Abbott et al v. Austal USA, LLC

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
DENNIS ABBOTT, et al.,
Plaintiffs,
v.
AUSTAL USA, LLC,
Defendant.
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CIVIL ACTION NOS.:
1:22-CV-00267-KD-C
1:22-CV-00328-KD-B
1:22-CV-00329-KD-C
1:23-CV-00040-KD-C
CONSOLIDATED FOR
PURPOSES OF DISCOVERY
ORDER
This matter is before the Court regarding Austal’s Motion to Dismiss for Failure to
Prosecute or, in the Alternative, Motion to Compel as to Specific Plaintiffs (Doc. 141),1 and
Defendant Austal USA, LLC’s Motion to Compel Substantive Discovery Responses and Requests
for Fees and Costs (Doc. 151). Following a review of the foregoing pleadings, with attachments,
as well as all other relevant pleadings in this matter, and with the benefit of oral argument, the
Court GRANTS IN PART Austal’s Motions to Compel and accompanying requests for
Attorneys’ Fees (Docs. 141, 151). 	The amount of attorneys’ fees and costs to be awarded is
deferred and will be established by separate order.
Background Facts
This case consists of four (4) separate actions, consolidated for discovery purposes. The
original complaints in these actions were filed July 4, 2022. On October 25, 2022, the Court entered
its Rule 16(b) Scheduling Order (Doc. 24). That Scheduling Order addressed Phase I discovery
and set a deadline of February 10, 2023, for completion of discovery on the issue on whether
1 As noted infra, the Motion to Dismiss the claims of the nine (9) Plaintiffs who initially
failed to respond to discovery (until after filing of Doc. 141) is deemed to be moot, a decision with
which the Defendant concurs.
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Plaintiffs’ requested accommodations posed an undue hardship under the standards established by
Title VII and the ADA. After a brief extension of time, and following amendment of the Complaint
by Plaintiffs, the parties entered Phase II of discovery. In so doing, the parties submitted a Rule
26(f) Report (Doc. 115) and appeared before this Court to discuss the execution of Phase II of
discovery. Both the initial Scheduling Order (Doc. 24) and superseding Scheduling Order (Doc.
153) require the parties to engage in Pre-Motion Mediation before filing discovery motions, such
as motions to compel. See Doc. 24, PageID.50.
On January 29, 2024, Austal filed its Motion to Dismiss for Failure to Prosecute or, in the
Alternative, Motion to Compel as to Specific Plaintiffs (Doc. 141), for which the Court entered an
Order (Doc. 148) that set a briefing schedule. Thereafter, on February 20, 2024, Austal filed its
Motion to Compel Substantive Discovery Responses and Requests for Fees and Costs. (Doc. 151).
Both Motions came on for hearing before this Court on March 22, 2024. (Doc. 155).
As background information, the events that preceded the filing of the two (2) Motions to
Compel in this action have been considered. Austal issued written discovery requests to Plaintiffs
on October 17, 2023 (Doc. 141-1). On November 16, 2023, Plaintiffs served responses to such
requests, but those responses only contained objections. See Doc. 141-2. After an inquiry from
Austal’s counsel, Plaintiffs served what they termed as “supplemental responses” on November
20, 2023. (Doc. 141-3). Those responses, like the ones preceding them, only contained objections.
Consistent with the Court’s Scheduling Order, counsel for Austal requested a discovery
conference with this Court which took place on December 6, 2023. During that conference, it was
noted that Austal’s discovery requests were in line with what the Court had previously seen in
employment discrimination actions such as this one. After learning that the Court expected
Plaintiffs to update their discovery responses, Plaintiffs’ counsel agreed to serve complete
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responses no later than December 13, 2023. The Court issued a subsequent Order, noting the same.
(Doc. 131).
On December 13, 2023, Plaintiffs served some, but not all, of Plaintiffs’ discovery
responses. See Doc. 141-4. When the additional promised discovery responses failed to
materialize, counsel for Austal sought the remaining responses no later than December 22, 2023.
(Doc. 141-6). After further responses were not received, Austal filed a Motion to Suspend the
Discovery Deadline that had been outlined during the December 6, 2023 telephonic conference.
(Doc. 133). Upon the filing of this Motion, the Court held a subsequent telephonic conference on
January 3, 2024. (Doc. 135). Plaintiffs’ counsel represented that additional responses for all
Plaintiffs would be forthcoming on January 17, 2024. The Court again followed up the hearing
with an Order (Doc. 137).
Ultimately, on January 24, 2024, additional discovery responses were served by Plaintiffs.
See Doc. 141 at PageID.3168. However, responses were missing for nine (9) Plaintiffs. See id.
Moreover, additional supplementation took place on February 14, 2024, see Doc. 151 at
PageID.3367, but discovery was still not provided for the nine (9) identified Plaintiffs, nor were
the substantive issues previously identified by Austal’s counsel (both via correspondence, as well
as in the two (2) conferences with the Court on December 6, 2023 and January 3, 2024) remedied.
