Plaintiff couldn't be reached, suit against Dollar General dismissed

By Kyla Asbury | Oct 11, 2013

CHARLESTON - A lawsuit against Dollar General for injuries was dismissed last year after the plaintiff failed to participate in discovery and abide by the court's scheduling order.

Dolgencorp LLC is doing business as Dollar General.

On July 5, 2012, an order granting dismissal without prejudice was filed in Kanawha Circuit Court.

On Sept. 12, 2011, the defendant served upon the plaintiff its first set of Interrogatories and Request for Production of Documents, and the plaintiff did not file discovery responses, which resulted in a Motion to Compel and an Order Granting the Motion to Compel on Dec. 8, 2011.

On Feb. 2, 2012, the defendant sent a letter to the plaintiff's counsel advising that the defendant had not yet received discovery responses and was writing in a good faith capacity to determine the same, according to the order.

"On March 2, 2012, Plaintiff counsel responded to the Defendant's counsel advising that she was having trouble contacting her client," the order states.

The defendant's counsel granted the plaintiff's counsel until March 15, 2012, to respond to the defendant's outstanding discovery and on March 20, 2012, the defendant drafted a second letter to the plaintiff's counsel again due to the need of discovery responses. However, discovery responses were not forthcoming.

"As the Plaintiff has failed to respond to the Defendant's discovery and/or make himself available for deposition, the Defendant is prejudiced in its ability to formulate a defense against the Plaintiff's allegations," the order states.

Moreover, the plaintiff has clearly failed to participate in the discovery process, according to the order.

The court granted the defendant's motion for sanctions and ordered the dismissal of the plaintiff's action without prejudice, the order states.

On July 24, 2009, Calvin B. Cottrell was shopping in the Dollar General in Montgomery when he fell on the blue liquid that had been spilled on the floor and not yet cleaned up by employees, according to a complaint filed July 22, 2011, in Kanawha Circuit Court.

Cottrell claimed he suffered instant pain in his back and knee and was taken by ambulance to Montgomery General Hospital for treatment.

As a result of the unsafe conditions in the store, Cottrell suffered an acute lumbar strain, which required medication and physical therapy, according to the suit.

Cottrell was seeking compensatory and punitive damages. He was being represented by Cynthia E. Evans.

The defendant was represented by Duane J. Ruggier II of Pullin, Fowler, Flanagan, Brown & Poe PLLC.

The case has been assigned to Circuit Judge Louis H. Bloom.

Kanawha Circuit Court case number: 11-C-1216

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