Summary
stating that Plaintiff's "behavior in this case evidences willful bad faith" and imposing fees and costs as a discovery sanction; "plaintiff's willful conduct exhibits a complete disregard of the authority of this Court and for his obligations as a party to this lawsuit, and has prejudiced [the employer's] ability to defend this lawsuit."
Summary of this case from Despot v. Balt. Life Ins. Co.Opinion
Case No. 1:12-cv-044
08-29-2013
DAVID DESPOT, Plaintiff, v. NATIONWIDE INSURANCE, Defendant.
Beckwith, J.
Litkovitz, M.J.
ORDER AND REPORT AND
RECOMMENDATION
This matter is before the Court on defendant Nationwide Insurance's (Nationwide) motion to dismiss and motion for sanctions (Doc. 43), to which plaintiff has not responded; and plaintiff's motion to continue case until the Equal Employment Opportunity Commission (EEOC) and Ohio Civil Rights Commission investigate plaintiff's case (Doc. 38) and motion to transfer case to the EEOC and Ohio Civil Rights Commission. (Doc. 39).
I. Procedural Background
On January 18, 2012, pro se plaintiff David Despot filed a Complaint against defendant Nationwide, his former employer, alleging violations of federal and state law. (Doc. 4, Complaint at 2-4). In response, Nationwide filed a Partial Motion to Dismiss, seeking to dismiss all of the claims with prejudice, with the exception of plaintiff's claims alleging retaliation under Title VII and Chapter 4112 of the Ohio Revised Code. (Doc. 9). On May 21, 2012, the Court granted Nationwide's Partial Motion to Dismiss and dismissed plaintiff's claims with prejudice. (Doc. 14). The only claims remaining in this case are plaintiff's claims alleging retaliation.
Nationwide served plaintiff with its discovery requests on June 12, 2012, and agreed to plaintiff's initial request for a 30-day extension of time, until August 13, 2012, to respond to the discovery requests. (Doc. 43, Declaration of defense counsel Tracy Stott Pyles, ¶2). On August 24, 2012, Nationwide sent correspondence to plaintiff requesting that he respond to its discovery requests. (Id. at ¶ 3). On August 27, 2012, plaintiff advised that he would not be responding to discovery due to his Motion to Stay, which sought an indefinite stay of the litigation. (Id. at ¶4).
On September 18, 2012, this Court denied plaintiff's Motion to Stay, stating:
As the party who filed the complaint, plaintiff is obligated to prosecute his lawsuit with due diligence, to move this case to trial in a reasonable manner, and to comply with the federal and local rules of this Court. Defendant has served plaintiff with discovery, and is entitled to receive responses in order to prepare and assess its case for purposes of settlement.(Doc. 29, at 2).
In light of the Court's Order denying his Motion to Stay, plaintiff represented during a telephonic conference with the Court that he was going to consider two alternatives: (1) dismissing his remaining claims, or (2) proceeding with the case. However, plaintiff then chose a third option. On September 26, 2012, plaintiff filed a motion requesting the Court to transfer his case "back to" the EEOC and/or the Ohio Civil Rights Commission (Doc. 30), which Nationwide opposed. (Doc. 31).
Given plaintiff's decision to proceed with the litigation rather than voluntarily dismiss his remaining claims, Nationwide sent another letter to plaintiff on October 4, 2012, asking that he respond to discovery immediately, but by no later than October 10, 2012. (Doc. 43, Pyles Decl. at ¶5). Plaintiff did not respond, and on November 15, 2012, Nationwide filed its Motion to Compel Discovery and for Sanctions, seeking plaintiff's discovery responses and deposition, an award of fees and expenses, and dismissal with prejudice if plaintiff failed to comply with the Court's Orders. (Doc. 32). Plaintiff did not respond to Nationwide's Motion to Compel. On January 11, 2013, Nationwide filed its Reply in Support of its Motion to Compel, noting plaintiff's continued absence from the discovery process and, for the past several months, from the litigation. (Doc. 33). In addition, Nationwide was forced to file a Motion for Continuance of Dispositive Motion Deadline on March 12, 2013, based on plaintiff's failure to comply with his discovery obligations, which prevented Nationwide from preparing its case within the deadlines set by the Court's Calendar Order. (Doc. 34). Plaintiff did not respond to Nationwide's Motion seeking an extension of the case management deadlines.
On March 15, 2013, this Court issued an Order denying plaintiff's Motion to Transfer, noting that "the Court lacks authority to transfer plaintiff's federal Title VII lawsuit back to the EEOC. . . [.]" (Doc. 35 at 1). In this same Order, the Court granted Nationwide's Motion to Compel and ordered: "Plaintiff has twenty (20) days from the entry of this order by which to provide Nationwide with his discovery responses and schedule a date for his deposition. Plaintiff is notified that failure to comply with this order may result in sanctions, including assessment of fees and costs and a recommendation that this action be dismissed." (Doc. 35 at 2-3).
