UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

TERI JORDAN, as personal

representative of MICHAEL MILLER,

deceased,

Plaintiff, No. 14-cv-13796

vs.

CITY OF TAYLOR, et al.,

Defendants.

________________________________/

and

TERI JORDAN, as personal

representative of MICHAEL MILLER,

deceased,

Plaintiff, No. 15-cv-12415

vs.

CORPORAL MIKE TAYLOR and

CORPORAL PATRICK RABOCZKAY,

Defendants.

________________________________/

ORDER DISMISSING CASE No. 15-12415 AND

DENYING MOTION TO CONSOLIDATE CASES, AS MOOT

At a session of said Court, held in

the U.S. Courthouse, Detroit, Michigan

on August 10, 2015 

PRESENT: Honorable Gerald E. Rosen

United States District Chief Judge

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I. INTRODUCTION

The above-captioned actions for deliberate indifference to the serious medical

needs of Plaintiff’s decedent, Michael Miller, are before the Court on Plaintiff’s Motion

to Consolidate Cases filed in Case No. 14-13796 [Dkt. #68]. The Court discussed

Plaintiff’s filing of the second case, Case No. 15-12415, and this Motion with counsel for

the parties during a Status Conference held on July 29, 2015. Having reviewed and

considered Plaintiff’s Motion and the arguments advanced by her attorney, both in her

brief and at the Status Conference, the Court is now prepared to decide this matter.

II. PERTINENT FACTS

On October 2, 2014, while Michael Miller was still alive but comatose and

incapacitated, Teri Jordan, as his conservator, filed this lawsuit in this Court, naming as

defendants the City of Taylor, Taylor Police Chief Dale Tamsen, and the four individual 

officers working in the jail the night of September 9, 2012 -- Sergeant Eric Godlewski

and Public Safety Officers Nicholas Seletti, Justin Yunk and Catherine Volante. In her

three-count Complaint, Plaintiff alleged § 1983 claims of deliberate indifference to

serious medical needs against the individual officers and failure to train/failure to

supervise/inadequate policies and/or procedures against the City and the police chief, and

a state law claim of “gross negligence, intentional, willful and wanton conduct” against

all of the defendants.

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An Amended Complaint was filed on February 13, 20151

 which added Lieutenant

Dale Chapman of the Taylor Police Department as an additional party-defendant2

 -- but

no changes were made in any of the factual allegations or the nature of the claims. In

fact, all of the allegations in the Amended Complaint are verbatim identical to those in

the original Complaint.

Then, on March 30, 2015, Plaintiff moved for leave to file a Second Amended

Complaint, seeking to add two more Taylor police officers -- Michael Taylor and Patrick

Raboczkay -- as party-defendants. Plaintiff claimed that the involvement of these two

officers was not revealed until discovery, hence, the reason for moving to further amend

her Complaint to add them more than two months past the deadline for doing so.

However, that the officers’ involvement in the case was not revealed until the

parties had engaged in discovery was not borne out by the pleadings: Both Taylor and

Raboczkay were identified as the officers who were dispatched to the Kmart where

Miller was caught shoplifting. According to the original Complaint, which was filed 5

months earlier, it was these two officers who arrested Miller and transported him to the

police station, and four paragraphs within the Complaint were devoted to the

1

 The Scheduling Order set January 15, 2015 as the deadline for filing an

amended complaint. By stipulated order, that deadline was extended until February 15,

2015.

2

 As Michael Miller had died by the time Plaintiff filed her Amended Complaint,

a titular change was also made in denomination of the party-plaintiff -- “Teri Jordan, as

conservator for Michael Miller,” was changed to “Teri Jordan, as Personal Representative

for the Estate of Michael Miller, deceased.” 

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involvement of these two officers. [See Compl., ¶¶ 17-21.] These same allegations about

Taylor’s and Raboczkay’s involvement were re-asserted -- unchanged -- in the First

Amended Complaint [See Amend. Compl., ¶¶ 17-21.] In seeking leave to amend the

second time in March 2015 to add these two officers as party-defendants, Plaintiff

offered no reason for her delay other than the patently untrue claim of having then just

discovered Taylor’s and Raboczkay’s involvement.

Finding insufficient cause for the delay, the Court denied Plaintiff’s motion. 

Plaintiff never moved for reconsideration of the Court’s decision.

Instead, on July 7, 2015 Plaintiff filed a separate Complaint, Jordan v. Taylor, No.

15-12415, naming as the only party-defendants in this new Complaint, “Corporal Mike

Taylor and Corporal Patrick Raboczkay” -- i.e., the same two officers Plaintiff had been

denied leave to add as party-defendants in this case. Other than eliminating the failure to

train/inadequate policies and procedures claim against the City of Taylor and the Police

Chief (which was asserted as Count II in the original action), Plaintiff’s allegations in the

new Complaint are the identical allegations made in first case. The new Complaint was

assigned to Judge Edmunds, who subsequently re-assigned the case to this Court as a

“companion case” pursuant to E.D. Mich. Local Rule 83.11(b)(7).

Then, on July 23, 3015, Plaintiff filed a motion in this case to consolidate the two

actions “for the sake of judicial economy.” See Case No. 14-13796, Dkt. # 68.

