IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE

AT CHATTANOOGA

SHANDLE MARIE RILEY )

)
Plaintiff, )
v. )
) No. 1:19-CV-00304 (LEAD CASE)
HAMILTON COUNTY GOVERNMENT ) No. 1:19-CV-00348 (THIS CASE)
)
DEPUTY DANIEL WILKEY, in his ) McDonough/Steger
capacity as deputy sheriff for Hamilton )
County Government and, in his individual )
capacity, )
) JURY DEMAND
DEPUTY JACOB GOFORTH, in his )
capacity as deputy sheriff for Hamilton )
County Government and, in his individual )
capacity, and )
)
)
Defendants, )

MEMORANDUM IN SUPPORT OF DEFENDANTS’ MOTION TO COMPEL OR IN

THE ALTERNATIVE DISMISS MRS’S COMPLAINT

COMES NOW Defendants Hamilton County, Tyler McRae and Daniel Wilkey

(hereinafter “Defendants”), by and through counsel Sharon Milling, W. Gerald Tidwell and J.

Micah Guster, and files this Memorandum in Support of Defendants’ Motion to Compel or in the

Alternative Dismiss MRS’s Complaint in Case Number 1:19-cv-00348 pursuant to Rules

37(a)(3)(B)(iii), 37(a)(3)(B)(i), 36 and 41(b) of the Federal Rules of Civil Procedure.

On May 15, 2020 W. Gerald Tidwell sent interrogatories and Request for Admissions to

MRS on behalf of Defendant Tyler McRae. On June 8, 2020, W. Gerald Tidwell received what

were purported to be answers to Request for Admissions signed by Robin Flores with no

answers. The place for answers was blank. On December 31, 2020, W. Gerald Tidwell received

Case 1:19-cv-00304-TRM-CHS Document 326 Filed 02/05/21 Page 1 of 10 PageID #: 2433

 those interrogatories back unsigned from Plaintiff MRS. Additionally, on October 13, 2020,

Defendant Daniel Wilkey sent interrogatories to Plaintiff MRS and received those back unsigned

on December 31, 2020.1 Rule 33(b)(2) of the Fed. R. Civ. P. states that the “responding party

must serve its answers and any objections within 30 days after being served with the

interrogatories.” Rule 33(b)(3) of the Fed. R. Civ. P. states that each “interrogatory must, to the

extent it is not objected to, be answered separately and fully in writing under oath.” Rule

33(b)(5) of the Fed. R. Civ. P. states that the “person who makes the answers [to the

interrogatories] must sign them.” Plaintiff MRS has not complied with any of these rules. MRS

has had more than 60 days to more than 6 months to simply sign any of the interrogatory answers

under oath, yet this is undone. Demand for answers signed have been made.

Plaintiff MRS has also skipped multiple depositions. Rule 30(a)(2) of the Fed. R. Civ. P.

allows that a “party may, by oral questions, depose any person, including a party, without leave

of court.” MRS’s deposition was originally scheduled on November 20, 2020 by the agreement

of the parties and with appropriate notice sent to Plaintiff’s counsel. Due to prior depositions,

the parties’ counsel agreed to move MRS’s deposition to January 6, 2021. On January 6, 2021,

61 days later, although counsel appeared, MRS failed to appear for that deposition. After that

Tyler McRae’s counsel Tidwell noticed Plaintiff MRS to appear on January 21, 2021 which was

also a date agreed to by the parties. Less than 24 hours before MRS’s third scheduled

1
Counsel for the Plaintiffs have stated that they would endeavor to get these interrogatories signed, but up and
until the filling of this motion, MRS has failed to swear to and sign these interrogatories. Recent developments
noted below indicate that this Plaintiff will not be signing these answers or sitting for a deposition.

