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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

DEVONNE MARSH, 

 

 Plaintiff, Civil Action No. 14-12947 

 Honorable Victoria A. Roberts 

 v. Magistrate Judge David R. Grand 

 

LEO RHODES and 

THE CITY OF DETROIT, 

 

 Defendants. 

__________________________________/ 

REPORT AND RECOMMENDATION ON 

DEFENDANTS’ MOTION TO DISMISS [21] 

Before the Court is a Motion to Dismiss Plaintiff’s Complaint Pursuant to Fed. R. Civ. P. 

37 and 41, filed by Defendants Leo Rhodes and the City of Detroit (collectively “Defendants”) 

on November 2, 2015. (Doc. #21). Plaintiff Devonne Marsh (“Marsh”) filed a response in 

opposition to this motion1

 on December 4, 2015 (Doc. #24), and Defendants filed a reply on 

December 14, 2015 (Doc. #25). An Order of Reference was entered on January 27, 2015, 

referring all pretrial matters to the undersigned pursuant to 28 U.S.C. §636(b). (Doc. #9). 

 

 

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 Marsh’s response contains a section titled “Motion to Sanction Defendants Leo Rhodes ET AL. 

and The City of Detroit through their Attorney Patrick M. Cunningham for their misconduct 

during discovery disclosure under Fed. R. Civ. P. 26(a)(1)(A),” in which he asks the Court to 

sanction Defendants for “disclosing falsified documents and/or information as discovery 

evidence ....” (Doc. #24 at 16). Because it is not proper to file a separate motion within a 

response brief, see Picard v. Am. Bd. Of Family Medicine, 2014 WL 1389053, at *14 (E.D. 

Mich. Apr. 9, 2014) (“motions may not be included within a response”), and because Marsh later 

filed a similar motion seeking similar relief (Doc. #33), the Court has not addressed the merits of 

this issue herein but, rather, has considered the assertions made by Marsh regarding “falsified 

documents” in its order on Marsh’s separate motion for sanctions. (Doc. #36). 

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I. RECOMMENDATION2

For the reasons set forth below, IT IS RECOMMENDED that Defendants’ motion be 

DENIED IN PART to the extent it seeks dismissal of Marsh’s complaint. IT IS FURTHER 

RECOMMENDED that the motion be GRANTED IN PART to the extent it seeks an order 

compelling Marsh to respond to Defendants’ discovery requests within fourteen (14) days, and 

affording Defendants additional time to file a supplemental brief in support of their pending 

motion for summary judgment (Doc. #26). 

II. REPORT 

A. Background

Marsh brings this civil rights action pursuant to 42 U.S.C. §1983, alleging that 

Defendants violated his constitutional rights when they executed a (purportedly invalid) search 

warrant at 20029 Packard in the city of Detroit, Michigan, on December 23, 2012. In their 

motion, Defendants assert that, on September 25, 2015, they served Marsh with: (1) Defendants’ 

Interrogatories Directed to Plaintiff; (2) Defendants’ First Request for Admission to Plaintiff; 

and (3) Defendants’ First Request for Production to Plaintiff (collectively the “Discovery 

Requests”). (Doc. #21 at 7, Ex. B; Doc. #26 at Ex. E). According to Defendants, Marsh still has 

not provided responses to the Discovery Requests, which were due on October 25, 2015. (Doc. 

#21 at 7). Indeed, nowhere in Marsh’s filings does he indicate that he responded to the 

Discovery Requests. 

 

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 As another Magistrate Judge in this district recently noted, “There appears to be a split in 

authority on whether a magistrate judge should provide a report and recommendation to a district 

judge on a Fed. R. Civ. P. 37 motion for sanctions where, as here, the relief sought is dispositive 

(e.g., default judgment) . . . . Because several judges in this district have viewed a report and 

recommendation proper in this scenario, and because this Court sees no need to depart from this 

practice, this Court will make a recommendation to the District Court regarding the pending 

motions.” Stevenson v. City of Detroit, 2012 WL 1883282, at *1 (E.D. Mich. Mar. 30, 2012) 

(internal citations omitted). 

