Opinion
No. 5:01cv93
July 25, 2002
JUDGMENT
In accordance with the opinion issued herewith,
IT IS ORDERED that defendants' motion for imposition of further sanctions pursuant to Rule 37(b)(2) (docket # 177) is GRANTED. Judgment is hereby entered in favor of defendants upon all of plaintiffs claims.
OPINION
This is a civil rights action brought by a pro se plaintiff against the Thomas M. Cooley Law School and certain of its officers and directors. On April 30, 2002, plaintiff unilaterally failed to appear for his deposition. Defendants filed a motion to compel plaintiffs deposition. The court granted defendants' motion on June 5, 2002. Under the court's case management order, discovery had been scheduled to close on May 1, 2002. Plaintiffs misconduct compelled the court to amend the case management order, extending defendants' deadline for completion of discovery until June 22, 2002, for the limited purpose of taking plaintiffs deposition. Defendants' deadline for filing dispositive motions was extended until July 8, 2002. The court ordered that plaintiffs deposition be conducted in Lansing, Michigan, at the offices of Foster, Swift Collins Smith, P.C. during the week of June 17-21, 2002. Defendants' counsel was ordered to make an attempt to coordinate the specific time and date with plaintiff, but if no agreement could be reached, defendants were to serve notice of the specific time and date of plaintiffs deposition not later than June 11, 2002. The court expressly advised plaintiff that he faced Rule 37(b)(2) sanctions, including possible entry of judgment in favor of defendants, if he failed to appear for his deposition. (docket #'s 166, 167). On June 10, 2002, defendants' counsel telephoned plaintiff in an attempt to coordinate the deposition date as ordered by the court. Plaintiff refused to supply any dates. Plaintiff related that he would not be appearing for his deposition at any time during the week of June 17-21, 2002. On June 10, 2002, defendants' counsel noticed plaintiffs deposition for Monday, June 17, 2002, at 9:00 a.m. Plaintiff failed to appear for his deposition in direct violation of this court's order. On June 21, 2001, defendants filed a motion seeking entry of judgment in their favor pursuant to Rule 37(b)(2). (docket # 177).
On June 21, 2001, pursuant to Rule 37, the court ordered plaintiff to pay defendants $2,612.00 as their reasonable costs and attorney's fees incurred as a result of plaintiffs first failure to appear for his scheduled deposition. The court ordered plaintiff to make payment to defendants' counsel on or before July 5, 2002. (docket # 176). The court denied plaintiffs subsequent motion for reconsideration and emphasized in its order that the July 5, 2002 deadline for plaintiffs payment of the sanctions previously awarded remained unaltered. The court's orders directed plaintiff to file proof with the court of timely payment. The court advised plaintiff that failure to comply with the court's order would result in further sanctions, including possible entry of judgment in favor of defendants. Plaintiff did not pay the sanctions, in violation of the court's order.
On July 1, 2002, plaintiff filed his response to defendants' motion. (docket # 180). Plaintiffs conclusory response asserts that defendants' motion is "part of a scheme to defraud the Court." Plaintiffs response is accompanied by an affidavit containing a laundry list of plaintiffs continued, self-serving, and unsubstantiated complaints that he suffers from an unusual sensitivity to electromagnetic radiation.
On July 3, 2002, defendants filed a motion to suspend or extend the defendants' deadline for filing dispositive motions. (docket # 182). Plaintiffs repeated failure to appear for his scheduled depositions had prejudiced defendants' ability to file a dispositive motion.
Rule 37(b) of the Federal Rules of Civil Procedure authorizes the imposition of sanctions for a party's failure to obey an order requiring discovery. In the present case, as chronicled above, plaintiff has repeatedly violated this court's orders. Rule 37(b) sanctions are discretionary and are reviewed by the Court of Appeals under an abuse-of-discretion standard. See Freeland v. Amigo, 103 F.3d 1271, 1276 (6th Cir. 1997); see also Voit v. Jefferson County Sherffs Dep't, No. 01-5887, 2002 WL 449846, at *1 (6th Cir. Mar. 21, 2002); Mullins v. Toyota Motor Mfg., No. 01-5600, 2002 WL 123686, at *2 (6th Cir. Jan. 29, 2002). The Sixth Circuit has endorsed a sequential approach to discovery sanctions. In determining the appropriate sanction, the trial courts are directed to consider the following factors (1) whether the party's failure to cooperate in discovery is due to willfulness, bad faith, or fault; (2) whether the adversary was prejudiced by the party's failure to cooperate in discovery; (3) whether the party was warned that failure to cooperate could lead to the sanction; and (4) whether less drastic sanctions were first imposed or considered. 103 F.3d at 1277; accord Regional Refuse Sys., Inc. v. Inland Reclamation Co., 842 F.2d 150, 154-55 (6th Cir. 1988).
In the present case, each factor identified by the Sixth Circuit weighs heavily against plaintiff and in favor of imposition of preclusive sanctions. The first factor is whether the party's failure to cooperate in discovery is due to willfulness, bad faith or fault. The record before the court clearly supports a finding that plaintiffs discovery defaults have been willful and in bad faith. Plaintiff has no one to blame for these defaults but himself. As plaintiff is proceeding pro se, the court is not required to determine whether the fault for noncompliance lies with the attorney rather than the client. See, e.g., Coleman v. American Red Cross, 23 F.3d 1091, 1095 (6th Cir. 1994) (courts hesitant to impose severe sanctions where fault lies with a delinquent lawyer rather than an innocent client).
The second relevant factor is whether the adversary was prejudiced by the party's failure to cooperate in discovery. Here, the existence of prejudice is clear. Plaintiff has completely stonewalled defendants' legitimate discovery efforts.
The third relevant factor is whether the party was warned that his continued failure to cooperate could lead to the imposition of sanctions. Here, the court has repeatedly warned plaintiff that failure to appear for his deposition and to pay sanctions would result in the imposition of more severe sanctions, including entry of judgment in favor of defendants.
Finally, the court should make clear its consideration of imposition of less drastic sanctions. The Court of Appeals has made it clear that the district court need not expressly articulate its consideration of lesser sanctions in order to meet this requirement. See Harmon v. CSX Transp., Inc., 110 F.3d 364, 366-67 (6th Cir. 1997). Nevertheless, in the present case this factor was satisfied. Significant monetary sanctions have not resulted in any movement by plaintiff towards cooperation in the completion of discovery. Plaintiff cavalierly disobeyed the court order requiring him to appear in Lansing for his deposition. The imposition of these sanctions was insufficient, even coupled with warnings of sterner action, to produce compliance. It is clear to the court that sanctions short of entry of judgment in favor of defendants will not be successful to coerce compliance in the case.
This court is satisfied that plaintiff will continue to violate his discovery obligations and obstruct the search for truth, despite any court order or sanction. In such circumstances, the court has little choice but to enter judgment in favor of defendants, to avoid the imposition of further expense and prejudice to the defendants.
Judgment will be entered in favor of defendants forthwith.