Universal Health Group v. Allstate Insurance Company

Filing 123

ORDER granting 106 Motion to Strike; granting 107 Motion to Dismiss; adopting 120 Report and Recommendation on 106 Motion to Strike, Motion for Summary Judgment,, 107 Motion to Dismiss, 120 Report and Recommendation,. Signed by District Judge Victoria A. Roberts. (CPin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
UNIVERSAL HEALTH GROUP,

CASE NUMBER: 09-12524

Plaintiff,

HONORABLE VICTORIA A. ROBERTS
MAGISTRATE JUDGE MICHAEL
HLUCHANIUK

v.
ALLSTATE INSURANCE CO.,
Defendant.
/

ORDER ACCEPTING REPORT AND RECOMMENDATION THAT MOTION TO
DISMISS BE GRANTED
I.

INTRODUCTION
This case was originally filed in 2009. A Third Amended Complaint was filed on

June 29, 2010. To date, none of the provider doctors who are part of the Plaintiff health
group has been deposed. Plaintiff sues for reimbursement of allowable expenses under
the Michigan No-Fault Act, Mich. Comp. Laws § 500.3101, et. seq.; statutory and
common law defamation; and tortious interference with a business relationship.
On January 9, 2012, Magistrate Judge Michael Hluchaniuk issued a Report and
Recommendation (R&R) that Defendant’s motion to dismiss Plaintiff’s Third Amended
Complaint be granted (Doc. 120). Plaintiff objected to the Magistrate’s recommendation
that its Complaint be dismissed for willful failure to comply with discovery (Doc. 121).
Under Fed R. Civ. P. 72(b), this Court must conduct a de novo review of any part
of the Magistrate’s recommended disposition that is properly objected to. The Court
agrees with the Defendant that Plaintiff’s objections fail to “recite precisely” the
provisions of Judge Hluchaniuk’s R&R that they pertain to, as required by Fed. R. Civ.
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P. 72(b)(2). Nonetheless, the Court considers them as a general objection to the
Magistrate’s finding of wilfulness, which formed the basis for his recommendation for
dismissal, despite the fact that Plaintiff had not been formally warned that dismissal was
in the offing.
Based on that de novo review, the Court ACCEPTS the Recommendation of the
Magistrate Judge and DISMISSES Plaintiff’s Third Amended Complaint with prejudice.
II.

DISCUSSION
The following is evident:

1.

The Magistrate Judge had previously sanctioned Plaintiff because of discovery

abuses by limiting documents, evidence and witnesses Plaintiff could present at trial to
those it had already produced (May 3, 2011 Order, Doc. 105). The Court also ordered
that Plaintiff could not produce additional documents without first filing a motion
demonstrating good cause.
2.

In its May 3, 2011 Order, the Court noted that multiple discovery extensions had

already been granted to Plaintiff. It extended discovery for the sole purpose of
permitting Defendant to conduct depositions of Plaintiff providers within a 45 day period.

3.

Almost immediately after entry of that Order, Defendant sought to schedule

those depositions. It sent an email to counsel for Plaintiff, Mr. Romanzi, on May 20,
2011 asking for available dates for the depositions. Plaintiff did not respond to the
email, and on May 27, 2011, Defendant arbitrarily set dates for the required depositions
and sent notices to Plaintiff’s counsel. Plaintiff did not respond to the notices. On June
16, 2011, Defendant’s counsel sent Mr. Romanzi a letter stating that the deposition
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dates were arbitrarily selected, and asking him to coordinate scheduling. Mr. Romanzi
did not respond. Defense counsel called Mr. Romanzi on June 29, 2011 and reached
him; Mr. Romanzi said the depositions would not take place on the dates scheduled, but
he did not offer alternative dates. That same day, defense counsel sent an email to Mr.
Romanzi, acknowledging that the depositions would not occur as scheduled, and asking
that he provide alternative dates. Mr. Romanzi did not respond.
4.

Defendant filed a motion to dismiss on July 18, 2011, its second such motion

based on discovery failures.
5.

Judge Hluchaniuk held a hearing on the motion on September 28, 2011.

Nothing in the record shows that Plaintiff’s counsel ever offered any dates for
depositions any time after the motion was filed or after the time consuming trial he said
he was preparing for–was cancelled.
6.

At the hearing Judge Hluchaniuk conducted on the motion, counsel for Plaintiff

offered no good excuse why he–minimally–could not communicate with defense
counsel to schedule depositions for a convenient time, or to ask for more time. As
Judge Hluchaniuk stated, “[T]here is simply no excuse to fail to communicate with
opposing counsel regarding the deposition schedule, particularly given the time
constraints of the May 3, 2011 Order.” (R&R at 8).
III.

CONCLUSION
While this is not the most egregious case of discovery abuse the Court has

encountered, an examination of the factors set forth in U.S. v. Reyes, 307 F.3d 451, 458
(6th Cir. 2002), reveals that dismissal is warranted. The factors a court must take into
account to determine if dismissal is the appropriate remedy are:

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(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. Id.
Here, the Court agrees with Judge Hluchaniuk that dismissal is appropriate
because Plaintiff had already been sanctioned for discovery abuses. Plaintiff’s counsel
did nothing to seek relief from the Court from the depositions ordered to occur within a
45-day window; he totally ignored all of defense counsel’s attempts to schedule the
depositions; and he did nothing after the motion was filed to comply with his obligations
under a prior court order.
The Court finds that Plaintiff’s counsel’s failure to comply with the May 3, 2011
Order was willful. As the Magistrate noted, his excuses are unavailing in light of his
pattern of delay and failure to comply with multiple discovery orders (R&R at 12).
Further, Defendant has been prejudiced by its inability to take a single deposition in a
three year old case, preventing it from preparing a defense. Finally, by virtue of the
prior order for sanctions (Doc. 105), Plaintiff was put on notice that sanctions could
elevate.
The Court ACCEPTS Judge Hluchaniuk’s Recommendation. Plaintiff’s Third
Amended Complaint is DISMISSED with prejudice.

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IT IS ORDERED.
/s/ Victoria A. Roberts
Victoria A. Roberts
United States District Judge
Dated: February 15, 2012
The undersigned certifies that a copy of this
document was served on the attorneys of
record by electronic means or U.S. Mail on
February 15, 2012.
s/Linda Vertriest
Deputy Clerk

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