Dumas v. Kelly Services, Inc. et al
Filing
114
OPINION and ORDER Denying Motion for Relief from Judgment 107 and Sustaining in Part Objections to Bill of Costs 102 . Signed by District Judge Laurie J. Michelson. (EKar)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
SOVEREIGN O’DELL,
Plaintiff,
v.
Case No. 15-13511
Honorable Laurie J. Michelson
Magistrate Judge R. Steven Whalen
KELLY SERVICES, INC.,
JOHN NICHOLSON,
TRACI HOPPER,
DAVID EAGER,
RICK PATTERSON, and
BERNADETTE KING,
Defendants.
OPINION AND ORDER DENYING MOTION FOR RELIEF FROM JUDGMENT
[107] AND SUSTAINING IN PART OBJECTIONS TO BILL OF COSTS [102]
In 2012, Defendant Kelly Services, Inc., placed Plaintiff Sovereign O’Dell in a call-center
job. While on the job, O’Dell experienced symptoms from several medical conditions. O’Dell
claims that Kelly refused to provide her with requested workplace accommodations and unlawfully
terminated her employment.
Right now, the merits of those claims are not before the Court. As a result of not responding
to discovery and not complying with court orders regarding discovery, O’Dell has been sanctioned.
O’Dell has now filed a motion asking this Court to revisit its decision to impose sanctions,
challenging the amount of the sanction, and arguing that her former counsel—not her—should pay
the sanction. O’Dell’s arguments for revisiting the decision to sanction are without merit. But the
Court will reduce the amount of the sanction.
I.
A.
Some procedural history is in order.
In November 2018, Defendant Kelly Services served discovery requests on O’Dell, who,
at that time, was representing herself in this case. (ECF No. 88, PageID.1012.) When O’Dell did
not respond on time, counsel for Kelly Services contacted O’Dell; O’Dell said she would respond
“within the next day,” December 19, 2018. (Id.) But by December 26, O’Dell still had not
responded; so Kelly’s counsel again contacted her. (Id.) This prompted O’Dell to produce a
number of documents. (ECF No. 88, PageID.1013.) But, with respect to Kelly’s interrogatories,
O’Dell said that she had responded to interrogatories served by Kelly’s former counsel back in
July 2016, and so she did not need to respond to the November 2018 interrogatories. (Id.) After
Kelly contacted its former counsel and learned that O’Dell had not responded to the July 2016
interrogatories, Kelly contacted O’Dell again. (Id.) O’Dell maintained that she had responded to
Kelly’s July 2016 interrogatories. (Id.)
Unable to resolve their dispute, Kelly sought a conference with Executive Magistrate Judge
R. Steven Whalen, who is handling all pretrial matters in this case. (Id.) At the January 2019
conference, Magistrate Judge Whalen told Defendants to again serve their discovery requests and
gave O’Dell 30 days to answer them. Kelly re-served its discovery requests on January 17, 2019.
(ECF No. 88, PageID.1013.)
As the 30-day deadline approached, O’Dell informed Kelly that she had retained an
attorney, Jeffrey S. Burg. Burg requested, and Kelly’s counsel granted, an additional two weeks to
respond to Kelly’s discovery requests. (ECF No. 98, PageID.1285.) But Burg did not meet the new
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deadline of March 19, 2019. (Id.) Burg then told Kelly’s counsel he would provide discovery
responses by March 22. (ECF No. 88, PageID.1014.) But he missed that deadline too.
So Magistrate Judge Whalen held another telephone conference and, following the
conference, issued an order. (ECF No. 98, PageID.1285–1286.) In that April 2019 order,
Magistrate Judge Whalen stated in part, “Plaintiff will comply with Defendant’s outstanding
discovery requests . . . within 14 days of the date of this Order. Because more than 30 days have
passed since the responses were due, Plaintiff has waived any objections to the discovery
requests.” (ECF No. 85, PageID.977.) He added, “Plaintiff’s failure to comply with this Order, or
with any discovery order, will result in sanctions, which may include monetary sanctions and/or
dismissal of the complaint.” (Id. (emphasis added).)
