Mullins v. Norris et al
MEMORANDUM signed by Chief Judge Kevin H. Sharp on 9/17/2015. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
LLOYD NORRIS, et al.
Civil No. 2:14-CV-0045
Pending before the Court is Defendant Lloyd Norris’s Motion to Dismiss (Docket No.
105). Defendant argues that Plaintiff Shun Mullins “deliberately failed to respond to discovery”
for more than a year. (Docket No. 106, p. 1.) Defendant’s motion is unopposed.1 For the
reasons set out below, the Court will GRANT the motion.
Plaintiff filed a pro se complaint (Docket No. 1) on April 29, 2014. The complaint
includes claims under 42 U.S.C. §§ 1983 and 1985; the Tennessee Governmental Tort Liability
Act (Tenn. Code Ann. § 29-20-101, et seq.); and Tennessee common law.
Defendant sent Plaintiff a set of interrogatories and a request for documents on June 23,
2014. (Docket No. 28, Ex. C.) Plaintiff asked Defendant for more time, and Defendant agreed
to give Plaintiff until August 25, 2014 to respond to the requests. (Docket No. 28, Ex. B.)
After Plaintiff failed to provide answers by August 25, Defendant filed a Motion to
Compel (Docket No. 28). That same afternoon, Plaintiff submitted responses to the first set of
Plaintiff has not filed a response to the Motion. Local Rule 7.01(b) provides that “[f]ailure to file a timely response
shall indicate that there is no opposition to the motion.” M.D. Tenn. R. 7.01(b).
(See Docket No. 29, Ex. H.)
To nine of the twelve questions in the
interrogatories, Plaintiff wrote a one-sentence answer: “Request denied pending legal advice.”
(Id.) Plaintiff did not send any of the documents that Defendant requested.
In response, Defendant filed a Supplemental and Revised Motion to Compel (Docket No.
29) and asked for a court order requiring Plaintiff to provide the requested documents and
responses to interrogatories. The Magistrate Judge granted the motion and gave Plaintiff until
October 6, 2014 to comply. In doing so, the Magistrate Judge recommended that “this action be
dismissed” if Plaintiff missed the October 6 deadline. (Docket No. 41, p. 1.)
By October 6, Plaintiff had sent nothing to Defendant. The Magistrate Judge extended
the deadline again, giving Plaintiff until November 5, 2014 to comply. Plaintiff failed meet the
November 6 deadline. Instead, he filed another motion to extend the deadline. (Docket No. 62.)
The Magistrate Judge granted the motion, extending the deadline to November 20, 2014.
(Docket No. 66.) Yet again, Plaintiff failed to comply by the November 20 deadline.
The parties met for a case management conference on February 3, 2015. (See Docket
Nos. 83, 85.) During the conference, they agreed that Plaintiff would respond to Defendant’s
interrogatories and document requests by March 2, 2015, with all initial disclosures filed by
February 16, 2015. (Docket No. 97.) This agreement was memorialized in a Proposed Case
Management Order (Docket No. 93), which the Magistrate Judge adopted on February 19, 2015.
(Docket No. 97.)
Plaintiff did not send any responses by the February 16 and March 2 deadlines. After the
March 2 deadline, Defendant sent emails to Plaintiff’s attorney, but received no reply. (Docket
No. 105, Ex. 2.) Defendant then filed this Motion on March 12, 2015, asking the Court to
dismiss all of Plaintiff’s claims.
The Court has the power to dismiss the complaint under Rules 37 and 41 of the Federal
Rules of Civil Procedure. Rule 37(b)(2)(A) permits a court to dismiss a lawsuit when a party
fails to comply with a discovery order. FED. R. CIV. P. 37(b)(2)(A)(v). Such a dismissal
“accomplishes the dual purpose of punishing the offending party and deterring similar litigants
from such misconduct in the future.” Bass v. Jostens, Inc., 71 F.3d 237, 241 (6th Cir. 1995).
Similarly, Rule 41(b) allows a court to dismiss a complaint when the plaintiff has failed to
comply with a court order.
FED. R. CIV. P. 41(b). The rule “allows district courts to manage
their dockets and avoid unnecessary burdens on both courts and opposing parties.” Shavers v.
Bergh, 516 F. App’x 568, 569 (6th Cir. 2013) (citing Knoll v. Am. Tel. & Tel. Co., 176 F.3d
359, 363 (6th Cir. 1999)).
The Sixth Circuit uses a four-factor test to consider dismissal under Rule 41(b) or Rule
37(b)(2)(A). See Bank One of Cleveland, N.A. v. Abbe, 916 F.2d 1067, 1073 (6th Cir. 1990)
(setting out the four-factor test).2 Dismissal is appropriate when: (1) the plaintiff acted with
willfulness, bad faith, or fault; (2) the discovery violation prejudiced the defendant; (3) the
plaintiff had been warned that his conduct could lead to extreme sanctions; and (4) less drastic
sanctions were previously imposed or considered. Freeland v. Amigo, 103 F.3d 1271, 1277 (6th
Cir. 1997); Bass, 71 F.3d at 24; Bank One of Cleveland, 916 F.2d at 1073. No single factor is
dispositive. See Knoll, 176 F.3d at 363.
