Nelson v. RICOH USA, INC.
ORDER Granting defendant's MOTION to Compel Plaintiff to Respond to Discovery Requests and Provide Rule 26(A)(1) Disclosures 10 , Accepting in part and Rejecting in part Report and Recommendation 14 , granting plaintiff's objections 15 , and ORDER REFERRING MOTION to Magistrate Judge Elizabeth A. Stafford: 17 plaintiff's MOTION for Discovery Conference. Signed by District Judge George Caram Steeh. (MBea)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
CASE NO. 17-CV-11390
HON. GEORGE CARAM STEEH
RICOH USA, INC.,
ORDER GRANTING DEFENDANT’S MOTION TO
COMPEL (Doc. 10), ACCEPTING IN PART AND REJECTING
IN PART REPORT AND RECOMMENDATION (Doc. 14),
GRANTING PLAINTIFF’S OBJECTIONS (Doc. 15), and
REFERRING PLAINTIFF’S MOTION FOR DISCOVERY
CONFERENCE (Doc. 17) to the MAGISTRATE JUDGE
Plaintiff Michelle Nelson, a sales representative for her employer,
Defendant Ricoh USA, Inc., since 1997, alleges she lost her best account
and has been denied commissions since returning from leave for cancer
treatment in violation of the Family and Medical Leave Act . Now before
the court is Defendant’s motion to compel discovery responses which this
court referred to Magistrate Judge Elizabeth Stafford. In its motion to
compel, Defendant sought dismissal and costs and fees. Plaintiff failed to
respond to Defendant’s motion to compel. The Magistrate Judge entered
an order to show cause why the action should not be dismissed pursuant to
Federal Rule of Civil Procedure 41. Plaintiff failed to respond. Magistrate
Judge Stafford then recommended that this case be dismissed and that
Defendant be awarded costs and fees.
Plaintiff timely filed objections to the Report and Recommendation on
the basis that she has allegedly complied with discovery requests, and
failed to respond to the Court’s show cause order because of technical
problems with her e-mail. Defendant responds that although it has
received some discovery responses, they are incomplete and consist, in
part, of 2,000 pages of documents which are not Bates stamped or
organized in any fashion. Defendant also responds that the parties
negotiated for full disclosures from Plaintiff, and agreed to ask the
Magistrate Judge to continue the hearing on the motion to compel pending
those disclosures, with the understanding that Plaintiff would prepare the
joint motion for continuance and proposed order. Despite this agreement,
Plaintiff failed to prepare those papers.
District courts have discretion to dismiss a suit for failure to prosecute
and consider four factors to determine whether dismissal is warranted:
(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 of the action.
Carpenter v. City of Flint, 723 F.3d 700, 704 (6th Cir. 2013) (citing Mulbah
v. Detroit Bd. of Educ., 261 F.3d 586, 589 (6th Cir. 2001). Dismissal is a
drastic sanction and the Sixth Circuit has cautioned that it is generally
preferable to sanction the lawyer directly for his or her misconduct, rather
than depriving a plaintiff of his or her day in court. Id. Specifically, the
Sixth Circuit has stressed that “[d]ismissal is usually inappropriate where
the neglect is solely the fault of the attorney.” Id. (quoting Carter v. City of
Memphis, 636 F.2d 159, 161 (6th Cir. 1980)).
Magistrate Judge Stafford recommended that dismissal was
warranted because Plaintiff had failed to provide initial disclosures, respond
to discovery requests, respond to the motion to compel, or respond to the
court’s show cause order. Defendant agrees, however, that Plaintiff did
provide some initial disclosures by way of several binders of documents
totaling some 2,000 pages and admits that Plaintiff provided responses to
its first request for document requests and first set of interrogatories.
Defendant argues that the binders were disorganized and not properly
responsive. Plaintiff responds that the binders were organized by fiscal
year, account name, or medical records, and that one of the binders was
organized by commissions. Plaintiff also represents that she sent a thumb
drive to Defendant with responsive documents.
The court has reviewed Plaintiff’s answers to Defendant’s first
interrogatories dated November 8, 2017, and finds that those answers were
quite detailed, containing for example identification of nearly 50 individuals
with knowledge of the subject matter of the litigation. Plaintiff’s answers to
Defendant’s first request for documents are more problematic. In those
answers, Plaintiff generally refers Defendant to the binders previously
produced rather than responding anew. Federal Rule of Civil Procedure
34(b)(2)(E)(i), however, requires that a party responding to a document
request must “produce documents as they are kept in the usual course of
business or must organize and label them to correspond to the categories
in the request.” Plaintiff has failed to do so here. In her response to
Defendant’s request for documents, Plaintiff also responds that “she has no
problem producing all documents she has relating to her employment – in
fact she welcomes it – and will do so, as long as Defendant compensates
her for the cost of duplication and copying.” (Doc. 19-2 at PgID 129).
However, under the discovery rules, “the presumption is that the
responding party must bear the expense of complying with discovery
requests, but he may invoke the district court's discretion under Rule 26(c)
to grant orders protecting him from ‘undue burden or expense’ in doing so,
including orders conditioning discovery on the requesting party's payment
of the costs of discovery.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S.
340, 358 (1978).
Although Plaintiff’s responses were not fully compliant with the
requirements of the Federal Rules of Civil Procedure, this is not the
situation where Plaintiff has been totally nonresponsive. By Defendant’s
own admissions, Plaintiff has produced nearly 2,000 documents. Plaintiff
has responded to Defendant’s requests for document production and
interrogatories, and although some of Plaintiff’s responses should have
been more detailed and forthcoming, Plaintiff’s shortcomings are not so
severe as to justify the most draconian sanction of dismissal. Plaintiff’s
incomplete responses to discovery requests do not appear to have been
taken in bad faith, and the discovery cut-off date is still a month away, and
four months away for expert discovery, suggesting that any prejudice can
be cured before that time through supplemental responses. Because less
serious sanctions, short of dismissal, are sufficient to remedy the discovery
violations at issue here, the court shall adopt the Magistrate Judge’s
recommendation that costs and fees be awarded, but shall not dismiss the
action at this time. For the foregoing reasons,
IT IS ORDERED that Defendant’s motion to compel (Doc. 10) is
GRANTED and Plaintiff is ordered to produce her Rule 26(a)(1) disclosures
and to produce complete written responses to Defendant’s first and second
set of interrogatories and first and second set of document requests on or
before January 22, 2018. Should Plaintiff fail to do so, sanctions up to and
including dismissal may be warranted. Plaintiff is also instructed to provide
detailed responses to Defendant’s requests for production of documents
and cannot rely strictly on a reference to the previously disclosed binders,
and shall bear the cost of copying those documents. Plaintiff is also
reminded to follow Local Rule 5.1 regarding font size when filing papers
with this Court.
IT IS FURTHER ORDERED that the court ACCEPTS the Magistrate
Judge’s recommendation (Doc. 14) that costs and fees in connection with
the motion to compel be awarded to Defendant, but REJECTS the
recommendation (Doc. 14) that this action be dismissed at this time.
Consistent with these rulings, Plaintiff’s objections (Doc. 15) are
IT IS FURTHER ORDERED that Plaintiff’s motion for a discovery
conference (Doc. 17) is referred to the Magistrate Judge.
IT IS SO ORDERED.
Dated: January 11, 2018
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
January 11, 2018, by electronic and/or ordinary mail.
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