Commercial Litigation and Arbitration

Rule 37(d) and 41(b) Dismissal Sanction: (1) Sixth Circuit Factors (Bad Faith/Fault, Prejudice, Warning, Lesser Sanctions Considered); (2) Deliberate Disregard of Court Order Excuses District Court’s Failure to Warn Litigant That Case Could Be Dismissed (Here, Opposing Counsel Had So Warned in Writing); (3) While Lesser Sanctions Should Be Considered, District Court May Dismiss As First And Only Sanction; (4) Type of Misconduct Justifying Dismissal with Prejudice

Moore v. Erickson, 2023 U.S. App. LEXIS 26639 (6th Cir. Oct. 5, 2023) (unpublished)


*1 In this 42 U.S.C. § 1983 action, Anthony Lamont Moore, a former Michigan prisoner proceeding pro se, appeals a district court judgment imposing costs and dismissing his complaint for failure to prosecute. 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). Because Moore willfully and in bad faith failed—twice—to attend his properly noticed deposition, the district court did not abuse its discretion in imposing costs and dismissing Moore’s complaint. We therefore affirm.

Factual and Procedural Background

In 2020, while still incarcerated, Moore sued four prison officials, raising claims of retaliation, conspiracy, and violations of his Eighth Amendment and equal protection rights. The district court screened Moore’s complaint and dismissed all claims except Moore’s retaliation claims against three defendants.


After denying the defendants’ motion for summary judgment based on exhaustion, the district court entered a scheduling order that directed the parties to complete all discovery by August 2, 2022. By that time, Moore had been released from prison. The defendants moved to extend the discovery deadline, stating that Moore failed to appear for his properly noticed July 5, 2022, Zoom deposition and did not object to the deposition or inform them that he could not appear. The district court granted the motion, extending the deadline to September 2, 2022.


On August 22, 2022, the defendants served Moore with another notice of deposition to be held on September 1, 2022, via Zoom. Moore again did not object, appear, or notify the defendants that he would not be appearing. According to defense counsel, she then sent Moore a letter stating that the defendants would move to have the case dismissed if Moore did not contact defense counsel by September 16, 2022, which he did not do. Consequently, the defendants moved for costs and to dismiss Moore’s complaint under Federal Rules of Civil Procedure 37(d) and 41(b) based on his failure to appear at his deposition and prosecute his case. Moore moved to dismiss the defendants’ motion, asserting that the defendants failed to send him a copy, that he still had not seen the motion, and that he knew it had been filed only because his mother had contacted the district court. Over Moore’s objections, the district court adopted a magistrate judge’s report and recommendation (R. & R.) that the motion be granted, reasoning that Moore intentionally, willfully, and in bad faith refused to attend his properly noticed depositions. Thereafter, the district court denied Moore’s motion for reconsideration. See W.D. Mich. Civ. R. 7.4(a).

Preliminary Matters

Moore maintains that the district court improperly considered the defendants’ motion to dismiss because they never served him with a copy of it. But according to the defendants’ certificate of service attached to their motion to dismiss, they mailed the motion to the most recent address on record for Moore, and the motion was not returned as undeliverable. Service is thus deemed complete. See Fed. R. Civ. P. 5(b)(2)(C). Moreover, Moore received actual notice of the motion to dismiss both through his mother, who informed him of the fact during its pendency and through the magistrate judge’s R. & R. Moore undisputedly received a copy of the R. & R. and thus was able to argue that his case should not be dismissed for failure to prosecute. Indeed, he states that, had he received a copy of the motion to dismiss, he would have filed a response raising the same arguments that he raised in his objections to the R. & R. Moore’s argument that the district court erred in ruling on the motion to dismiss because the defendants never served him with a copy of it is without merit.

Standard of Review and Law on Failure to Prosecute

*2 The decision to impose costs and dismiss a complaint for failure to prosecute or to comply with a discovery obligation or court order is reviewed for an abuse of discretion. Mager v. Wis. Cent. Ltd., 924 F.3d 831, 837 (6th Cir. 2019); Knoll v. Am. Tel. & Tel. Co., 176 F.3d 359, 363 (6th Cir. 1999). “An abuse of discretion exists when the reviewing court is firmly convinced that a mistake has been made” or “if the district court relies on clearly erroneous findings of fact, improperly applies the law, or uses an erroneous legal standard.” Carpenter v. City of Flint, 723 F.3d 700, 704 (6th Cir. 2013) (cleaned up). Rule 37(d) authorizes the district court to order the payment of costs and to impose sanctions, including dismissal, for a party’s failure to appear for the party’s deposition, see Fed. R. Civ. P. 37(d)(1)(A) and (d)(3), and Rule 41(b) authorizes 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, courts consider four factors:

(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.

