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Lonero v. King

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

December 4, 2017

JEFFREY B. LONERO, Plaintiff,
v.
STEVE KING, GREGORY HARTUNIAN, MARK ZUPIC, and JOHN DOE OFFICERS 1-18, Defendants.

          Linda V. Parker District Judge.

          REPORT AND RECOMMENDATION REGARDING DEFENDANTS' MOTION TO DISMISS [27]

          MONA K. MAJZOUB UNITED STATES MAGISTRATE JUDGE

         Plaintiff filed the present civil rights action under 42 U.S.C. § 1983, contending that employees of the Madison Heights Police Department violated Plaintiff's rights under the Fourth and Fourteenth Amendments to the United States Constitution. (Docket no. 1.)

         This matter is before the Court on Defendants' motion to dismiss pursuant to Rules 37 and 41 of the Federal Rules of Civil Procedure, based on Plaintiff's failure to respond to Defendants' initial discovery requests. (Docket no. 27). Defendants' motion to dismiss was referred to the undersigned for a report and recommendation pursuant to 28 U.S.C. 636(b)(1)(B). (Docket no. 28.) The Court has reviewed the pleadings and determined that the motions will be resolved without oral argument pursuant to Eastern District of Michigan Local Rule 7.1(f)(2).

         I. RECOMMENDATION

         For the reasons that follow, the undersigned recommends that Defendants' Motion to Dismiss (docket no. 27) be DENIED without prejudice. However, it is also recommended that if Plaintiff fails to fully comply with the Court's 12/4/2017 order compelling Plaintiff to respond to Defendants' discovery requests within fourteen days, the Court should dismiss this matter pursuant to Rule 41 of the Federal Rules of Civil Procedure.

         II. REPORT

         A. Background

         Plaintiff filed this civil rights complaint on the basis of alleged violations of his rights under the Fourth and Fourteenth Amendments. Plaintiff contends that on December 7, 2013, Defendants employed excessive force during the execution of a warrant for Plaintiff's arrest, including tasering Plaintiff in the neck and striking Plaintiff in the head with a baton or flashlight. (Docket no. 1.)

         On April 20, 2017, Defendants served Plaintiff by U.S. Mail to Plaintiff's counsel with Defendants' First Set of Interrogatories and Request to Produce pursuant to FRCP 33(a) and FRCP 34(a)(1). (Docket no. 27-3.)

         On June 20, 2017, this Court entered a Stipulated Order compelling Plaintiff to serve full and complete answers to Defendants' First Set of Interrogatories and Requests to Produce Documents on or before July 5, 2017. (Docket no. 20.) When Plaintiff failed to respond by July 5, 2017, counsel for Plaintiff stated in an email to counsel for Defendants that he was “having trouble reaching [his] client.” (Docket no. 27-9.) Defense counsel agreed to give Plaintiff until July 12, 2017 to respond to the discovery requests. (Id.) On July 13, 2017, Defendants filed a motion to compel Plaintiff to respond to Defendants' first set of interrogatories and requests to produce. (Docket no. 22).

         On August 10, 2017, counsel for Defendants requested an update from Plaintiff's counsel regarding the outstanding discovery. Counsel for Plaintiff again stated that he was “having trouble breaking through to speak with [Plaintiff].” (Docket no. 27-8.) Counsel for Defendants then requested Plaintiff's concurrence in a stipulated order of dismissal. (Id.) Counsel for Plaintiff refused to stipulate to dismiss the matter, but indicated that he “may move to withdraw.” (Id.) On September 6, 2017, Defendants filed the present motion to dismiss pursuant to Rules 37 and 41 of the Federal Rules of Civil Procedure.

         B. Governing Law

         Under Rule 37, the court may dismiss a matter in whole or in part if a party disobeys a discovery order or fails to attend its own deposition, serve answers to interrogatories, or respond to a request for inspection. Fed.R.Civ.P. 37(b)(2)(A)(v), (d). The court also “must order the disobedient party, the attorney advising that party, or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust.” Fed.R.Civ.P. 37(b)(2)(C). But the entry of a default judgment or dismissal of an action as a sanction for discovery abuse is a sanction of last resort and may be imposed only if the court concludes that the party's failure to cooperate in discovery is due to willfulness, bad faith, or fault. Bank One of Cleveland, N.A. v. Abbe, 916 F.2d 1067, 1073 (6th Cir. 1990). ...


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