United States District Court, E.D. Michigan, Southern Division
OPINION & ORDER GRANTING DEFENDANTS' MOTION
TO DISMISS (DKT. 19)
A. GOLDSMITH, UNITED STATES DISTRICT JUDGE.
matter is before the Court on Defendant Target
Corporation's Motion to Preclude Plaintiff from Calling
Witnesses or Experts and for Dismissal (Dkt. 19). A hearing
on the motion was held on November 9, 2017. For the reasons
that follow, the Court grants Target's motion and
dismisses the case.
Mathew Mathena brought this case as the representative of the
estate of his mother, Laura Mathena. Compl. ¶¶ 1, 2
(Dkt. 1). The complaint alleges that Laura Mathena visited a
Target store in Dearborn Heights, Michigan on December 18,
2013. Id. ¶ 13. She tripped and fell on a metal
rack, suffering injuries to her shoulder, back, hip, and
other areas. Id. ¶¶ 18, 20. Laura Mathena
then suffered infections, severe bruising, and sores in the
following months. Id. ¶ 21. One day, she fell
in her kitchen and completely fractured her hip, requiring
immediate surgery. Id. ¶¶ 22, 23. Laura
Mathena passed away within days of her surgery. Id.
¶ 24. Her son filed the instant complaint against Target
in state court, alleging claims for negligence, premises
liability, and wrongful death. Id. at 2, 6, 8.
Target timely removed the complaint to federal court.
See Notice of Removal (Dkt. 1).
the initial filing of the complaint, Mathena's counsel
has been noticeably absent from the case. In February 2017,
Target filed a motion to compel discovery, claiming that
Mathena had not provided full and complete answers to its
interrogatories and requests for documents, and had canceled
a noticed deposition (Dkt. 5). Mathena did not respond to
Target's motion, and the Court granted the motion to
compel. See 3/1/2017 Order (Dkt. 9). In its order,
the Court directed Mathena to respond to Target's written
discovery requests and make himself available for a
deposition, noting that a failure to comply may result in
sanctions “up to and including dismissal of the
case.” Id. at 1-2.
July, Target filed its second motion to compel discovery
(Dkt. 14). Target claimed that Mathena had not provided
contact information for certain individuals listed in his
(late) Initial Disclosures; had not provided copies of the
documents identified in the Initial Disclosures; and had not
provided the decedent's death certificate, the
decedent's social security number, or documentation
regarding Medicare and Medicaid. See Second Mot. to
Compel. Target attached several emails and letters to its
motion, showing that it had spent several months trying to
obtain this information from Mathena. Mathena never filed a
response to the motion, but the parties were able to agree to
a stipulation that Mathena would provide the requested
information, or the witnesses, documents, or related claims
would be struck. See 9/13/2017 Stipulated Order
deadline for Mathena to provide a lay witness list, exhibit
list, and expert witness list/disclosures/report was August
17, 2017. See 4/6/2017 Case Management and
Scheduling Order (Dkt. 13). That day came and went without
any filings by Mathena. Target then filed the instant motion
to dismiss or preclude Mathena from calling any witnesses or
experts on August 28, 2017. Mathena did not respond to the
motion until the day before the hearing - November 8, 2017 -
at which time he also filed an exhibit and witness list.
See Dkts. 25, 26. In the meantime, both fact and
expert discovery had closed. See 4/6/2017 Case
Management and Scheduling Order (fact discovery closed
September 28, 2017 and expert discovery closed October 26,
Rule 37 provides that a court may issue sanctions for failure
to comply with a discovery order. Fed.R.Civ.P. 37(b)(2)(A).
Among the sanctions permitted are “prohibiting the
disobedient party from supporting or opposing designated
claims or defenses, or from introducing designated matters in
evidence, ” Fed.R.Civ.P. 37(b)(2)(A)(ii), and
“dismissing the action or proceeding in whole or in
part, ” Fed.R.Civ.P. 37(b)(2)(A)(v).
determining whether a dismissal under Rule 37 is appropriate,
the court must consider four factors: “(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.” Roney v. Starwood
Hotels, 236 F.R.D. 346, 348 (E.D. Mich. 2006). These
factors are applied more stringently when an attorney's
conduct is the basis for dismissal. Id.
Willfulness or Bad Faith
respect to the first factor, the Sixth Circuit “has
stated that dismissal of an action for an attorney's
failure to comply should only be ordered where there is a
clear record of delay or contumacious conduct.”
Harmon v. CSX Transp., Inc., 110 F.3d 364, 367 (6th
Cir. 1997) (internal quotations omitted). Here, the record
supports such a finding. In the response to Target's
motion to dismiss, Mathena's counsel Dewnya Bazzi
informed the Court that the case had been assigned to a
senior attorney at her firm, Craig Romanzi. Pl. Resp. to Mot.
to Dismiss at 2 (Dkt. 25). Ms. Bazzi stated that Mr. Romanzi
had told her and other attorneys that he was handling this
matter when that was clearly not the case. Id. at
2-3. At the November 9, 2017 hearing, Ms. Bazzi explained
that she had hired Mr. Romanzi to handle this case
approximately eight months previously, as she was unfamiliar
with practice in federal court. She apparently believed that
all discovery matters were resolved, and only when her
assistant checked the docket the day before the hearing did
Ms. Bazzi realize that this was incorrect.
no excuse. Ms. Bazzi is listed as the lead attorney for
Mathena, not Mr. Romanzi. Mr. Romanzi has not even entered an
appearance in this case. Ms. Bazzi may not simply hand
everything over to another attorney and proceed to neglect
the case entirely. At the very least, she has a duty to
verify that the litigation is proceeding on schedule. See
Wagner v. Toys R Us, Inc., 114 F.R.D. 18, 19 (E.D. Mich.
1986) (“Not only is this apparent attempt to lay blame
on another lawyer in one's firm distasteful, but it is
simply not an excuse. Attorneys are obligated to be aware of
the status of litigation under their control.”). Ms.
Bazzi apparently never noticed that Mr. Romanzi failed to
file an appearance in this case and that he never responded
to Target's various motions or discovery requests. She
did not think to even check the docket until the day before
Ms. Bazzi's assertions that Mr. Romanzi was handling the
entire case himself are belied by statements by Target's
counsel that he dealt primarily with Ms. Bazzi, not Mr.
Romanzi. The record seems to support this statement. See,
e.g., March 14, 2017 E-Mail chain, Ex. C to Def. Mot. to
Dismiss (Dkt. 19-4) (emails between Mark Willmarth and Dewnya
Bazzi); July 25, 2017 E-mail chain, Ex. D to Def. Second Mot.
to Compel (Dkt. 14-5) (email from Willmarth to Bazzi); August
21, 2017 E-mail chain, Ex. B to Def. Mot. to Dismiss (Dkt.