Beard et al v. Hawkins et al

Filing 155

OPINION & ORDER Adopting in part 9/13/16 Report and Recommendation 146 99 and granting in part defts' Motion for Sanctions. Signed by District Judge Nancy G. Edmunds. (CBet)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

TONY DEWAYNE BEARD, JR., a legally
incapacitated person, by and through
JOHNETTE FORD, his legal guardian,

Case No. 14-13465
Honorable Nancy G. Edmunds

Plaintiff,
v.
CITY OF SOUTHFIELD, et. al.,
Defendants.
/

OPINION AND ORDER ADOPTING IN PART THE MAGISTRATE JUDGE’S
SEPTEMBER 13, 2016 REPORT AND RECOMMENDATION [146] AND GRANTING
IN PART DEFENDANTS' MOTION FOR SANCTIONS [99]
Defendants have moved for sanctions against Plaintiff's counsel, Johnny Hawkins,
and Plaintiff's guardian, Johnette Ford, and Magistrate Judge Elizabeth Stafford has
provided the Court a Report and Recommendation ("R&R") on Defendants' motion. For
the reasons set forth below, the Court ADOPTS IN PART the R&R, GRANTS IN PART
Defendants' motion, and orders the following sanctions: (1) Hawkins must reimburse
Defendants half the reasonable expenses they incurred in litigating the motion; (2) Plaintiff's
claim for deliberate indifference is stricken; and (3) Ford cannot testify in Plaintiff's case in
chief.
I. Background
The R&R provides an extensive factual background, and the Court, having reviewed
the record de novo, adopts that background here. (See Dkt. 146, at 3-17.) To summarize,
Hawkins and Ford abused discovery procedures, and Defendants seek a variety of

sanctions, including dismissal. Hawkins' misconduct included but was not limited to: (1)
violating the certification requirements of Federal Rule of Civil Procedure 26(g); (2) raising
a frivolous privilege objection; (3) filing a misleading response to a motion to compel; (4)
failing to present materials at a deposition; and (5) failing to reveal that Ford withheld
documents from production until pressed by the Court. (See id.) Ford's misconduct
included: (1) lying during her deposition; (2) testifying while high on medication; (3) altering
documents; (4) destroying documents; (5) and withholding documents from both Hawkins
and the Court. (See id.)
Hawkins has objected that he did not receive a full and fair opportunity to defend
himself on Defendants' motion for sanctions, so a brief history of the recent proceedings
follows. Before the Magistrate Judge issued the R&R, she held two evidentiary hearings
on Defendants' motion. The first hearing, conducted on June 1, 2016, covered the conduct
of Hawkins (Dkt. 133), while the second, conducted on August 3, 2016, related to Ford.1
(Dkt. 145.) At the outset of the August hearing on Ford's conduct, the Magistrate Judge,
having reviewed the evidence from the June hearing about Hawkins, ruled orally that
Hawkins must pay half of Defendants' reasonable costs. (Dkt. 145, at 13-20.) The
Magistrate Judge then commenced hearing evidence against Ford.
The Magistrate Judge has since recognized that she "was mistaken" in issuing an
oral ruling because Defendants' motion requests dismissal, necessitating review by this