In April 2019, O’Dell finally responded to Kelly’s interrogatories. But her response was
unsigned. (ECF No. 88, PageID.1014.) And, in Kelly’s view at least, some of her answers were
deficient. For instance, O’Dell failed to identify all the lawsuits she had previously filed. (ECF No.
88, PageID.1088.)
In May and June 2019, Kelly took O’Dell’s deposition. In response to Kelly’s question of
whether there were unproduced documents responsive to a discovery request, O’Dell stated, “I
doubt it, but anything is possible.” (ECF No. 88, PageID.1090.) When Kelly inquired into prior
lawsuits (also the subject of an interrogatory), this exchange occurred:
Q. What have you done to determine whether or not there are additional lawsuits
that you filed?
A. I’ve tried to remember.
Q. Did you search for documents related to the lawsuits?
A. I don’t keep documents.
Q. Have you searched through your e-mails to determine whether or not there are
additional lawsuits?
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A. I haven’t. But I can tell you that Google took back all the space they gave so my
mailboxes were pretty much wiped out.
Q. Have you gone down to the courthouses to see if you can look up what lawsuits
you filed?
A. No.
Q. So you just tried to remember the lawsuits but you haven’t taken any other
actions to try to determine what lawsuits you filed?
A. No.
(ECF No. 88, PageID.1092.)
During the deposition, Kelly also probed the basis for O’Dell’s damages claim and learned
that O’Dell’s search for responsive documents may have been incomplete:
Q. So you’re claiming that you were damaged because of actions of Kelly Services
as it relates to your employment at Metro Community Development; correct?
A. Yes.
Q. You have an obligation to produce evidence to support that, if you have any in
your possession. What evidence do you have in your possession?
A. I wouldn’t know.
Q. How do you not?
A. If I knew that, I would have just said yes [to your earlier question] instead of
maybe it’s possible [that I have evidence].
Q. What efforts have you made to search for the evidence to support that
proposition?
A. I haven’t because I did not realize that that would be part of this claim. I’ve made
zero effort for that.
(ECF No. 88, PageID.1095–1096.)
Finally, when Kelly asked if there were documents that would refresh O’Dell’s recollection
as to her damages claim, O’Dell testified, “I believe that I have notes from when I was proceeding
pro se, so I would have had more notes about that so I would need to refer to those.” (ECF No. 88,
PageID.1098.) But, said O’Dell, the notes were not accessible because they were in a storage area
in her home. (Id.)
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Based on O’Dell’s deposition testimony, Kelly believed that O’Dell had not produced all
documents responsive to its discovery requests. So on June 3, 2019, Kelly asked O’Dell’s counsel
to produce the notes in the storage area and documents relating to her claim that she was fired from
Metro Community Development (or any other employer) because of actions of Kelly Services.
(ECF No. 88, PageID.1101.) Kelly’s counsel demanded the documents be produced by June 5,
2019. (Id.)
On the afternoon of June 5, Burg responded, “Sovereign is attempting to unearth the
documents today and tomorrow morning. I’ll let you know as soon as I hear from her.” (ECF No.
88, PageID.1100.) Burg’s response was unacceptable to Kelly: “These discovery requests have
been pending since November 2018, and Plaintiff just disclosed for the first time on Monday—
during her third day of depositions, and after I traveled to Michigan for the second time—that she
has these notes. . . . Additionally, the emails regarding her allegedly being terminated because of
Kelly’s actions are also responsive. . . . This failure to cooperate in discovery, despite being given
multiple opportunities and warnings from the Court, is objectionable and we will be requesting
sanctions from the Court.” (ECF No. 88, PageID.1100.)
Kelly followed through: it moved to have this case dismissed as a Rule 37 sanction. (ECF
No. 88.)
B.
Kelly’s motion was partly successful.