Case 1:19-cv-00304-TRM-CHS Document 326 Filed 02/05/21 Page 2 of 10 PageID #: 2434

 deposition, the parties received notice from Catherine White, MRS’s Guardian ad Litem, that

MRS would not be appearing at the January 21, 2021 deposition. Thus, it was cancelled.2

Defendants have not received Plaintiff MRS’s presence nor signature under oath in any

form during this litigation. This makes it difficult for Defendants to prepare a defense and

wastes time, money, and effort unnecessarily. The Court has dealt with similar matters before.

In Pealer v. Lowe's Home Centers LLC, 2021 U.S. Dist. LEXIS 7493 (E.D. Tenn. 2021), Judge

Collier dismissed a case with prejudice when Plaintiff failed to respond to requests for multiple

depositions and notified Defendant’s counsel 4 hours before her final scheduled deposition that

she would not appear. Id at *10-11. In Jones-Maclin v. Tiger Commissary Services Inc.2015

U.S. Dist. LEXIS 13283, (E.D. Tenn. 2015)3, the Court dismissed with prejudice the Plaintiff’s

complaint when they failed to answer interrogatories and requests for production after granting a

motion to compel for that discovery, and Plaintiff’s counsel, but not Plaintiff themself, appeared

for a previously noticed deposition. Id at *4-5.

In Ray v. Fisk University, the Court dismissed a complaint without prejudice “under the

‘relaxed’ standard for dismissals” when a Plaintiff failed to respond to “the Court’s show-cause

order” to “prosecute under rule Rule 41(b).” Ray v. Fisk University, 2020 U.S. Dist. LEXIS

113792, *8-9 (M.D. Tenn. 2020) 4. In Holder v. AT&T Services, Inc., the Court dismissed the

Plaintiff’s complaint with prejudice under Rule 37 for failure to prosecute when the Plaintiff

failed to “appear for a third properly noticed deposition” after calling Defendant’s counsel 8 days

2
Upon motion of counsel for MRS to appoint a guardian-ad-litem (Doc. 135), this court appointed Ms. White to
serve in that role (Doc. 255). Plaintiff’s counsel Robin Flores has advised Mr. Tidwell that Ms. White was assisting in
getting the outstanding interrogatories answered and signed.
3
Adopted by the District Judge at Jones-Maclin v. Tiger Commissary Services Inc. 2015 U.S. Dist. LEXIS 12435 (E.D.
Tenn. 2015).
4
This opinion was adopted by the District Court at Ray v. Fisk University 2020 U.S. Dist. LEXIS 132459 (M.D. Tenn.
2020).

Case 1:19-cv-00304-TRM-CHS Document 326 Filed 02/05/21 Page 3 of 10 PageID #: 2435

 before the deposition and providing counsel a letter 1 day before the deposition with previously

undisclosed information from Plaintiff’s earlier phone call. Holder v. AT&T Services, Inc., 2015

U.S. Dist. LEXIS 9691, *3-5 (M.D. Tenn. 2015).

Rule 37(d)(1)(A)(i)(ii) of the Fed. R. Civ. P. states that “the court where the action is

pending may, on motion, order sanctions if: (i) a party…fails, after being served with proper

notice, to appear for that person's deposition; or (ii) a party, after being properly served with

interrogatories under Rule 33…fails to serve its answers, objections, or written response.” “In

construing a motion to dismiss for failure to prosecute, the court should consider four factors: (1)

whether the party's failure to cooperate in discovery is due to willfulness, bad faith, or fault; (2)

whether the adversary was prejudiced by the party's failure to cooperate in discovery; (3)

whether the party was warned that failure to cooperate could lead to the sanctions; and (4)

whether less drastic sanctions were first imposed or considered. Freeland, 103 F.3d at 1277

(citing Reg'l Refuse Sys., Inc., v. Granger Sales, Inc., 842 F.2d 150, 155 (6th Cir. 1987)).”

Holder at *21-23. (See also Pealer at *4-10 and Ray v. Fisk University at *6-8, citing all four

factors). “If a plaintiff fails properly to prosecute an action, it can be dismissed either pursuant

to the Court's inherent power to control its docket, or involuntarily under Fed.R.Civ.P. 41(b).