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The Magistrate Judge explained that she bifurcated these hearings to avoid creating
a conflict of interest between Ford and Hawkins. (Dkt. 146, at 9.) The Court agrees that
this was proper in light of Garner v. Cuyahoga Cty. Juvenile Court, 554 F.3d 624, 636 (6th
Cir. 2009) ("Courts must be particularly careful in conducting hearings to determine whether
sanctions should be imposed against both plaintiffs and their attorneys ....").
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Court. (Dkt. 146, at 14-15; see also 28 U.S.C. 636(b)(1).) Accordingly, in September, she
prepared the R&R adopted in part here. The R&R, which accounts for the evidence
presented at both hearings, ultimately recommends the same financial sanction for
Hawkins that the Magistrate Judge announced orally at the second hearing. (Dkt. 146, at
31.)
The R&R also concludes that: (1) Hawkins' conduct was sanctionable pursuant to
Federal Rules of Civil Procedure 26 and 37; and (2) Hawkins and Ford should both be
sanctioned under the Court's inherent authority. (Id. at 2.) It further recommends the
following sanctions: (1) ordering Hawkins to reimburse Defendants for half of the
reasonable expenses they incurred litigating their motion for sanctions; (2) ordering that
Ford be replaced as guardian; (3) ordering that Plaintiff's claim for deliberate indifference
be stricken; (4) ordering that Ford cannot testify in Beard's case in chief; and (5) denying
Defendants' request for dismissal. (Id. at 31.)
Hawkins, Ford, and Defendants have all filed objections to the R&R. (Dkt. 147-48,
152.) For the reasons that follow, the Court adopts in part the Magistrate Judge's R&R and
orders the following sanctions: (1) Hawkins must reimburse Defendants half the reasonable
expenses they incurred in litigating the motion; (2) Plaintiff's claim for deliberate indifference
is stricken; and (3) Ford cannot testify in Plaintiff's case in chief. The Court does not order
dismissal.
II. Applicable Law
A. Standard of Review
When a party objects to portions of a magistrate judge's report and recommendation,
the Court reviews such portions de novo. Fed. R. Civ. P. 72(b). However, only specific
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objections that pinpoint a source of error are entitled to de novo review. Mira v. Marshall,
806 F.2d 636, 637 (6th Cir. 1986). General objections, or those that merely challenge the
magistrate judge's ultimate determinations, have "the same effects as would a failure to
object." Howard v. Sec'y of Health and Human Servs., 932 F.2d 505, 509 (6th Cir. 1991).
That is, such objections are invalid, and the Court must treat them as if they were waived.
See Bellmore-Byrne v. Comm'r of Soc. Sec., 2016 WL 5219541, at *1 (E.D. Mich. Sept. 22,
2016) (citing id.). Furthermore, de novo review applies "only to matters involving disputed
facts," not arguments regarding the appropriate legal standard. Mira, 806 F.2d at 637
(internal quotation marks and citations omitted).
III. Analysis
A. Hawkins' Objections
Hawkins enumerates fifteen objections; however, the Court can discern only six
distinct objections, and it overrules all six of them for the reasons below.
First, in various forms throughout objections numbered 1-2, 4, 6, 8-13, and 15,
Hawkins objects to the Magistrate Judge's findings that: (1) he is subject to sanctions under
the Rules 26 and 37; and (2) he and Ford are subject to sanctions under Court's inherent
authority. Given that these objections amount to general objections to the R&R, they are
invalid, and the Court overrules them because they have no merit. Howard, 932 F.2d at
509.
Second, Hawkins objects throughout objections numbered 2, 4, and 5 that he should
not be sanctioned because "he did the best he could" to follow discovery rules. (Dkt. 147,
at 5-6.) However, Hawkins does not point to any portion of the record to support this
objection, nor does he identify an erroneous citation or application of law. This objection
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in all its forms is therefore invalid, and it is also overruled because it has no merit. Mira,
806 F.2d at 637.
Next, in "Objection #3," Hawkins objects that he did not have a full and fair opportunity
to defend himself during this motion for sanctions. (Dkt. 147, at 6-7.) In particular, Hawkins
argues that he was prejudiced by the Magistrate Judge's issuing an oral ruling regarding
financial sanctions for him before she heard all of the evidence regarding Ford's conduct.
The Court, having examined the record de novo, overrules this objection for two reasons.
First, any prejudice Hawkins might have suffered from that oral ruling has been remedied
by the Magistrate Judge's subsequent preparation of a written R&R that accounts for the
evidence heard at both hearings. Second, even if the second hearing had no bearing on
the Magistrate Judge's ultimate recommendation on financial sanctions, Hawkins had
ample opportunity to present his case at the first hearing. Hawkins was represented by an
attorney, had an opportunity to testify, and had the opportunity to question Ford. (Dkt.
133.) Accordingly, the record shows that Hawkins had a full and fair opportunity to defend
himself on the motion, and his third objection is overruled.
Fourth, in "Objection #7" and "Objection #14," Hawkins objects to the Magistrate
Judge's finding that he violated his duty of candor to the Court. Reviewing the record de
novo, the Court agrees with the Magistrate Judge that Hawkins violated his duty of candor.
Hawkins obstructed the truth by submitting a frivolous privilege objection, filing a misleading
response to a motion to compel, failing to present materials at a limited deposition, and
failing to reveal that Ford withheld documents from production until pressed by the Court.
Therefore, this objection is also overruled.

