WAGNER v. FLINT POLICE DEPARTMENT et al

Filing 32

ORDER granting 22 Motion to Dismiss. Signed by District Judge Lawrence P. Zatkoff. (MVer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
LISA WAGNER
Plaintiff,
Case No. 12-14315
Hon. Lawrence P. Zatkoff

v.
TOWNSHIP OF FLINT POLICE
DEPARTMENT, TIM JONES, JAMES JOSEPH
DALY, JAMES BALDWIN and FRANCIS
HARTNER,
Defendants.
_________________________________________/

OPINION AND ORDER
AT A SESSION of said Court, held in the United States Courthouse,
in the City of Port Huron, State of Michigan, on January 30, 2014
PRESENT: THE HONORABLE LAWRENCE P. ZATKOFF
UNITED STATES DISTRICT JUDGE
I. INTRODUCTION
This matter is before the Court on Defendants Township of Flint Police Department, Tim
Jones, James Joseph Daly, James Baldwin and Francis Hartner’s Motion to Dismiss Plaintiff
Lisa Wagner’s Complaint pursuant to Fed. R. of Civ. P. 37 and 41 [dkt 22].

The motion has

been fully briefed. The Court finds that the facts and legal arguments are adequately presented in
the parties’ papers such that the decision process would not be significantly aided by oral
argument. Therefore, pursuant to E.D. Mich. L.R. 7.1(f)(2), it is hereby ORDERED that the
motion be resolved on the briefs submitted, without oral argument. For the following reasons,
Defendant’s motion is GRANTED and Plaintiff’s Complaint is DISMISSED WITH
PREJUDICE.

II. BACKGROUND
A. FACTUAL BACKGROUND
This case involves an alleged violation of Plaintiff Lisa Wagner’s (“Plaintiff”) Fourth,
Eighth, and Fourteenth Amendment rights by Defendants Township of Flint Police Department,
Tim Jones, James Joseph Daly, James Baldwin and Francis Hartner (“Defendants”). Plaintiff
alleges Defendants forcibly entered her home and held her without provocation or consent, and
that Plaintiff suffered injury as a result of these actions. Defendants assert officers of the Flint
Police Department were sent to Plaintiff’s home as the result of a complaint from a neighbor,
that they entered the home to perform a welfare check in their capacity as community caretakers,
and that Plaintiff was taken into protective custody only after it was determined she was acting
extremely unusual and that a mental health petition was required.
The motion currently before the Court seeks dismissal of Plaintiff’s Complaint due to
Plaintiff’s failure to respond in a timely fashion to Defendants’ discovery requests [dkt 22]. The
motion also points to Plaintiff’s continued failure to comply with this Court’s order entered on
July 8, 2013, requiring Plaintiff to provide signed medical authorization forms by July 12, 2013,
and to provide responses to Defendants’ interrogatories by July 22, 2013.
B. PROCEDURAL BACKGROUND
The case was removed to this Court by Defendants on September 27, 2012. Since that
time, the Court has granted two motions filed by attorneys previously representing Plaintiff to
withdraw from representing Plaintiff.

These motions were brought—and granted—due to

Plaintiff’s general refusal to cooperate and her failure to complete discovery requests despite
repeated requests to do so from Plaintiff’s own attorneys. The Court most recently granted such
a motion to withdraw on November 15, 2013 [dkt 27]. In this same Order, the Court required

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Plaintiff to file a response to the instant motion within 45 days from the date of entry, and that
failure to do so could result in dismissal.
On December 30, 2013, Plaintiff delivered to the Court—via fax from her new counsel of
record, Lineas L. Baze—a response to the instant motion. Although this was delivered within
the 45-day window required by the Court, the response was not actually filed on the docket until
January 13, 2014. Counsel for the Plaintiff also entered his notice of appearance on that day.
III. LEGAL STANDARD
Fed. R. Civ. P. 37 deals generally with the sanctions available to the Court should a party
fail to make disclosures or cooperate in discovery. Specifically, Fed. R. Civ. P. 37(b)(2) outlines
the sanctions available to the Court should a party fail to comply with a court order, including
dismissal of the action in its entirety. Fed. R. Civ. P. 37(b)(2)(A)(v).
Fed. R. Civ. P. 41(b) indicates that, if a plaintiff fails to prosecute or to comply with a
court order, a defendant may move to dismiss the action or any claim against it. Any dismissal
made pursuant to this rule operates as an adjudication on the merits. Fed. R. Civ. P. 41(b).
Whether to grant a motion under Fed. R. Civ. P. 37 or 41 is within the broad discretion of
the district court. Nat’l Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639, 641–42
(1976). When deciding whether to exercise this discretion, the Sixth Circuit has laid out four
factors to consider:
1)
2)
3)
4)

