Norton v. Esurance Property and Casualty Company
OPINION AND ORDER DENYING DEFENDANTS MOTION TO DISMISS 24 . Signed by District Judge Gershwin A. Drain. (TBan)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 16-cv-10279
UNITED STATES DISTRICT COURT JUDGE
GERSHWIN A. DRAIN
ESURANCE PROPERTY AND CASUALTY
UNITED STATES MAGISTRATE JUDGE
ELIZABETH A. STAFFORD
OPINION AND ORDER DENYING DEFENDANT’S MOTION TO DISMISS 
This is a breach of contract case against an insurance provider. From August
2016 to January 19, 2017, Plaintiff was non-responsive to Court orders and
discovery requests. Pending before the Court is defendant-insurance provider’s
Motion to Dismiss . For the following reasons the Court will DENY Defendant’s
Motion without prejudice. However, if the Plaintiff again disobeys Court orders or
discovery requests, the Court will dismiss this case.
This case involves a motor vehicle accident on February 10, 2015, in Detroit,
Michigan. Dkt. No. 1, p. 9 (Pg. ID 9). Miyah Norton (“Plaintiff”) claims to have
been a passenger in a motor vehicle owned and operated by LaTasha Crimes. At the
time of the accident, Ms. Crimes was insured by Esurance Property and Casualty
Company (“Defendant”). Following the accident, Plaintiff alleged numerous
injuries. Id., p. 10 (Pg. ID 10). Plaintiff applied for benefits for household chore
services, home care services, transportation costs, outstanding medical care costs,
When Defendant refused to award the Plaintiff benefits, Plaintiff filed this
breach of contract action. This case was originally filed in the Circuit Court for
Wayne County on January 5, 2016. Dkt. No. 1, p. 8 (Pg. ID 8). On January 27, 2016,
Defendant removed to federal court. Id.
According to the Defendant, the Plaintiff repeatedly ignored attempts to
obtain a recorded statement regarding the accident, prior to the current litigation.
Dkt. No. 24, p. 4 (Pg. ID 226). Since the litigation has commenced, Plaintiff remains
inconsistent and nonresponsive. On April 15, 2016, Plaintiff failed to appear for her
deposition. Id., p. 5 (Pg. ID 227). After multiple attempts to reschedule the
deposition, the Court signed a stipulated order compelling the Plaintiff to attend her
own deposition on August 5, 2016. Dkt. No. 14. As best as the Court can tell, the
Plaintiff obeyed that stipulated order and appeared for deposition questioning.
After the Plaintiff failed to appear for a scheduled independent medical exam,
the Defendant moved to compel Plaintiff’s attendance. Dkt. No. 15. On August 24,
2016, Magistrate Judge Stafford granted the Defendant’s Motion to Compel and
required the Plaintiff to attend an independent medical exam and also to provide her
own transportation. Dkt. No. 22. On October 27, 2016, Plaintiff again failed to attend
her own independent medical exam. Dkt. No. 24-15 (Pg. ID 259).
On November 1, 2016, Defendant filed this current Motion to Dismiss. Dkt.
No. 24. The Plaintiff had until November 23, 2016 to timely respond to the motion.
See LR 7.1(e)(1)(B). The Plaintiff failed to meet this deadline. On December 22,
2016 this Court ordered the Plaintiff to show cause why this case should not be
dismissed. Dkt. No. 26. The Court’s order required the Plaintiff to file a response by
December 29, 2016. Id. The Plaintiff missed this deadline. The Plaintiff has not filed
anything on the docket since August 19, 2016.
On January 5, 2017, the Court held a hearing on the Motion to Dismiss.
Following that hearing, the Court ordered the Plaintiff to pay Defendant $375.00 in
sanctions and to produce to the Plaintiff, in person, at another hearing on January
19, 2017. Dkt. No. 30. The Plaintiff complied with both Court orders.
The Court will also acknowledge that the Plaintiff did attend one prior
independent medical exam for the Defendant, and the instant motion relates to a
“Under FED.R.CIV.P. 37(b)(2)(C), a district court may sanction parties who
fail to comply with its orders in a variety of ways, including dismissal of the lawsuit.”
Bass v. Jostens, Inc., 71 F.3d 237, 241 (6th Cir. 1995) (citing Bank One of Cleveland,
N.A. v. Abbe, 916 F.2d 1067, 1073 (6th Cir. 1990)). “The use of dismissal as a
sanction for failing to comply with discovery has been upheld because it
accomplishes the dual purpose of punishing the offending party and deterring similar
litigants from such misconduct in the future.” Id. (citing National Hockey League v.
Metropolitan Hockey Club, Inc., 427 U.S. 639, 642–43 (1976)).
“Dismissal is usually inappropriate where the neglect is solely the fault of the
attorney.” Carter v. City of Memphis, Tenn., 636 F.2d 159, 161 (6th Cir. 1980)
“[D]ismissal is an appropriate sanction where the party’s failure to cooperate with
the court’s discovery orders is due to willfulness.” Id. “A willful violation occurs
whenever there is a conscious and intentional failure to comply with the court order.”
See Bass, 71 F.3d at 237. (citing Brookdale Mill, Inc. v. Rowley, 218 F.2d 728, 729
(6th Cir. 1954)). “An order of the district court dismissing an action under Rule
37(b), FED.R.CIV.P., for willful failure to cooperate in discovery is reviewed under
an abuse of discretion standard.” Id. (citing Regional Refuse Systems, Inc. v. Inland
Reclamation Co., 842 F.2d 150, 154 (6th Cir. 1988) (“if a party has the ability to
comply with a discovery order and does not, dismissal is not an abuse of
Courts should consider “four factors in reviewing the decision of a district
court to dismiss a case for failure to prosecute: (1) whether the party’s failure is due
to willfulness, bad faith, or fault; (2) whether the adversary was prejudiced by the
dismissed party’s conduct; (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.” Wu v. T.W. Wang, Inc., 420
F.3d 641, 643 (6th Cir. 2005) (citing Knoll v. Am. Tel. & Tel. Co., 176 F.3d 359, 363
(6th Cir. 1999)). These factors have been applied more stringently in cases where
the plaintiff’s attorney’s conduct is responsible for the dismissal. Id. (Harmon v. CSX
Transp., Inc. 110 F.3d 364, 367 (6th Cir. 1997)).
