UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

STEVEN DYE,

CIVIL ACTION NO. 09-12504

Plaintiff,

DISTRICT JUDGE DENISE PAGE HOOD

v.

MAGISTRATE JUDGE DONALD A. SCHEER

CITY OF WARREN, et al.,

Defendants.

_________________________________/ 

REPORT AND RECOMMENDATION

I. RECOMMENDATION:

I recommend that Defendants’ Renewed Motion to Dismiss for Failure to Comply

With Court Order or to Compel Discovery and Award Sanctions be granted, and that this

case be dismissed, with prejudice.

II. REPORT:

A. Procedural and Factual History

Plaintiff filed this action in the Macomb County Circuit Court, State of Michigan, on

June 17, 2009. Three of the five counts in the Complaint seek relief under 42 U.S.C. §1983

for alleged violations of Plaintiff’s Civil Rights. Defendants removed the case to this court

on June 24, 2009, and their Answer was filed on the same date. A Scheduling Order was

entered by the district judge on July 27, 2009.

On September 4, 2009, Defendants filed a Motion to Compel Discovery. That Motion

was referred to the undersigned magistrate judge on September 9, 2009. A hearing was

conducted on September 29, 2009, and an Order issued directing Plaintiff to comply with

discovery. An attorney fee sanction was also levied, and Plaintiff was advised that
continued failure to comply with discovery would result in a Report and Recommendation

that his claims be dismissed.

On November 12, 2009, Defendants filed a Motion to Dismiss for failure to comply

with the Compulsion Order. That Motion was also referred to the magistrate judge. A

hearing was conducted on December 8, 2009, and the Motion was granted in part by an

Order of December 8, 2009. That Order directed Plaintiff to serve full and complete

responses to Defendants’ First Request for Production of Documents and Tangible Things

within twenty (20) days. All objections were deemed waived, with the sole exception of

those based upon privilege. Plaintiff was ordered to pay Defendants’ attorney fees and

costs in connection with the preparation and prosecution of the Motion. Plaintiff was

specifically advised that his failure to comply would result in a recommendation for

dismissal of the case.

On January 18, 2010, Defendants filed their Renewed Motion to Dismiss for failure

to comply with the previous Orders of court. That Motion was also referred to the

magistrate judge. Plaintiff filed no Response to the Motion.1

 Defendants’ Supplemental Brief

asserted that Plaintiff had neither provided the discovery responses required of him under

the previous Orders, nor paid any amounts toward the attorney fee awards previously

imposed. In addition, Plaintiff failed to appear for a properly noticed deposition on February

2, 2010.

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 It should be noted that Plaintiff’s counsel has routinely ignored his obligation to

file a Response to any contested Motion.

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A Settlement Conference before the magistrate judge was noticed for February 3,

2010. Counsel for Defendants appeared, with full settlement authority, as required by the

court’s notice. Neither Plaintiff nor his counsel appeared for the conference.

B. Analysis

Federal Rule of Civil Procedure 37(b)(2) permits a court to enter an order of

dismissal against a party who fails to obey an order to provide or permit discovery. Courts

have traditionally required that the ultimate sanction of dismissal be imposed only “if the

court concludes that a party’s failure to cooperate in discovery is due to willfulness, bad

faith, or fault.” Patton v. Aerojet Ordnance Co., 765 F.2d 604, 607 (6th Cir. 1985). In

Regional Refuse Systems, Inc. v. Inland Reclamation Co., 842 F.2d 150 (6th cir. 1988), the

court held that, where a party has the ability to comply with a discovery order, yet does not,

dismissal is not an abuse of discretion, even where willfulness or bad faith is not shown. 

The burden of proof is on the dismissed party to establish “that the failure to comply was

due to inability, and not willfulness, bad faith or fault.” National Hockey League v.

Metropolitan Hockey Club, Inc., 427 U.S. 629, 642 (1976). 

The court in Regional Refuse listed four factors which a court must consider in

determining the appropriateness of dismissal or default as a consequence of discovery

abuses. Those factors are: 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 offending

party’s failure to cooperate in discovery; 3) whether the offending 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. 842 F.2d at 155. 

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All of the Regional Refuse factors are satisfied in this case. Plaintiff has done

virtually nothing to advance his case since the filing of his Complaint. His responses to

Defendants’ initial discovery requests were unsworn and pitifully inadequate. Defendants

have filed three motions in an effort to secure discovery compliance and/or dismissal. 

Plaintiff’s counsel has failed to respond in writing to any of those motions, though he did

appear for two hearings, unprepared to provide an adequate argument or explanation. 

Plaintiff failed to comply with two court Orders compelling discovery compliance and

sanctions. In addition, he and his counsel have failed to appear at a properly noticed

Settlement Conference. The prejudice to Defendants resulting from Plaintiff’s total lack of

cooperation in patent. It is beyond question that Defendants were entitled to basic

information concerning the claims in the Complaint. Plaintiff has totally failed to meet his

obligation to provide that information, despite two Orders of the court directing him to take

remedial action. Plaintiff, through his counsel, was twice warned that his failure to

cooperate could lead to dismissal of his Complaint. Finally, two Orders imposing the lesser

sanction of paying Defendants’ attorneys fees have been ignored. All of the factors

essential to an Order for Dismissal are fully satisfied, and Plaintiff has provided no evidence

of his inability to meet his obligations in this case. I have rarely seen a case so indifferently

prosecuted as this one has been. Accordingly, I recommend that the Complaint be

dismissed, with prejudice.

III. NOTICE TO PARTIES REGARDING OBJECTIONS:

The parties to this action may object to and seek review of this Report and

Recommendation, but are required to act within fourteen (14) days of service of a copy

hereof as provided for in 28 U.S.C. Section 636(b)(1) and E.D. Mich. LR 72.1(d)(2). Failure

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to file specific objections constitutes a waiver of any further right of appeal. United States

v. Walters, 638 F.2d 947 (6th Cir. 1981), Thomas v. Arn, 474 U.S. 140 (1985), Howard v.

Secretary of HHS, 932 F.2d 505 (6th Cir. 1991). Filing of objections that raise some issues

but fail to raise others with specificity, will not preserve all the objections a party might have

to this Report and Recommendation. Smith v. Detroit Federation of Teachers Local 231,

829 F.2d 1370, 1373 (6th Cir. 1987), Willis v. Secretary of HHS, 931 F.2d 390, 401 (6th Cir.

1991). Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be served upon

this Magistrate Judge.

Within fourteen (14) days of service of any objecting party's timely filed objections,

the opposing party may file a response. The response shall not be more than five (5) pages

in length unless by motion and order such page limit is extended by the Court. The

response shall address specifically, and in the same order raised, each issue contained

within the objections.

s/Donald A. Scheer

DONALD A. SCHEER

UNITED STATES MAGISTRATE JUDGE

DATED: April 19, 2010

______________________________________________________________________

CERTIFICATE OF SERVICE

I hereby certify on April 19, 2010 that I electronically filed the foregoing paper with

the Clerk of the Court sending notification of such filing to all counsel registered

electronically. I hereby certify that a copy of this paper was mailed to the following nonregistered ECF participants on April 19, 2010: None. 

s/Michael E. Lang 

Deputy Clerk to 

Magistrate Judge Donald A. Scheer

(313) 234-5217

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