Commercial Litigation and Arbitration

Discovery Sanctions — Dismissal — Factors (6th Circuit)

 Blue v. City of River Rouge, 2019 U.S. App. LEXIS 33242 (6th Cir. Nov. 6, 2019):

Sexual Sin De Un Abdul Blue, a pro se Michigan litigant, appeals a district court order that (1) dismissed his complaint, as amended, for his repeated violations of the court's orders, the court's local rules, and the Federal Rules of Civil Procedure, and (2) assessed fees and costs against him for the foregoing violations. 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).

Blue filed this action in 2016 pursuant to 42 U.S.C. § 1983, raising claims against seven defendants that stem from his arrest and prosecution for trespassing. After an initial round of dispositive motions, the only claims that remained were false arrest and false imprisonment [*2]  against four defendants.

A discovery dispute then ensued. A magistrate judge held a hearing on November 15, 2017, to address fifteen discovery motions, ten of which had been filed by Blue. During the hearing, the magistrate judge explained that "the majority if not all of [Blue's] motions in this matter have been in some way noncompliant with both the federal and local rules." The magistrate judge repeatedly admonished Blue for his noncompliance—e.g., his failure to seek concurrence from the defendants before filing motions, his failure to conform his motions to the local filing requirements, and his "complete disregard" of several of the court's orders. At the end of the hearing, the magistrate judge specifically warned Blue that continued failure to comply with the rules and court orders would result in sanctions, including monetary sanctions and dismissal of his case.

On November 17, 2017, the magistrate judge issued an order resolving the outstanding motions. The relevant rulings in the order are as follows:

Blue's Withdrawal of Several Motions: At the beginning of the hearing, Blue withdrew seven of his ten motions. The magistrate judge found that Blue "acted in bad faith by withdrawing [*3]  these motions at the eleventh hour when they could have and should have been withdrawn earlier." She also found that Blue's "conduct in this regard constitutes a clear and blatant abuse of the legal process."

Defendants' Motion for Fees and Costs Related to Motion to Strike: Blue had filed an expert witness list and designated one expert. The defendants moved to strike the expert witness list on the ground that Blue had failed to file an expert report by the court-imposed deadline. At the hearing, the defendants moved for attorney's fees and costs for having to file a motion to strike and after Blue revealed that he never retained his designated expert. The magistrate judge granted the defendants' motion for fees and costs, reasoning that Blue "knowingly and intentionally perpetrated a fraud" upon the defendants and the court and that Blue's conduct "is not only egregious; it is unethical and may give rise to a Rule 11 [of the Federal Rules of Civil Procedure] violation."

Defendants' Motion for Sanctions Regarding Depositions: The defendants had noticed Blue's deposition, but he failed to appear, which prompted the defendants to file a motion to compel. The magistrate judge then granted [*4]  the motion, ordered Blue to appear for deposition, and warned him that failure to comply with local and federal rules or to communicate in good faith with defense counsel during discovery might result in sanctions. Despite this warning, Blue arrived late to his deposition and left after sixteen minutes.1 Additionally, Blue failed to appear at defendant Officer Otis's deposition after he noticed it and after the magistrate judge scheduled the deposition in the order that granted the defendants' motion to compel. In view of Blue's conduct, the magistrate judge granted the motion for sanctions and assessed attorney's fees and costs against Blue.

Defendants' Motion to Compel Discovery Responses: The defendants filed a motion to compel Blue's responses to their first set of interrogatories, as Blue had failed to respond despite having been served with the requests nearly four months prior. The motion also requested that Blue provide documents in response to the defendants' second set of requests for production. The magistrate judge granted the motion, ordered Blue to provide full and complete responses, without objection, to the defendants' discovery requests, and assessed attorney's fees [*5]  and costs against Blue.

The magistrate judge also reiterated, for a third time, that Blue must adhere to the district court's local rules and the Federal Rules of Civil Procedure, and she warned him that failure to comply with the rules going forward would result in sanctions, including monetary sanctions and dismissal of his case.

