Clark v. Liberty Mutual Insurance Company

1
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

YELDY CLARK

VERSUS

LIBERTY MUTUAL INSURANCE
COMPANY

CIVIL ACTION
NO. 23-2005
SECTION: "P" (3)

ORDER AND REPORT AND RECOMMENDATION
Before the Court is a Motion for Sanctions (Doc. 70) filed by Liberty Mutual
Insurance Company (“Liberty”) . Plaintiff filed no opposition.
1
The motion was the
subject of a status conference on June 3, 2024, and oral argument on July 9, 2024. An
evidentiary hearing and additional oral argument were held on August 8, 2024, with
a follow-up status conference on August 12, 2024. Having considered the parties’
memoranda, the record, the oral argument, the facts adduced at the evidentiary
hearing, and the applicable law, the Court grants the motion for sanctions and
recommends that the District Court dismiss the above-captioned matter.
I. Background
Ms. Clark filed this lawsuit relative to an automobile accident that allegedly
took place in September 2020. Ms. Clark claims that an unknown driver’s erratic
maneuvers in a parking lot caused Ms. Clark’s vehicle to swerve and strike a curb

1 Although Plaintiff’s current counsel maintains that they filed no opposition because
they enrolled after the deadline, they have never sought leave of Court to file an
untimely opposition. And, although the Court permitted them to argue the motion,
they were unable to present any legitimate basis for opposition during oral argument.
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and pole.
2
Liberty removed the lawsuit to this Court in June 2023.
3
On July 10, 2023,
Liberty propounded interrogatories on Ms. Clark, including a proposed verification
for her execution.
4

Ms. Clark’s conduct from which this Motion for Sanctions arises began just
after. Despite multiple court orders requiring her to submit the verification, Ms.
Clark refused to do so for about one year. Only a line-by-line recitation of the docket,
including numerous transcripts from hearings and status conferences in front of two
judges, could adequately portray the p ainfully long process by which Ms. Clark
continued to disobey court orders. That said, the Court will set out the most salient
record facts below to highlight how this obstructive behavior impeded the litigation
and how Ms. Clark disregarded both the Court’s orders and the numerous
opportunities given to her to correct her conduct.
August 2023: Liberty’s counsel wrote to Ms. Clark’s counsel to inquire about
the missing verification on August 23, 2023.
5
The email also explained and cited
caselaw on the importance of the verification to future discovery, including Ms.
Clark’s deposition (for which Liberty had arranged for an interpreter):
This is for everyone’s sake - so that we don’t inadvertently rely on
plaintiff’s responses that Ms. Clark may later say she didn’t fully
understand and so that you do not face any objections or issues in
discovery and motion practice. We will also need to clear this up before
depositions, as Ms. Clark provided certain information to treaters and
Liberty, which we will necessarily need to ask her about.

2 See R. Doc. 1-2 (Petition).
3 R. Doc. 1.
4 R. Doc. 26- 5.
5 R. Doc. 70-3.
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Liberty followed up on August 24, 2023.
6
Ms. Clark did not provide the verification.
September 2023: A Rule 37 conference occurred relative to the verification.
7
Despite Liberty’s notification that it intended to move to compel, Ms. Clark did not
provide the verification.
October 2023: Liberty moved to compel Ms. Clark to provide the verification.
8

In her response, Ms. Clark claimed she “d [id] not object to signing” the verification
but required more time to do so.
9

November 2023: The Hon. Karen Wells Roby held oral argument on the
motion to compel.
10
Faced with blatantly deficient responses, the Court remarked to
defense counsel: “So let me tell you up-front, you’re getting fees on this one because
these answers are crazy.”
11
Judge Roby ordered Ms. Clark, through counsel, to sign
the verification.
12
She never did so.
April 2024: This case was reassigned to the undersigned as part of the

6 R. Doc. 26-6.
7 R. Doc. 26-7.
8 R. Doc. 26.
9 R. Doc. 32 at 6. The Court notes additionally that Ms. Clark, through counsel, has
repeatedly asserted that her preferred language is Spanish in arguing, inter alia, that
responding to Liberty’s discovery requests is “highly burdensome on the Plaintiff.” Id.
at 3. But Ms. Clark’s counsel at that stage, Mr. Sanchez, spoke Spanish, and Ms.
Clark’s current counsel, Mr. Council, has confirmed on the record that issues relative
to interpretation or translation are not causing any impediment to the attorney-client
relationship.
10 See R. Doc. 53.
11 R. Doc. 63-1 at 17.
12 Id. at 20–21.
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standard case transfer process for new magistrate judges.
13