A. Willfulness, Bad Faith or Fault
“The first factor—whether the party’s failure is due to willfulness, bad faith,
or fault—requires ‘a clear record of delay or contumacious conduct.’ ” Carpenter v.
City of Flint, 723 F.3d 700, 704–05 (6th Cir. 2013) (citing Freeland v. Amigo, 103
F.3d 1271, 1277 (6th Cir. 1997)). “Contumacious conduct refers to behavior that is
‘perverse in resisting authority’ and ‘stubbornly disobedient.’ ” Id. (citing Schafer v.
City of Defiance Police Dep’t, 529 F.3d 731, 737 (6th Cir. 2008). “The plaintiff’s
conduct must display either an intent to thwart judicial proceedings or a reckless
disregard for the effect of [her] conduct on those proceedings.” Id. (citing Wu, 420
F.3d at 643).
The conduct at issue here includes: (1) repeatedly ignoring Esurance’s
attempts to obtain a pre-litigation examination under oath; (2) failing to appear for a
deposition; (3) failing to appear for a medical exam, twice; and (4) failing to respond
to the Court’s order to show cause. The first two transgressions—refusing a prelitigation examination and missing a deposition—are certainly frustrating but are
less egregious than the types of conduct that reflect a clear record of contumacious
conduct. See Carpenter, 723 F.3d at 705 (finding “repeated noncompliance with
local filing rules and a delayed response to Defendants’ motion to strike” insufficient
to affirm dismissal). However, Plaintiff’s last two transgressions must be taken
seriously. This Court ordered Plaintiff to attend an independent medical exam and
ordered the Plaintiff to respond to the Defendant’s Motion to Dismiss. See Dkt. Nos.
22, 24. On both occasions Plaintiff acted in contempt of explicit Court orders. See
Mulbah v. Detroit Bd. of Educ., 261 F.3d 586, 592 (6th Cir. 2001) (finding dismissal
proper when Plaintiff “failed to respond to any discovery requests” or “acted in
contempt of a court order compelling cooperation with such requests[.]”). In this
case, Plaintiff’s conducts mirrors the bad faith described in Mulbah. Therefore,
Plaintiff’s disregard of multiple Court orders and failure to respond to discovery
requests weighs in favor of dismissal.
The second factor to examine is whether the Defendant was prejudiced by
Plaintiff’s conduct. See Mulbah, 261 F.3d at 589. “A defendant is prejudiced by a
plaintiff’s dilatory conduct if the defendant is ‘required to waste time, money, and
effort in pursuit of cooperation which [the plaintiff] was legally obligated to
provide.’ ” Carpenter, 723 F.3d at 707 (quoting Harmon v. CSX Transp., Inc., 110
F.3d 364, 368).
In this case, the Plaintiff is legally obligated to submit to medical examination.
See Mich. Comp. Laws § 500.3151 (“When the mental or physical condition of a
person is material to a claim that has been or may be made for past or future personal
protection insurance benefits, the person shall submit to mental or physical
examination by physicians.”) Notwithstanding this legal obligation, Plaintiff has
twice failed to appear to for medical examination. Defendant has waited over six
months (from at least June 15, 2015 until now), filed two motions (Motion to Compel
and Motion to Dismiss), and incurred at least $700 in non-show fees alone.
Furthermore, trial is less than six months away. Because of this wasted time, money
and effort, Defendant is clearly prejudiced by Plaintiff’s conduct. Prejudice,
therefore, weighs in favor of dismissal.
“The third factor to consider when determining whether the district court
abused its discretion in dismissing a case for failure to prosecute is ‘whether the
dismissed party was warned that failure to cooperate could lead to dismissal.’ ”
Carpenter 723 F.3d at 708 (citing Mulbah, 261 F.3d at 589). This factor saves the
Plaintiff’s claim from dismissal.
Absent from the Court’s prior two orders was the warning that noncompliance with the Court’s order will lead to dismissal of Plaintiff’s claim. Id.
(holding “boilerplate language, which does not explicitly identify dismissal as a
sanction, is not the type of notice sufficient to apprise a party of the possibility of
dismissal.”); see also Wu, 420 F.3d at 644 (holding that a show-cause order was
“insufficient to provide notice that the case might be dismissed” after the plaintiff
had responded to the order and “[t]he district court did not notify the parties that the
response was inadequate or that any further action was required[.]”). However, the
Plaintiff cannot rely on this factor to save her claim from dismissal in the future.
From this point on, Plaintiff’s failure to submit to an independent medical
exam or Plaintiff’s failure to comply with Court orders WILL result in dismissal
of the Plaintiff’s claim, in its entirety.
For the foregoing reasons, the Defendant’s Motion to Dismiss  is
DENIED, without prejudice. If the Plaintiff fails to timely submit to a medical exam,
Defendant’s Motion to Dismiss can be revived and this Court will dismiss the case.
Dated: January 19, 2017
/s/Gershwin A Drain
HON. GERSHWIN A. DRAIN
United States District Court Judge
I hereby certify that a copy of the foregoing document was mailed to the attorneys
of record on this date, January 19, 2017, by electronic and/or ordinary mail.
Case Manager, (313) 234-5213
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