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III. DISCUSSION

As the Court indicated at the July 29 Status Conference, it is inescapable that

Plaintiff’s filing of the second Complaint was a blatant attempt to evade a Court Order

and a clear abuse of the litigation process: The Court had denied Plaintiff leave to add

Officers Taylor and Raboczkay as party-defendants in this action. Therefore, she filed a

separate Complaint, intending, as counsel admitted, to move to consolidate the second

case with, and merge it into, this case.3

 In other words, one way or another, Plaintiff

intended to get what the Court had refused to give her: Taylor and Raboczkay as

additional party-defendants in this action. Such conduct cannot be condoned.

Fed. R. Civ. P. 41(b) permits a court to dismiss a case for failure to comply with a

court order. Bentkowski v. Scene Magazine, 637 F.3d 689, 697 (6th Cir. 2011). A court

also has an “inherent power” to “levy sanctions in response to abusive litigation

practices.” Roadway Express, Inc. v. Piper, 447 U.S. 752, 765, 100 S.Ct. 2455, 65

L.Ed.2d 488 (1980); Link v. Wabash R. Co., 370 U.S. 626, 632, 82 S.Ct. 1386, 1389, 8

L.Ed.2d 734 (1962). This inherent power includes the power to dismiss a case as a

sanction for failure to obey court orders. United Markets Int’l v. Legg, 24 F.3d 650, 654

(5th Cir. 1994). See also, Consolidation Coal Co. v. Gooding, 703 F.2d 230, 233 (6th

Cir.1983) (holding that it is within a district court’s inherent power to dismiss a case for a

party’s or a party’s counsel’s “contumacious conduct” in disobeying court orders).

3

 Counsel made this admission only after the Court had stated that it viewed her

actions in filing this separate action as an attempt at “judge shopping.”

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Further, as the Supreme Court stated in Link, supra,

There is certainly no merit to the contention that dismissal of petitioner’s

claim because of his counsel’s unexcused conduct imposes an unjust

penalty on the client. Petitioner voluntarily chose this attorney as his

representative in the action, and he cannot now avoid the consequences of

the acts or omissions of this freely selected agent. Any other notion would

be wholly inconsistent with our system of representative litigation, in which

each party is deemed bound by the acts of his lawyer-agent and is

considered to have notice of all facts, notice of which can be charged upon

the attorney.

Link, 370 U.S. at 633-34, 82 S.Ct.at1390 (internal punctuation and citation omitted).

Having reviewed and considered this matter, the Court concludes that Plaintiff’s

counsel’s attempt to evade this Court’s prior Order denying her request to add Officers

Taylor and Raboczkay as party-defendants warrants dismissal of her newly-filed separate

case. By engaging in an attempt to circumvent a court order, an attorney violates not

only her “duty to the legal system to abide by the rules of substance and procedure which

shape the administration of justice,” but also her “obligation to maintain the respect due

to the courts for justice and judicial officers.” Standing Committee on Discipline v.

Yagman, 856 F. Supp. 1395, 1396 (C.D. Cal. 1994), rev’d on other grounds, 55 F.3d

1430 (9th Cir. 1995). “There was a day when clever counsel were admired by some for

inventive methods [but] . . . [t]hat day has passed.” Stagner v. Pitts, 7 F.3d 1045, 1993

WL 375809 at **3 (10th Cir. 1993). 

Moreover, dismissal of Plaintiff’s newly-filed Complaint will not deprive Plaintiff

of her day in court. While, “[t]he opportunity to be heard is a litigant’s most precious

right and should sparingly be denied,” Chrysler Corp. v. Carey, 186 F.3d 1016, 1020 (8th

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Cir.1999), Plaintiff’s action against the City of Taylor and the individual officers on duty

at the jail on September 9, 2012 is on-going and is unaffected by the instant ruling. She,

therefore, is not being denied her day in court.

Finally, and as discussed at the July 29 Status Conference, the conduct of

Plaintiff’s counsel in seeking to evade the Court’s Order certainly would warrant the

imposition of sanctions beyond the dismissal of Plaintiff’s newly-filed Complaint. 

Nonetheless, the Court elects not to impose such sanctions at this time. Plaintiff’s

counsel is cautioned, however, that any further attempts to circumvent the Court’s rulings

or otherwise abuse the litigation process will lead to the imposition of severe sanctions.

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IV. CONCLUSION

For all of the foregoing reasons,

IT IS HEREBY ORDERED that Plaintiff’s Complaint in Jordan v. Taylor et al.,

No. 15-12415, is DISMISSED, in its entirety. Accordingly,

IT IS FURTHER ORDERED that the Motion to Consolidate Cases filed by

Plaintiff in the 2014 case, Jordan v. City of Taylor, et al., No. 14-13796 [Dkt. # 68], is

denied as MOOT.

SO ORDERED.

s/Gerald E. Rosen 

Chief Judge, United States District Court

Dated: August 10, 2015

I hereby certify that a copy of the foregoing document was served upon the parties and/or

counsel of record on August 10, 2015, by electronic and/or ordinary mail.

s/Julie Owens 

Case Manager, (313) 234-5135

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