As of this date, plaintiff has not complied with the Court's Order. (Doc. 43, Pyles Decl. ¶7). Plaintiff has not responded to Nationwide's June 12, 2012, discovery requests, nor to Nationwide's efforts to schedule his deposition. In fact, plaintiff has not contacted Nationwide in response to the Court's Order. Id.
Instead, on March 25, 2013, plaintiff refiled the Motion to Stay and Motion to Transfer -the same motions previously denied by this Court. (Docs. 38, 39).
On June 13, 2013, Nationwide filed a motion to dismiss and motion for sanctions based on plaintiff's failure to respond to Nationwide's discovery requests, to comply with the Court's Orders, and to prosecute his case. (Doc. 43).
II. Plaintiff's motions are denied.
Plaintiff's motions to continue case until the EEOC and Ohio Civil Rights Commission investigate plaintiff's case and to transfer case to the EEOC and Ohio Civil Rights Commission (Docs. 38, 39) seek the same relief previously denied by the Court. (Doc. 35). To the extent the motions may be construed as seeking reconsideration of the Court's previous Order, the motions must nevertheless be denied.
As a general rule, motions for reconsideration are not favored unless the movant demonstrates: "(1) a manifest error of law; (2) newly discovered evidence which was not available previously to the parties; or (3) intervening authority." Meekison v. Ohio Dept. of Rehabilitation and Correction, 181 F.R.D. 571, 572 (S.D. Ohio 1998) (citing Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985)). In this case, there is no intervening change of controlling law, nor has plaintiff submitted new evidence. The Court is not aware of any need to correct a clear error or to prevent manifest injustice. Instead, plaintiff has simply reargued the issues upon which he was not successful before this Court. Plaintiff has not alleged any facts or cited any legal authority which suggests that reconsideration of the Court's Order denying his motion to transfer his lawsuit back to the EEOC for investigation and re-evaluation (Doc. 35) is warranted. Therefore, plaintiff's motions (Docs. 38, 39) are DENIED.
III. Nationwide's motions to dismiss and for sanctions should be granted.
Rule 37 of the Federal Rules of Civil Procedure provides that the Court may impose sanctions, including the dismissal of an action, when "a party fails to obey an order to provide or permit discovery." Fed. R. Civ. P. 37(b)(2)(A)(v). See also Fed. R. Civ. P. 37(d); Universal Health Group v. Allstate Ins. Co., 703 F.3d 953, 956 (6th Cir. 2013) (citing Bass v. Jostens, Inc., 71 F.3d 237, 241 (6th Cir. 1995)). Rule 41(b) likewise permits dismissal of a civil action if the plaintiff "fails to prosecute or to comply with [the Federal Rules of Civil Procedure] or a court order." Fed. R. Civ. P. 41(b). See also Linkv. Wabash R.R., 370 U.S. 626, 630-631 (1962) (district courts have power to dismiss civil actions to "manage their own affairs so as to achieve the orderly and expeditious disposition of cases"). The Court considers the following factors in determining whether the sanction of dismissal is warranted: "(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 party was warned that failure to cooperate could lead to dismissal; and (4) whether less drastic sanctions were imposed or considered before dismissal was ordered." Universal Health Group, 703 F.3d at 956 (quoting United States v. Reyes, 307 F.3d 451, 458 (6th Cir. 2002) (internal quotation marks and citation omitted)). The imposition of sanctions based on a party's failure to comply with a prior discovery order is a matter committed to the Court's discretion. Natl Hockey League v. Metro. Hockey Club, 427 U.S. 639, 642 (1976).
First, as set forth above, plaintiff's behavior in this case evidences willful bad faith. Plaintiff has not complied with the Court's September 18, 2012 Order "to prosecute his lawsuit with due diligence, to move this case to trial in a reasonable manner, and to comply with the federal and local rules of this Court," including responding to Nationwide's discovery requests. (Doc. 29). Nor has plaintiff complied with the Court's March 15, 2013 Order to submit his discovery responses to Nationwide and schedule his deposition with twenty days. (Doc. 35). Instead, plaintiff sought to delay this action further by filing motions to stay this matter and transfer the case to the EEOC and Ohio Civil Rights Commission (Docs. 38, 39), knowing that the Court had denied the same motions previously. (Doc. 35). In addition, plaintiff has not responded to Nationwide's motion to dismiss, even though he received notice of his duty to file a memorandum in response to the motion within 21 days from the date of service or face dismissal of this case pursuant to Fed. R. Civ. P. 41(b) for failure to prosecute. (Doc. 44). Plaintiff's duty to comply with the Federal Rules of Civil Procedure, including those pertaining to discovery and motion practice, is not lessened merely because he appears pro se. See Thomas v. Victoria's Secret Stores, 141 F.R.D. 456, 461 (S.D. Ohio 1992).
