Commercial Litigation and Arbitration

Rule 37/41 Dismissal — 6th Cir.’s 4-Factor Test — Reckless Disregard Sufficient Mental State — While Lesser Sanctions Should Be Considered, Court Has Power to Dismiss As “First & Only Sanction”

 McElrath v. City of Cleveland, 2019 U.S. App. LEXIS 24598 (6th Cir. Aug. 16, 2019) (unpublished):

Ayanna and LaCretia McElrath, pro se Ohio litigants, appeal the district court's judgment dismissing their civil rights action pursuant to Federal Rules of Civil Procedure 37 and 41(b). This case has been referred to a panel of the court that, upon examination, unanimously agrees that oral argument is not needed. See Fed. R. App. P. 34(a).

On December 2, 2016, Ayanna and LaCretia McElrath, mother and daughter, filed a complaint against the City of Cleveland and several officers with the Cleveland Police Department, asserting federal constitutional and state tort claims. Defendants moved to dismiss the McElraths' amended complaint for failure to state a claim. The district court granted the motion to dismiss in part, but denied the motion as to Ayanna McElrath's claims for excessive force, assault and battery, and [*2]  negligent infliction of emotional distress and LaCretia McElrath's claims for excessive force and assault and battery.


After the district court ruled on defendants' motion to dismiss, the McElraths filed a motion for discovery, a motion for "estoppel," and a motion to hold the case in abeyance pending an investigation by the Office of Professional Standards. The district court denied the McElraths' motions as premature because they were filed prior to the case management conference and noted that the motions for "estoppel" and to hold the case in abeyance were unintelligible. The district court conducted a case management conference on September 20, 2017, and set a discovery deadline of February 20, 2018. A month later, the McElraths filed a motion for an extension of the case management deadlines, another motion to hold the case in abeyance, and another motion for "estoppel." The district court denied their motions, stating in conclusion:

Plaintiffs representing themselves are charged with familiarizing themselves with, and following, the Federal Civil and Local Rules. They are also prohibited from filing motions that are frivolous or unintelligible. If Plaintiffs continue to file [*3]  motions that are frivolous or unintelligible, the Court will be required to impose sanctions, which could include dismissing the remaining claims.

On November 3, 2017, the district court issued an order noting that the McElraths had not submitted a mid-discovery status report by the deadline. The district court stated that, according to defendants' status report, defendants were waiting for authorizations for the release of medical records and responses to written discovery requests from the McElraths, who had yet to provide a written demand, a breakdown of damages, or any medical documentation evidencing their damages. The district court continued: "This Order follows a history of extension requests and the filing of numerous premature, nearly unintelligible motions by Plaintiffs. The Court cannot allow Plaintiffs to tie up Defendants' and the Court's time and resources bringing a case they are unable to litigate representing themselves." The district court ordered the McElraths to provide authorizations for the release of their medical records before a scheduled status conference, warning them that "[f]ailure to do so may result in sanctions, including a dismissal of this case for [*4]  lack of prosecution." At the status conference on November 8, 2017, the McElraths signed authorizations for the release of their medical records, and the district court ordered them to respond to defendants' discovery requests by November 17, 2017, warning them that "failure to do so will result in sanctions."

A month later, the McElraths filed a motion for leave to amend their complaint. The district court denied the McElraths' motion, pointing out that their proposed amended complaint asserted the same claims as before, most of which had been dismissed. The district court further noted that the McElraths had been ordered to respond to defendants' discovery requests and observed that "[i]t is clear that Plaintiffs have taken the time to file essentially unintelligible and frivolous motions for leave to amend their complaint."

On December 21, 2017, at the district court's direction, defendants filed a status report as to whether the McElraths had responded to their discovery requests. The defendants asserted that the McElraths had not provided adequate responses to their discovery requests and "apparently do not plan to do so." Defendants attached copies of the letters sent to the McElraths [*5]  outlining the deficiencies in their responses and an email from the McElraths stating in part, "Plaintiffs will not answer these question[s] and feel that any answers are non compliant because the[y] are based on old facts."