During the March 22, 2024 hearing on the two (2) pending Motions to Compel, the Court
heard argument from both parties. Plaintiffs’ counsel argued, consistent with their Responses,
(Docs. 149 and 154) that both Motions were moot since Plaintiffs complied with the discovery
requests, outstanding since October 2023, after Austal had to proceed with filings its Motions. At
hearing, Plaintiffs’ counsel engaged in the following exchange with the Court:
THE COURT: I’m looking for a substantive answer to any
interrogatories. Some of these are fairly bland. OR requests for
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production of document. I’m not even looking at the request for
admissions.
But I’m trying to find a substantive response. And, that document,
after being presented with those requests in October, this was your
response in November, without a request for additional time.
ATTORNEY DASINGER: Your Honor, all I can say is that we
realized that these were inadequate after a court hearing and we
corrected the documents in compliance.
THE COURT: That’s my question: Why did it take a court hearing
to recognize that this was inadequate?
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ATTORNEY DASINGER: Your Honor, all I can say is that we had
trouble getting answers out of a lot of the clients.
THE COURT: So what do you do when you have that problem?
ATTORNEY DASINGER: We did everything we could to remedy
the problem.
THE COURT: Well, you didn’t ask me for more time, did you?
ATTORNEY DASINGER: At the time, we did not, Your Honor.
THE COURT: Okay. Well, I think you’ve given the defendants a
leg up on their request for attorney fees because it took a hearing
before me before we got to the point to where y’all were ready to
make additional responses. This is not appropriate, and I think I told
you that in conferencing.
Tr. of Proceedings, 25:5-26:23.2
Fed. R. Civ. P. 37(a)(5)(A) does not render a Motion to Compel moot after compliance
following the filing of a Motion to Compel. (“If the motion is granted—or if the disclosure or
requested discovery is provided after the motion was filed—the court must, after giving an
opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the
2 Transcript of March 22, 2024 Proceedings is Attachment A to Austal’s Motion for
Attorneys’ Fees and Costs with Incorporated Brief (Doc. 165).
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party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred
in making the motion, including attorney's fees.”), see, e.g., Sprint Nextel Corp. v. Ace Wholesale,
Inc., 2013 WL 12067476 (N.D. Ga. Feb. 14, 2013). Plaintiffs’ compliance with providing
requested discovery was not timely nor complete. Plaintiffs and their counsel had been advised of
this during the December 6, 2023 hearing and subsequent January telephonic conference. Tr. of
Proceedings, 11:24-12:6, 25:5-26:6, 60:2-19.
Also, during the hearing, Plaintiffs’ argument that Austal’s Motions to Compel were due
to be denied based on Austal’s alleged failure to comply with the conferencing requirements under
the Federal Rules and Local Rules was considered. Plaintiffs’ counsel were reminded that parties
are expected to engage in pre-motion conferencing and that such conferences had, in fact, taken
place, both on December 6, 2023, as well as on January 3, 2024. When questioned whether there
was something else that Austal or its counsel could have done to obtain compliance with the
discovery requests, Plaintiffs’ counsel cited Austal’s own alleged failure to provide proper
discovery responses.3 Plaintiffs’ lack-of-conferencing argument is rejected and it is determined
that Austal had properly engaged in the conferencing requirements set out in the Federal Rules and
Local Rules. These efforts included not only correspondence with Plaintiffs’ counsel, as outlined
in Docs. 141 and 151, but also its participation in the pre-discovery motion conferences held with
the Court.
3 At a later point in the hearing, Plaintiffs’ counsel identified the need for Plaintiffs to file their
Motion to Compel, seeking full and complete discovery responses from Austal. Plaintiffs’ counsel was
questioned about its efforts to engage in conferencing regarding the Motions. After hearing from counsel
for both parties, the Court instructed counsel for Plaintiffs to provide counsel for Austal a listing of
documents and/or information that they claimed had been improperly withheld and/or not produced by
Austal prior to seeking permission from the Court to file any such Motion. This instruction was based on
the promise by Plaintiffs’ counsel Michael Mertle, during a February 26, 2024, telephonic conference with
Austal counsel Kathryn Willis and John Kavanagh, to provide such a listing, which had not been provided
as of the date of the March 22, 2024 hearing.
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Also, during the March 22, 2024 hearing, the Court addressed the remaining issues set out
in both Motions to Compel, following supplementation and additional discovery responses served
by Plaintiffs on February 14, 2024, and March 4, 2024. Plaintiffs’ counsel represented, in response
to questions regarding ambiguous statements regarding the production of documents, that all non-
privileged documents had been produced. The Court specifically ordered Plaintiffs to do the
following:
• 	Identify medical providers of Plaintiffs as it relates to claims for mental anguish in
this action; and
• 	In response to Interrogatory 19, provide full and complete responses, to include the
who, what, when, and where items requested by Austal regarding Plaintiffs’ claims
for invasion of privacy.
