Parchman v. Taylor, City of et al

Filing 38

ORDER Denying In Part, Deeming Moot In Part, and Granting In Part, Defendants' Third Motion to Dismiss Plaintiff's Complaint or Strike Plaintiff's Witnesses for Plaintiff's Repeated Failure to Cooperate in Discovery and Because Plaintiff Has Deliberately Precluded Discovery 22 . Signed by District Judge Denise Page Hood. (LSau)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
SHENIKA PARCHMAN,
INDIVIDUALLY AND AS
PERSONAL REPRESENTATIVE
OF THE ESTATE OF BABY
BOY PARCHMAN,
Plaintiff,

Civil No. 12-CV-13094
HONORABLE DENISE PAGE HOOD
UNITED STATES DISTRICT JUDGE

v.

CITY OF TAYLOR POLICE
OFFICER MICHAEL TAYLOR, and
CITY OF TAYLOR, a Municipal Corporation,
Defendants.
____________________________________/
ORDER DENYING, IN PART, DEEMING MOOT, IN PART, AND
GRANTING, IN PART, DEFENDANTS’ THIRD MOTION TO DISMISS
PLAINTIFF’S COMPLAINT OR STRIKE PLAINTIFF’S WITNESSES FOR
PLAINTIFF’S REPEATED FAILURE TO COOPERATE IN DISCOVERY
AND BECAUSE PLAINTIFF HAS DELIBERATELY PRECLUDED
DISCOVERY [#22]
This matter comes before the Court on Defendants’ Third Motion to Dismiss
Plaintiff’s Complaint or Strike Plaintiff’s Witnesses for Plaintiff’s Repeated Failure
to Cooperate in Discovery and Because Plaintiff has Deliberately Precluded
Discovery. [Docket No. 22, filed May 6, 2013] Plaintiff did not file a response until
June 21, 2013, well after the time designated to file a response. [Docket No. 28]
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Defendants filed a reply to Plaintiff’s response. [Docket No. 29, filed June 26, 2013]
For the reasons discussed below, Defendants’ Motion is DENIED as to
Defendants’ request that this Court enter an order dismissing Plaintiff’s complaint for
her failure to cooperate in discovery. Defendants’ Motion is DEEMED MOOT as
to Defendants’ request that this Court enter an order striking witness Shemika
Parchman’s deposition testimony as Defendants’ Motion for Summary Judgment
[Docket No. 32] references testimony from this witness evidencing this witnesses’s
appearance at deposition.

Defendants’ Motion is DEEMED MOOT as to

Defendants’ request that this Court enter an order striking Sherika Parchman,
Dominique Parchman, and Tianna Arrington’s deposition testimony, if these witnesses
have already been deposed. If these witnesses have not appeared pursuant to
subpoena, Defendants’ Motion in this regard is GRANTED and they may not be
called as Plaintiff’s witnesses at trial.
I.

BACKGROUND
Plaintiff filed this action in this Court on July 13, 2012, alleging a constitutional

deprivation pursuant to 42 U.S.C. § 1983 against Officer Michael Taylor and the City
of Taylor, and gross negligence, willful and wanton misconduct, assault, battery, and
intentional infliction of emotional distress against all Defendants. Defendants filed
their first motion to dismiss on November 5, 2012, alleging that Plaintiff failed to
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respond to interrogatories or produce documents. [Docket No. 12] Defendants
withdrew the motion on January 17, 2013 after Plaintiff appeared for a deposition.1
Defendants have attempted to take the depositions of four witnesses since
November 2012: (1) Shemika Parchman - Plaintiff’s sister; (2) Sherika Parchman Plaintiff’s sister; (3) Dominique Parchman - Plaintiff’s cousin; and (4) Tianna
Arrington - Plaintiff’s friend. The initial date for the depositions of all four witnesses
was November 14, 2012. The witnesses did not appear on that date and the
depositions were rescheduled to February 25, 2013. The witnesses again did not
appear. Defendants were forced to hire an investigator to find and serve the witnesses
with subpoenas to assure their appearance due to their failure to appear for the first
two scheduled depositions.
Dominique and Shemika Parchman were both served with subpoenas to appear
for deposition on April 4, 2013. Sherika Parchman and Tianna Arrington were not
served because they refused to accept service. One of these witnesses appeared some
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Defendants’ motion to dismiss stated that on August 13, 2012, Defendants provided
notice for Plaintiff’s deposition that was scheduled for October 2, 2012. Defendants
noted that the Friday before the deposition, they called and confirmed that it would
take place on October 2,2012. Plaintiff did not show up or provide a reason for her
absence. She was re-noticed on October 5, 2012, for an October 22, 2012, deposition.
Plaintiff did not appear or explain her absence. Defendants contended that as a result
of Plaintiff’s absences, Defendants were assessed court fees for the depositions. A
second motion to dismiss for discovery violations was filed on March 20, 2013, and
was subsequently resolved on April 17, 2013.
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time after the scheduled deposition and after defense counsel, Plaintiff’s counsel, the
court reporter, and the Defendant Officer had left, claiming that she could not find the
police department. Another witness appeared 7 hours after her scheduled time. The
depositions were again rescheduled for April 18, 2013.
According to Defendants, counsel for Plaintiff called the day prior indicating
that Dominique Parchman could not appear for deposition on April 18, and that the
date would need to be rescheduled for her and the other witnesses. Defendants
contend that based on this phone call, they did not appear at Taylor Police Department
on April 18. They were later informed by the Department that Dominique Parchman
did appear. The depositions were rescheduled for April 30, 2013, a “mutually
agreeable date with Plaintiff s counsel,” and the parties were again given notice. The
witnesses again failed to appear.
II.