After reviewing defendants' letters and the McElraths' discovery responses, the district court ordered the McElraths to comply fully with defendants' discovery requests by January 5, 2018. The district court stated:

This case has been pending for over a year now, and rather than cooperating with Defendants in litigating this case, Plaintiffs have used that time filing numerous frivolous, irrelevant, premature or unintelligible motions that require responses and rulings. While the Court appreciates that Plaintiffs are representing themselves and has tried to construe their filings liberally, the Court can no longer countenance such a waste of the Court's, Defendants', and taxpayers' resources.

The district court warned the McElraths: "Should Plaintiffs fail to respond fully to Defendants' discovery by the close of business on January 5, 2018, the Court will dismiss this case with prejudice."

Seeking a complete dismissal of the McElraths' action with prejudice, defendants [*6]  filed a motion for sanctions pursuant to Rule 37 or, in the alternative, to dismiss for failure to prosecute pursuant to Rule 41(b). Defendants asserted that, on January 5, 2018, Ayanna McElrath personally delivered a packet containing the McElraths' second responses to defendants' discovery requests, which "were still woefully deficient." According to defendants, the McElraths failed to provide defendants with a single document in response to their requests for production of documents and refused to provide "past employment information, current employment information, W2 and/or tax statements, billing statements/Medicaid payment statements made with respect to medical treatment Plaintiffs received, witness information, and exhibits and/or evidence Plaintiffs intend to use throughout the remainder of this case." The district court granted defendants' motion and dismissed the McElraths' action with prejudice. This appeal followed.

Defendants move to dismiss the McElraths' appeal for failure to comply with the deadlines set forth in Federal Rules of Appellate Procedure 10(b)(1) and 31(a) with respect to certifying the record and filing their brief. Defendants have failed to establish grounds warranting dismissal of this appeal.

Defendants first assert [*7]  that the McElraths failed to order any transcripts or file a certificate stating that no transcripts will be ordered within fourteen days after filing their notice of appeal as required by Federal Rule of Appellate Procedure 10(b)(1). The rules of this court provide that a party ordering a transcript or certifying that a transcript is unnecessary must use, file, and serve a form available on the court's website or from the clerk's office. 6 Cir. R. 10(a)(1). After defendants filed their motion to dismiss, the McElraths filed this court's transcript order form for pro se parties, indicating that they were not ordering a transcript. Defendants have failed to show any prejudice from the McElraths' delay in filing this form.

Defendants also assert that Federal Rule of Appellate Procedure 31(a)(1) requires an appellant to "serve and file a brief within 40 days after the record is filed" and that the McElraths failed to do so. The rules of this court provide that "[t]he court will set a briefing schedule specifying the due dates for briefs" and that "the time limit for the filing of the brief of the appellant is as indicated by the clerk, since the electronic record is no longer 'filed' as that term was formerly construed." 6 Cir. R. 31(c)(1). Several months after defendants [*8]  filed their motion to dismiss the appeal, the clerk's office issued a briefing schedule. The McElraths obtained an extension of time to file their brief, which they filed before the extended deadline.

"The decision to dismiss a complaint for failure to comply with a discovery obligation or other court order is reviewed for abuse of discretion." Mager v. Wis. Cent. Ltd., 924 F.3d 831, 837 (6th Cir. 2019). "An abuse of discretion exists when the reviewing court is firmly convinced that a mistake has been made." Stough v. Mayville Cmty. Sch., 138 F.3d 612, 615 (6th Cir. 1998).

Rule 37(b) authorizes the district court to order sanctions, including dismissal, for failure to comply with an order to provide discovery. Fed. R. Civ. P. 37(b)(2)(A)(v). Rule 37(d) likewise authorizes the district court to order sanctions, including dismissal, 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)(ii); see Fed. R. Civ. P. 37(d)(3). Under Rule 41(b), a defendant may move for dismissal "[i]f the plaintiff fails to prosecute or to comply with these rules or a court order." Fed. R. Civ. P. 41(b).

In determining whether dismissal is an appropriate sanction for failure to comply with a discovery obligation or court order, we consider four factors:

(1) whether the party's failure is due to willfulness, bad faith, or fault; [*9]  (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.

