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Daneshvar v. Kipke

United States District Court, E.D. Michigan, Southern Division

March 24, 2017

EUGENE DANESHVAR, Plaintiff,
v.
DARYL KIPKE and NEURONEXUS TECHNOLOGIES, INC., Defendants.

          OPINION AND ORDER RESOLVING MOTIONS [117, 119, 124, 127, 142, 151, 158] AND REQUIRING ADDITIONAL BRIEFING

          HONORABLE STEPHEN J. MURPHY, III, Judge

         Seven 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).

         The 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.

         I. Defendants' Motion for Sanctions (ECF 117) and Plaintiff's Motion for Leave to File Excess Pages (ECF 127)

         Defendants 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 improper.

         At the 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.

         But the 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).

         Plaintiff 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)

         The 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.

         The 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 ...


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