United States District Court, E.D. Michigan, Southern Division
REPORT AND RECOMMENDATION TO DENY DEFENDANT'S MOTION FOR DISMISSAL AND/OR SUMMARY JUDGMENT  WITHOUT PREJUDICE
ELIZABETH A. STAFFORD, Magistrate Judge.
Before the Court is Defendant L.J. Ross Associates, Inc.'s motion for dismissal and/or summary judgment of Plaintiff Todd Coburn's claims.  In the motion, L.J. Ross argues that Coburn's case should be dismissed for failure to prosecute, and that there are no material facts in dispute because Coburn failed to timely respond to a request for admissions, deeming the matters therein admitted. A hearing was held on the matter April 7, 2015. For the reasons stated on the record and those stated below, the Court RECOMMENDS that L.J. Ross's motion  be DENIED WITHOUT PREJUDICE.
In March 2014, L.J. Ross removed to this Court the complaint filed by Coburn pro se, which alleges violations of state and federal credit protection statutes. . Thereafter, on July 14, 2014, L.J. Ross served Coburn with a set of interrogatories, requests for production of documents and requests for admissions. [20-2, Pg 112-19]. By operation of the Federal Rules of Civil Procedure, the responses to discovery requests were due thirty days later. Fed.R.Civ.P. 33(b)(2)(A), 34(b)(2)(A) and 36(a)(3).
According to L.J. Ross, it also attempted to take Coburn's deposition on August 18, 2014, but he refused to answer questions. [20, Pg 102]. Magistrate Judge David Grand held a telephonic conference on August 19, 2014, , which L.J. Ross alleges pertained to Coburn's refusal to cooperate during the deposition. [20, Pg ID 102]. L.J. Ross contends that Judge Grand advised Coburn that he needed to cooperate in discovery or this action could be dismissed and that, if he wished to retain counsel, his counsel's appearance needed to be filed imminently. [ Id. ] However, those warnings were not documented anywhere on the record, and L.J. Ross does not allege that the July 14 discovery requests were addressed during the telephone conference.
On August 21, 2014, counsel for Coburn filed his appearance. . In October, the parties agreed to an extension of the discovery and dispositive motion deadlines, to October 31 and December 5, 2014, respectively. . Despite this extension, L.J. Ross alleges that Coburn's deposition has not yet been rescheduled, and that Coburn has failed to respond to the July 14 discovery requests. [20, Pg 101-03]. Nonetheless, no discovery motions were filed by either side within the extended discovery period. On December 5, 2014, L.J. Ross filed the instant motion.
As set forth below, the Court recommends that L.J. Ross's motion to dismiss for failure to prosecute be denied because there is an insufficient record of delay or contumacious conduct on Coburn's part, and no record of a warning that his case could be dismissed for failure to cooperate with discovery. Additionally, the Court recommends that Coburn's late-filed answers to L.J. Ross's request for admissions be permitted, and that L.J. Ross's motion for summary judgment therefore be denied without prejudice.
A. Dismissal Under Rule 41(b)
Federal Rule of Civil Procedure 41(b) permits involuntary dismissal of an action where "the plaintiff fails to prosecute or to comply with these rules or a court order." The Sixth Circuit has outlined four factors to consider when deciding whether to dismiss a case for failure to prosecute:
(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.
Knoll v. American Tel. & Tel. Co., 176 F.3d 359, 363 (6th Cir. 1999). Here, the Court finds that application of these factors weighs against dismissal at this juncture.
1. Willfulness, Bad Faith or Fault
The Sixth Circuit has held that, to qualify as "bad faith, willfulness, or fault, " a party's conduct "must display either an intent to thwart judicial proceedings or a reckless disregard for the effect of [his] conduct on those proceedings.'" Mulbah v. Detroit Bd. of Educ., 261 F.3d 586, 591 (6th Cir. 2001) (quoting Shepard Claims Serv. v. William Darrah & Assocs., 796 F.2d 190, 194 (6th Cir.1986)). In other words there must be "a clear record of delay or contumacious conduct" that is "perverse in resisting authority and ...