May 2024: During a status conference, Ms. Clark’s counsel admitted that she
had not yet provided a verification. The Court ordered Ms. Clark to provide the
verification by May 17, 2024.
14
Thus, for a second time, and by a second judge, Ms.
Clark was ordered to comply. She persisted in ignoring that directive.
A second status conference was held later that month, and Ms. Clark’s counsel
admitted that she still had not yet complied.
15
He further admitted that her
noncompliance was not attributable to his conduct as an attorney or his instructions
to his client.
16
Indeed, Mr. Sanchez told the Court that he had sent the verification
to Ms. Clark many times. When asked whether it was his decision or Ms. Clark’s to
withhold the verification, Mr. Sanchez responded that it was not his decision. The
Court advised counsel it would hear any motions relative to this noncompliance on
an expedited basis.
17

On May 23, 2024, Liberty filed for sanctions.
18
The Court ordered that any
opposition be filed by May 29, 2024, and set the motion for oral argument on June 4,

13 See R. Doc. 64.
14 See R. Doc. 66.
15 See R. Doc. 67.
16 In May, Mr. Sanchez indicated that he was “actively working” on getting the
verification and was willing to personally travel to New York to obtain the verification
from Ms. Clark. R. Doc. 106 at 56. Ms. Clark terminated him within a few weeks. Her
new counsel similarly indicated he believed it would be relatively easy to obtain the
verification. Yet he, too, was unable to secure to secure a signed verification from Ms.
Clark.
17 R. Doc. 67.
18 R. Doc. 70.
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2024.
19
Ms. Clark terminated her counsel, Mr. Sanchez, and he moved to withdraw
on May 29, 2024.
20

June 2024: During a third status conference before the undersigned, the Court
confirmed that the hearing on the sanctions motion would go forward as ordered and
reminded Ms. Clark’s counsel that he remained enrolled in the case unless a motion
to withdraw were granted.
21
The withdrawal motion was referred to the
undersigned, and a hearing on that motion and Liberty’s Motion for Sanctions was
held on June 4, 2024.
22

The Court ultimately granted Mr. Sanchez’s motion to withdraw
23
and ordered
Ms. Clark to appear on July 9, 2024, to show cause why she should not be
sanctioned.
24
The Court also ordered Ms. Clark to notify it on or before Friday, June
21, 2024, whether she was retaining new counsel or planned to represent herself.
25

Ms. Clark did not comply with that order, even though, as part of the withdrawal
process, Mr. Sanchez explained (again) to Ms. Clark that all dates and deadlines
extend to her whether or not she retained replacement counsel.
26
Mr. Sanchez also

19 R. Doc. 72.
20 R. Doc. 73.
21 R. Doc. 75.
22 See R. Doc. 76.
23 While submissions in connection with the initial motion to withdraw indicated
that certain dates and deadlines may not have been conveyed to Ms. Clark as required
by the Local Rules, that issue was subsequently remedied. See R. Doc. 78.
24 R. Doc. 77.
25 Id.
26 See R. Doc. 78.
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confirmed that Ms. Clark received email and mail at the addresses in the Court’s
possession.
27

July 2024: On July 3, 2024, the Court ordered Ms. Clark to advise “at her
earliest convenience, but no later than July 17, 2024, whether she intend[ed] to
continue prosecuting this matter.” The Court further ordered Ms. Clark to show cause
at the July 9 hearing why she should not be sanctioned for violating the Court’s order
relative to the June 21 deadline. The order stated:
Ms. Clark is reminded (again) that if a party fails to obey an
order to provide or permit discovery the Court may issue
further just orders, including: prohibiting the disobedient party
from supporting or opposing designated claims or defenses, or
from introducing designated matters in evidence; striking
pleadings in whole or in part; staying further proceedings until
the order is obeyed; dismissing the action or proceeding in
whole or in part; or treating as contempt of court the failure to
obey an order. This principle applies regardless of whether Ms.
Clark proceeds to retain new counsel.
28

On the morning of July 9, Ms. Clark filed a motion to enroll counsel.
29
The
undersigned permitted the proposed new counsel (Mr. Council) to participate at the
hearing provisionally and subject to the pending motion to enroll (which was
ultimately granted).
30
During the hearing, however, Mr. Council provided no
justification for Ms. Clark’s continued noncompliance with the orders of Judge Roby
and the undersigned.