Mager, 924 F.3d at 837 (quoting United States v. Reyes, 307 F.3d 451, 458 (6th Cir. 2002)). "Although no one factor is dispositive, dismissal is proper if the record demonstrates delay or contumacious conduct." Reyes, 307 F.3d at 458. A review of these factors leads to the conclusion that the district court did not abuse its discretion in dismissing the McElraths' case.

The first factor—willfulness, bad faith, or fault—is satisfied when the plaintiffs' conduct "display[s] either an intent to thwart judicial proceedings or a reckless disregard for the effect of [their] conduct on those proceedings." Mulbah v. Detroit Bd. of Educ., 261 F.3d 586, 591 (6th Cir. 2001) (quoting Shepard Claims Serv. v. William Darrah & Assocs., 796 F.2d 190, 194 (6th Cir. 1986)). Despite court orders to respond fully to defendants' discovery requests and extensions of time to do so, the McElraths provided incomplete and inconsistent answers to defendants' interrogatories and failed to provide documents responsive to defendants' document requests. The district court pointed out that, instead of participating in discovery, the McElraths filed frivolous, lengthy motions, including a motion for leave [*10]  to amend their amended complaint, which attempted to revive dismissed claims and bring back dismissed defendants.

"The key to finding prejudice . . . is whether the defendants 'waste[d] time, money, and effort in pursuit of cooperation which [the plaintiffs were] legally obligated to provide.'" Schafer v. City of Defiance Police Dep't, 529 F.3d 731, 739 (6th Cir. 2008) (quoting Harmon v. CSX Transp., Inc., 110 F.3d 364, 368 (6th Cir. 1997)). As the district court noted, defendants expended significant resources in pursuing the McElraths' discovery responses. The McElraths' deficient discovery responses unfairly prejudiced defendants by preventing them from gathering evidence necessary to defend against the McElraths' claims. See Bass v. Jostens, Inc., 71 F.3d 237, 242 (6th Cir. 1995).

With respect to the third factor, the district court repeatedly warned the McElraths that failure to respond to defendants' discovery requests would result in sanctions, including dismissal of their case. The district court also admonished the McElraths that, if they continued to file frivolous or unintelligible motions, the court would impose sanctions, including dismissal.

The district court did not impose lesser sanctions on the McElraths before dismissing the case. But this court has "never held that a district court is without power to dismiss a complaint, as the first and only sanction." [*11]  Harmon, 110 F.3d at 368. The district court expressly considered whether less drastic sanctions would be appropriate, but concluded that lesser sanctions would not have any effect on the McElraths' conduct, given their failure to respond to the district court's warnings.

On appeal, the McElraths assert that they were unable to respond to defendants' discovery requests because the evidence needed to support their claims was in defendants' control. The McElraths repeatedly reference the mandamus action filed by Ayanna McElrath to obtain public records from the City of Cleveland and the Cleveland Police Department. See State ex rel. McElrath v. City of Cleveland, 111 N.E.3d 685 (Ohio Ct. App. 2018). But defendants' discovery requests sought information within the McElraths' knowledge and documents within their possession, custody, or control, such as their employment history, tax information, and medical records. To the extent that the McElraths complain about defendants' failure to provide discovery, defendants asserted in their status report that the McElraths propounded discovery requests but then withdrew them. The McElraths later served defendants with discovery requests, but the district court dismissed the case before defendants were required to respond. The McElraths also cite their [*12]  pro se status. "[W]hile pro se litigants may be entitled to some latitude when dealing with sophisticated legal issues, acknowledging their lack of formal training, there is no cause for extending this margin to straightforward procedural requirements that a layperson can comprehend as easily as a lawyer." Jourdan v. Jabe, 951 F.2d 108, 109 (6th Cir. 1991). The McElraths' pro se status does not excuse their failure to provide adequate discovery responses. The McElraths have failed to demonstrate that the district court abused its discretion in dismissing their case.

For these reasons, we DENY defendants' motion to dismiss the appeal and AFFIRM the district court's judgment dismissing the McElraths' case.


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