United States District Court, E.D. Michigan, Southern Division
Elizabeth A. Stafford United States Magistrate Judge
OPINION AND ORDER DENYING DEFENDANT'S MOTION TO
Gershwin A. Drain United States District Court Judge
a breach of contract case against an insurance provider. From
August 2016 to January 19, 2017, Plaintiff was non-responsive
to Court orders and discovery requests. Pending before the
Court is defendant-insurance provider's Motion to Dismiss
. For the following reasons the Court will
DENY Defendant's Motion without
prejudice. However, if the Plaintiff again disobeys Court
orders or discovery requests, the Court will dismiss this
case involves a motor vehicle accident on February 10, 2015,
in Detroit, Michigan. Dkt. No. 1, p. 9 (Pg. ID 9). Miyah
Norton (“Plaintiff”) claims to have been a
passenger in a motor vehicle owned and operated by LaTasha
Crimes. At the time of the accident, Ms. Crimes was insured
by Esurance Property and Casualty Company
(“Defendant”). Following the accident, Plaintiff
alleged numerous injuries. Id., p. 10 (Pg. ID 10).
Plaintiff applied for benefits for household chore services,
home care services, transportation costs, outstanding medical
care costs, etc. Id.
Defendant refused to award the Plaintiff benefits, Plaintiff
filed this breach of contract action. This case was
originally filed in the Circuit Court for Wayne County on
January 5, 2016. Dkt. No. 1, p. 8 (Pg. ID 8). On January 27,
2016, Defendant removed to federal court. Id.
to the Defendant, the Plaintiff repeatedly ignored attempts
to obtain a recorded statement regarding the accident, prior
to the current litigation. Dkt. No. 24, p. 4 (Pg. ID 226).
Since the litigation has commenced, Plaintiff remains
inconsistent and nonresponsive. On April 15, 2016, Plaintiff
failed to appear for her deposition. Id., p. 5 (Pg.
ID 227). After multiple attempts to reschedule the
deposition, the Court signed a stipulated order compelling
the Plaintiff to attend her own deposition on August 5, 2016.
Dkt. No. 14. As best as the Court can tell, the Plaintiff
obeyed that stipulated order and appeared for deposition
the Plaintiff failed to appear for a scheduled independent
medical exam, the Defendant moved to compel Plaintiff's
attendance. Dkt. No. 15. On August 24, 2016, Magistrate Judge
Stafford granted the Defendant's Motion to Compel and
required the Plaintiff to attend an independent medical exam
and also to provide her own transportation. Dkt. No. 22. On
October 27, 2016, Plaintiff again failed to attend her own
independent medical exam. Dkt. No. 24-15 (Pg. ID 259).
November 1, 2016, Defendant filed this current Motion to
Dismiss. Dkt. No. 24. The Plaintiff had until November 23,
2016 to timely respond to the motion. See LR
7.1(e)(1)(B). The Plaintiff failed to meet this deadline. On
December 22, 2016 this Court ordered the Plaintiff to show
cause why this case should not be dismissed. Dkt. No. 26. The
Court's order required the Plaintiff to file a response
by December 29, 2016. Id. The Plaintiff missed this
deadline. The Plaintiff has not filed anything on the docket
since August 19, 2016.
January 5, 2017, the Court held a hearing on the Motion to
Dismiss. Following that hearing, the Court ordered the
Plaintiff to pay Defendant $375.00 in sanctions and to
produce to the Plaintiff, in person, at another hearing on
January 19, 2017. Dkt. No. 30. The Plaintiff complied with
both Court orders.
Court will also acknowledge that the Plaintiff did attend one
prior independent medical exam for the Defendant, and the
instant motion relates to a second one.
Fed.R.Civ.P. 37(b)(2)(C), a district court may sanction
parties who fail to comply with its orders in a variety of
ways, including dismissal of the lawsuit.” Bass v.
Jostens, Inc., 71 F.3d 237, 241 (6th Cir. 1995) (citing
Bank One of Cleveland, N.A. v. Abbe, 916 F.2d 1067,
1073 (6th Cir. 1990)). “The use of dismissal as a
sanction for failing to comply with discovery has been upheld
because it accomplishes the dual purpose of punishing the
offending party and deterring similar litigants from ...