United States District Court, E.D. Michigan, Southern Division
REPORT AND RECOMMENDATION
R. STEVEN WHALEN, Magistrate Judge.
Plaintiff Deontay C. Johnson is one of three former inmates of the Macomb County Jail who filed a pro se civil complaint on August 27, 2013. Before the Court is Defendants' Motion to Dismiss Johnson under Fed.R.Civ.P. 37(d) [Doc. #56], which has been referred for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). For the reasons discussed below, I recommend that the motion be GRANTED.
This is a First Amendment case that centers on a relatively new mail policy at the Macomb County Jail that restricts the publications that inmate are allowed to receive. On September 11, 2014, I issued a Report and Recommendation ("R&R") recommending denial of Defendants' motion to dismiss the First Amendment claims [Doc. #45]. The R&R was accepted, and the motion to dismiss denied, on September 30, 2014 [Doc. #47].
On June 9, 2014, Defendants filed a motion to compel Johnson's reappearance for a continuation of his deposition [Doc. #37]. The basis of the motion was Johnson's refusal to answer questions regarding his criminal history, and his unwarranted termination of the deposition. Johnson did not respond to the motion. On September 24, 2014, I granted the Defendants' motion, and ordered that Johnson be re-deposed within 45 days [Doc. #46]. In the order, I warned Johnson that his "failure to appear for his redeposition may subject him to sanctions, including dismissal of his complaint." Id.
Exhibit 1 to Defendants' motion is a notice of continued deposition to be conducted on October 22, 2014. The Defendants served the notice on Johnson on October 2, 2014. Johnson failed to appear for the continued deposition.
I ordered Johnson to file a response to the motion to dismiss on or before January 13, 2015 [Doc. #61]. To date, he has not done so.
II. STANDARD OF REVIEW
Rule 37 provides for sanctions for failure to make disclosures or cooperate in discovery. Rule 37(b) provides for sanctions where a party fails to comply with a court order regarding discovery, including, under Rule 37(b)(2)(C), dismissal of the case where it is the Plaintiff who has been disobedient. A motion to dismiss under this Rule is addressed to the Court's discretion. National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 643, 96 S.Ct. 2778, 49 L.Ed.2d 747 (1976); Regional Refuse Systems, Inc. v. Inland Reclamation Co., 842 F.2d 150, 154 (6th cir.1988). The Court's discretion is informed by the four-part test described in Harmon v. CSX Transportation, Inc., 110 F.3d 364, 366-67 (6th Cir.1997): (1) whether the party's failure is due to willfulness, bad faith, or fault; (2) whether the adversary was prejudiced by the dismissed party's conduct; (3) whether the dismissed party was warned that failure to cooperate could lead to dismissal; and (4) whether less drastic sanctions were imposed or considered before dismissal was ordered. See also Bank One of Cleveland, N.A. v. Abbe, 916 F.2d 1067, 1073 (6th Cir.1990).
In deciding whether to impose "the draconian sanction of dismissal, " the first factor-the party's willfulness or bad faith-looms large. Intercept Security Corp. v. CodeAlarm, Inc., 169 F.R.D. 318, 321-22 (E.D.Mich.1996), citing Societe Internationale Pour Participations Industrielles et Commerciales, S.A. v. Rogers, 357 U.S. 197, 212, 78 S.Ct. 1087, 2 L.Ed.2d 1255 (1958). In addition, a prior warning that failure to comply with a discovery order will result in dismissal is pivotal both to the determination of willfulness and to the ultimate decision to dismiss. See Harris v. Callwood, 844 F.2d 1254, 1256 (6th Cir.1988).
Willfulness is defined as a "conscious and intentional failure to comply with the court order." Bass v. Jostens, Inc., 71 F.3d 237, 241 (6th Cir. 1995). The burden is on the disobedient party "to show that the failure was due to inability and not to willfulness, bad faith, or fault." Intercept Security, at 322; Regional Refuse Systems, supra, 842 F.2d at 154. In this case, it is difficult to characterize Mr. Johnson's failure to comply with this Court's discovery order as anything other than willful. I ordered him to appear for his redeposition and to answer questions regarding his criminal history. He was served with a notice to appear, but he failed to do so. I ordered him ...