In February 2020, Magistrate Judge Whalen issued a report and recommendation on
Kelly’s Rule 37 motion. He found that O’Dell had “repeatedly disregarded discovery deadlines,
even after those dates were extended and even after the Court took the time to hold telephonic
conferences in which her obligations were clearly explained.” (ECF No. 98, PageID.1288.) He
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added, “Indeed, even after she retained counsel, it was revealed at her depositions that she in fact
possessed responsive documents in some “storage area” in her home but failed to search for them.”
(ECF No. 98, PageID.1289.) But Magistrate Judge Whalen thought “dismissal would be
excessive” and thus recommended a lesser sanction: O’Dell would pay Kelly’s attorney’s fees
associated with the Rule 37 motion. (ECF No. 98, PageID.1291–1292.)
Neither party objected to that recommendation, and so this Court adopted it. (ECF No. 98.)
In doing so, this Court ordered what Magistrate Judge Whalen had recommended: “Plaintiff shall
pay Defendants their reasonable costs and attorney’s fees expended in bringing [the Rule 37]
motion,” “Defendants shall submit a bill of costs to the Court,” and “Plaintiff has 14 days to file a
response to the bill of costs[.]” (ECF No. 100, PageID.1299.)
C.
The parties then proceeded just as this Court ordered.
In April 2020, Kelly filed its bill of costs. Kelly stated—and backed up its statements with
invoices and affidavits—that it incurred $10,385 in attorney’s fees in preparing its Rule 37 motion
and the bill of costs. (ECF No. 101.) O’Dell, through Burg, objected to the bill. (ECF No. 102.)
O’Dell’s counsel argued in part, “Defendant’s Bill of Costs seeks 24.5 attorney hours to be
reimbursed for the preparation of its unsuccessful motion to dismiss. This is excessive. . . . For an
experienced attorney, this is far too long.” (ECF No. 102, PageID.1326.)
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D.
But then things took another turn.
About two months after Plaintiff filed her response to the bill of costs, O’Dell’s counsel
sought to withdraw his representation. (ECF No. 104.) A bit later, Magistrate Judge Whalen
permitted Burg to withdraw. (ECF No. 106.)
Meanwhile, O’Dell had filed a pro se motion pursuant to Rule 60. (ECF No. 107; see also
ECF No. 105.) In her Rule 60 motion, O’Dell argued that her non-compliance in the discovery
process was not nearly as bad as Kelly made it seem. (ECF No. 107.) In seeking sanctions, Kelly
argued that O’Dell testified that she had responsive documents that she had not produced. But,
O’Dell explains, she merely testified that it was “possible” that she had notes about the litigation.
(Id. at PageID.1345.) And, says O’Dell, she later checked the storage area that she referenced in
her deposition, and there were no notes. (Id. at PageID.1345.) Further, O’Dell argues, even if she
had prepared notes for litigation, they would be akin to work product, and she would not be
required to produce them. (Id. at PageID.1343.) As for other documents, O’Dell says that they
were already in Kelly’s possession. (Id. at PageID.1342.)
Via her Rule 60 motion, O’Dell also seeks to shift blame to her former counsel. For
instance, O’Dell says that after her deposition, she gave Burg access to her Google Drive that had
documents related to this case but that Burg did not pass that along to Kelly. (ECF No. 107,
PageID.1344.) And, says O’Dell, Burg failed to oppose Kelly’s Rule 37 motion by raising the
work-product argument. (Id. at PageID.1344.) Further, she says that she expected Burg to object
to the Magistrate Judge’s sanction recommendation and that she only learned that he failed to do
so after her electronic-docket access was restored. (Id. at PageID.1344.) O’Dell asks that the
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$10,385 sanction be imposed against her former counsel, rather than her. (Id. at PageID.1346.) She
further indicates that she lacks the financial means to pay the sanction. (Id. at PageID.1342.)
II.
A.