Link v. Wabash R. Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962); Boudwin v.

Graystone Insurance Co., 756 F.2d 399 (5th Cir.1985).” Jones-Maclin at *3. “Typically, none

of the factors is outcome dispositive, and dismissal is entrusted to the discretion of the Court.” Id

at *3 (citing Knoll v. American Telephone & Telegraph Co., 176 F.3d 359, 363 (6th Cir.1999).

The first factor weighs in favor of dismissal. “To meet this standard, a plaintiff's conduct

must ‘display either an intent to thwart judicial proceedings or a reckless disregard for the effect

of his conduct on those proceedings.’ Kovacic v. Tyco Valves & Controls, LP, 433 F. App'x 376,

Case 1:19-cv-00304-TRM-CHS Document 326 Filed 02/05/21 Page 4 of 10 PageID #: 2436

 380 (6th Cir. 2011) (quoting Wu, 420 F.3d at 643). Likewise, the standard is satisfied when there

is ‘a clear record of delay or contumacious conduct.’ Carpenter, 723 F.3d at 704.” The Pealer

Court found factor one “weigh[ed] heavily in favor of dismissal” citing “refusal to comply with

discovery requests can establish a clear record of delay. Id at *4-6. See Harmon v. CSX Transp.,

Inc., 110 F.3d 364, 368 (6th Cir. 1997). In Harmon, the plaintiff's repeated failure to respond to

the defendant's interrogatory requests was found to demonstrate delay...” Pealer at *7. The

Pealer Court also found under the first factor that “Plaintiff refused to respond to Defendant's

request to schedule her deposition and repeated efforts to confirm her deposition date for three

months.” Id at *7. Factor one can weigh heavily in favor of Defendants because Plaintiff MRS

has (1) not signed interrogatories under oath, (2) provided them months after initial service to the

Defendants, and (3) not appeared at any deposition. (See also Holder v. AT&T Services, Inc.,

finding Plaintiff’s “third failure to appear” at her deposition “was not in good faith”). MRS

simply refuses to comply with valid discovery requests or to appear at her deposition.

The second factor heavily weighs in favor of dismissal. “The second factor that a court

must consider is whether the adversary was prejudiced by the dismissed party's conduct. Wu,

420 F.3d at 643-44 (quoting Knoll v. Am. Tel. & Tel. Co., 176 F.3d 359, 363 (6th Cir. 1999)).

Failure to cooperate with discovery requests has been found to constitute prejudice. See, e.g.,

Harmon, 110 F.3d at 368. In Harmon, the plaintiff's failure to respond to the defendant's

discovery requests meant [n]ot only had [the defendant] been unable to secure the information

requested, but it was also required to waste time, money, and effort in pursuit of cooperation

which [the plaintiff] was legally obligated to provide. Id. The Court of Appeals for the Sixth

Circuit had no doubt that [the defendant] was prejudiced by [the plaintiff's] failure to respond to

its interrogatories. Pealer at *4.” Plaintiff MRS’s deposition “is critical to the defendant's

Case 1:19-cv-00304-TRM-CHS Document 326 Filed 02/05/21 Page 5 of 10 PageID #: 2437

 ability to devise other discovery, formulate strategy, retain experts (if necessary), and generally

defend the action.” Holder at *22.

As the Court noted in Pealer “[l]ike the Court of Appeals in Harmon, the Court has no

doubt Plaintiff's conduct has prejudiced Defendant. Plaintiff's conduct has caused Defendant to

waste time, money, and effort to schedule and prepare for Plaintiff's deposition.” Pealer at *8

Further, as the Court noted in recommending dismissal in Jones-Maclin “Plaintiff did not

respond to the interrogatories and requests for production of documents” nor appear for her

deposition even with counsel appearing at it. Further “Defendants have been prejudiced in that it

has taken substantial steps to further the case without cooperation from Plaintiff. Without her

cooperation in discovery, Defendants will be unable to prepare an effective defense.” Jones-

Maclin at *4. Wherefore, with Plaintiff MRS’s unwillingness to effectively cooperate with

discovery, Defendants have been prejudiced, and this factor weighs heavily in their favor.

