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Jackson v. Unknown Perala

United States District Court, W.D. Michigan, Northern Division

April 3, 2019

DOUGLAS CORNELL JACKSON #748757, Plaintiff,
v.
UNKNOWN PERALA et al., Defendants.

          Hon. Paul L. Maloney U.S. District Judge

          REPORT AND RECOMMENDATION

          MAARTEN VERMAAT, U.S. MAGISTRATE JUDGE

         This is 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.

         In 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.

         Background

         Defendants' 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.)

         Defense 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.

         Meanwhile, 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.

         On 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.)

         Defendants 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.

         Discussion

         Rule 37 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).

         Similarly, 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.

         “The 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 ...


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