Davis v. City of Clanton Police Department et al (JOINT ASSIGN)(MAG+)
ORDERED as follows: (1) Plaintiff's objection (Doc. # 67 ) is OVERRULED; (2) The Recommendation (Doc. # 66 ) is ADOPTED in part and REJECTED in part; (3) Defendant's motion for sanctions (Doc. # 58 ), which includes requests for dismissa l of this action in its entirety and for an award of monetary sanctions under Federal Rule of Civil Procedure 37, is GRANTED; (4) Plaintiff shall reimburse Defendant $788.01, which includes reasonable attorney's fees and costs associated wi th Plaintiff's failure to attend the properly noticed deposition; and (5) Defendant's motion for judgment on the pleadings (Doc. # 61 ) pursuant to Federal Rule of Civil Procedure 12(c) is DENIED. A separate final judgment will be entered. Signed by Chief Judge William Keith Watkins on 10/28/2015. (kh, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
SADAKA T. DAVIS,
DANIEL ERIC SMITHERMAN,
CASE NO. 2:14-CV-986-WKW
On October 8, 2015, the Magistrate Judge filed a Recommendation (Doc.
# 66) to which Plaintiff filed an objection (Doc. # 67). For the reasons that follow,
the Recommendation is due to be adopted in part and rejected in part.
In the Recommendation, the Magistrate Judge recommends dismissal of this
action on two grounds: (1) as a sanction under Federal Rule of Civil Procedure
37(b)(2)(A)(v) for Plaintiff’s failure to attend a properly noticed deposition; and
(2) based upon the doctrine of res judicata. The Recommendation also endorses
an award of monetary sanctions against Plaintiff under Rule 37(d)(3).
Plaintiff objects to the Recommendation’s imposition of Rule 37 sanctions
against him. The court has conducted a de novo review of this portion of the
Recommendation. See 28 U.S.C. § 636(b). In his objection, Plaintiff sets forth an
additional excuse as to why he did not appear for his properly noticed deposition.
(Doc. # 67, at 1.) This excuse, which was not presented to the Magistrate Judge,
comes too late to alter the Recommendation’s analysis. Cf. Williams v. McNeil,
557 F.3d 1287, 1292 (11th Cir. 2009) (“[W]e . . . hold that a district court has
discretion to decline to consider a party’s argument when that argument was not
first presented to the magistrate judge.”). Moreover, Plaintiff’s newly proffered
excuse, when considered in conjunction with the totality of the circumstances, is
inadequate to demonstrate either substantial justification for Plaintiff’s failure to
attend the deposition or that any lesser sanctions than those recommended would
Accordingly, Plaintiff’s objection will be overruled and the
Recommendation adopted as to the Recommendation’s findings with respect to
Defendant’s motion for Rule 37 sanctions.
Because Plaintiff does not object to the Recommendation’s determination
that Plaintiff’s action is due to be dismissed under the doctrine of res judicata,
review of this portion of the Recommendation is for clear error.1
Recommendation is problematic for at least three reasons. First, Defendant has
Neither 28 U.S.C. § 636 nor Federal Rule of Civil Procedure 72 sets forth a standard of
review for those portions of a magistrate judge’s recommendation to which no objection is made.
The Advisory Committee Notes provide, however, that “[w]hen no timely objection is filed, the
court need only satisfy itself that there is no clear error on the face of the record in order to
accept the recommendation.” Fed. R. Civ. P. 72 (advisory committee’s note to 1983
amendment); see also Lender v. Unum Life Ins. Co. of Am., 519 F. Supp. 2d 1217, 1222 (M.D.
Fla. 2007) (“When no objections are made to the Magistrate Judge’s R & R, the case law seems
to indicate that the district court should review the findings using the same clearly erroneous
standard of review that an appellate court must use when reviewing the district court’s
raised the affirmative defense of res judicata in a motion for judgment on the
pleadings, but he has not yet filed an answer to the amended complaint. The
motion for judgment on the pleadings is premature because the pleadings are not
closed.2 See Fed. R. Civ. P. 12(c) (“After the pleadings are closed – but early
enough not to delay trial – a party may move for judgment on the pleadings.”).
Second, and relatedly, the general rule is that res judicata must be raised in an
answer under Rule 8(c), which Defendant has failed to do, and not in a Rule 12
motion. See Fed. R. Civ. P. 8(c), 12. An exception lies for a defendant to raise res
judicata “by motion rather than by answer where the defense’s existence can be
judged on the face of the complaint,” Concordia v. Bendekovic, 693 F.2d 1073,
1075 (11th Cir. 1982), but Concordia’s discussion of that exception does not
mention the assertion of res judicata in a prematurely filed motion for judgment on
the pleadings. Significantly, the Recommendation contains no discussion about
the procedural flaw in Defendant’s filing a motion for judgment on the pleadings
without having first filed an answer or about whether there are grounds that would
excuse that flaw.
Earlier in this litigation, in November 2014, Defendant filed a motion to dismiss for
failure to state a claim upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6). As
Defendant noted in his November 2014 motion, the state-court action was pending at that time
(see Doc. # 12, at 1 n.2), and, thus, there was not a final judgment on the merits as required for
res judicata’s application. Ultimately, the court denied the motion to dismiss (Doc. # 36), but
Defendant never filed an answer.
Third, urging this court to take judicial notice of the state-court proceedings,
Defendant has submitted copies of parts of the state-court record, but not certified
The Eleventh Circuit has indicated a preference for the latter.
Concordia, 693 F.2d at 1076 (“[T]he record of the state court proceedings was not
No certified or exemplified copies of the pleading record or
judgmental material were ever presented.”); see also Cope v. Bankamerica Hous.
Serv., Inc., No. 99-D-653-N, 2000 WL 1639590, at *7 (M.D. Ala. Oct. 10, 2000)
(“Under Concordia, the final judgment element necessary to sustain a res judicata
defense in the context of a Rule 12(b)(6) motion to dismiss requires that the record
before the court contain a complete, and preferably certified or exemplified, copy
of the record from the earlier lawsuit.”); see generally 28 U.S.C. § 1738 “The
records and judicial proceedings of any court of any such State . . . or copies
thereof, shall be proved or admitted in other courts within the United States . . . by
the attestation of the clerk and seal of the court annexed, if a seal exists, together
with a certificate of a judge of the court that the said attestation is in proper
form.”). The Recommendation does not address the failure of Defendant to submit
certified copies of the state-court complaint, the motion to dismiss, and the statcourt’s order of dismissal.
Adopting the Recommendation’s findings that the elements of res judicata
are satisfied would require this court to overlook the foregoing deficiencies upon
which the Recommendation is silent. The court is not persuaded that, on this
record, the Recommendation can be adopted under the clearly erroneous standard
of review. At the very least, the court finds that the better course is to reject the
Recommendation that the motion for judgment on the pleadings be granted.
Accordingly, it is ORDERED as follows:
Plaintiff’s objection (Doc. # 67) is OVERRULED;
The Recommendation (Doc. # 66) is ADOPTED in part and
REJECTED in part;
Defendant’s motion for sanctions (Doc. # 58), which includes requests
for dismissal of this action in its entirety and for an award of monetary sanctions
under Federal Rule of Civil Procedure 37, is GRANTED;
Plaintiff shall reimburse Defendant $788.01, which includes
reasonable attorney’s fees and costs associated with Plaintiff’s failure to attend the
properly noticed deposition; and
Defendant’s motion for judgment on the pleadings (Doc. # 61)
pursuant to Federal Rule of Civil Procedure 12(c) is DENIED.
A separate final judgment will be entered.
DONE this 28th day of October, 2015.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE
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