The defendants then filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 37(b)(2)(A)(v), in which they argued that the action should be dismissed due to Blue's "blatant disregard and ignorance of [the] Court's Orders and the Federal Rules of Civil Procedure." They noted, for example, that Blue had failed to provide any responsive documents to their requests for production, despite being specifically ordered to do so in the November 17 order. The defendants also submitted bills of costs itemizing the amount of attorney's fees and costs that they incurred, which had been awarded to them in the November 17 order.

The magistrate judge recommended that the motion to dismiss be granted in view of Blue's "contumacious pattern of non-compliance" despite the court's numerous "instructions, warnings, and sanctions." The magistrate judge also recommended that the defendants be awarded attorney's [*6]  fees in the amount of $5,520 and costs in the amount of $194.30.

The district court overruled Blue's objections, adopted the magistrate's reports and recommendations, and dismissed the action accordingly. Thereafter, the district court denied Blue's motion for reconsideration. Blue now appeals the district court's judgment.

Standard of Review

When a party fails to comply with a court order or provide discovery, the district court may sanction the offending party by dismissing the action, Fed. R. Civ. P. 37(b)(2)(A)(v), and we review the district court's dismissal for abuse of discretion. Bank One of Cleveland, N.A. v. Abbe, 916 F.2d 1067, 1073 (6th Cir. 1990). We also review for abuse of discretion a district court's decision to assess attorneys' fees against a party who fails to comply with the rules of discovery. Bill Call Ford, Inc. v. Ford Motor Co., 48 F.3d 201, 209 (6th Cir. 1995). "An abuse of discretion occurs when (1) the district court's decision is based on an erroneous conclusion of law, (2) the district court's findings are clearly erroneous, or (3) the district court's decision is clearly unreasonable, arbitrary or fanciful." McCarthy v. Ameritech Publ'g, Inc., 763 F.3d 488, 491 (6th Cir. 2014) (quoting Beil v. Lakewood Eng'g & Mfg. Co., 15 F.3d 546, 551 (6th Cir. 1994)).


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, [*7]  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.

Mager v. Wis. Cent. Ltd., 924 F.3d 831, 837 (6th Cir. 2019) (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. Upon review of these factors, we find that the district court did not abuse its discretion in dismissing Blue's 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)). Here, Blue—for over two years—repeatedly failed to comply with local and federal rules and court orders, thereby demonstrating that he acted willfully, in bad faith, and with fault. In particular, Blue (1) failed to appear at his noticed deposition, (2) walked out of his re-noticed deposition after only sixteen minutes, (3) failed to appear at Otis's deposition, which he noticed, (4) submitted a false expert witness [*8]  list, (5) filed numerous motions and documents that failed to comply with the local rules, and (6) filed untimely discovery responses that were largely evasive and incomplete. And, as the magistrate judge noted, the final straw was Blue's noncompliance with the November 17 order. As the magistrate judge explained: "[i]n spite of [its] instructions, warnings, and sanctions, [Blue] continues to thumb his nose at the rules and orders of this court by disobeying the Court's November 17, 2017 Order to provide full and complete responses to Defendants' discovery requests without further objection." This is the type of egregious conduct that commonly leads to dismissal. See, e.g., ECIMOS, LLC v. Nortek Global HVAC, LLC, 736 F. App'x 577, 582-83 (6th Cir. 2018) (holding that dismissal under Rule 37(b)(2)(A) was proper where the plaintiff failed to correct discovery deficiencies, failed to timely file responsive documents, and willfully violated court orders). We therefore find that Blue's pattern of noncompliance throughout the discovery period—and his blatant disregard of the court's multiple warnings—demonstrates that he acted willfully and in bad faith.