Mager, 924 F.3d at 837 (quoting United States v. Reyes, 307 F.3d 451, 458 (6th Cir. 2002)); see Wu v. T.W. Wang, Inc., 420 F.3d 641, 643 (6th Cir. 2005).


First Factor – Willfulness, Bad Faith, or Fault

For the first factor to weigh against the plaintiff, he must “display either an intent to thwart judicial proceedings or a reckless disregard for the effect of [his] conduct on those proceedings.” Wu, 420 F.3d at 643 (quoting Mulbah v. Detroit Bd. of Educ., 261 F.3d 586, 591 (6th Cir. 2001)). The magistrate judge found that Moore “willfully attempted to disrupt these proceedings and in bad faith intended to prevent Defendants from obtaining discovery” by failing to appear for his noticed depositions. The district court adopted this finding, and reasoned that “the events” that occurred after the failed depositions, “as described by [Moore], only confirm that he failed to diligently prosecute this action.” Moore claimed that, after he was unable to connect to the July 5 Zoom deposition, he attempted to contact defense counsel and that, after he was unable to connect to the September 1 Zoom deposition, he spoke with someone at the clerk’s office to convey his connection issues. But defense counsel denies that Moore ever attempted to contact her after the failed July 5 deposition, and the screenshot of the call log that Moore purports evidences his call to the clerk’s office shows that the number dialed actually belongs to the probation office and that the call lasted only 16 seconds. Given these discrepancies and Moore’s failure to provide any other evidence to meet his “burden of showing that his failure to [appear for his deposition] was due to inability, not willfulness or bad faith,” Reyes, 307 F.3d at 458, we cannot say that the district court clearly erred in finding that the Moore acted willfully and in bad faith. See, e.g., Bass v. Jostens, Inc., 71 F.3d 237, 241-42 (6th Cir. 1995) (rejecting the plaintiff’s argument that her failure to comply with discovery orders, including one to attend her deposition, arose from her inability to do so due to “circumstances beyond her control” and finding that her noncompliance was willful); Maldonado v. Thomas M. Cooley Law Sch., 65 F. App’x 955, 956-57 (6th Cir. 2003) (affirming finding of willfulness and bad faith where the plaintiff failed to appear for his noticed deposition, declined to coordinate with defense counsel for a new deposition date, and did not appear at his court-ordered deposition).

Second Factor – Prejudice

*3A defendant is prejudiced by a plaintiff’s dilatory conduct if the defendant is ‘required to waste time, money, and effort in pursuit of cooperation which [the plaintiff] was legally obligated to provide.’ ” Carpenter, 723 F.3d at 707 (alteration in original) (quoting Harmon v. CSX Transp., Inc., 110 F.3d 364, 368 (6th Cir. 1997)). Here, Moore’s failure to appear for his depositions prejudiced the defendants by preventing them from gathering evidence through Moore’s deposition to defend against his retaliation claim and requiring them to spend time and money in preparation for the noticed depositions. See id. Indeed, the defendants incurred $461.89 in expenses for the depositions at which Moore failed to appear. So the district court appropriately determined that this factor weighs against Moore.

Third Factor – Prior Warning

The district court did not warn Moore that his complaint could be dismissed if he failed to appear at his deposition; he first learned from the district court that it would dismiss his complaint through the magistrate judge’s R. & R., which recommended that disposition. The defendants, though, argue that their counsel warned Moore through a letter dated September 1, 2022, informing him that the defendants would seek costs and dismissal of his complaint in view of his failure to appear at his depositions if he did not respond within 16 days. Although Moore argues that he never received the letter, the letter was attached to the defendants’ motion to dismiss, and thus, as set forth above, we presume that Moore received it, see Fed. R. Civ. P. 5(b)(2)(C), and that he had actual notice of it in any event.