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Additionally, Defendants noticed Marsh’s video deposition to take place on October 27, 

2015. (Id. at Ex. C). According to Defendants, Marsh appeared at the appointed time and 

location (within Marquette Branch Prison), at which time the video deposition began. (Id. at 7). 

Apparently, however, the video feed was interrupted at some point during Marsh’s deposition, 

due to unforeseen technical difficulties, and when the video feed returned, Marsh was no longer 

on camera. (Id.). Defendants indicate that they were informed that Marsh told prison staff he no 

longer wished to participate in the deposition; Marsh claims that he left the deposition because 

“it was getting close for his unit to be called for lunch and [] he would like to go eat when his 

unit [was] called.” (Doc. #24 at 7). Defendants now ask the Court to dismiss Marsh’s 

complaint, pursuant to Fed. R. Civ. P. 37 and/or 41, because Marsh has failed to respond to their 

interrogatories, requests to admit, or requests for production of documents, and because Marsh 

“willfully terminated his deposition.” (Doc. #21 at 8). 

B. Analysis

Rule 37 provides that a court may order sanctions, up to and including dismissal of an 

action, if “a party ... fails, after being served with proper notice, to appear for that person’s 

deposition,” or if “a party, after being properly served with interrogatories under Rule 33 or a 

request for inspection under Rule 34, fails to serve its answers, objections, or written response.” 

Fed. R. Civ. P. 37(d)(1)(A)(i)-(ii). In deciding whether to dismiss an action for discovery 

violations, courts consider four 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 

dismissed party’s failure to cooperate in discovery; (3) whether the dismissed party was warned 

that failure to cooperate could lead to dismissal; and (4) whether less dramatic sanctions were 

imposed or considered before dismissal was ordered. See Harmon v. CSX Transp., Inc., 110 

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F.3d 364, 366-67 (6th Cir. 1997). 

In this case, the Court finds Marsh’s failure to respond to Defendants’ written discovery 

inexcusable, particularly in light of the fact that he has offered no explanation whatsoever for his 

failure to do so. Moreover, despite the length of time the underlying motion has remained 

pending, there is still no indication in the record that Marsh has submitted discovery responses. 

Despite these facts, however, the Court is not persuaded that dismissal of Marsh’s 

complaint is warranted as a sanction at this time. Applying the test set forth above, the Court can 

only conclude with respect to the first factor that Marsh’s failure to respond to the Discovery 

Requests was due to willfulness, bad faith, or fault, as he simply has offered no explanation or 

justification for his utter failure to participate in discovery. As to the second factor, Defendants 

argue that they have been prejudiced by Marsh’s prolonged failure to cooperate in discovery. 

(Doc. #21 at 10). Specifically, Defendants indicate that they have been prejudiced by the fact 

that Marsh “has not provided any information of any kind other than the bare allegations in his 

complaint,” and by the fact that they wasted “a great deal of time and effort” in coordinating 

Marsh’s video deposition, only to have the deposition terminated prematurely before they were 

able obtain necessary information. (Id.). The Court largely agrees with Defendants that Marsh’s 

failure to participate in discovery has been prejudicial, particularly when the deadlines 

established by the Court’s Scheduling Order required Defendants to file a dispositive motion 

without the benefit of Marsh’s discovery responses and deposition testimony. 

The remaining factors mitigate against dismissal of Marsh’s complaint, however. Marsh 

has not previously been warned that his failure to cooperate in discovery could lead to dismissal 

of his complaint. And, while Defendants correctly point out that prior warning by the court only 

“one factor to consider” (Doc. #21 at 10), the Court finds that factor particularly relevant here, 

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where Defendants did not previously file a motion to compel responses to the Discovery 

Requests or Marsh’s attendance at a continued deposition. In addition, the Court notes that this 

is not a case where Marsh has completely refused to participate in discovery; indeed, he appeared 

for his deposition and began giving testimony before the video feed was interrupted, apparently 

through no fault of his own. And, finally, no less drastic sanction has previously been imposed 

in this case for Marsh’s discovery violations. 

