United States District Court, W.D. Michigan, Northern Division
Paul L. Maloney U.S. District Judge
REPORT AND RECOMMENDATION
MAARTEN VERMAAT, U.S. MAGISTRATE JUDGE
a civil rights action brought by state prisoner Douglas
Cornell Jackson pursuant to 42 U.S.C. § 1983. Defendants
filed a “Motion for Involuntary Dismissal or to Compel
Discovery.” (ECF No. 42.) In this motion, Defendants
ask the Court to either dismiss this case or extend the
discovery deadline and compel Plaintiff to submit to a
deposition. For the reasons stated below, the undersigned
recommends that this motion be granted in part and denied in
part. It is recommended that the Court deny the motion to
dismiss and grant the motion to extend the discovery deadline
and compel Plaintiff to submit to a deposition.
addition, Defendants filed a “Motion to Amend the Case
Management Order.” (ECF No. 47.) But if the Court
adopts the undersigned's recommendation to extend the
deadlines, the motion to amend the case management order
would be moot.
motion to dismiss or to compel stems from issues surrounding
Plaintiff's deposition. The Case Management Order (CMO)
issued on September 10, 2018 authorized Defendants to take
Plaintiff's deposition. The CMO also set a discovery
deadline of January 8, 2019 and a dispositive motion deadline
of February 5, 2019. (ECF No. 25.)
counsel initially planned to depose Plaintiff on December 21,
2018. A conflict with that date arose, however, and the day
before the scheduled deposition, Defendants sent Plaintiff a
new notice with a deposition date of January 2, 2019.
on December 31, 2018, Plaintiff filed an “Emergency
Motion to Stop Threats of Death, Physical Harm and Other
harassment During the Pendency of this Civil Action by Prison
Guard Douglas Black.” (ECF No. 39.) On the new
scheduled date for the deposition - January 2, 2019 -
Plaintiff refused to let Defendants take his deposition.
Plaintiff stated that he would not let his deposition be
taken until after the Court ruled on his emergency motion.
January 17, 2019, U.S. Magistrate Judge Greeley issued a
report and recommendation, recommending the denial of
Plaintiff's emergency motion. (ECF No. 41.) After
Plaintiff failed to object, the Court adopted the report and
recommendation on March 22, 2019. (ECF No. 60.)
move to dismiss this case pursuant to Fed.R.Civ.P.
37(b)(2)(A)(v) and 41(b) or, in the alternative, to issue an
order extending the discovery deadline and compelling
Plaintiff to submit to a deposition. Shortly after filing
that motion, Plaintiff filed a motion seeking to extend the
discovery and dispositive motion deadlines.
of the Federal Rules of Civil Procedure authorizes the Court
to impose sanctions on a party for failing to comply with a
court order regarding discovery or failing to comply with
discovery obligations in the absence of a court order.
Pertinent to this case, the rule provides that the Court may
order sanctions if a party “fails, after being served
with proper notice, to appear for that person's
deposition[.]” Fed.R.Civ.P. 37(d)(1)(A)(i). The
available sanctions for failing to comply with a court order
include “dismissing the action or proceeding in whole
or in part.” Fed.R.Civ.P. 37(b)(2)(A)(v).
Fed.R.Civ.P. 41(b) provides that the court may dismiss a case
when a party fails to comply with the Federal Rules of Civil
Procedure or a court order.
use of dismissal as a sanction for failing to comply with
discovery has been upheld because it accomplishes the dual
purpose of punishing the offending party and deterring
similar litigants from such misconduct in the future.”
Bass v. Jostens, Inc., 71 F.3d 237, 241 (6th Cir.
1995) (citing National Hockey League v. Metropolitan
Hockey Club, Inc., 427 U.S. 639, 643 (1976)). When
determining whether to dismiss an ...