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Catrinar v. Wynnestone Communities Corp.

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

September 30, 2017

LAWRENCE CATRINAR, Plaintiff,
v.
WYNNESTONE COMMUNITIES CORPORATION, ET AL. Defendants.

          John Corbett O'Meara, District Judge

          OPINION AND ORDER

          R. STEVEN WHALEN, UNITED STATES MAGISTRATE JUDGE

         On May 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.[1]

         I. Legal Principles re: Rule 37 Sanctions

         Fed. R. 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).

         The 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).

         In 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. 1988).

         II. DISCUSSION

         The 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 emphatically:

         “It 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).

         The 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 everything. Buzz.

         Plaintiff 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.

         Plaintiff 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 ...


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