United States District Court, E.D. Michigan, Southern Division
Anthony P. Patti, United States Magistrate Judge.
OPINION AND ORDER DENYING DEFENDANTS' MOTION TO
Gershwin A. Drain, United States District Court Judge.
filed the instant action on August 15, 2018 raising claims
under various provisions of the Michigan Vehicle Code, Mich.
Comp. Laws § 257 et seq. Plaintiff seeks future
wage loss damages stemming from a collision between
Plaintiff's vehicle and a commercial trailer, operated by
Defendant Philip James Wright (“Wright”) and
owned by Defendant Darling Ingredients, Inc.
(“Darling”). Trial in this matter is scheduled
for October 8, 2019.
before the Court is Defendants' Motion to Dismiss or, in
the Alternative, Compel Plaintiff's Tax Returns [#29].
Defendants move to dismiss Plaintiff's claims based on
her failure to provide income tax returns during discovery.
Defendants filed their Motion to Dismiss on September 3,
2019. ECF No. 29-32. Plaintiff responded on September 11,
2019. ECF No. 35-38. Upon review of the parties'
submissions, the Court concludes that oral argument will not
aid in the disposition of this matter. Therefore, the Court
will resolve the instant motion on the briefs. See
E.D. Mich. L.R. § 7.1(f)(2). For the reasons that
follow, the Court will deny Defendants' Motion to Dismiss
and deny the Alternative Motion to Compel Plaintiff's Tax
is a forty-eight-year-old woman who resides in Sylvania,
Ohio. ECF No.32-3, PageID.5; ECF No.16, PageID.1. On May 29,
2018, Plaintiff's vehicle and a commercial trailer
operated by Defendant Wright and owned by Defendant Darling
were involved in a mid-intersection collision. ECF No.38,
PgID.7. Plaintiff sustained a trimalleolar fracture to her
right ankle as a result of the collision. ECF No.32,
PageID.4. The fracture required two surgical procedures,
including external fixator surgery and open reduction
internal fixation surgery. ECF No.36, PageID.8.
works for the Lewanee Intermediate School District. ECF
No.36, PageID.7. As a result of the collision, Plaintiff was
unable to attend the last two weeks of the 2017-2018 school
year. ECF No.38, PageID.9. When the 2018-2019 school year
started in August, Plaintiff returned to work, but was
restricted by her surgeon to desk duty only. Id. The
restriction was lifted by Plaintiff's surgeon on November
1, 2018. Id. Plaintiff's surgeon has approved
two FMLA leave requests for reduced work hours as the school
year has progressed. Id. Six months after the
collision, Plaintiff also saw a psychiatrist who diagnosed
her with post-traumatic stress disorder. ECF No.30,
issue is the extent to which the ankle fracture and its
aftermath will impact Plaintiff's health and future
earning capacity. Plaintiff currently works a reduced work
week as a result of approved FMLA leave. ECF No.38, PageID.9.
Her surgeon testified that the long-term effects of
Plaintiff's injury generally include an increased risk
for pain, stiffness, and arthritis that may impact
Plaintiff's ability to work. ECF No.32-4, PageID.10.
Defendants argue there is no evidence that Plaintiff's
work life will be reduced or that she will be unable to
perform fulltime employment from now until her retirement.
ECF No.32, PageID.4.
argue that dismissal is warranted under Rule 37 of the
Federal Rules of Civil Procedure because Plaintiff failed to
provide her income tax returns from 2011 to the present. In
the alternative, Defendants seek a court order compelling the
production of these documents. During discovery, Plaintiff
timely objected to the document request, stating that her tax
returns are filed jointly with her husband, who is not a
party to the litigation. Instead, she provided her W-2's
and 1099's for the requested years. Despite
Plaintiff's objection, Defendants made no attempt to
compel the production of Plaintiff's tax returns until
the present motion.
Rule of Civil Procedure 37(b) provides that if a party fails
to obey an order regarding discovery, the court may make such
orders as are just, including dismissing the action against
the disobedient party. Fed.R.Civ.P. 37(b)(2)(C). Rule 37(b)
sanctions may include prohibiting a party from introducing
matters in evidence, striking pleadings, or dismissal of an
action, where that party has failed to comply with an order
of a court regarding discovery and the failure to comply is
attributable to a “willfulness, bad faith, or any
fault” of the party. Fed.R.Civ.P. 37(b)(2)(A), (B) and
(C); Intercept Security Corp. v. Code-Alarm, Inc.,
169 F.R.D. 318, 321 (E.D. Mich. 1996)(citing Societe
Internationale Pour Participations Industrielles et
Commerciales, S.A. v. Rogers, 357 U.S. 197, 212 (1958));
Bass v. Jostens, Inc., 71 F.3d 237 (6th Cir. 1995).
is the sanction of last resort, but a district court does not
abuse its discretion in dismissing a case even though other
sanctions might be workable, if dismissal is supported on the
facts. Beil v. Lakewood Eng'g and Mfg. Co., 15
F.3d 546, 552 (6th Cir. 1994); Bell & Beckwith v.
United States, 766 F.2d 910, 912 (6th Cir. 1985). In
determining whether to dismiss an action, the Court considers
(1) whether the non-compliant party acted willfully or in bad
faith; (2) whether the opposing party suffered prejudice; (3)
whether the non-compliant party was warned that failure to
cooperate in discovery could result in a default judgment;
and (4) whether less drastic sanctions were imposed or
considered. Bank One of Cleveland, N.A. v. Abbe, 916
F.2d 1067, 1073 (6th Cir. 1990).
do not address any of the four factors. Instead, Defendants
broadly argue about the essential nature of Plaintiff's
tax returns in the damage calculation process. Defendants
also argue that Plaintiff's W-2's and 1099's are
insufficient as a replacement for the full tax returns. In
response, Plaintiff claims that ...