For the moment, the Court sets to the side O’Dell’s arguments that the amount of the
sanction is too high and that her former counsel should pay it. The Court focuses first on O’Dell’s
implication that she should not have been sanctioned at all or that the sanction should have been
something other than having to pay the attorney’s fees associated with Kelly’s Rule 37 motion.
As an initial matter, O’Dell’s Rule 60 motion may be procedurally improper for two
reasons. For one, O’Dell failed to object to the Magistrate Judge’s report and, as warned by the
Magistrate Judge, “[f]ailure to file specific objections constitutes a waiver of any further right of
appeal.” (ECF No. 98, PageID.1293.) Her Rule 60 motion is arguably an end run around her
waiver. For two, it appears that Rule 60 is an ill fit for the circumstances. O’Dell relies on Rule
60(d)(3) and three provisions of Rule 60(b). But paragraph (b) refers to “a final judgment, order,
or proceeding” (emphasis added) and subparagraph (d)(3) refers to “a judgment.” The Court has
entered no judgment of attorney’s fees or a final order in this case. See Fed. R. Civ. P. 60(b)
advisory committee’s note to 1946 amendment (“[T]he qualifying word ‘final’ emphasizes the
character of the judgments, orders or proceedings from which Rule 60(b) affords relief.”).
The Court need not resolve these issues. Assuming that O’Dell may proceed under Rule
60, she has not shown that it warrants revisiting the decision to impose the sanction of paying
Kelly’s attorney’s fees. (Again, the amount and who should pay it will be addressed later.)
O’Dell relies on Rule 60(b)(3) and Rule 60(d)(3). They are similar: Rule 60(b)(3) permits
relief from a final order for fraud, “misrepresentation, or misconduct by an opposing party” and
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Rule 60(d)(3) permits relief “for fraud on the court.” But the Court does not believe Kelly
committed fraud or made a misrepresentation that warrants setting aside the sanctions order. While
at some points during her deposition O’Dell said it was “possible” that she had relevant documents,
during at least one point she said, “I believe that I have notes from when I was proceeding pro se
[in this case]. . . . I know there are things in front of [the notes] and on top of them [in a storage
area], so the way they are situated, they are inaccessible at this time. But I do know that I have
notes.” (ECF No. 88, PageID.1098.) So it was not plainly false for Kelly to argue, “O’Dell . . .
admitted under oath that she possessed, but did not produce, a number of documents responsive to
discovery and specifically relating to this case.” (ECF No. 96, PageID.1272.) If O’Dell thought
these notes were work-product, they still needed to be disclosed on a privilege log. See Fed. R.
Civ. P. 26(b)(5)(A). And even if Kelly exaggerated a bit, O’Dell’s admission at her deposition was
not the sole reason for sanctions. As set out above, there have been numerous discovery failings.
(See ECF No. 98, PageID.1284–1285.)
O’Dell also cites Rule 60(b)(1), which allows relief from a final order for “mistake,
inadvertence, surprise, or excusable neglect.” She does not explain how this provision of Rule 60
applies to her circumstances. To the extent that she asserts that her failure to respond to certain
discovery requests was simply a mistake or excusable neglect, the Court again notes the history of
non-compliance. (See ECF No. 98, PageID.1284–1285.) And a significant portion of that noncompliance was O’Dell’s personally, and, in any event, the usual rule is that the client suffers from
her attorney’s misdeeds. Link v. Wabash R. Co., 370 U.S. 626, 633–34 (1962) (“Petitioner
voluntarily chose this attorney as his representative in the action, and he cannot now avoid the
consequences of the acts or omissions of this freely selected agent. Any other notion would be
wholly inconsistent with our system of representative litigation, in which each party is deemed
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bound by the acts of his lawyer-agent and is considered to have ‘notice of all facts, notice of which
can be charged upon the attorney.’”). Also, while mistake or excusable neglect might prevent the
severe sanction of dismissal, it does not preclude a monetary sanction to reimburse the other party
who incurred legal fees as a result of the mistake or neglect.
