United States District Court, E.D. Michigan, Southern Division
Corbett O'Meara, District Judge
OPINION AND ORDER
STEVEN WHALEN, UNITED STATES MAGISTRATE JUDGE
9, 2014, Plaintiff Lawrence Catrinar filed suit against his
former employer Defendant Wynnestone Communities Corporation
and Gilbert B. Silverman (“Defendants”) alleging
violations of the Family Medical Leave Act
(“FMLA”), 29 U.S.C. § 2614, et.
seq., as well as breach of contract and promissory
estoppel. Before the Court is Plaintiff's Motion for
Discovery Sanctions [Doc. #68]. For the reasons discussed
below, the motion will be DENIED.
Legal Principles re: Rule 37 Sanctions
Civ. P. 37 provides for sanctions for failure to make
disclosures or cooperate in discovery. Rule 37(b) provides
for sanctions where a party fails to comply with a court
order regarding discovery, including, under Rule
37(b)(2)(A)(vi), entry of default judgment where it is the
defendant who has been disobedient. A motion for sanctions
under this Rule is addressed to the Court's discretion.
National Hockey League v. Metropolitan Hockey Club,
Inc., 427 U.S. 639, 643, 96 S.Ct. 2778, 49 L.Ed.2d 747
(1976); Regional Refuse Systems, Inc. V. Inland
Reclamation Co., 842 F.2d 150, 154 (6thcir.
1988). However, entry of a default judgment against a party
“for failure to cooperate in discovery is a sanction of
last resort, ” and may not be imposed unless
noncompliance was due to “willfulness, bad faith, or
fault.” Bank One of Cleveland, N.A. v. Abbe,
916 F.2d 1067, 1073 (6th Cir. 1990)(citations
omitted). See also Grange Mut. Cas. Co. v. Mack, 270
Fed.Appx. 372, 376 (6th Cir.2008) (explaining that default
judgment is the court's most severe discovery sanction).
Court's discretion is informed by the four-part test
described in Harmon v. CSX Transportation, Inc., 110
F.3d 364, 366-67 (6th Cir. 1997): (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 or
defaulted party was warned that failure to cooperate could
lead to dismissal or entry of default judgment; and (4)
whether less drastic sanctions were imposed or considered
before dismissal or default judgment was ordered. See
also Bank One of Cleveland, N.A. v. Abbe, 916 F.2d 1067,
1073 (6th Cir. 1990).
deciding whether to impose “the draconian
sanction” of default judgment, the first factor-the
party's willfulness or bad faith in failing to comply
with a discovery order-looms large. Intercept Security
Corp. V. Code-Alarm, Inc., 169 F.R.D. 318, 321-22 (E.D.
Mich. 1996), citing Societe Internationale Pour
Participations Industrielles et Commerciales, S.A. v.
Rogers, 357 U.S. 197, 212, 78 S.Ct. 1087, 2 L.Ed.2d 1255
(1958). However, a prior warning that failure to comply with
a discovery order will result in a default judgment is
pivotal both to the determination of willfulness and to the
ultimate decision to order that sanction. See Harris v.
Callwood, 844 F.2d 1254, 1256 (6th Cir.
centerpiece of Plaintiff's motion is his very serious
allegation that the Defendants fabricated and produced false
evidence in this case. In the introductory paragraph of the
brief in support of Plaintiff's motion, he states
is now clear that Defendants...have manipulated the discovery
process in bad faith from the inception of this case. This
includes the actual fabrication of
evidence to support their baseless claims and
to undermine Plaintiff's claims, and the selective
production of documents to prevent Plaintiff from obtaining
necessary discovery.” (Emphasis in original).
allegation of false evidence stems from Defendant
Silverman's apparent rewrite of an email originally sent
to Kathryn Morris on December 21, 2008, concerning the
E&S Plan and whether Silverman was aware of the plan or
authorized any amendments to the plan. The original email,
which Plaintiff refers to as “the real email, ”
is written partially in Spanish, and reads as follows:
“PS...no idea what this is doc. Si, complete...pero no
comprendo! Dia normal! Gracia's por todo. Happy
states that Defendants produced this email to them, although
it was “buried within the 86, 000 emails” that
were uploaded into a database “that was made available
for Plaintiff to review” in 2016.
states that earlier in the litigation, specifically on
October 27, 2014, Silverman responded to an interrogatory
asking when he first learned of what he then claimed was the
“secret and unauthorized” E&S Plan. Silverman
stated in his interrogatory response, “Silverman
learned of the existence of the E&S Plan in December 2008
when he received various emails from [Kathryn] Morris
requesting that he sign an amendment thereto.”
See Exhibit 2, Plaintiff's motion [Doc. #68].
Silverman also produced at that time an email to ...