whether the party’s failure to cooperate in discovery is due to willfulness, bad
faith, or fault;
whether the adversary was prejudiced by the party’s failure to cooperate in
discovery;
whether the party was warned that failure to cooperate could lead to dismissal;
and
whether less drastic sanctions were imposed or considered prior to dismissal.

See Harmon v. CSX Transp., Inc., 110 F.3d 364, 366–67 (6th Cir. 1997).
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IV. ANALYSIS
Using the factors outlined by the Sixth Circuit, the Court finds that dismissal of
Plaintiff’s Complaint under Fed. R. Civ. P. 37 and 41 is warranted. On July 8, 2013, Magistrate
Judge David R. Grand entered an Order requiring Plaintiff to provide signed medical
authorization forms, dates when she was available for her deposition, and responses to
Defendants’ interrogatory requests [dkt 21]. While this Order required Plaintiff to provide such
information at various dates in July 2013, Defendants indicate that Plaintiff has still not
provided—six months after this Court’s Order requiring her to do so—any of this information.
The Court finds this continued refusal to provide basic discovery information is the sort of
failure due to “willfulness, bad faith, or fault” that the Sixth Circuit had in mind.
Further, it is undeniable that Defendants have been prejudiced due to Plaintiff’s failure to
cooperate in discovery. Plaintiff’s refusal to participate in discovery and otherwise prosecute
this action directly prejudiced the Defendants’ ability to prepare a defense. Accordingly, the
Court finds Plaintiff’s actions have prejudiced Defendant within the meaning of the Sixth
Circuit’s second factor.
The Court also warned Plaintiff that failure to respond to the current motion could result
in dismissal of her action [dkt 27]. The Court finds this is exactly in line with the Sixth Circuit’s
third factor.
Finally, the record indicates that less drastic options were not only considered, but were
actually attempted prior to dismissal. Time and time again Plaintiff has been allowed—despite
her consistent refusal to participate in advancing her own cause of action—to extend the
timeframe within which she was required to provide discovery. Plaintiff has been given no less
than 15 months to comply with Defendants’ initial discovery requests; despite great leniency

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provided by this Court, she has nonetheless failed to do so. The Court therefore finds that the
fourth factor also warrants immediate dismissal of the action.
It must be noted that Plaintiff—in responding to the motion before the Court through her
newest attorney—does not explicitly deny any of the allegations presented by Defendants.
Instead, the entirety of Plaintiff’s response reads as follows:
“ANSWER TO MOTION TO DISMISS
NOW COMES Plaintiff Lisa Wagner by and through her attorney Lineas Baze
and she hereby submits her Answer to Motion to Dismiss saying as follows:
1. The allegations of paragraph one are left to the proofs.
2. The allegations of paragraph two are left to the proofs.
3. The allegations of paragraph three are left to the proofs.
4. The allegations of paragraph four are left to the proofs.
WHEREFORE, Plaintiff respectfully requests the case may not be dismissed.”
The Court finds that this response fails to adequately dispute any of the factors
warranting dismissal as determined by the Sixth Circuit and outlined by Defendants.
V. CONCLUSION
Accordingly, IT IS HEREBY ORDERED that Defendant’s Motion to Dismiss Plaintiff’s
Complaint with prejudice pursuant to Fed. R. of Civ. P. 37 and 41 [dkt 22] is GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s Complaint [dkt 1] is DISSMISSED WITH
PREJUDICE.
IT IS SO ORDERED.

Date: January 30, 2014

s/Lawrence P. Zatkoff
HON. LAWRENCE P. ZATKOFF
U.S. DISTRICT JUDGE

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