Carol Lucas, R.N. v. Ulliance, Inc.

          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 ...