A. Did Plaintiff Show Willfulness, Bad Faith, or Fault?
The first Rule 37(b) factor is satisfied only with “a clear record of delay or contumacious
conduct.” Freeland, 103 F.3d at 1277. Such a record exists when a plaintiff shows “either an
The same four-factor test applies to both rules. See Shavers, 516 F. App’x at 569–70 (applying Rule 37(b)(2)(A)’s
four-factor test to dismissal under Rule 41(b)).
intent to thwart judicial proceedings or a reckless disregard for the effect of his conduct on those
proceedings.” Shavers, 516 F. App’x at 570 (quoting Schafer v. City of Defiance Police Dep’t¸
529 F.3d 731, 737 (6th Cir. 2008)).
Plaintiff’s conduct meets this standard. Four times, the Magistrate Judge ordered Plaintiff to
comply with discovery by a specific deadline. Plaintiff met none of these deadlines, even when
the Magistrate warned that failure to comply would lead to dismissal. And despite Defendant’s
repeated efforts to discuss discovery, Plaintiff has been completely non-responsive. In all,
Plaintiff has shown a “clear record of delay and contumacious conduct.” Freeland, 103 F.3d at
1277. See also Harmon v. CSX Transp., Inc., 110 F.3d 364, 368 (6th Cir. 1997) (“[The plaintiff]
failed to respond to the amicable requests of [the defendant’s] counsel, he failed to respond to
[the defendant’s] motion to compel, and he failed to comply with the district
court’s . . . order. . . . It is, in short, a clear record of delay and contumacious conduct.”).
B. Did Defendant Suffer Prejudice?
The second Rule 37(b) factor is met when a defendant “waste[s] time, money, and effort in
pursuit of cooperation which [a plaintiff] was legally obligated to provide.” Wright v. City of
Germantown, Tenn., 2013 WL 1729105, at *2 (W.D. Tenn. Apr. 22, 2013).
Defendant argues that Plaintiff’s conduct has frustrated any effort to prepare for trial. In
particular, Defendant notes that he has been unable to “gather records[,] . . . locat[e] or speak
to witnesses, [or] take needed depositions” based on Plaintiff’s responses to discovery requests.
(Docket No. 106, p. 3.) Defendant contends that he “has done everything he can to try and
secure cooperation from” Plaintiff, despite Plaintiff’s unwillingness “to cooperate in the
discovery process.” (Docket No. 106, p. 2.) This, Defendant concludes, “has amounted to
substantial and unfair prejudice.” (Docket No. 106, p. 3.)
The Court agrees. Defendant has been forced to waste time and money trying to secure
Plaintiff’s cooperation. Defendant has filed motions to compel Plaintiff to answer discovery
requests, repeatedly tried to communicate with Plaintiff, and attended case management
conferences in order to find mutually agreeable deadlines for discovery. So far, these efforts
have been fruitless; Plaintiff is no closer to cooperating with Defendant’s discovery requests than
he was a year ago.
C. Was Plaintiff Warned that His Conduct Could Lead to Extreme Sanctions?
Prior notice—or the lack thereof—is a key consideration in determining whether dismissal
under Rule 37(b) is appropriate. Schafer, 529 F.3d at 737; Moses v. Am. Apparel Retail Inc.,
2015 WL 4665968, at *15 (W.D. Tenn. Aug. 6, 2015). The Sixth Circuit has repeatedly required
that lower courts “put the derelict parties on notice that further noncompliance would result in
dismissal.” Wu v. T.W. Wang, Inc., 420 F.3d 641, 644 (6th Cir. 2005).
Plaintiff was on notice that his failure to complete discovery could lead to dismissal. In the
September 22, 2014 order, the Magistrate Judge warned that “if Plaintiff fails to comply with”
the court-ordered deadlines, the Judge would “recommend that this action be dismissed.”
(Docket No. 41.) Despite this warning, Plaintiff did not meet the deadline for discovery.
D. Were Less Drastic Sanctions Imposed or Considered?
The fourth Rule 37(b) factor is met when “less drastic sanctions [than dismissal] were
imposed or considered” in response to a plaintiff’s conduct. Regional Refuse Sys., Inc. v. Inland
Reclamation Co., 842 F.2d 150, 154 (6th Cir. 1988). But the Sixth Circuit has stressed that
“consideration of lesser sanctions is a factor” in the Rule 37(b) analysis; lesser sanctions are not
a prerequisite for a dismissal order. Harmon, 110 F.3d at 368 (emphasis in original). Moreover,
a court is not required to “incant a litany of the available lesser sanctions” or to assume “that
lesser sanctions were not considered simply because their consideration is not” clear in the
record. Id. See also Shavers, 516 Fed. App’x at 571 (ordering dismissal despite the record’s
silence as to whether the magistrate judge considered lesser sanctions).
The record does not reveal whether the Magistrate Judge considered lesser sanctions. But in
this case, dismissal is an appropriate first sanction. Because Plaintiff filed his complaint pro se
and has mentioned financial difficulties in letters to the Court, financial sanctions would
probably not spur Plaintiff into compliance. See Id. And his stubborn, year-long refusal to
cooperate is “sufficiently egregious” to warrant a drastic sanction. Harmon, 110 F.3d at 368
(holding that district court properly ordered dismissal as a first sanction when a full year had
passed after the defendant first submitted discovery requests).
Dismissal under Rules 41(b) and 37(b)(2)(A) is a “sanction of last resort.” Beil v.
Lakewood Eng’g & Mfg. Co., 15 F.3d 546, 552 (6th Cir. 1994). But here, it is appropriate. The
record is thick with evidence of Plaintiff’s bad faith and dilatory conduct. The Magistrate Judge
issued a clear warning to Plaintiff about that conduct. And Defendant has wasted time, money,
and effort in a futile attempt to secure Plaintiff’s cooperation.
For the foregoing reasons, the Court GRANTS Defendant’s Motion to Dismiss.
appropriate Order will be entered.
KEVIN H. SHARP
UNITED STATES DISTRICT JUDGE
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