27 Id.
28 R. Doc. 81 at 1 (emphasis original).
29 See R. Doc. 83.
30 See R. Doc. 85.
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At the July 9 hearing, the undersigned learned that Ms. Clark’s newly enrolled
counsel had written to Liberty’s counsel on Monday, June 24, 2024, and advised that
they would be fil ing a motion to enroll by the end of that week.
31
Still, no such motion
was filed until July 9, and Ms. Clark and her newly-enrolling counsel simply ignored
the Court’s order requiring Ms. Clark to notify the Court at her earliest convenience
whether she intended to hire new counsel or proceed pro se.
To-date, there has been no explanation whatsoever as to Ms. Clark’s refusal to
comply with the rules of discovery and multiple court orders. Each attorney to appear
on Ms. Clark’s behalf has been unable to offer any justification for her disregard for
the Court’s authority. Despite being represented by multiple sets of attorneys and
being offered every chance to cure her behavior, Ms. Clark was in flagrant, unexcused
violation of multiple court orders for over six months.
As of the June hearing, there was already ample reason to recommend
dismissal of Ms. Clark’s lawsuit as a sanction for her conduct. Even so, Ms. Clark was
absent during many of these proceedings. While her counsel credibly maintained that
they were in contact with her, the undersigned was reluctant to recommend dismissal
without providing Ms. Clark one last opportunity to personally set foot in court and
speak on her own behalf.
32
Thus, an evidentiary hearing was set for August 8, 2024.
33

31 R. Doc. 84-1. Although Mr. Council was only now enrolling, he had represented
Ms. Clark previously (and withdrew), including at the inception of the lawsuit. Thus,
there is no doubt that he was familiar with the case number of this matter.
32 See R. Doc. 92.
33 Id.
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The Court noted specifically that the “purpose of the hearing [wa]s to provide Ms.
Clark with an opportunity to present evidence, including her own testimony, relative
to the reasons for the repeated violations of the Court’s orders” and warned that this
was Ms. Clark’s “one last opportunity” to do so.
34

The Court ordered Ms. Clark to advise it by August 1, 2024, whether she
intended to testify at the evidentiary hearing.
35
Yet again, Ms. Clark failed to comply.
Instead, she simply showed up. Despite Liberty’s (understandable) objection, the
Court permitted Ms. Clark to testify. Once under oath, Ms. Clark attempted to cast
blame for her noncompliance on her prior counsel, Mr. Sanchez. She testified that she
met Mr. Sanchez only once, that he spoke with her by phone only “[e]very three, four,
five months” without any detail about the case, and that she did not recall ever being
informed that she needed to complete the verification or produce any documentation.
Additionally, Ms. Clark specifically denied that she had spoken with Mr. Sanchez on
June 11, 2024, regarding his withdrawal as counsel and her continued obligation to
comply with the Court’s deadlines.
Having carefully reviewed all relevant evidence before it, the Court has
determined that Ms. Clark’s testimony is not credible. During the undersigned’s time
as the magistrate judge on this case, there have been repeated proceedings at which
Mr. Sanchez’s statements to the Court made clear that he was in communication with
his client, including by telephone, email, and text message. Moreover, Mr. Sanchez

34 Id.
35 Id.
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filed a Certificate of Compliance describing his June 11, 2024 discussion with Ms.
Clark, therein attesting that he had, in fact, properly advised her of all dates and
deadlines and her obligation to abide by such, “whether or not she decide[d] to retain
new counsel or represent herself going forward.”
36

In his testimony at the evidentiary hearing, given as the Court’s own witness
for the limited purpose of responding to Ms. Clark’s allegations as permitted by Rule
1.6(b)(5) of the Louisiana Rules of Professional Conduct, Mr. Sanchez’s recollection of
this discussion was credible and detailed. Mr. Sanchez also stated that the
conversation was accompanied by several contemporaneous text messages. Unlike
Ms. Clark’s testimony, Mr. Sanchez’s testimony aligned with every filing, discussion,
and hearing in this case that occurred in the presence of the undersigned. The
overwhelming evidence confirms that Ms. Clark’s unsubstantiated testimony in
which she claimed to be ignorant of the verification issue was false.
Ms. Clark’s false testimony cannot be attributed to a lack of recollection or
confusion. She testified repeatedly during the hearing that she could not recall
particular statements or that she was not sure whether something did or did not
occur. She was unequivocal, however, in insisting the July 11, 2024 conversation
never occurred. Given Ms. Clark’s repeated assertion that Mr. Sanchez simply did
not talk with her about her case, it is beyond reason to believe her adamant denial of
this conversation reflects a simple mistake. Rather, Ms. Clark’s claims appear to