Second, Nationwide has been prejudiced by its inability to conduct discovery in this case. Not only has plaintiff's failure to respond to Nationwide's discovery necessitated an extension of the discovery and dispositive motion deadlines, his failure to comply with the Court's Order compelling discovery has deprived Nationwide of the ability to obtain the information and evidence needed to properly defend this matter. Plaintiff's conduct has also caused Nationwide to expend time and money in attempting to secure plaintiff's compliance with his discovery obligations under the Federal Rules. See Schafer v. City of Defiance Police Dept., 529 F.3d 731, 737 (6th Cir. 2008) ("[A] defendant is prejudiced by the plaintiff's conduct where the defendant waste[d] time, money, and effort in pursuit of cooperation which [the plaintiff] was legally obligated to provide.") (internal quotations and citation omitted).
Third, plaintiff has been twice been warned by this Court that a continued refusal to comply with the Court's Orders and/or to participate in discovery could result in the dismissal of this case. (Docs. 35, 44). Plaintiff was explicitly warned that his failure to comply with the Court's Order granting Nationwide's motion to compel discovery may result in sanctions, including an assessment of fees and costs and a recommendation that this action be dismissed. (Doc. 35). The record contains a certified mail receipt acknowledging receipt of the first order containing the warning. (Doc. 42).
Fourth, lesser sanctions than dismissal are not appropriate. The Court on three occasions, verbally and in writing, has advised plaintiff of his discovery obligations and his duty to respond to Nationwide's discovery requests. (Docs. 28, 29, 35). To date, plaintiff has refused to obey the Court's Order to answer Nationwide's discovery and schedule his deposition, and there is nothing in the record to indicate that a sanction short of dismissal would have any effect on securing plaintiff's compliance with his discovery obligations.
In sum, the Court determines that plaintiff's willful conduct exhibits a complete disregard of the authority of this Court and for his obligations as a party to this lawsuit, and has prejudiced Nationwide's ability to defend this lawsuit. Plaintiff has been duly warned and sanctions less severe than dismissal would not be effective. Therefore, Nationwide's motion to dismiss should be granted.
Nationwide also seeks an award of attorney's fees and expenses incurred as a result of work performed on the instant motion. "Under Federal Rule of Civil Procedure 37, if a party fails to obey a discovery order, the district court 'must order the disobedient party, the attorney advising that party, or both to pay the reasonable expenses, including attorney's fees, caused by the failure, [unless the failure was substantially justified or other circumstances make an award of expenses unjust].'" Bell v. Ameritech Sickness and Acc. Disability Ben. Plan, 399 F. App'x 991, 996 (6th Cir. 2010) (quoting Fed. R. Civ. P. 37(b)(2)(C)). The Sixth Circuit has held that a party meets the "substantially justified" standard if "there is a genuine dispute, or if reasonable people could differ as to the appropriateness of the contested action." Doe v. Lexington-Fayette Urban Cty. Govt., 407 F.3d 755, 765 (6th Cir. 2005) (citing Pierce v. Underwood, 487 U.S. 552, 565 (1988)).
Here, plaintiff has not complied with the Court's Order to provide discovery and has not provided any justification doing so. Plaintiff was expressly warned in the Court's March 15, 2013 Order that his failure to comply with the Order may result in sanctions, including the assessment of fees and costs incurred by Nationwide as a result of any non-compliance. (Doc. 35). Plaintiff has presented no evidence showing his failure to comply with the Court's Order is substantially justified and the Court perceives no circumstances that would make an award of fees and costs unjust. The Court therefore recommends that Nationwide's request for an award of attorney fees and costs incurred in the filing of the motion to dismiss be granted.
IT IS THEREFORE RECOMMENDED THAT:
1. Nationwide's motion to dismiss be GRANTED.
2. Nationwide's motion for sanctions be GRANTED.
3. In the event the above recommendations are adopted, that Nationwide be directed to file an itemized statement of fees and costs related to its motion to dismiss (Doc. 43) within ten (10) days of the date of any Order adopting this Report and Recommendation and that plaintiff be given thirty (30) days to pay the attorney fees and costs to Nationwide.
4. The Court certify pursuant to 28 U.S.C. § 1915(a) that for the foregoing reasons an appeal of any Order adopting this Report and Recommendation would not be taken in good faith and therefore deny plaintiff leave to appeal in forma pauperis. Plaintiff remains free to apply to proceed in forma pauperis in the Court of Appeals. See Callihan v. Schneider, 178 F.3d 800, 803 (6th Cir. 1999), overruling in part Floyd v. United States Postal Serv., 105 F.3d 274, 277 (6th Cir. 1997).
____________________
Karen L. Litkovitz
United States Magistrate Judge
DAVID DESPOT, Plaintiff
v. NATIONWIDE INSURANCE, Defendant
Case No. 1:12-cv-044
Beckwith, J.
Litkovitz, M.J.
NOTICE
Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of the recommended disposition, a party may serve and file specific written objections to the proposed findings and recommendations. This period may be extended further by the Court on timely motion for an extension. Such objections shall specify the portions of the Report objected to and shall be accompanied by a memorandum of law in support of the objections. If the Report and Recommendation is based in whole or in part upon matters occurring on the record at an oral hearing, the objecting party shall promptly arrange for the transcription of the record, or such portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient, unless the assigned District Judge otherwise directs. A party may respond to another party's objections WITHIN 14 DAYS after being served with a copy thereof. Failure to make objections in accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).