United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER RESOLVING MOTIONS [117, 119, 124,
127, 142, 151, 158] AND REQUIRING ADDITIONAL
HONORABLE STEPHEN J. MURPHY, III, Judge
motions are pending in the case, in addition to
Defendants' motion for summary judgment:
1. Defendants' motion for sanctions (ECF 117);
2. A related motion by Plaintiff seeking leave to file excess
pages (ECF 127);
3. Another motion by Defendants seeking sanctions (ECF 158);
4. Defendant's motion to strike portions of
Plaintiff's declaration (ECF 142); 5. Plaintiff's
motion to compel production of documents from a third party
(ECF 151); 6. An unopposed motion to withdraw as counsel for
Plaintiff (ECF 124); and 7. An opposed motion to withdraw as
counsel for Plaintiff (ECF 119).
Court will resolve the non-dispositive motions. As explained
below, more briefing is necessary for the Court to resolve
the motion for summary judgment. Accordingly, the Court will
order additional briefing in that regard.
Defendants' Motion for Sanctions (ECF 117) and
Plaintiff's Motion for Leave to File Excess Pages (ECF
previously filed a motion to compel Plaintiff "to
provide adequate responses to Defendants' First Requests
for Admissions, and for additional time to depose Plaintiff
or Plaintiff's expert witnesses." Mot. 1, ECF 77.
The Court referred the motion to a magistrate judge, who
resolved the motion and ordered Plaintiff to submit to
another deposition, to answer questions "frankly and
thoroughly, " and to reimburse Defendants $2, 765. Order
2, ECF 92. Defendants argue that the reimbursement was not
paid and that Plaintiff's answers in the deposition were
again evasive. They seek sanctions, payment, and dismissal.
Plaintiff filed a response brief that exceeded the
Court's 25-page limit, then amended it twice. ECF 125,
129, 130. Plaintiff concurrently moved for leave to exceed
the page limit. ECF 127. In sum, Plaintiff argues that he
paid the reimbursement once he was financially able, his
answers were not evasive but rather an attempt to be clear in
speaking about technical matters, and that dismissal would be
outset, the Court sees little need for the additional pages
sought by Plaintiff. The brief is not concise and is attended
by 18 exhibits running hundreds of pages. But because no
shorter brief was provided, and the Court finds no prejudice
to Defendants in allowing the additional pages, the Court
will grant the motion for leave only in the interests of time
and economy - and not on its merit.
Court must also consider the merits of the underlying motion.
Civil Rule 37(b) permits the Court to issue sanctions against
a party for failure to comply with an order relating to
discovery. The Court determines whether and how to impose
sanctions in its discretion; the Sixth Circuit has outlined
four factors which guide that discretion:
(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.
Harmon v. CSX Transp., Inc., 110 F.3d 364, 366-67
(6th Cir. 1997).
has paid the $2, 765 ordered by the Court, ECF 126-3, so only
Plaintiff's allegedly evasive answers remain unresolved.
Upon review of the transcript, the Court finds merit in
Defendants' argument that Plaintiff was evasive in
answering questions. The Court further finds little substance
in Plaintiff's counter argument that Defendants'
counsel violated the district's principles of civility.
But the Court is reticent to impose the harsh sanction of
dismissal based only upon the parties' characterizations
of the deposition and the transcript. The Court will deny the
motion for sanctions at the present time. II.
Defendant's Other Motion for Sanctions (ECF 158)
Court previously awarded Defendants $12, 373.25 in fees,
pursuant to the recommendation of the magistrate judge.
Order, ECF 154. The Order did not contain an explicit
deadline for payment. Five weeks passed, and Plaintiff did
not pay, so Defendants filed another motion for sanctions,
seeking to compel Plaintiff's payment and either a
dismissal or a warning of dismissal. Mot., ECF 158. At the
same time the motion was filed, Plaintiff mailed partial
payment of the fees to Defendants, and has subsequently paid
the fees in full. See Resp. 2-3, ECF 159; Not., ECF
165; Not., ECF 167.
full payment of the fees has largely rendered the motion moot
- but not entirely. Defendants also seek a clear warning of
dismissal, and the Court will grant this part of the motion.
Plaintiff has, time and again, failed to comply with the
Federal Rules of Civil Procedure and the Court's orders,
or has complied only after the Court has prodded him.
Plaintiff is warned: any future failure to timely comply with
Court orders and deadlines will result in dismissal. Any
tactics of evasiveness or delay ...