The third factor weighs slightly in Defendants’ favor. Defendants are requesting the

Court compel or alternatively dismiss the case. While the Defendants’ intention to file a motion

to compel with appropriate sanctions has been made known to counsel for MRS, counsel has no

way of knowing if this has been made known to the Plaintiff here for reasons explained below. If

the Court compels Plaintiff’s discovery, this can provide MRS with sufficient warning of

discovery sanctions. Notwithstanding, Plaintiff MRS has not participated substantially in this

litigation for months by not properly signing and timely returning her interrogatories or Request

for Admissions to the Defendants, nor appearing for multiple scheduled and noticed depositions

in this case. Given more than 6 months of untoward behavior, a warning already seems

reasonably or sufficiently supplied when someone does not show up at their deposition or sign

timely their interrogatories under oath.

Case 1:19-cv-00304-TRM-CHS Document 326 Filed 02/05/21 Page 6 of 10 PageID #: 2438

 Through discovery, the deposition of Debra Cummings (MRS’s mother) and Stacey

Cummings (MRS’s stepfather) has been taken on January 14, 2021.5 MRS has been running

away from home. She has run away from home without permission about five times in the last

year. She was gone for the entire summer of 2020. Her parents believe she was with an adult

boyfriend and may have been living in hotels with him. On January 4, 2021, MRS was in

Juvenile Court regarding this behavior and the Judge refused to remove her ankle monitor that

had been ordered by the court due to her running away from home. That night she ran away and

had not been home since. Hence her failure to appear on January 6, 2021 for her deposition. Her

stepfather testified that she had not been to school either in person or online this school year.6

MRS will be eighteen years old in a few weeks. It is reasonable to assume that she is not

returning home and that she will never prosecute this lawsuit that was filed by her mother as next

friend and guardian.

The fourth factor is in Defendants’ favor as well. In Pealer, the Court dismissed the case

with prejudice as “an appropriate sanction based not only on Plaintiff's representation, but also

on her failure to comply with Defendant's discovery efforts.” Id at * 11. While Plaintiff MRS

may have not verbally said she is no longer participating in the litigation, her actions speaker

louder than words. As stated previously, she still to this day has not properly responded to

discovery provided to her in May and October 2020, nor has appeared for any previously

scheduled deposition. MRS is stating by her actions she does not want to participate in this

litigation. If the Court issues an order providing lesser sanctions, this factor will weigh even

more heavily in Defendants’ favor. An alternative to lengthy and costly litigation is to give

5
The transcript has not been prepared and delivered yet so the representations as to content are from notes of
counsel and memory.
6
School records from Soddy Daisy High School obtained by defense counsel using a court order confirm this.

Case 1:19-cv-00304-TRM-CHS Document 326 Filed 02/05/21 Page 7 of 10 PageID #: 2439

 Plaintiff MRS 2 weeks to comply with discovery in this case, then dismiss the case with or

without prejudice. Therefore, factors three and four would be stronger. Notwithstanding, factors

one and two do weigh heavily in Defendants’ favor, and underneath 6th Circuit case law, no

factors are “outcome dispositive,” thus dismissal can be granted on those two bases alone

without warning or lesser sanctions. Jones-Maclin at *3 (citing Knoll v. American Telephone &

Telegraph Co., 176 F.3d 359, 363 (6th Cir.1999).

Lastly, counsel would note for the Court the seriousness of the accusations against these

Defendants. MRS has accused Wilkey of sexually molesting her. She has accused McRae of

standing by and watching without intervening. There has been unusually extensive press

coverage and these men have been damaged in ways that can never be repaired. The Defendants

vehemently deny these claims and would note that numerous false statements of the other four

Plaintiffs that were present at this event have been shown through written discovery and

deposition testimony of those Plaintiffs and Preston Sylar.7 These salacious and sensational

allegations smack of group think and collaborative memory of events. After doing so, MRS will

not even face those she has accused and allow their counsel to question her about the many

contradictions, unlikely claims, and sorted allegations she has made against these men.

