Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Mathena v. Target Corp.

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

January 3, 2018




         The 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.

         I. BACKGROUND

         Plaintiff 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).

         Since 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.

         In 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 (Dkt. 21).

         The 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, 2017).

         II. ANALYSIS

         Federal 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).

         In 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.

         A. Willfulness or Bad Faith

         With 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.

         This is 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 the hearing.

         Further, 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. ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.