Commercial Litigation and Arbitration

Rule 37 Dismissal Factors (Sixth Circuit) — Refusal to Answer Deposition Questions on Relevancy Grounds Is Not Valid Rule 30(c)(2) — Pro Se Deponent’s Attendance At Zoom Deposition While Driving A Semi, Refusing to Answer Questions, Inter Alia, Held Contumacious

Hills v. Roble, 2024 U.S. App. LEXIS 6296 (6th Cir. Mar. 15, 2024) (unpublished):


Pro se litigant Derrick Hills appeals the denial of his motion for relief from judgment in his civil suit against federal officials involved in his arrest and prosecution. He also moves for the appointment of counsel. This case has been referred to a panel that, upon examination, unanimously agrees that oral argument is not needed. See Fed. R. App. P. 34(a). For the reasons set forth below, we affirm the district court's order. And because Hills cites no exceptional circumstances justifying appointment of counsel, see, e.g., Lavado v. Keohane, 992 F.2d 601, 605-06 (6th Cir. 1993), we deny his motion.

A federal jury convicted Hills on several counts of criminal contempt of court for repeatedly violating the orders of a bankruptcy judge. The district court sentenced him to 46 months in prison. See United States v. Hills, No. 14-1361, slip op. at 2 (6th Cir. Nov. 5, 2015). Hills did not voluntarily appear for sentencing, so, on the district court's order, the U.S. Marshals [*2]  Service arrested him, and he started serving his sentence.

In 2015, Hills sued Special Assistant U.S. Attorney Richard Roble, Deputy U.S. Marshal Aaron, and six unnamed Deputy U.S. Marshals under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971), claiming that Roble prosecuted him without due process and the marshals used excessive force in arresting him. The district court dismissed the claim against Roble as meritless, leaving only the excessive-force claim against the marshals to proceed to discovery.

Defendants' counsel scheduled Hills's deposition for November 15, 2021, a date that Hills told counsel he was available, but Hills responded that he would not attend without a court order. Counsel informed him that he did not need a court order under Federal Rule of Civil Procedure 30(a), but Hills nevertheless did not attend. Defendants' counsel then moved to compel his attendance for a remote deposition on December 16, 2021. The district court granted the motion and ordered Hills to attend his deposition via Zoom on December 16, 2021; the court also warned Hills that his case may be dismissed under Federal Rule of Civil Procedure 37 if he failed to appear or otherwise violated discovery rules.

Hills appeared for his deposition while driving a semi-truck. After Hills was sworn in as a witness, defense [*3]  counsel asked him several questions about his current situation, including if he was driving and if he was able to pull over, but Hills refused to answer the questions. Defendants' counsel ended the deposition and moved to dismiss the case for failing to cooperate with the discovery order. A magistrate judge recommended dismissing the case, concluding, among other findings, that Hills had acted in bad faith and disobeyed the court's discovery order. The district court agreed, adding that Hills likely violated Michigan law by appearing on a Zoom call while driving.

Hills then moved for relief from judgment under Federal Rule of Civil Procedure 60(b),1 arguing that the district court applied incorrect facts and law when it dismissed his complaint. The district court denied the motion, concluding that Hills did not identify any mistake of fact or law and that he rehashed previously rejected arguments. Hills now appeals, reiterating his arguments from below.

We review the denial of a Rule 60(b) motion under the abuse-of-discretion standard. Franklin v. Jenkins, 839 F.3d 465, 472 (6th Cir. 2016). "We recognize an 'abuse of discretion' when our review leaves us with 'a definite and firm conviction that the trial court committed a clear error of judgment.'" Id. (quoting Burrell v. Henderson, 434 F.3d 826, 831 (6th Cir. 2006)). "Relief under Rule 60(b) is [*4]  the exception, not the rule, and we are guided by the constraints imposed by a 'public policy favoring finality of judgments and termination of litigation.'" Id. (quoting Waifersong, Ltd. Inc. v. Classic Music Vending, 976 F.2d 290, 292 (6th Cir. 1992)).

Rule 60(b)(1) allows relief from judgment for "mistake, inadvertence, surprise, or excusable neglect." Fed. R. Civ. P. 60(b)(1). A party is entitled to relief under Rule 60(b)(1) "when the judge has made a substantive mistake of law or fact in the final judgment or order." Penney v. United States, 870 F.3d 459, 461 (6th Cir. 2017) (quoting United States v. Reyes, 307 F.3d 451, 455 (6th Cir. 2002)).