36 R. Doc. 78.
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reflect a strategy in defending the sanctions motion that hinges on inaccurate
accusations that Mr. Sanchez, rather than Ms. Clark herself, is at fault for her
noncompliance.
This strategy seems to presuppose that, now represented by new counsel, the
matter of Ms. Clark’s flagrant disobedience with the Court’s orders has been
remedied and no sanctions need be imposed. But Ms. Clark’s new counsel have
participated in numerous proceedings, including an adversarial hearing and status
conferences relative to her noncompliance with the Court’s orders. Ms. Clark’s failure
to comply with Judge Roby’s order and the orders of the undersigned has been
discussed ad nauseam with and in the presence of Ms. Clark’s new counsel. And still,
as of the hearing, she had not provided the verification. This failure cannot be
attributed to her current counsel. Indeed, Ms. Clark affirmed at the evidentiary
hearing that her current counsel have been communicative throughout their
representation. Ms. Clark alone can be responsible for this continuing failure, and all
supporting record evidence belies Ms. Clark’s transparently rehearsed testimony
blaming her past disobedience on Mr. Sanchez.
It is without question that Ms. Clark’s lengthy and baseless refusal to comply
with this Court’s orders in this case has caused actual prejudice to Liberty. Because
Ms. Clark submitted materially inaccurate
37
and unverified responses, Liberty has
37 For example, Ms. Clark’s interrogatory responses indicated that she was self-
employed, and her counsel later explained that she was a self-employed housekeeper.
R. Doc. 26-10 at 14. But Ms. Clark stated unequivocally when deposed that she was
not a housekeeper and instead owned her own fashion and accessories business. R.
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incurred substantial additional costs and inefficiencies relative to subpoenas,
deposition testimony, and additional briefing at the summary judgment stage. Ms.
Clark’s incomplete answers relative to medical providers also resulted in additional
discovery delays. Finally, Ms. Clark’s conduct has burdened this Court, including the
prior presiding U.S. Magistrate Judge and the undersigned, prompting at least three
hearings and two status conferences relative to the verification issue alone.
II.Analysis
Liberty has moved for sanctions under Rule 37(b)(2) of the Federal Rules of
Civil Procedure. That rule authorizes courts to respond to noncompliance with their
orders by doing one or more of the following:
(i)directing that the matters embraced in the order or other
designated facts be taken as established for purposes of the
action, as the prevailing party claims;
(
ii)prohibiting the disobedient party from supporting or opposing
designated claims or defenses, or from introducing designated
matters in evidence;
(iii)striking pleadings in whole or in part;
(iv)staying further proceedings until the order is obeyed;
(v
)dismissing the action or proceeding in whole or in part;
(vi)rendering a default judgment against the disobedient party; or
(vii)treating as contempt of court the failure to obey any order except an
order to submit to a physical or mental examination.
Doc. 70-5 at 2. Indeed, even basic factual information (e.g., Ms. Clark’s birthdate,
including year) is wrong in the unverified responses. See R. Doc. 70-2 at 7 (citing
documents). Plainly, Ms. Clark could have corrected the responses before verifying
them. But she opted to do nothing.
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In addition, courts may assess reasonable expenses, including attorney’s fees, against
the disobedient party unless the noncompliance was substantially justified or other
circumstances would render such an award unjust. Rule 37(b)(2)(C).
38
The most severe sanction for noncompliance under Rule 37 is dismissal. Fifth
Circuit caselaw “‘imposes a heightened standard’ for entering ‘litigation ending
sanctions’ under the Federal Rules of Civil Procedure.” Calsep A/S v. Dabral, 84
F.4th 304, 311 (5th Cir. 2023) (quoting Law Funder, L.L.C. v. Munoz, 924 F.3d 753,
758 (5th Cir. 2019)). The Fifth Circuit has thus observed:
Although the district court’s discretion under Rule 37 is broad, we have
repeatedly emphasized that it is not unlimited, and we have often
characterized a dismissal with prejudice as a “draconian” remedy, or a
“remedy of last resort” only to be applied in extreme circumstances.
Nevertheless, we are mindful of the Supreme Court’s admonition
regarding the natural tendency of reviewing courts, employing
hindsight, to be heavily influenced by the severity of outright dismissal
of an action as a discovery sanction.
Batson v. Neal Spelce Assocs., Inc., 765 F.2d 511, 515 (5th Cir. 1985) (citing, inter
alia, Marshall v. Segona, 621 F.2d 763, 767 (5th Cir. 1980); Nat’l Hockey League v.
Metro Hockey Club, Inc., 427 U.S. 639, 642 (1976)) (internal citations removed). Still,
“discovery delays are serious, especially when they are part of a pattern.” Calsep, 84
F.4th at 313 (citing United States v. $49,000 Currency, 330 F.3d 371, 377 (5th Cir.
2003)). Dismissal is therefore appropriate (and, at times, necessary) both to sanction
38 Liberty’s reasonable expenses, including attorney’s fees, will be addressed via the
separate pending motions.
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a willfully and repeatedly noncompliant litigant and to deter other litigants from
similar conduct. See Nat’l Hockey League, 427 U.S. at 643 (“ But here, as in other areas
of the law, the most severe in the spectrum of sanctions provided by statute or rule
must be available to the district court in appropriate cases, 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.”). In
recognition of the severity of this sanction, the Fifth Circuit has articulated several
factors that must be present before a court may dismiss a case with prejudice for a
party’s violation of a discovery order. See D.I.C. v. Conner, 20 F.3d 1376, 1380–81 (5th
Cir. 1994). To justify such a dismissal, the court must determine that:
(1)“the refusal to comply results from willfulness or bad faith and is
accompanied by a clear record of delay or contumacious conduct;” (2) the
violation of the discovery order must be attributable to the client instead
of the attorney, (3) the violating party’s misconduct “must substantially
prejudice the opposing party;” and (4) a less drastic sanction would not
substantially achieve the desired deterrent effect.
Doe v. Am. Airlines, 283 F. App’x. 289, 291 (5th Cir. 2008) (quoting Conner, 20 F.3d
at 1380–81).
The record of this case easily establishes the presence of each Conner factor,
and the facts weigh strongly in favor of sanctioning Ms. Clark by dismissing her
action. First, there is a clear record of delay or contumacious conduct. Ms. Clark
violated Judge Roby’s order for months and continued to refuse to produce the
verification when again ordered by the undersigned. Then, even in the face of a
pending motion for sanctions, Ms. Clark violated a third court order (relative to
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prompt notification as to her intent to enroll counsel) and a fourth one (relative to
notification of her intent to testify at the hearing). These examples illustrate that
Ms. Clark believes that she is at liberty to disregard the Court’s authority. Ms. Clark
