Discovery Sanctions — 4-Factor Test for Rule 37(b) Dismissal (6th Circuit) — Meaning of Contumaciousness and Prejudice — Allocation between Lawyer & Client — Continuing Failure to Make Discovery after New Counsel Hired = Client Fault

Barron v. Univ. of Mich., 2015 U.S. App. LEXIS 9188 (6th Cir. May 29, 2015):

A. Rule 37(b) Dismissal

We review a district court's dismissal of an action under Federal Rule of Civil Procedure 37(b) for an abuse of discretion. Univ. Health Grp. v. Allstate Ins. Co., 703 F.3d 953, 955-56 (6th Cir. 2013). An abuse of discretion occurs "only when we are firmly convinced that a mistake has been made." Burley v. Gagacki, 729 F.3d 610, 617 (6th Cir. 2013) (internal quotation marks omitted).

Under Federal Rule of Civil Procedure 37(b)(2)(A), "a [*8]  district court may sanction parties who fail to comply with its orders in a variety of ways, including dismissal of the lawsuit." Univ. Health Grp., 703 F.3d at 956 (quoting Bass v. Jostens, Inc., 71 F.3d 237, 241 (6th Cir. 1995)). We consider four factors when reviewing a Rule 37(b) dismissal, none of which is dispositive: "(1) whether the party's failure is due to willfulness, bad faith, or fault; (2) whether the adversary was prejudiced by the dismissed party's conduct; (3) whether the dismissed party was warned that failure to cooperate could lead to dismissal; and (4) whether less drastic sanctions were imposed or considered before dismissal was ordered." United States v. Reyes, 307 F.3d 451, 458 (6th Cir. 2002) (internal quotation marks omitted). "[D]ismissal is usually inappropriate where the neglect is solely the fault of the attorney." Carpenter v. City of Flint, 723 F.3d 700, 704 (6th Cir. 2013) (quoting Carter v. City of Memphis, 636 F.2d 159, 161 (6th Cir. 1980)).

"The first factor--whether the party's failure is due to willfulness, bad faith, or fault-- requires 'a clear record of delay or contumacious conduct.'" Id. at 704 (quoting Freeland v. Amigo, 103 F.3d 1271, 1277 (6th Cir. 1997)). Contumacious conduct is "behavior that is 'perverse in resisting authority' and 'stubbornly disobedient.'" Id. at 704-05 (quoting Schafer v. City of Defiance Police Dep't, 529 F.3d 731, 737 (6th Cir. 2008)). "The plaintiff's conduct must display either an intent to thwart judicial proceedings or a reckless disregard for the effect of his conduct on those proceedings." Id. at 705 (internal quotation marks and brackets omitted). [*9]

We have held that the failure to respond to a discovery request may constitute contumacious conduct. See id.; see also Harmon v. CSX Transp., Inc., 110 F.3d 364, 368 (6th Cir. 1997) (upholding a dismissal for contumacious conduct where the dismissal occurred a year after the defendant served the plaintiff with its original discovery requests and the plaintiff failed to comply with the district court's subsequent order compelling discovery). Harmon is instructive. There, we found a "clear record of delay and contumacious conduct" where a plaintiff failed to answer interrogatories, failed to respond to a motion to compel, and failed to comply with the district court's order granting the defendant's motion to compel and ordering full and complete responses from the plaintiff. Id. at 368.

Barron tries to distinguish her case from Harmon. She contends that in Harmon the attorney failed to produce any discovery, whereas her counsel did respond to some discovery requests. Thus, Barron argues that her case is akin to Carpenter v. City of Flint and Patterson v. Township of Grand Blanc, 760 F.2d 686 (6th Cir. 1985) (per curiam), two cases where we found that dismissal was an abuse of discretion.

But in Harmon, as here, the plaintiff's counsel submitted some responses to discovery requests. 110 F.3d at 365. Moreover, we reversed in Patterson because the district [*10]  court did not first impose alternative sanctions, unlike the district court here, and issued a warning to the plaintiff only five days before dismissing the case. 760 F.2d at 688-89. And in Carpenter, we found that the plaintiff's oversights--delayed filings and violations of local rules requiring electronic and double-spaced submissions--were "less egregious" than other cases where we had upheld dismissals because the dismissed party "failed to appear at scheduled pretrial conferences, . . . failed to respond to discovery requests, [or] acted in contempt of a court order compelling consideration with such requests." 723 F.3d at 705 (citations and internal quotation marks omitted). Here, even after Barron retained new counsel on September 13, 2013, she never paid the sanctions assessed against her, which her new counsel had agreed to pay by November 8, 2013. She also failed to produce the documents requested by the defendants even after the district court granted the defendants' motion to compel.