Counsel filing this motion are aware that Plaintiff’s counsel has filed a motion to

withdraw and then struck it on technical grounds indicating it will be refiled. That motion has

7
Sylar was an occupant of the car pulled over on the night of this event with the five Plaintiffs. He has not filed
suit and has no reason to misrepresent the events of that night. Several of the Plaintiffs stated in their complaints
that the Defendants ordered Sylar to strip his clothes off in the rain down to his underwear which he did and then
take off his boxer shorts which he refused. MRS did not claim this. Sylar was deposed and denied it, even laughing
at this assertion. When confronted with this, several Plaintiffs persisted in this claim even though the video
evidence did not support it. This is typical of the claims of these Plaintiffs in their complaints. MRS made claims in
her complaints of both actions by Wilkey and statements made by the Defendants of a profane and inappropriate
nature that cannot be heard on the audio of that video. There are other such contradictions in the physical and
testimonial evidence when compared to the written claims of MRS and other Plaintiffs.

Case 1:19-cv-00304-TRM-CHS Document 326 Filed 02/05/21 Page 8 of 10 PageID #: 2440

 now been refiled on February 4, 2021. This motion is not intended to interfere with Plaintiff’s

counsel’s ability to withdraw, but only to bring these issues before the court so that they can be

addressed with any motion to withdraw so that if granted, a reasonable deadline would exist for

answering written discovery and a date for the deposition of the Plaintiff if the court chooses the

path of compulsion of discovery. It is not the intention of defense counsel to use this motion to

keep the Plaintiff’s counsel in the case since they have requested the court allow them to

withdraw.

Wherefore pursuant to Rules 37 and 41 of the Federal Rules of Civil Procedure in Case

Number 1:19-cv-00348, the Defendants ask that their Motion to Compel be granted or

alternatively the Court dismiss Plaintiff MRS’s complaint with or without prejudice. Counsel

contends that sanctions are appropriate against MRS. Although she is a minor, she shows no

sense of responsibility or awareness of the damage she has caused and continues to cause. It is

an appropriate exercise of this Court’s power to impose consequences on this young person for

her actions. A hearing is requested on this motion by the Defendants.

Respectfully submitted,

By: /s/W. Gerald Tidwell, Jr.______

W. Gerald Tidwell, Jr., BPR#10136
P.O. Box 4369
Chattanooga, TN 37405
Phone: (423) 602-7511
Attorney for Defendant Tyler McRae

By: /s/ Micah Guster _________

J. Micah Guster, BPR No. 29586
1502 McCallie Ave
Chattanooga, TN 37404
Phone: (423) 485-8088
Attorney for Defendant Daniel Wilkey

Case 1:19-cv-00304-TRM-CHS Document 326 Filed 02/05/21 Page 9 of 10 PageID #: 2441

 By: /s/ Sharon Milling _________
Sharon Milling, BPR No. 36876
625 Georgia Avenue
Chattanooga, TN 37402
Phone: (423) 209-6150
Attorney for Defendant Hamilton County Government

CERTIFICATE OF SERVICE

I hereby certify that I have served a true and correct copy of the foregoing pleading upon
the following individual(s) via ECF, hand delivery, fax, email and/or regular U.S. mail, postage
prepaid, and correctly addressed as follows:

Catherine White, Esq.

1016 Dallas Road, Suite 203
Chattanooga, TN 37405
[email protected]

This _5th _ day of February, 2021.

/s/ W. Gerald Tidwell, Jr.

W. Gerald Tidwell, Jr.

Case 1:19-cv-00304-TRM-CHS Document 326 Filed 02/05/21 Page 10 of 10 PageID #:

2442