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Graney v. Mercy Health Services-Iowa, Corp.

United States District Court, Eighth Circuit

September 18, 2013

SHANE GRANEY, Individually and as Co-Administrator of the Estate of Zachary Graney, and KARRY GRANEY, Individually and as Co-Administrator of the Estate of Zachary Graney, Plaintiffs,
v.
MERCY HEALTH SERVICES-IOWA, CORP., d/b/a Mercy Medical Center-North Iowa, Defendant.

REPORT AND RECOMMENDATION

LEONARD T. STRAND UNITED STATES MAGISTRATE JUDGE

INTRODUCTION

This case is before me on defendant’s August 29, 2013, motion (Doc. No. 14) to dismiss or, alternatively, for other sanctions. Plaintiffs’ resistance was due September 16, 2013. They did not resist. As such, the motion is fully submitted.

PROCEDURAL BACKGROUND

Plaintiffs Shane Graney and Karry Graney, in their individual capacities and as co-administrators of the estate of Zachary Graney, filed this case on October 22, 2012, in the Iowa District Court for Cerro Gordo County. Their state court petition, filed pro se but drafted with the assistance of an attorney, [1] describes an incident that occurred on October 22, 2010, when Zachary Graney was 16 years old. Plaintiffs allege that Zachary was found unresponsive outside a convenience store and was taken to Mercy Medical Center – North Iowa in Mason City. They further allege that after “a delay of some time, ” Zachary was treated in the emergency department but died the following day “of probable cardiac arrhythmia.” Petition ¶ 7. The petition includes claims against defendant Mercy Health Services-Iowa Corp., d/b/a Mercy Medical Center – North Iowa (“Mercy”), for wrongful death and loss of parental consortium. Plaintiffs allege that Mercy and its employees were negligent in the diagnosis, care and treatment of Zachary. Id. ¶ 9. The petition also includes a claim that Mercy violated the Federal Emergency Medical Treatment and Active Labor Act (EMTALA) by failing to provide an appropriate medical screening examination for Zachary. Id. ¶¶ 15-19.

Mercy removed (Doc. No. 1) the case to this court on December 4, 2012, alleging federal question jurisdiction based on the EMTALA claim. Mercy then filed an answer (Doc. No. 4) on December 10, 2012. The answer includes Mercy’s denial of liability and certain affirmative defenses.

After this relatively-normal beginning, this case fell off the tracks quickly. On May 7, 2013, I entered an order (Doc. No. 7) addressing the parties’ failure to submit a proposed scheduling order and discovery plan. I noted that Mercy’s counsel had submitted documentation of their unsuccessful efforts to confer with plaintiffs about a proposed order. I then stated:

Under our local rules, the parties “are jointly responsible for preparing a proposed scheduling order and discovery plan.” See Local Rule 16(b). Because plaintiffs apparently failed to respond to defendant’s effort to jointly prepare an order, defendant should have submitted a proposed order of its own. In short, both sides bear some fault for the fact that the proposed scheduling order is now long overdue.
Based on the foregoing:
1. The pro se plaintiffs shall confer by telephone with counsel for defendant for the purpose of preparing a joint proposed scheduling order and discovery plan pursuant to Local Rule 16(a). Because plaintiffs are proceeding without counsel, and because defendant is the party that removed the case to this court, counsel for defendant shall make good faith efforts to arrange that telephone conference no later than May 21, 2013.
2. Counsel for defendant shall submit a proposed scheduling order and discovery plan for my review on or before May 24, 2013. That document should be accompanied by a cover letter indicating whether it is being submitted jointly, based on a conference with plaintiffs, or unilaterally due to plaintiffs’ failure to confer.
3. Plaintiffs are advised that they must follow this court’s rules, even though they are not represented by counsel. This includes both the court’s local rules and the Federal Rules of Civil Procedure. These rules may be accessed on the court’s website, located at http://www.iand.uscourts.gov/e-web/home.nsf/home. Among other things, this means plaintiffs must participate in the discovery process. It appears they are not off to a good start. If they do not comply with this court’s rules, they will be subject to sanctions up to and including the dismissal of this case.

Doc. No. 7 at 1-2. On May 23, 2013, I entered the following order (Doc. No. 8):

Pursuant to my order of May 7, 2013 (Doc. No. 7), counsel for defendant has submitted a proposed scheduling order and discovery plan for this case. Counsel also submitted a cover letter and attachments showing their repeated efforts to confer with the pro se plaintiffs about the preparation of that document. Unfortunately, ...

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