ANALYSIS
Relying on Federal Rule of Civil Procedure 37, Defendants ask the Court to

dismiss this action due to Plaintiff’s repeated failure to submit to a deposition or
provide discovery or, in the alternative, striking Plaintiff’s four witnesses. Defendants
further request an award of $3,500.00 in attorney and other fees pursuant to Rule
37(a)(5).2 Defendants argue that three of the witnesses are under Plaintiff’s control
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If a motion to compel disclosure is granted or disclosure is provided after a motion
to compel disclosure is filed, Federal Rule of Civil Procedure 37(a)(5)(A) authorizes
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because they are relatives. In a response filed beyond the time allotted pursuant to
Local Rule 7.1(e)(1)(B) (“A response to a dispositive motion must be filed within 21
days after service of the motion.”), Plaintiff argues that she is not required to secure
the appearance of non-party witnesses. Defendants do not respond or provide
authority to the contrary, but instead note that they have made several attempts to
depose Plaintiff and receive various discovery documents, but have been unable to do
so. Defendants further contend that Plaintiff’s conduct delayed the case and resulted
in unnecessary costs to Defendants. Plaintiff admitted that she did not appear for
previous depositions because she could not find transportation and that she indicated
she was on her way to a deposition with two of the witnesses but failed to appear.

a district court to
require the party whose conduct necessitated the motion,
and/or the attorney advising that conduct, to pay the
movant’s reasonable expenses incurred in making the
motion, including attorney’s fees, unless the movant did not
attempt in good faith to obtain disclosure before filing the
motion, the opposing party’s failure to disclose was
substantially justified, or other circumstances make an
award of expenses unjust.
Acker v. Workhorse Sales Corp., 06-CV-14467, 2008 WL 1902034, *3 (E.D. Mich.
Apr. 28, 2008). The Court has the discretion to determine “[w]hether and to what
extent discovery sanctions are warranted.” Harmon v. CSX Transportation, Inc., 110
F.3d 364, 366 (6th Cir. 1997).

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Rule 37(a)(1) allows a party to “move for an order compelling disclosure or
discovery.” The party must certify that he or she attempted to confer with the party
failing to provide discovery. Id. The choice of what sanction to impose for failure to
comply with discovery is vested in the court’s discretion and though the rule may
allow dismissal, courts deem dismissal to be a “drastic sanction,” one that should no
be imposed without evidence of willfulness or bad faith, prejudice to the adversary,
notice of the potential sanction to the violating party, and a lack of potentially less
drastic sanctions that may be imposed or ordered. Phillips v. Cohen, 400 F.3d 388,
402 (6th Cir. 2005). The Court is not persuaded that dismissal of the Complaint is an
appropriate sanction. Defendants’ Motion, as it relates to dismissal of the Complaint,
is DENIED.
The Court appreciates that as of the filing of this Motion, there remained four
outstanding depositions. These depositions were of non-party witnesses Shemika
Parchman, Sherika Parchman, Dominique Parchman, and Tianna Arrington. Although
these witnesses are relatives or friends of Plaintiff, the Court is not persuaded that this
necessitates the conclusion that she is control of them. However, importantly, the
discovery cut-off date in this case, September 30, 2013, has passed. The Court notes

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that in Defendants’ Motion for Summary Judgment filed following this Motion
[Docket No. 32, filed November 13, 2103], Defendants referenced deposition
testimony from Plaintiff’s sister, Shemika Parchman. Because this witness has
already given her deposition testimony and, albeit not initially, has complied with the
discovery obligations that are the subject of this motion, Defendants’ Motion as it
relates to striking the testimony of Shemika Parchman is DEEMED MOOT.
As to the remaining Plaintiff witnesses, Sherika Parchman, Dominique
Parchman, and Tianna Arrington, though the Court will not impose the “drastic
sanction” of dismissal of Plaintiff’s Complaint, the Court holds that these witnesses
may not testify at trial if they have not already complied with the discovery requests
and appeared for their scheduled depositions. These witnesses were given notice of
their scheduled depositions on at least two occasions and subpoenaed to appear. If
they have not yet appeared to be deposed, Defendants’ Motion as it relates to their
request that this Court strike their testimony is GRANTED. If these witnesses have
appeared for deposition, Defendants’ Motion as it relates to these witnesses is
DEEMED MOOT.
III.

CONCLUSION

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Accordingly,
IT IS ORDERED that Defendants’ Third Motion to Dismiss Plaintiff’s
Complaint or Strike Plaintiff’s Witnesses for Plaintiff’s Repeated Failure to Cooperate
in Discovery and Because Plaintiff has Deliberately Precluded Discovery [Docket No.
22, filed May 6, 2013] is DENIED as it pertains to Defendant’s request that this
Court enter an order dismissing Plaintiff s complaint for her failure to cooperate in
discovery.
IT IS FURTHER ORDERED that Defendants’ Motion is DEEMED MOOT
as to Defendants’ request that this Court enter an order striking witness Shemika
Parchman’s deposition testimony.
IT IS FURTHER ORDERED that Defendants’ Motion is DEEMED MOOT
as to Defendants’ request that this Court enter an order striking Sherika Parchman,
Dominique Parchman, and Tianna Arrington’s deposition testimony, if these witnesses
have appeared for scheduled depositions. If these witnesses have not appeared
pursuant to subpoena, they not be called as Plaintiff’s witnesses at trial and
Defendants’ Motion is this regard is GRANTED.
IT IS SO ORDERED.

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S/Denise Page Hood
Denise Page Hood
United States District Judge
Dated: March 31, 2014
I hereby certify that a copy of the foregoing document was served upon
counsel of record on March 31, 2014, by electronic and/or ordinary mail.
S/LaShawn R. Saulsberry
Case Manager

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