United States District Court, E.D. Michigan, Southern Division
Arthur
J. Tarnow, District Judge.
REPORT AND RECOMMENDATION
R.
STEVEN WHALEN, UNITED STATES MAGISTRATE JUDGE.
Scott
Sanders is one of four named Plaintiffs in this action that
has been brought under 42 U.S.C. §§ 1983, 1985, and
1986. Originally filed as a class action, the Court denied
class certification on December 6, 2018 [ECF No. 130]. Before
the Court at this time is Defendants' Motion to Dismiss
Against Plaintiff Scott Sanders for Failing to Comply with
the Court's Order Compelling Discovery [ECF No. 152],
which has been referred for a Report and Recommendation under
28 U.S.C. § 636(b)(1)(B). For the reasons discussed
below, I recommend that the motion be GRANTED and that the
case be DISMISSED WITH PREJUDICE as to Plaintiff Scott
Sanders.
I.
FACTS
On June
14, 2019, Defendant Ulliance, Inc. filed a motion to compel
discovery responses from the Plaintiffs, including Plaintiff
Sanders [ECF No. 139]. In response, Plaintiffs' counsel
stated that although Mr. Sanders had promised to provide the
requested documents, he had been unable to contact Mr.
Sanders or obtain the documents from him [ECF No. 142]. On
July 23, 2019, I entered an order granting in part and
denying in part the motion to compel [ECF No. 149]. Regarding
Mr. Sanders, my order stated as follows:
“No later than 21 days from the date of this Order,
Plaintiff Scott Sanders will provide full and complete
responses to Ulliance's First Set of Interrogatories Nos.
2-5, 1-14, and 16-17, and responses to Ulliance's Fist
Set of Requests for Documents Nos. 2-6, 8-9, and 11-12, as
well as a signed copy of his original answers to
Ulliance's First Set of Interrogatories. PLAINTIFF
SANDERS' FAILURE TO COMPLY WITH THIS ORDER WILL RESULT IN
FURTHER SANCTIONS, WHICH MAY INCLUDE DISMISSAL OF HIS
CLAIMS.” (Capitalization in original).
In
addition, I sanctioned the Plaintiffs, including Mr. Sanders,
in the amount of $2, 500.00, jointly and severally,
representing Defendants' reasonable attorney
fees.[1]
To
date, Mr. Sanders has not complied with the Court's
order.
In
Plaintiffs' response to the present motion [ECF No. 155],
Plaintiffs' counsel states, “Plaintiff's
counsel, despite countless attempts to reach Plaintiff Scott
Sanders by phone, email and USPS mail, has been unable to
communicate with him for over a year. USPS mail is returned
with no forwarding address and calls and emails are not
answered. Without any communication or cooperation from
Plaintiff Scott Sanders, despite our best efforts, we have
been unable to comply with this Court's Order Compelling
Discovery.” [ECF No. 155, PageID3541].
II.
STANDARD OF REVIEW
Fed.R.Civ.P.
37(b)(2)(C) states in pertinent part that “if a party
... fails to obey an order to provide or permit discovery
..., the court in which the action is pending may make such
orders in regard to the failure as are just, and among others
the following:
(C) An order striking out pleadings or parts thereof, or
staying further proceedings until the order is obeyed, or
dismissing the action or proceeding or any part thereof, or
rendering a judgment by default against the disobedient party
....
Under
Rule 37(b)(2), the sanction imposed is vested in the
court's discretion. National Hockey League v.
Metropolitan Hockey Club, Inc., 427 U.S. 639, 643
(1976); Regional Refuse Systems, Inc. V. Inland
Reclamation Co., 842 F.2d 150, 154 (6th Cir.1988). The
“federal courts have well-acknowledged inherent power
to levy sanctions in response to abusive litigation
practices.” DLC Management Corp. v. Town of Hyde
Park, 163 F.3d 124, 135 (2nd Cir.1998) (internal
citations omitted).
Where a
dismissal is sought under Rule 37(b)(2)(C), the Court's
discretion is informed by the four-part test described in
Harmon v. CSX Transportation, Inc., 110 F.3d 364,
366-67 (6th Cir.1997): (1) whether the party's failure is
due to willfulness, bad faith, or fault; (2) whether the
adversary was prejudiced by the dismissed party's
conduct; (3) whether the dismissed or defaulted party was
warned that failure to cooperate could lead to dismissal or
entry of default judgment; and (4) whether less drastic
sanctions were imposed or considered before dismissal or
default judgment was ordered. See also Bank One of
Cleveland, N.A. v. Abbe, 916 F.2d 1067, 1073 (6th
Cir.1990). In deciding whether to impose “the draconian
sanction” of dismissal, the first factor-the
party's willfulness or bad faith in failing to comply
with a discovery order-looms large. Intercept Security
Corp. v. Code-Alarm, Inc., 169 F.R.D. 318, 321-22
(E.D.Mich.1996), citing Societe Internationale Pour
Participations Industrielles et Commerciales, S.A. v.
Rogers, 3 ...