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Fifth, in "Objection #8" (the only objection for which Hawkins cites to the record),
Hawkins objects to the Magistrate Judge's observation that Ford's deposition testimony
"suggests that [Hawkins'] inquiry [prior to Ford's first deposition] was insufficient." (Dkt.
147, at 14-15 (quoting Dkt. 146, at 21).) Hawkins argues that Ford's testimony "should
have not, in and of itself," compelled the Magistrate Judge to recommend that he be
sanctioned. (Dkt. 147, at 17.) The Court overrules this objection because the Magistrate
Judge did not base her recommendation for sanctions on the quoted statement; the R&R
even states that it "is unclear whether Hawkins conducted a reasonable inquiry ...." (Dkt.
146, at 20) (emphasis added). Instead, the Magistrate Judge's recommendation is based
on Hawkins' clear violations of Rules 26(g) and 37. Therefore, Hawkins' objection to the
cited portion of the R&R is irrelevant and overruled.
Finally, in "Objection #14," Hawkins appears to argue that the Magistrate Judge
applied the wrong legal standard in recommending that he could be sanctioned under the
Court's inherent authority. (Dkt. 147, at 21). The Court overrules this objection for two
reasons. First, the standard Hawkins cites, which appears in First Bank of Marietta v.
Hartford Underwriters Ins. Co., 307 F.3d 501 (6th Cir. 2002), does not apply to this case.
Williamson v. Recovery Ltd. P'ship, 826 F.3d 297, 302 (6th Cir. 2016) (holding that the First
Bank standard applies only in cases where the plaintiff has filed a frivolous lawsuit). The
proper test for this case, where the alleged bad faith involves an attorney's failure to comply
with a court order, "is whether [counsel] showed 'bad faith by ... hampering [the]
enforcement of a court order.'" Williamson, 826 F.3d at 297 (6th Cir. 2016) (quoting
Chambers v. NASCO, Inc., 501 U.S. 32, 46 (1991)). And, under this test, the Court agrees
with the Magistrate Judge that there are ample grounds for sanctioning Hawkins under the
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Court's inherent authority. For example, Hawkins hampered the enforcement of a court
order by filing a misleading objection to the motion to compel.
Second, even if Hawkins' conduct did not justify sanctions under the Court's inherent
authority, Hawkins' conduct would remain sanctionable under Rule 26(g). Rule 26(g)
"requires a court to impose sanctions for any violation without 'substantial justification.'"
Jones v. Illinois Central R. Co., 617 F.3d 843, 854 (6th Cir. 2010) (citing Fed. R. Civ. P.
26)). Hawkins has not offered evidence of any substantial justification for his violation.
Accordingly, Hawkins' final objection lacks legal and factual support, and it is overruled.
B. Ford's Objections
Ford lists thirty-two objections across sixty-two pages (Dkt. 152), but she never raises
a substantive challenge to a specific provision of the R&R, despite being advised by the
Magistrate Judge to do so. (See Dkt. 146, at 32.) Instead, Ford emphasizes irrelevant
facts and matters outside the record, insists on the accuracy of her assertions, bemoans
Defendants' litigation strategy, and challenges opposing counsel's moral and ethical
strictures. She also demands repeatedly that Defendants' motion be dismissed as a fraud
on the Court, objects to how the Magistrate Judge conducted the proceedings, and
criticizes the R&R generally.2 Given Ford's failure to file a specific substantive objection,
as well as the lack of legal and factual support for her arguments, the Court treats her filing
as a failure to object entirely. Howard, 932 F.2d at 509; see also McCready v. Kamminga,
113 F. App'x 47, 49 (6th Cir. 2004) (holding that pro se plaintiff waived right to appeal a
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The Court notes that it has the authority to sanction Ford: "[I]nherent power is not
limited to sanctioning attorneys only; we can sanction a party as well." Stalley v. Methodist
Healthcare, 517 F.3d 911 (6th Cir. 2008) (internal citations omitted). And the Court "should
not shrink from exercising it when sanctions are justified by the circumstances." Id.
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report and recommendation where he filed a "rambling" 143-page objection devoid of legal
and factual support). Accordingly, Ford's objections are all overruled.
C. Defendants' Objections
Defendants object to the R&R on three grounds. (Dkt. 148.) First, they object
that dismissal is the only appropriate sanction, and Defendants point to several facts on
the record that they believe compel dismissal of this case. (Id. at 9-19.) The Court,
having reviewed the record de novo, adopts the Magistrate Judge's analysis regarding
dismissal in its entirety (see Dkt. 146, at 27-31) and agrees that dismissal is not
warranted.
To review, the Magistrate Judge noted correctly that courts in the Sixth Circuit
consider four factors when deciding whether dismissal is an appropriate sanction: (1)
whether the party's failure to cooperate in discovery is due to willfulness, bad faith, or
fault; (2) whether the adversary was prejudiced by the party's failure to cooperate in
discovery; (3) whether the party was warned that failure to cooperate could lead to
dismissal; and (4) the availability of less drastic sanctions. (See id.; Harmon v. CSX
Transp., Inc., 110 F.3d 364, 366-67 (6th Cir. 1997).) The Magistrate Judge then
concluded reasonably that dismissal would be too harsh a sanction where the legally
incapacitated Plaintiff Beard did not contribute to the discovery abuses, Hawkins was
not stubbornly disobedient or willfully contemptuous, Ford's conduct might have resulted