Hills argues that the district court erred by concluding that he had failed to cooperate in the discovery process and by dismissing his complaint without considering alternative sanctions. Rule 37 provides that sanctions for failing to obey a discovery order "may include . . . dismissing the action or proceeding in whole or in part." Fed. R. Civ. P. 37(b)(2)(A)(v). Before imposing such a sanction, district courts must consider these 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. Although no one factor is dispositive, dismissal [*5]  is proper if the record demonstrates delay or contumacious conduct.

Mager v. Wis. Cent. Ltd., 924 F.3d 831, 837 (6th Cir. 2019) (citation omitted) (quoting Reyes, 307 F.3d at 458).

On the first factor, the district court rightly found that Hills's failure to comply with his discovery obligations was willful and in bad faith. Hills did not attend a scheduled deposition, claiming that he was not ordered to by the court. But Rule 30(a)(1) provides that a party can be deposed without leave of court. Hills then attended his subsequent deposition as ordered by the court, but he did so while driving a truck and unable to give his full attention to the deposition. Hills then refused to answer nearly every question while under oath at the deposition. This included basic questions about whether he was driving a truck during the deposition, his mailing address, and whether he received an email about where counsel could send exhibits prior to the deposition. His contention that he did not answer questions he deemed irrelevant is not persuasive, because that is not a valid reason under Rule 30(c)(2).

As for the second factor, the district court correctly noted that the defendants were prejudiced by Hills's conduct because it prevented them "from obtaining evidence essential to the preparation of [their] [*6]  defense." Universal Health Grp. v. Allstate Ins., 703 F.3d 953, 956 (6th Cir. 2013). The defendants also "waste[d] time, money, and effort in pursuit of cooperation which [the plaintiff] was legally obligated to provide," because they had to file a motion to compel when Hills refused to sit for the first deposition and then had to pay for various services to take the later aborted deposition. 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)).

After Hills refused to appear for his originally scheduled deposition and the defendants moved to compel his attendance, the magistrate judge ordered him to appear and warned him in bold print that "[i]f he fails to appear or otherwise violates the discovery rules, his case may be dismissed under Rule 37 or the Court's inherent authority." Thus, the district court correctly held that Hills had been appropriately warned and that the third factor weighed in favor of sanctioning him with dismissal.

And the same is true for the fourth factor. In ordering Hills to attend his deposition, the magistrate judge explained that, when a party fails to attend a deposition or respond to discovery requests, financial sanctions were usually appropriate but greater sanctions were available, including dismissal of the case. The district court noted that [*7]  the magistrate judge imposed no sanctions at that time and instead let Hills off with a warning. Thus, before dismissing Hills's case, the district court not only considered but applied less drastic measures.

Finally, the district court correctly found that Hills's behavior was contumacious and therefore warranted dismissal of his case. Hills refused to attend the first deposition, was warned that he would be sanctioned if he did not fulfill his discovery obligations, and when he finally appeared for his deposition, he did so while driving a truck and then refused to answer basic questions. His conduct was "perverse in resisting authority and stubbornly disobedient." Mager, 924 F.3d at 837 (quoting Carpenter v. City of Flint, 723 F.3d 700, 705 (6th Cir. 2013)).

Hills argues that the district court wrongly interpreted state law, claiming that he was permitted to operate a cellphone as a commercial truck driver so long as he did not hold the phone in his hands. But that is irrelevant. The district court did not hinge its decision on whether Hills broke the law, rather it noted that Hills's attitude toward the discovery process was reflected by his operating a large truck during his deposition, likely breaking the law to do so, and also flippantly refusing to answer questions. [*8]  The district court was within its discretion to conclude that Hills failed to cooperate with the discovery process.

In short, the district court reviewed the appropriate factors and made the correct findings before dismissing Hills's case, and Hills does not show that the court abused its discretion in denying his motion for relief from that decision.

For these reasons, we AFFIRM the district court's order and DENY the motion for the appointment of counsel.

The district court construed Hills's motion as brought under Rule 60(b)(1), which neither party challenges on appeal.

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