As to the second factor, there is no question that the defendants were prejudiced by Blue's conduct.  "The key to finding prejudice [*9]  . . . is whether the defendants 'waste[d] time, money, and effort in pursuit of cooperation which [the plaintiff] was legally obligated to provide.'" Schafer v. City of Defiance Police Dep't, 529 F.3d 731, 739 (6th Cir. 2008) (alterations in original) (quoting Harmon v. CSX Transp., Inc., 110 F.3d 364, 368 (6th Cir. 1997)). Such circumstances are present here. This action remained pending for over two and a half years, during which the defendants were forced to waste time and money defending the action and trying to secure Blue's cooperation in discovery. For example, Blue's deficient and evasive discovery responses unfairly prejudiced the defendants by, among other things, preventing them from gathering evidence necessary to defend against Blue's claim for damages (e.g., lost revenue and loss of income in connection with his arrest and incarceration).

With respect to the third factor, the magistrate judge repeatedly warned Blue that his noncompliance would result in sanctions. He was expressly warned twice—once in person at the November 15 hearing and once in the November 17 order—that his failure to comply with the applicable rules and court orders could lead to dismissal of his case.

Finally, the district court considered—and imposed—less drastic sanctions before dismissing the action, but the lesser sanctions had no [*10]  effect on Blue. Specifically, as set forth above, in the November 17 order, the district court assessed attorney's fees and costs against Blue for the defendants having to (1) file a motion to strike Blue's deficient expert witness list, (2) attend Blue's deposition, which he abruptly left after sixteen minutes, (3) attend Otis's noticed and scheduled deposition, which Blue failed to attend, (4) file a motion for sanctions with respect to the foregoing deposition issues, and (5) file a motion to compel Blue to respond to their discovery requests. Despite these monetary sanctions, Blue still failed to comply with his discovery obligations and the court's orders. See Bass v. Jostens, Inc., 71 F.3d 237, 242-43 (6th Cir. 1995) (finding the fourth factor to weigh in favor of dismissal where the court imposed monetary sanctions against plaintiff, which "did not have the desired effect" and where "plaintiff still refused to cooperate with discovery").

None of the arguments raised by Blue on appeal with respect to his willful discovery violations alter the conclusion that the district court's dismissal of his case was not an abuse of discretion. Nevertheless, one argument warrants further discussion: namely, Blue's assertion that he left his deposition [*11]  early and did not attend Otis's deposition because Otis "attacked" him during his (Blue's) deposition, which caused him to "fear[] for his life." According to Blue, Otis "kicked" him under the table during his deposition. The only evidence Blue offers in support of that is his own declaration. The magistrate judge, however, determined that Blue's claim that Otis kicked him "is wholly unsupported by any evidence in this record" insofar as he "made no record of it at the deposition." Indeed, the court reporter provided a declaration wherein she averred that she never saw Otis kick Blue and that Blue never stated that he had been kicked or that he in any way indicated that he was in pain from being kicked. She also averred that, had Blue made any sounds in response to being kicked, they would have been transcribed and contained in the transcript—which they are not. On this record, Blue's argument that Otis kicked him is unavailing. In any event, even if Otis had kicked Blue, thereby justifying him leaving his deposition and his lack of attendance at Otis's deposition, we find that dismissal of Blue's case would still be proper under Rule 37(b)(2)(A)(v) in view of his numerous other willful discovery violations, [*12]  as set forth above.


We also find that the district court did not abuse its discretion in imposing monetary sanctions against Blue for all of the reasons set forth above. And, in any event, Blue raises no specific challenge on appeal to the assessment of attorney's fees and costs against him for his repeated and willful violations of local and federal rules and the district court's discovery orders; nor does he challenge the reasonableness of the fees or costs.

Miscellaneous Arguments on Appeal

Blue raises additional arguments that have no bearing on the sole question at issue on appeal—i.e., whether the district court abused its discretion in sanctioning Blue and dismissing his case for his egregious conduct in the discovery process and willful noncompliance with applicable rules and court orders. For instance, he argues that there was no probable cause to arrest him and that material issues of fact exist that preclude summary judgment. But the district court never reached the merits of these arguments in view of its dismissal under Rule 37(b)(2)(A)(v), and therefore they are not properly before this court.

Accordingly, we AFFIRM the district court's judgment.



His deposition was eventually completed approximately three months later.

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