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from mental deficits,3 and the prejudice to Defendants was not apparent. (Dkt. 146, at
31.)
Given that the Court agrees with the Magistrate Judge's conclusion regarding
dismissal, Defendants' first objection is overruled. See Carpenter v City of Flint, 723
F3d 700, 704 (6th Cir. 2013) ("[W]e have increasingly emphasized directly sanctioning
the delinquent lawyer rather than an innocent client ... because dismissing a plaintiff's
case with prejudice deprives a plaintiff of his day in court due to the inept actions of his
counsel.") (internal citations and quotation marks omitted); Beil v. Lakewood Eng'g and
Mfg. Co., 15 F.3d 546, 552 (6th Cir. 1994) ("Dismissal is the sanction of last resort.");
United States v. Shaffer Equip Co., 11 F.3d 450, 462 (4th Cir. 1993) ("Since orders
dismissing actions are the most severe, such orders must be entered with the greatest
caution.").
Next, Defendants argue that the proposed financial sanction is improper because it
provides Defendants with only half of the costs to which they are entitled. (Dkt. 148, at
20-24.) The Court disagrees for two reasons. First, the discretion afforded this Court
under the Rules of Civil Procedure is broader than Defendants suggest. While Rule 26
mandates sanctions for violations, it uses the permissive "may" when outlining the type
of sanction a court should order: "The sanction may include an order to pay the
reasonable expenses, including attorney's fees, caused by the violation." Fed. R. Civ.
P. 26(g)(3) (emphasis added); see also Rojas v. Town of Cicero, Ill., 775 F.3d 906, 909