Barron concedes that she violated discovery orders but argues that these violations, standing alone, would not warrant dismissal absent the bad-faith conduct of her former attorney. She further acknowledges that sanctions were [*11]  appropriate but contends that they should have been levied against her former counsel rather than against her. But Barron's arguments that her former counsel should have been sanctioned are unavailing for two reasons. First, Barron never argued that her former counsel should be held responsible for the sanctions until after the deadline for the sanctions had passed, which was after her current counsel had begun to represent her and could have lodged such an objection. Second, even assuming that her former counsel was incompetent, this is not a case where "all of the wrongful conduct must be attributed to counsel." See Coleman v. Am. Red Cross, 23 F.3d 1091, 1095 (6th Cir. 1994). After retaining new counsel, the plaintiff still failed to comply with the district court's discovery orders or pay the sanctions. Attempting to justify her non-compliance, Barron points to the facts that the discovery request was voluminous, that she produced nearly everything requested with the exception of two sets of emails, and that she gave the defendants her Facebook password, signed releases for her medical records, and sent some documents directly to opposing counsel. But we have never suggested that complying with part of a discovery request excuses the plaintiff [*12]  from complying with the entire request. See Harmon, 110 F.3d at 365. And neither her former nor her current counsel ever objected that the plaintiff was unable to produce the documents. Nor did Barron ever supplement her responses to clarify that the documents did not exist or to explain why she could not produce them. Her second deposition testimony revealed that she had not conducted a diligent search for them.

As to the second factor, the district court found that the failure to produce these emails prejudiced the defendants because the documents may have contained evidence to undermine Barron's claims. A party is prejudiced when it is "unable to secure the information requested" and "required to waste time, money, and effort in pursuit of cooperation which [the opposing party] was legally obligated to provide." Harmon, 110 F.3d at 368. The defendants never received the outstanding discovery, and they wasted time and money attempting to compel the discovery from Barron. She also never paid the fee awards to the defendants. Moreover, the emails that she failed to produce could have assisted in the defendants' case by undermining Barron's claim. The facts here are clearly distinguishable from other cases where we have found that [*13]  the defendants were not prejudiced, see Carpenter, 723 F.3d at 708, or that the defendant had contributed to the delays in the case, id. at 706; see also Freeland, 103 F.3d at 1278-79. And although Barron argues that the defendants have not shown prejudice because they were already in possession of the emails, there is nothing in the record that indicates that the defendants already had access to these particular emails.

We agree with the district court that the third and fourth factors also weigh in favor of dismissal. In denying the two earlier motions to dismiss, the district court had warned the plaintiff that her failure to comply with discovery orders could result in dismissal. See Univ. Health Grp., 703 F.3d at 956 (holding that the court below gave proper notice when, in denying an earlier motion to dismiss, it stated that dismissal at that stage would be improper because it had not yet warned the plaintiff that dismissal could result from continued dilatory tactics); see also Carpenter, 723 F.3d at 709 (noting that the court's two prior warnings to the plaintiff that his failure to comply with the local rules could result in sanctions weighed in favor of dismissal).

With regard to the fourth factor, the district court also ordered less drastic sanctions when it prohibited Barron from calling experts [*14]  at trial and from utilizing any documents that had not yet been produced to the defendants by October 9, 2013, as well as when it twice imposed monetary sanctions, which Barron never paid. Cf. id. at 709-10 (explaining that, although there was good cause to impose sanctions, the district court should have imposed a lesser sanction before resorting to dismissal); see also Wu v. T.W. Wang, Inc., 420 F.3d 641, 644-45 (6th Cir. 2005) (finding that the district court did not warn the parties that failure to respond timely to the order to show cause could result in dismissal, and that the court did not consider alternative sanctions).

Barron further argues that dismissal was inappropriate because, due to her modest salary as a patient technician, she did not have the ability to pay the assessed sanctions. Barron's only support for this argument is a case where we held that dismissal is an abuse of discretion if the dismissed party "does not have the ability to comply with the request." Beil v. Lakewood Eng'g and Mfg. Co., 15 F.3d 546, 552 (6th Cir. 1994). But Beil concerned a discovery order for a piece of physical evidence that was not in the plaintiff's possession because it no longer existed, and thus the case has no bearing on the situation here. Moreover, "[t]he dismissed party has the burden of proving that it could not comply [*15]  with the discovery request." Id. Barron did not meet this burden because she did not argue before the district court that she could not pay the sanctions, and her counsel did not object to the court-imposed deadlines for the sanctions. Moreover, five months passed between the initial order for $6,884.00 in sanctions and Barron's filing of the motion for relief from the sanctions. Barron did not pay even a portion of the fees during that time period or attempt to request a payment plan to do so. Because all four factors weigh in favor of dismissal and Barron has not shown an inability to comply with any court orders, the district court did not abuse its discretion here.

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