United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DISMISSING COMPLAINT
H. CLELAND, UNITED STATES DISTRICT JUDGE
status conference on December 19, 2016, where Plaintiff
admitted to having failed to meet an extended discovery
deadline, this court issued an order for Plaintiff to show
cause in writing why the complaint should not be dismissed
for discovery violations. (Dkt. #29.) The details of these
failures are outlined in a memorandum filed by Defendant.
(Dkt. #28.) Plaintiff filed his response to the order to show
cause, (Dkt. #30), and Defendant has filed a reply, (Dkt.
#31.) For the following reasons the court will dismiss
alleges that Defendant wrongly refused to honor his insurance
claim after a flood damaged his home and property. He agreed
to dismissal of all but his breach of contract claim. (Dkt.
#17.) On September 30, 2016, the court denied a motion by
Defendants which sought dismissal as a remedy for Plaintiff
having failed to serve timely initial disclosures and a
three-month delay in the submission of his witness list.
(Dkt. #24.) However, the court struck Plaintiff's
late-filed witness list, ordered Plaintiff to serve his
initial disclosures, and admonished Plaintiff that dismissal
was a possible sanction for further discovery shortcomings.
weeks later, the parties held a telephonic status conference
at Defendant's request to discuss documents which
Plaintiff had identified during his deposition-on the eve of
the close of fact discovery-but neglected to produce. During
the call, Plaintiff did not deny the existence of these
documents nor the fact that he had not produced them. The
court entered an order compelling the production of the
identified documents by December 19, 2016, when the court
would hold another status conference. The court's order
could not possibly have been clearer about the consequences
of continued missteps. It explained that “Plaintiff
treads dangerously close to dismissal for his repeated
failures” but that the court would “once again
stop short of outright dismissal and allow Plaintiff another,
final chance to right his ship.” (Dkt. #27, Pg. ID
140.) At the December status conference, Plaintiff admitted
that some outstanding documents still had not been produced
to Defendant, and the court ordered Defendant to file a
memorandum which outlined the items that were still owing.
(Dkt. #28.) Shortly thereafter, this court issued the order
to show cause why the complaint should not be dismissed as a
sanction under Federal Rule of Civil Procedure 37. (Dkt.
response contends that he struggled to obtain and coordinate
with counsel in managing discovery, and that the lateness of
his own deposition was not his fault. These things are
essentially irrelevant to the court's order, which
concerned the continued failure to produce relevant
discoverable documents within the time-frame ordered by the
court. Plaintiff also argues that he substantially complied
with the court's order because he produced nearly all of
the responsive items before the court-imposed deadline.
argues that Plaintiff had ample opportunity to make good on
his discovery obligations. It contends that since these
documents should have been identified in Plaintiff's
late-filed initial disclosures, Plaintiff should not have
scrambled following his deposition to marshal them.
Additionally, Defendant points out that Plaintiff's
background is not that of an unsophisticated litigant, as it
includes a Master's Degree in technology as well as
experience as a pro se Plaintiff in four other
lawsuits. It also indicates that a crucial document, the
spreadsheet of the estimation of Plaintiff's damage in
support of his Proof of Loss, was not produced until after
the December 19, 2016 deadline, and contends that some
requested documents still remain outstanding.
Rule of Civil Procedure 37(b)(2) authorizes a court to
dismiss a case when a party has failed to obey an order
regarding discovery.” Moses v. Sterling Commerce
(Am.), Inc., 122 F.App'x 177, 182 (6th Cir. 2005).
When reviewing the dismissal of a complaint, the court
considers 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
dismissed party's failure to cooperate in discovery; (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. Id.
continued deviation from the ordered course of discovery
despite repeated warnings from the court inspires little
confidence that, even if this case were allowed to proceed,
he would leap to action and readily conduct what remains of
the case in a manner which evidences a respect for the time
and resources of opposing counsel and this court. For months
the court has provided clear warning about the perils of
further noncompliance with court-imposed deadlines, but to
very little effect.
that Plaintiff struggled to assemble the resources to
prosecute this case, his conduct still evidences a willful
disregard for his clearly delineated obligations, first to
file timely and complete initial disclosures and a witness
list, then to produce specifically identified documents
within an extended deadline while the court explicitly warned
Plaintiff of potentially drastic sanctions. The court earlier
imposed the lesser sanction of striking Plaintiff's
witness list, but evidently even this was not sufficient to
induce an appreciation for the significance of his discovery
obligations. Additionally, Defendant has clearly been
prejudiced by incurring costs and delays while trying to
belatedly drag from Plaintiff items which are typically
freely exchanged over the normal term of fact discovery
without incident. Thus, every factor favors dismissal.
response is inadequate to successfully oppose this account of
the record. The court will not wade into the details of the
emails exchanged between the parties over the course of
discovery and other sundry. The simple fact remains that this
court ordered production of the outstanding documents, in no
uncertain terms, by a clear deadline-one more deadline which
Plaintiff has left unmet without excuse. The fact that
Plaintiff is proceeding pro se does not meaningfully
alter the analysis. Plaintiff's missteps were no
technical procedural default which required special training
to avoid. Therefore the court will dismiss Plaintiff's