In assessing the propriety of the Plaintiffs’ responses to Interrogatory No. 19, the Court
ruled, as follows:
This is sworn testimony. Turned over information is not sworn
testimony. It may not even be admissible.
All right. It’s my ruling that this type of response to an interrogatory,
either as to Mr. Abbott or anywhere else in these pleadings, is
insufficient. And I will require an additional response that does
identify what’s being requested, and that is the incidences and the
timing of those incidences where each of the plaintiff’s privacy was
invaded as contended in the complaint. All right?
Tr. of Proceedings, 58:7-16.
The request by Austal for attorneys’ fees in both of its Motions was also considered during
the March 22, 2024 hearing. See Docs. 141, 151. Plaintiffs argued that attorneys’ fees should not
be awarded because of the “monumental” efforts undertaken by Plaintiffs’ counsel –following the
filing of Austal’s Motions to Compel – to gain compliance from their clients. Id., at 63:17-64:9.
This argument is rejected and it is determined that (i) such efforts should have been undertaken at
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the time discovery was served, and, (ii) if such efforts could not be undertaken, an extension should
have been sought by Plaintiffs’ counsel. Id., at 26:14-15.
Counsel for Austal was also given the opportunity to present its position that attorneys’
fees associated with both Motions to Compel are consistent with the Federal Rules of Civil
Procedure and the facts of this action. Counsel for Austal argued that Plaintiffs’ efforts to comply
with their discovery obligations were too late in the face of Austal being forced to go to the time
and expense of filing the two (2) Motions to Compel. Id., at 64:16-68:13. When questioned by the
Court regarding Plaintiffs’ argument about the relative financial strengths of the parties, and how
this should impact a potential award of attorneys’ fees, counsel for Austal responded as follows:
As to the financial resources, that this is becoming kind of a pattern
and practice in this case of big company, you know, David versus
Goliath type arguments, it has no place when it comes to the
awarding of fees. The fact of the matter is that Austal was required
to expend the fees and drafting and filing both motions and
respond—and replying to the responses. That doesn’t even begin to
account for the amount of work and the amount of leg work that had
to go into the preliminary efforts regarding those motions….
But that being said, the rule does not say if a party can’t—you know,
if a party has less financial resources than the prevailing party, that
we should not award fees.
And the rules also says that I think that the Court has the ability,
whether it’s the parties or the lawyers—and that’s not for me to
decide or to say. But, again, I think we get back down to the fact of
the matter of had discovery requests in October, we’ve expended
substantial time and resources up to this point trying to get to even
where we are. And, again, still, we have that nice little wish list that
we put to the side because we know we had to focus on what had to
focus on in obtaining compliance.
Id., at 66:20-67:21.
At the conclusion of the hearing, the following decisions were announced orally:
• 	The Motion to Dismiss, as part of Doc. 141, was moot;
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• 	The Motions to Compel were granted in part in the manner outlined by the Court
during the hearing; and
• 	Austal is, in fact, entitled to attorneys’ fees undertaken as a result of having to file
the two (2) Motions to Compel. Counsel for Austal was ordered to provide an
accounting of such fees and prepare a proposed order, which was submitted on
April 19, 2024.
Conclusion
Based upon the Motions to Compel (Docs. 141 and 151), the accompanying responses and
replies, the hearing before the Court on March 22, 2024, and Austal’s accompanying Motion for
Fees, the Court orders as follows:
• 	The Motion to Dismiss, as part of Doc. 141, is moot;
• 	Plaintiffs shall supplement their discovery responses in the manner set out during
the hearing, and, more specifically, in the manner set out in the Transcript of
Proceedings, Mar. 22, 2024, no later than June 3, 2024;4
• 	Plaintiffs and/or their counsel shall be required to pay an amount to be determined
to Austal’s counsel, Burr & Forman LLP, as attorneys’ fees and costs that were
incurred unnecessarily by the actions of Plaintiffs and/or counsel during the
discovery process.
DONE this the 20th day of May, 2024.
s/ WILLIAM E. CASSADY
UNITED STATES MAGISTRATE JUDGE
4 In unfiled correspondence from Plaintiffs’ counsel since the March 22, 2024 hearing, it has been
represented that Plaintiffs have provided all discovery with respect to the two areas of discoverable
information ordered produced on March 22, 2024. In other words, it is Plaintiffs position that all physicians
who may have treated any of the Plaintiffs for mental anguish or other medical conditions arising from the
claims in this action have been identified. In addition, Plaintiffs report that their responses to Interrogatory
19 as supplemented, are now complete. Accordingly, it is not anticipated that any new or unknown treating
physicians will be identified after depositions are started and completed or that new information or evidence
tending to support the claims of invasion of privacy will be produced at a later date. 	Should these
assumptions prove to be incorrect, the Court will conduct a hearing to determine the reasons why the
information, including identification of witnesses, was not provided prior to requiring Defendant to engage
in as many as 62 depositions without the ability to consider said information beforehand.
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