has been given chance after chance to correct her course and comply with the Court’s
orders going forward. See Calsep, 84 F.4th at 314 (“Knowingly ignoring an obligation,
especially multiple times, may alone be enough to find bad faith. And, noncompliance
is doubly problematic when the lower court issues—like it did here—a warning.”)
(internal citations omitted). Yet, she ignored each warning and squandered those
opportunities. See Jones v. Louisiana State Bar Ass’n, 602 F.2d 94, 97 (5th Cir. 1979)
(“ the District Court showed extreme patience in the face of Appellant’s obstreperous
behaviour. The District Court repeatedly warned Appellant of the possible
consequences of her continued failure to obey discovery orders. Before citing
Appellant with contempt, the District Court allowed her to confer with her attorney.
Yet, she persisted in her disobedience.”) . The undersigned specifically finds, based on
an exhaustive review of the record, numerous status conferences and oral arguments,
and the lack of credibility of Ms. Clark’s own testimony at the evidentiary hearing,
that Ms. Clark’s noncompliance was willful.
Second, the record overwhelmingly proves fault for this disobedience sits with
Ms. Clark. Liberty’s counsel has been diligent and thorough in seeking the
verification, and none of the various attorneys who represented Ms. Clark claimed
that no verification was required. By all credible accounts ( including those of Ms.
Clark’s own attorneys) the only person to blame for Ms. Clark’s refusal to produce the
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verification is Ms. Clark. The undersigned thus specifically finds that Ms. Clark’s
violation of this Court’s discovery orders is personally attributable to Ms. Clark.
Third, there is no doubt that Ms. Clark’s misconduct resulted in substantial
prejudice to Liberty. In assessing the Conner factors, the Fifth Circuit has noted that
the “mere inconvenience of dealing with [an opponent’s] unusable productions and
being forced to repeatedly file motions to compel may alone amount to prejudice.”
Calsep, 84 F.4th at 315 (citing Bell v. Texaco, Inc., 493 F. App'x 587, 594 (5th Cir.
2012)). Here, Liberty expended significant resources attempting to remedy the
situation, including attending multiple status conferences and hearings before the
undersigned and briefing several motions relative to discovery that would have been
otherwise unnecessary. Liberty also asserts that Ms. Clark’s failure to produce the
verification may have prejudiced its position relative to its motion
39
seeking
summary disposition of Ms. Clark’s claims in its favor. See id. at 314–15 (holding that
the district court had not abused its discretion in finding a party had been
“unquestionably prejudiced by [an opponent]’s conduct” which “prevented [that party]
from obtaining evidence necessary to establish [its] claim”). The undersigned
specifically finds that Ms. Clark’s extended and willful unwillingness to participate
in discovery as ordered has substantially prejudiced Liberty in this matter.
Finally, given the extraordinary facts of this case, the fourth Conner factor also
weighs in favor of dismissal. The undersigned has thoroughly considered whether
39 R. Doc. 34.
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some lesser sanction would be effective in both deterring Ms. Clark and other
litigants from similar conduct. But no lesser sanction will suffice. Judge Roby’s
admonition that Ms. Clark would be responsible for Liberty’s attorney’s fees occurred
in November 2023. Yet it had no effect. And Ms. Clark, even when represented by two
sets of counsel, has not filed any opposition to the sanctions motion (nor even sought
leave to file an untimely one) that would explain what lesser measure(s), if any, she
believes would suffice.
The unusual nature of Ms. Clark’s misconduct further counters against
crafting any lesser effective sanction. In short, Ms. Clark (1) provided interrogatory
responses that were both incomplete and partially fictitious; (2) refused to correct and
personally verify those responses; (3) disregarded multiple Court orders requiring her
to do so; and (4) by this course of conduct, including her refusal or inability to provide
any justification therefor, demonstrated a prolonged and persistent willingness to
defy court orders intentionally. The convoluted and strange nature of the substance
of her interrogatory responses (including, for example, a false occupation and birth
date—which she failed to correct), defies any easy remedy relative to exclusion of
evidence. Indeed, Ms. Clark would likely benefit were her fictitious answers excluded.
The Fifth Circuit, however, has made clear that “a detailed consideration of
lesser sanctions isn’t required where . . . a court appropriately concludes that a party's
act was particularly egregious, part of a pattern of repeated violations, and—as
evidenced by the wrongdoer's conduct—there’s some indication that lesser sanctions
would be futile or ignored.” Calsep, 84 F.4th at 317. Indeed, “[p]roviding [a
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noncompliant party] with a second or third chance is itself a lenient sanction, which,
when met with further default, may justify imposition of the ultimate sanction of
dismissal with prejudice.” In re Taxotere (Docetaxel) Prod. Liab. Litig., 966 F.3d 351,
360 (5th Cir. 2020) (emphasis original and internal quotations removed) (quoting
Callip v. Harris Cty. Child Welfare Dep't, 757 F.2d 1513, 1521 (5th Cir. 1985)). The
Court is not “required to attempt to coax [a willfully noncompliant party] into
compliance with its order by imposing incrementally increasing sanctions.” $49,000
Currency, 330 F.3d at 379. The Fifth Circuit has upheld courts’ determinations that
no sanction less drastic than wholescale dismissal of the plaintiff’s action would
suffice under circumstances analogous to those presented here. See Truck Treads,
Inc. v. Armstrong Rubber Co., 818 F.2d 427, 429 (5th Cir. 1987) (affirming dismissal
under Rule 37 as a sanction for plaintiff’s willful refusal to comply with discovery
orders); Prince v. Poulos, 876 F.2d 30, 31–33 (5th Cir. 1989) (same); Bluitt v. Arco
Chem. Co., 777 F.2d 188, 191 (5th Cir. 1985) (same). The undersigned thus
specifically finds that Ms. Clark’s misconduct demands the same result.
After careful consideration the undersigned concludes that two sanctions are
necessary both to sanction Ms. Clark’s willfully and repeatedly noncompliant conduct
and to deter other litigants from similar misconduct. See Nat’l Hockey League, 427
U.S. at 643.
First, as discussed during prior proceedings, Ms. Clark must pay Liberty its
reasonable expenses, including attorney’s fees, relative to the following:
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(1) The original motion to compel and hearing over which Judge Roby
presided (consistent with Judge Roby’s prior order); and
(2) The proceedings before the undersigned relative to the sanctions motion,
including relative to the status conferences and hearings in May, June,
July, and August.
Because the Court has found that Ms. Clark’s sanctionable behavior is attributable
to her alone, this sanction will be assessed against Ms. Clark personally. The Court
will address the quantum of attorney’s fees to be awarded by separate order on
Liberty’s pending motions.
40