True, this warning did not come from the district court, and we have “repeatedly ‘reversed district courts for dismissing cases because litigants failed to [comply with their discovery obligations] when the district courts did not put the derelict parties on notice that further noncompliance would result in dismissal.’ ” Wu, 420 F.3d at 644 (emphasis added) (quoting Harris v. Callwood, 844 F.2d 1254, 1256 (6th Cir. 1988)). Where the district court’s failure to warn is accompanied by a finding of “bad faith or contumacious conduct” by the derelict party, however, then dismissal need not be reversed. Id. (quoting Harris, 844 F.2d at 1256). As Wu, quoting from Harris, further explained, in the absence of bad faith or contumacious conduct, “a district court should impose a penalty short of dismissal” if it previously failed to warn the plaintiff that it was contemplating dismissal. Id. (quoting Harris, 844 F.2d at 1256). Given that the district court did not clearly err in finding that Moore willfully and in bad faith failed to attend his deposition, its failure to warn Moore that his case could be dismissed does not render the dismissal an abuse of discretion. See id.; see also, e.g., Mager, 924 F.3d at 840 (providing that “the lack of a prior warning would not prevent dismissal of the complaint as a first sanction” because the plaintiff “deliberately disobeyed” a district court order).

Fourth Factor – Lesser Sanctions

Lastly, the district court considered striking Moore’s complaint or barring him from testifying at trial but reasonably concluded that these less drastic sanctions would “have the same effect as dismissal.” We have “never held that a district court is without power to dismiss a complaint, as the first and only sanction” and are “loathe to require the district court to incant a litany of the available lesser sanctions.” Schafer v. City of Defiance Police Dep’t, 529 F.3d 731, 738 (6th Cir. 2008) (quoting Harmon, 110 F.3d at 368). Indeed, a district court is required only to “consider” the imposition of lesser sanctions. Mager, 924 F.3d at 837 (citing Reyes, 307 F.3d at 458). The district court expressly did so here. So this factor weighs against Moore.


*4 “[I]t is difficult to define the quantity or quality of the misconduct which may justify dismissal with prejudice as the first and only sanction.” Harmon, 110 F.3d at 368. But “[t]his difficulty is no doubt part of the reason that we review a district court’s judgment in such cases only for an abuse of discretion.” Id. Although dismissal is a “harsh sanction,” here, Moore’s willful and bad-faith failure to fulfill one of the most basic duties of a plaintiff—to appear for his own deposition—is the type of “contumacious conduct” that warrants such a sanction. See Schafer, 529 F.3d at 736 (quoting Wu, 420 F.3d at 643); Saulsberry v. Holloway, 622 F. App’x 542, 545 (6th Cir. 2015) (identifying “failing to participate in discovery” as one example of “contumacious conduct”). And the district court’s failure to warn Moore than his complaint could be dismissed is not fatal in light of that contumacious conduct. See Wu, 420 F.3d at 644; Mager, 924 F.3d at 840; see also Mulbah, 261 F.3d at 591 (stating that, although no one factor is dispositive, dismissal may be appropriate where there is a clear record of contumacious conduct on the plaintiff’s part); Knoll v. AT&T, 176 F.3d 359, 366 (6th Cir. 1999) (stating that the importance of the second, third, and fourth factors “fade[ ] in the face of the conclusion that dismissal was warranted by contumacious conduct”). The district court therefore did not abuse its discretion in dismissing Moore’s complaint.

Nor did the district court abuse its discretion in imposing $461.89 in costs that the defendants incurred as a result of Moore’s failure to attend his depositions. See EMWomen’s Surgical Ctr., P.S.C. v. Friedlander, 978 F.3d 418, 446-47 (6th Cir. 2020) (reviewing the imposition of sanctions, including costs, under Rule 37(d)(3) for an abuse of discretion). Rule 37(d)(3) provides that, “instead of or in addition to [other] sanctions, the court must require the party failing to act ... to pay the reasonable expenses, including attorney’s fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(d)(3) (emphasis added). Insofar as the district court did not clearly err in finding that Moore acted in bad faith in failing to attend his depositions, his nonattendance could not have been “substantially justified,” and thus we find no abuse of discretion in the district court’s imposition of costs.

Accordingly, we AFFIRM the district court’s judgment.


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