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Neither the Court nor the Magistrate Judge has made a finding that Ford in fact
suffered from mental deficits, for such analysis falls outside our expertise. However, in
considering the drastic remedy of dismissal, the Court believes that the evidence
suggesting Ford suffered from cognitive limitations should bear some weight.
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(7th Cir. 2015) (When imposing Rule 26 sanctions, "[i]dentifying the 'appropriate'
sanction is a task for the district court. It could be money, but it also could be a formal
(and public) reprimand or censure.").
Similarly, while Fed. R. Civ. P. 37(a)(5)(A) provides that the court must require the
party whose conduct necessitated the motion for sanctions to pay the movant's
reasonable expenses, it also states the following: "But the court must not order this
payment if: ... (iii) other circumstances make an award of expenses unjust." Id.
(emphasis added); see also Laukus v. Rio Brands, Inc., 292 F.R.D. 485, 509 (N.D. Ohio
2013) ("Having concluded that [] conduct ... is sanctionable, the Court must determine
the appropriate penalty—one that will adequately compensate defendants, and deter
future litigants and counsel from engaging in similar discovery misconduct."). The
language in both rules thus indicates that the Court has flexibility when ordering
financial sanctions, regardless of whether the Court is relying on Rule 26 or Rule 37.
Second, the Sixth Circuit recently clarified that sanctions for discovery abuses are
not meant to be solely restitutive; that is, courts should not order sanctions aimed only
toward reimbursing the wronged party. Williamson, 826 F.3d at 305. Instead, "[i]t is
well established under Supreme Court and Sixth Circuit precedents that a court's
inherent power to sanction serves a punitive purpose, based on the need to deter
misconduct and vindicate the court's authority." Id.
Therefore, neither the Rules of Civil Procedure nor case law compels the Court to
award all the costs Defendants have incurred in litigating this motion. The Court has
broad discretion to fashion punitive sanctions (id. at 306), and the Court believes that
the Magistrate Judge correctly concluded that ordering Hawkins to pay only half of
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Defendants' costs--and Ford to pay none--is appropriate. (See Dkt. 146, at 25.) As the
Magistrate Judge stated, "Ford's conduct was the primary cause" of the events that
prompted Defendants' motion for sanctions (id.), so Hawkins should not be held totally
responsible. At the same time, assessing costs to Ford seems inequitable given the
evidence of what the Magistrate Judge fairly characterizes as "neurologic limitations and
confusion."4 (Id. at 26.) Accordingly, Defendants' second objection is overruled.
Finally, Defendants argue that a sanction removing Ford as guardian is both
insufficient and beyond the Court's authority. (Dkt. 148, at 25-26.) The Court agrees
with the latter contention and finds that it does not have jurisdiction to order that Ford be
replaced as guardian. See Sorrentino v. Barr Laboratories, Inc., 397 F. Supp. 2d 418,
423 (W.D.N.Y. 2005) (holding that district court did not have jurisdiction to enter order
replacing person as guardian and representative); Todd v. Garrison, 417 F. Supp. 97,
102 (E.D. Mo. 1976) (holding that party contesting appointment of guardian must bring
challenge before the Probate Court: "A collateral attack upon the appointment before
this Court ... is impermissible."). Accordingly, the Court must reject the Magistrate
Judge's recommendation that Ford be replaced as guardian.
However, the Court disagrees with Defendants' argument that another sanction
must be ordered. The remaining sanctions recommended by the Magistrate and
ordered by the Court suffice both as penalties for the misbehaving parties and as
expressions of the importance of adherence to discovery rules.

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Again, the Court is not making a finding that Ford suffers from mental deficits. It is
merely accounting for the evidence of Ford's disorientation as it considers the most
appropriate sanctions.
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IV. Conclusion
For the foregoing reasons, the Court ADOPTS IN PART the Magistrate Judge's
R&R and GRANTS IN PART Defendants' motion for sanctions. The Court orders the
following sanctions: (1) Hawkins must reimburse Defendants half the reasonable
expenses they incurred in litigating the motion; (2) Plaintiff's claim for deliberate
indifference is stricken; and (3) Ford cannot testify in Plaintiff's case in chief.
SO ORDERED.

s/Nancy G. Edmunds
Nancy G. Edmunds
United States District Judge
Dated: November 3, 2016
I hereby certify that a copy of the foregoing document was served upon counsel of
record on November 3, 2016, by electronic and/or ordinary mail.
s/Carol J. Bethel
Case Manager

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