As for Rule 60(b)(6), the Court is not persuaded that the circumstances here warrant
invoking that limited catchall. See Blue Diamond Coal Co. v. Trustees of UMWA Combined Ben.
Fund, 249 F.3d 519, 524 (6th Cir. 2001) (“[C]ourts must apply Rule 60(b)(6) relief only in unusual
and extreme situations where principles of equity mandate relief.” (internal quotation marks
omitted)). Again, the sanction was not imposed based on a single instance of non-compliance with
the discovery rules.
So, as Magistrate Judge Whalen recommended, and as this Court ordered in accepting his
recommendation, “pursuant to Fed. R. Civ. P. 37(b)(2)(C), Plaintiff shall pay Defendants their
reasonable costs and attorney’s fees expended in bringing” their Rule 37 motion.
B.
That leaves the issue of the amount of those reasonable costs and attorney’s fees and
whether O’Dell, her former counsel, or both should pay the sanction.
The Court has reviewed Kelly’s bill of costs and supporting documentation and will reduce
the amount O’Dell (or her counsel) is required to pay for Kelly’s briefs. Kelly spent 13.4 hours to
prepare its Rule 37 motion and opening brief. (ECF No. 101, PageID.1312.) That brief was 18
pages, included a detailed account of the procedural history, required legal research, and required
the preparation of several exhibits, including excerpts of depositions. (See ECF No. 88.) In
contrast, Kelly’s reply brief was only seven pages, did not require extensive new factual or legal
development, and had no exhibits. (See ECF No. 96.) Yet Kelly seeks reimbursement for the 10
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hours it took to prepare its reply brief—just 3.4 hours less than its more-involved opening brief.
(ECF No. 101, PageID.1313.) While the Court does not doubt that Kelly’s counsel in fact took that
much time to prepare the brief, and does not find that amount of time unreasonable, in light of the
opening brief it seems that Kelly’s counsel could have spent less time on their reply. Moreover,
the issue here is the amount of a sanction, not the proper amount to bill, and O’Dell has indicated
to the Court she simply lacks the financial means to pay $10,000 (it is unclear what means her
former counsel has to pay). So the Court will only require O’Dell to pay for eight of the hours
Kelly’s counsel took to prepare the reply brief.
The Court will also reduce the amount that O’Dell or her counsel has to pay for Kelly’s
preparation of its bill of costs. Kelly’s counsel spent 9.9 hours to prepare the bill. (ECF No. 101,
PageID.1314.) Preparing the bill was undoubtedly tedious, but it is not a sophisticated task
requiring involved legal research; and much of the preparation could have been done by a
paralegal. And the idea of collecting fees for collecting fees is not the most palatable, either. And,
again, the Court factors in O’Dell’s ability to pay in imposing sanctions. So the Court will only
incorporate 4.9 of the hours Kelly’s counsel took to prepare the bill of costs.
In all then, the Court will deduct seven hours of time that Julia Pozo spent in connection
with the Rule 37 motion and bill of costs (from the billings, Pozo was the attorney who did the
overwhelming majority of work on the motion). Her rate is $300 per hour, so the Court will deduct
$2,100 from the total of $10,385 for a total sanction of $8,285.
So that leaves the issue of who should pay—O’Dell, her former counsel, or both. As
documented above, some of the discovery issues arose before O’Dell retained counsel and one of
the bases for the sanction was O’Dell’s deposition testimony. And, as also noted above, the usual
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rule is that a client is responsible for her attorney’s conduct. Indeed, Magistrate Judge Whalen’s
order directs the sanction against “Plaintiff” and does not reference her counsel as well.
* * *
Thus, O’Dell is to pay Kelly $8,285. Half of this amount, $4,142.50, must be paid to Kelly
by December 18, 2020. The other half is due before entry of final judgment in this case. If O’Dell
prevails in this case, the outstanding amount can be deducted from her award.
SO ORDERED.
Dated: September 22, 2020
s/Laurie J. Michelson
LAURIE J. MICHELSON
UNITED STATES DISTRICT JUDGE
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