Second, it is recommended that Ms. Clark’s lawsuit be dismissed with
prejudice. This Court has afforded Ms. Clark chance after chance. Each time, her
conduct displayed a flagrant disregard for court orders. The prejudice to the opposing
party here has been substantial. To permit Ms. Clark to continue to prosecute her
case in federal court while ignoring that court’s authority would risk turning this case
into the Jarndyce and Jarndyce of discovery disputes by which a defendant’s
hypothetical worst-case judgment is dwarfed by the expense of constantly relitigating
the plaintiff’s refusal to comply with simple, court-ordered discovery.
41
But the
prejudice to the judicial system and the public is even greater. Any additional
leniency would, in effect, excuse Ms. Clark from complying with the basic precepts by

40 R. Docs. 103, 104.
41 See Charles Dickens, Bleak House 355 (Harper & Brothers, 1873 ed.) (1853) (“Do
I understand that the whole estate is found to have been absorbed in costs?”).
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which all other litigants must abide.
The Supreme Court has long since made clear that a court’s power to punish
litigants for “contempts[,]” including disobedience with its orders, “is essential to the
preservation of order in judicial proceedings” and “ the due administration of
justice.” Ex parte Robinson, 86 U.S. 505, 510 (1873). The “draconian” remedy of
dismissal is thus appropriate and necessary here not only to penalize Ms. Clark for
her flagrant disrespect of this Court and resultant prejudice to her fellow litigants,
but also to ensure that “other parties to other lawsuits [do not] feel freer . . . than
Rule 37 contemplates they should feel to flout other discovery orders of other district
courts.” Nat’l Hockey League, 427 U.S. at 643. Allowing Ms. Clark’s persistent
disregard for the Court’s authority to go unchecked would risk undermining the
administration of justice and respect for the rule of law. Based on the undersigned’s
active and prolonged involvement in the case, dealings with counsel, and assessment
of witness credibility and demeanor firsthand, no lesser sanction than dismissal will
suffice in this case.
III. Conclusion
For all these reasons,
ORDER
IT IS ORDERED that the Motion for Sanctions is GRANTED.