In sum, upon careful consideration of four factors discussed above, as applied to the facts 

of this case, the Court concludes that the extreme sanction of dismissal of Marsh’s complaint is 

not presently warranted. Recognizing, however, that Marsh’s failure to respond to the Discovery 

Requests, and to give full and complete deposition testimony, has hindered Defendants’ ability to 

defend this action, the Court believes it appropriate to order Marsh to provide the discovery 

responses at issue and to sit for a continued deposition (should Defendants deem such 

necessary). Once Marsh has complied with these obligations, Defendants should be provided an 

additional fourteen (14) days to supplement their pending motion for summary judgment (Doc. 

#26) to include any additional materials supporting the arguments contained therein, including 

documentary evidence, deposition testimony, and/or an affidavit(s) providing the requisite 

evidentiary support for the argument of counsel contained therein.3

 And, Marsh should then 

have fourteen (14) days to supplement his response. 

Marsh is hereby warned that his failure to fully and completely respond to the Discovery 

Requests within fourteen (14) days of this Report and Recommendation, to provide full and 

complete deposition testimony (to the extent deemed necessary by Defendants), or to comply 

 

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 The Court notes, for example, that in their motion for summary judgment, Defendants detail 

actions purportedly taken by Officer Rhodes in conducting surveillance and obtaining and 

executing the search warrant at issue. (Doc. #26). However, the motion did not include an 

affidavit from Officer Rhodes as to these matters. 

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with the Federal Rules or the Court’s orders, may result in the imposition of a sanction, up to and 

including the dismissal of his complaint with prejudice. 

III. CONCLUSION 

For the reasons set forth above, IT IS RECOMMENDED that the District Court DENY 

IN PART Defendants’ motion to dismiss (Doc. #21), to the extent it seeks dismissal of Marsh’s 

complaint. IT IS FURTHER RECOMMENDED that the District Court GRANT IN PART

Defendants’ motion to dismiss (Doc. #21) to the extent it seeks an order compelling Marsh to 

respond to the Discovery Requests within fourteen (14) days, compelling Marsh to appear for a 

continued deposition in a timely fashion (to the extent deemed necessary by Defendants), and 

affording Defendants an additional fourteen (14) days from completion of these items to file a 

supplemental brief in support of their pending motion for summary judgment (Doc. #26), and 

fourteen (14) days thereafter for Marsh to file a supplemental response. 

Dated: April 21, 2016 s/ David R. Grand 

 DAVID R. GRAND 

 UNITED STATES MAGISTRATE JUDGE 

NOTICE TO THE PARTIES REGARDING OBJECTIONS 

Within 14 days after being served with a copy of this Report and Recommendation and 

Order, any party may serve and file specific written objections to the proposed findings and 

recommendations and the order set forth above. See 28 U.S.C. §636(b)(1); Fed. R. Civ. P. 

72(b)(2); E.D. Mich. LR 72.1(d)(1). Failure to timely file objections constitutes a waiver of any 

further right of appeal. See Thomas v. Arn, 474 U.S. 140, (1985); United States v. Sullivan, 431 

F.3d 976, 984 (6th Cir. 2005). Only specific objections to this Report and Recommendation will 

be preserved for the Court’s appellate review; raising some objections but not others will not 

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preserve all objections a party may have. See Smith v. Detroit Fed’n of Teachers Local 231, 829 

F.2d 1370, 1373 (6th Cir. 1987); see also Frontier Ins. Co. v. Blaty, 454 F.3d 590, 596-97 (6th 

Cir. 2006). Copies of any objections must be served upon the Magistrate Judge. See E.D. Mich. 

LR 72.1(d)(2). 

A party may respond to another party’s objections within 14 days after being served with 

a copy. See Fed. R. Civ. P. 72(b)(2); 28 U.S.C. §636(b)(1). Any such response should be 

concise, and should address specifically, and in the same order raised, each issue presented in the 

objections. 

CERTIFICATE OF SERVICE

 The undersigned certifies that the foregoing document was served upon counsel of record 

and any unrepresented parties via the Court’s ECF System to their respective email or First Class 

U.S. mail addresses disclosed on the Notice of Electronic Filing on April 21, 2016. 

 s/Eddrey O. Butts 

 EDDREY O. BUTTS 

 Case Manager 

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