Mowett v. Auto Owners Insurance Company et al

Filing 32

OPINION and ORDER Dismissing 1 Complaint. Signed by District Judge Robert H. Cleland. (SBur)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

DAVID MOWETT,
Plaintiff,
Case No. 15-14166

v.
AUTO OWNERS INSURANCE
COMPANY,
Defendant.
/

OPINION AND ORDER DISMISSING COMPLAINT
After a status conference on December 19, 2016, where Plaintiff admitted to
having failed to meet an extended discovery deadline, this court issued an order for
Plaintiff to show cause in writing why the complaint should not be dismissed for
discovery violations. (Dkt. #29.) The details of these failures are outlined in a
memorandum filed by Defendant. (Dkt. #28.) Plaintiff filed his response to the order to
show cause, (Dkt. #30), and Defendant has filed a reply, (Dkt. #31.) For the following
reasons the court will dismiss Plaintiff’s complaint.
I. BACKGROUND
Plaintiff alleges that Defendant wrongly refused to honor his insurance claim after
a flood damaged his home and property. He agreed to dismissal of all but his breach of
contract claim. (Dkt. #17.) On September 30, 2016, the court denied a motion by
Defendants which sought dismissal as a remedy for Plaintiff having failed to serve
timely initial disclosures and a three-month delay in the submission of his witness list.
(Dkt. #24.) However, the court struck Plaintiff’s late-filed witness list, ordered Plaintiff to

serve his initial disclosures, and admonished Plaintiff that dismissal was a possible
sanction for further discovery shortcomings.
A few weeks later, the parties held a telephonic status conference at Defendant’s
request to discuss documents which Plaintiff had identified during his deposition—on
the eve of the close of fact discovery—but neglected to produce. During the call, Plaintiff
did not deny the existence of these documents nor the fact that he had not produced
them. The court entered an order compelling the production of the identified documents
by December 19, 2016, when the court would hold another status conference. The
court’s order could not possibly have been clearer about the consequences of continued
missteps. It explained that “Plaintiff treads dangerously close to dismissal for his
repeated failures” but that the court would “once again stop short of outright dismissal
and allow Plaintiff another, final chance to right his ship.” (Dkt. #27, Pg. ID 140.) At the
December status conference, Plaintiff admitted that some outstanding documents still
had not been produced to Defendant, and the court ordered Defendant to file a
memorandum which outlined the items that were still owing. (Dkt. #28.) Shortly
thereafter, this court issued the order to show cause why the complaint should not be
dismissed as a sanction under Federal Rule of Civil Procedure 37. (Dkt. #29.)
Plaintiff’s response contends that he struggled to obtain and coordinate with
counsel in managing discovery, and that the lateness of his own deposition was not his
fault. These things are essentially irrelevant to the court’s order, which concerned the
continued failure to produce relevant discoverable documents within the time-frame
ordered by the court. Plaintiff also argues that he substantially complied with the court’s

2

order because he produced nearly all of the responsive items before the court-imposed
deadline.
Defendant argues that Plaintiff had ample opportunity to make good on his
discovery obligations. It contends that since these documents should have been
identified in Plaintiff’s late-filed initial disclosures, Plaintiff should not have scrambled
following his deposition to marshal them. Additionally, Defendant points out that
Plaintiff’s background is not that of an unsophisticated litigant, as it includes a Master’s
Degree in technology as well as experience as a pro se Plaintiff in four other lawsuits. It
also indicates that a crucial document, the spreadsheet of the estimation of Plaintiff’s
damage in support of his Proof of Loss, was not produced until after the December 19,
2016 deadline, and contends that some requested documents still remain outstanding.
II. STANDARD
“Federal Rule of Civil Procedure 37(b)(2) authorizes a court to dismiss a case
when a party has failed to obey an order regarding discovery.” Moses v. Sterling
Commerce (Am.), Inc., 122 F. App'x 177, 182 (6th Cir. 2005). When reviewing the
dismissal of a complaint, the court considers four factors: (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 dismissed party's failure to cooperate in discovery; (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.

3

III. DISCUSSION
Plaintiff’s continued deviation from the ordered course of discovery despite
repeated warnings from the court inspires little confidence that, even if this case were
allowed to proceed, he would leap to action and readily conduct what remains of the
case in a manner which evidences a respect for the time and resources of opposing
counsel and this court. For months the court has provided clear warning about the perils
of further noncompliance with court-imposed deadlines, but to very little effect.
Understanding that Plaintiff struggled to assemble the resources to prosecute
this case, his conduct still evidences a willful disregard for his clearly delineated
obligations, first to file timely and complete initial disclosures and a witness list, then to
produce specifically identified documents within an extended deadline while the court
explicitly warned Plaintiff of potentially drastic sanctions. The court earlier imposed the
lesser sanction of striking Plaintiff’s witness list, but evidently even this was not
sufficient to induce an appreciation for the significance of his discovery obligations.
Additionally, Defendant has clearly been prejudiced by incurring costs and delays while
trying to belatedly drag from Plaintiff items which are typically freely exchanged over the
normal term of fact discovery without incident. Thus, every factor favors dismissal.
Plaintiff’s response is inadequate to successfully oppose this account of the
record. The court will not wade into the details of the emails exchanged between the
parties over the course of discovery and other sundry. The simple fact remains that this
court ordered production of the outstanding documents, in no uncertain terms, by a
clear deadline–one more deadline which Plaintiff has left unmet without excuse. The
fact that Plaintiff is proceeding pro se does not meaningfully alter the analysis. Plaintiff’s

4

missteps were no technical procedural default which required special training to avoid.
Therefore the court will dismiss Plaintiff’s complaint. However, the court will not award
Defendant fees and costs as requested. Even for the conduct discussed here, such a
sanction coupled with dismissal looms too large.
IV. CONCLUSION
IT IS ORDERED that Plaintiff’s complaint (Dkt. #1) is DISMISSED WITH
PREJUDICE.
S/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: March 1, 2017
I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, March 1, 2017, by electronic and/or ordinary mail.
S/Shawna C. Burns
Case Manager Generalist
[phone]

3/1/17:Q:\Cleland\JUDGE'S DESK\C2 ORDERS\15-14166.MOWETT.Dismiss.bss.rhc.wpd

5