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IT IS FURTHER ORDERED that Liberty is entitled to recover its reasonable
expenses, including attorney’s fees, incurred in connection with Ms. Clark’s refusal
to provide a verified interrogatory response and otherwise comply with the orders of
this Court. The amount of Liberty’s award will be set forth in a ruling relative to the
separate pending motions.
RECOMMENDATION
IT IS FURTHER RECOMMENDED that Ms. Clark’s claims be
DISMISSED WITH PREJUDICE pursuant to Federal Rule of Civil Procedure
37(b)(2)(A)(v) for failure to comply with this Court’s discovery orders.
A party’s failure to file written objections to the proposed findings, conclusions,
and recommendation in a magistrate judge’s report and recommendation within
fourteen (14) days after being served with a copy shall bar that party, except upon
grounds of plain error, from attacking on appeal the unobjected-to proposed factual
findings and legal conclusions accepted by the district court, provided that the party
has been served with notice that such consequences will result from a failure to object.
28 U.S.C. § 636(b)(1); Douglass v. United Services Auto. Ass’n, 79 F.3d 1415, 1430 (5th
Cir. 1996) (en banc).
New Orleans, Louisiana, this 22
nd
day of October, 2024.

EVA J. DOSSIER
UNITED STATES MAGISTRATE JUDGE

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CLERK TO NOTIFY VIA U.S. MAIL AND EMAIL:

Yeldy Clark, Plaintiff
367 E. 163rd St.
Apt. 4a
Bronx, NY 10451
esanchezclark@gmail.com
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