UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

DAMON DAVIS,

Plaintiff,

vs. Case No. 15-10805

JP MORGAN CHASE BANK, N.A. HON. AVERN COHN

Defendant.

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MEMORANDUM AND ORDER

GRANTING IN PART DEFENDANT’S MOTION TO COMPEL PLAINTIFF’S

DEPOSITION, PRODUCTION OF DOCUMENTS AND TO EXTEND DISCOVERY

(Doc. 10)1

I. Introduction

This is an action surrounding a parcel of real estate in Wayne County. As best

as can be gleaned, plaintiff Damon Davis, currently proceeding pro se,

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 is suing

defendant JP Morgan Chase Bank, N.A. (Chase) contending that Chase violated state

and federal law in foreclosing on property in which Davis was a bona fide tenant. 

Before the Court is Chase’s motion to compel Davis’ deposition, production of

documents, and to extend discovery. For the reasons that follow, the motion is

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Upon review of the parties’ papers, the Court deems this matter appropriate for

decision without oral argument. See Fed. R. Civ. P. 78(b); E.D. Mich. LR 7.1(f)(2).

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As will be explained, counsel for Chase was contacted by an attorney, Kim

McGary, who said she represents Davis. However, McGary has not filed an

appearance on his behalf. 

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GRANTED.

II. Background

On May 1, 2015, the Court entered a Scheduling Order providing that Discovery

was due by September 1, 2015. (Doc. 9). On May 7, 2015, Chase served a Notice of

Taking Deposition Duces Tecum and a Request for Production of Documents on

Plaintiff. The deposition was noticed for June 12, 2015. 

On June 10, 2015, an attorney, Kim McGary, contacted Chase’s counsel and

advised she would be appearing as counsel for Davis. McGary also asked Chase’s

counsel if the deposition could be re-scheduled to June 30, 2015. Chase agreed to the

adjournment and asked McGary to confirm she would provide the requested documents

prior to the date of deposition. See Chase’s Ex. B, Email Correspondence from June

10, 2015.

On June 29, 2015, McGary requested a second adjournment of the deposition. 

Chase’s counsel again agreed and asked McGary to produce the requested documents. 

See Chase’s Ex. C, Email Correspondence from June 29, 2015.

McGary later advised that her client would appear on July 22, 2015 for a

deposition. However, on July 21, 2015, McGary cancelled the deposition because she

had not yet filed an appearance in this Court. 

To date, Davis has not appeared for a deposition or produced the requested

documents, nor has McGary filed an appearance on Davis’ behalf.

II. Discussion

A party may move for an order compelling discovery. See Rule 37(a)(1);

LR 7.1(a)(2). The Court may modify its Scheduling Order for good cause. See

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Rule 16(b)(4).

Here, Davis has not appeared for a deposition or produced any documents

Chase requested. Chase has a right to depose Davis to investigate the basis for his

claims and request documents. There is also good cause exists for extending

discovery.

In response, Davis says that Chase mischaracterizes his position and has been

unwilling to resolve this matter. He also says McGary has had difficulties in being

admitting to practice in federal court which has delayed the case. He asks that any

order compelling a deposition or documents be after such time as McGary files an

appearance. 

Chase also requests that if Davis fails to appear for the deposition, the matter be

dismissed as a sanction. Rule 37 authorizes the imposition of sanctions for a party's

failure to make Rule 26(a)(1) disclosures, Rule 37(c)(1), or failure to respond to written

discovery requests or to attend one's own deposition, Rule 37(d)(1). A court has wide

discretion in determining an appropriate sanction under Rule 37. National Hockey

League v. Metropolitan Hockey Club, 427 U.S. 639 (1976); Regional Refuse Systems v.

Inland Reclamation Co., 842 F.2d 150, 154 (6th Cir.1988). The exercise of the court's

discretion must be informed by four factors:

“The first factor is whether the party's failure to cooperate in discovery is due to

willfulness, bad faith, or fault; the second factor is whether the adversary was

prejudiced by the party's failure to cooperate in discovery; the third factor is

whether the party was warned that failure to cooperate could lead to the

sanction; and the fourth factor in regard to a dismissal is whether less drastic

sanctions were first imposed or considered.”

Doe v. Lexington–Fayette Urban County Government, 407 F.3d 755, 765–66 (6th

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Cir.2005) (quoting Freeland v. Amigo, 103 F.3d 1271, 1277 (6th Cir.1997)). See also

Patton v. Aerojet Ordnance Co., 765 F.2d 604, 607 (6th Cir.1985) (“Dismissal of action

for failure to cooperate in discovery is a sanction of last resort that may be imposed only

if the court concludes that a party's failure to cooperate in discovery is due to willfulness,

bad faith, or fault.”).

III. Conclusion

For the reasons stated above, Chase’s motion is GRANTED. Davis is

EXPRESSLY ORDERED to appear for a deposition and produce documents within two

(2) weeks of this order, regardless of whether McGary files an appearance on his

behalf. 

Davis is also EXPRESSLY ADVISED that a failure to appear for a deposition or

provide timely responses may result in the imposition of sanctions, including dismissal.

Discovery is extended 45 days from the date of this order.

SO ORDERED.

s/Avern Cohn

AVERN COHN

UNITED STATES DISTRICT JUDGE

Dated: August 24, 2015

Detroit, Michigan

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