not allow
an exercise of inherent power to “obscure” the
Rule 37 analysis.”); id. at 899 (“[A]
Rule 37 analysis normally should stand alone and not blend
together with a less-structured, inherent-authority
analysis.”); see also Burgett v. Gen. Store No. Two
Inc., 727 Fed.Appx. 898, 900 (8th Cir. 2018) (affirming
dismissal under both Rule 37 and Rule 41). Accordingly, the
Court will consider first whether sanctions are appropriate
under Rule 37, and then under Rule 41.
party fails to obey an order to provide or permit discovery,
the Court may impose appropriate sanctions. Fed.R.Civ.P.
37(b)(2)(A). The district court has “wide latitude in
imposing sanctions for failure to comply with
discovery.” Aziz v. Wright, 34 F.3d 587, 589
(8th Cir. 1994). “If the violation is willful and in
bad faith, then the appropriateness of dismissal as a
sanction is ‘entrusted to the sound discretion of the
district court.'” Burgett, 727 Fed.Appx.
at 900 (citing Avionic Co. v. Gen. Dynamics Corp.,
957 F.2d 555, 558 (8th Cir. 1992)). Dismissal as a discovery
sanction is available only if there is (1) an order
compelling discovery; (2) a willful violation of the order;
and (3) prejudice. Comstock v. UPS Ground Freight,
Inc., 775 F.3d 990, 992 (8th Cir. 2014). A court
dismissing under Rule 37 need not investigate lesser
sanctions when a party's violation is deliberate.
Id. at 992-93.
is no dispute the Court issued an order on August 30, 2018
requiring Plaintiff to submit to a skin-prick test, nor is
there any dispute that Plaintiff violated the order. The
question is whether Plaintiff willfully violated the order,
and whether the violation prejudiced Defendant. Plaintiff
argues this case is not a “black-and-white
determination of willfulness” because her refusal to
comply with the Court's order was not “in
deliberate and contumacious disregard for the Court's
directives.” (Doc. 56, p. 5). Plaintiff instead states,
both in her response and while at the clinic, that she
refused to undergo the test because she feared she would
suffer an allergic reaction from the aquarium in Dr.
Bell's clinic. The evidence suggests otherwise. In
addition to complaining about Dr. Bell's fish tank,
Plaintiff shouted repeatedly that the skin-prick test would
cause her to suffer an allergic reaction, that she would not
allow the clinic staff to touch her skin, and that she
refused to “choos[e] death by Dr. Bell.” (Doc.
49, Ex. 2-A, Video: Hedberg Clinic Parking Lot on September
14, 2018 (2018) (on file with Court)). Clinic staff sought to
alleviate Plaintiff's concerns about the aquarium by
guiding her through a back entrance away from the fish tank.
though her opinion ultimately is unreliable, even
Plaintiff's physician, Dr. Merritt testified that the
mere presence of fish in sitting water would not cause
Plaintiff to suffer an allergic reaction. (Doc. 36-1, p. 20).
Dr. Merritt specified that if Plaintiff does in fact suffer
from a seafood-based allergy, it is more likely attributable
to aerosolized proteins and cross-contamination of cooked
fish. (Doc. 36-1, p. 20). It is not enough, according to Dr.
Merritt, for Plaintiff to smell “a fish in the
water” because there “wouldn't be enough
airborne allergen.” (Doc. 36-1, p. 14). Rather, Dr.
Merritt speculated that what “might be causing”
Plaintiff's allergic reaction is airborne allergens
released from the boiled vapors of cooked fish. (Doc. 36-1,
repeatedly refused the clinic staff's proposed entry
accommodation to allow her to avoid the fish tank, and
Plaintiff's own physician testified that a fish tank
poses no significant risk to Plaintiff. The scene regarding
the fish tank is nothing more than pretext to avoid the Court
ordered skin-prick test. The Court's order clearly
required Plaintiff to submit to a skin-prick test under the
direction of Dr. Bell, and Plaintiff made a conscious
decision not to enter the clinic for that purpose. Plaintiff
willfully and deliberately violated the Court's
final issue is whether Defendant suffered prejudice.
Plaintiff's medical condition, specifically whether she
has a seafood allergy, is in dispute. (Doc. 47). The
existence of an allergy is crucial to her disability-based
claim. Her repeated refusal to undergo a skin-prick test
following blood test results that were negative for
indicators of a seafood allergy ensures that neither party
has access to objective evidence of her condition, which both
parties acknowledge her claim presently lacks. Such prejudice
is significant. Having found each of the necessary elements,
the Court finds that dismissal of ...