Norris et al v. MK Holding, Inc. et al

Filing 124

ORDER ADOPTING REPORT AND RECOMMENDATIONS. Order granting 70 Defendants' Rule 37(d) Motion for Sanctions; granting 72 Defendants' Motion to Exclude Expert Report and Testimony; granting 108 Defendants' Rule 37(c) Motion for Sanctions. This case is DISMISSED. Signed by Judge Samuel H. Mays, Jr on 08/17/2017. (Mays, Samuel)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

IN RE REGIONS MORGAN KEEGAN
SECURITIES, DERIVATIVE & ERISA
LITIGATION,

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CEIL WALKER NORRIS, in her
role as co-trustee and
beneficiary of the Walker
Marital Trust #2, the Vernon
Walker Trust for Cecilia
Walker and The Vernon Walker
Trust for Deloss Walker, as
principal and beneficiary of
the Ceil Walker Rollover IRA,
WALKER & ASSOCIATES, INC., and
CEIL T. WALKER REVOCABLE
TRUST,
Plaintiffs,
v.
MK HOLDING, INC. d/b/a/
REGIONS MORGAN KEEGAN TRUST
COMPANY and REGIONS FINANCIAL
CORPORATION,
Defendants.

No. 2:09-md-02009

No. 2:08-cv-02830

ORDER

Before

the

Court

is

the

Magistrate

Judge’s

Report

Recommendation, dated April 28, 2017 (the “Report”).
118.)

and

(ECF No.

The Court referred three motions, filed by Defendants MK

Holding,

Inc.

and

Regions

Financial

Corporation,

to

the

Magistrate Judge for a determination: (1) Defendants’ Rule 37(d)

Motion for Sanctions Due to Plaintiffs’ Failure to Respond to
Discovery

(the

“Discovery

Sanctions

Motion”)

(ECF

No.

70);

(2) Defendants’ Motion to Exclude Expert Report and Testimony of
P. Richard Evans
(3) Defendants’
Plaintiffs’

(the “Exclusion Motion”)
Rule

Failure

37(c)
to

Motion

Comply

with

(ECF No. 72); and

for

Sanctions

Rule

26(a)(3)

Due
and

to
this

Court’s Order (the “Pretrial-Disclosure Sanctions Motion”) (ECF
No.

108).

The

Report

recommends,

as

a

sanction,

that

this

action be dismissed for “Plaintiffs’ counsel’s repeated failure
to participate in the discovery process and failure to obey
orders of the Court.”

(ECF No. 118 at 1.)

On May 12, 2017,

Plaintiffs Ceil Walker Norris, Walker & Associates, Inc., and
the

Ceil

T.

Walker

Magistrate

Judge’s

“Objections”).
2017.

Revocable

(ECF

Trust

Report

and

(ECF No. 121.)
No.

122.)

filed

an

“Appeal

of

Recommendation”

the
(the

Defendants responded on May 26,

Without

seeking

leave

of

Court,

Plaintiffs filed a reply in support of their Objections on June
2, 2017.1
For

(ECF No. 123.)
the

Defendants’

following

reasons,

the

Report

is

ADOPTED,

Discovery Sanctions Motion, Exclusion Motion, and

Pretrial-Disclosure Sanctions Motion are GRANTED, and this case
is DISMISSED.
1

The Local Rules do not permit, as a matter of course, replies
in support of objections to a magistrate judge’s report and
recommendations. See L.R. 72.1(g)(2).
2

I.

BACKGROUND
The Magistrate Judge found the following facts relevant to

Defendants’ Discovery Sanctions Motion, to which Plaintiffs do
not object:
Plaintiffs filed this action against Defendants
on December 1, 2008 generally alleging that MK Holding
breached its duties as Trustee of the Plaintiff Trusts
by investing Plaintiffs’ assets in certain Bond Funds.
This case was consolidated in MDL proceedings on July
10, 2009.
On February 5, 2016, Defendants served Plaintiffs
with
their
First
Interrogatories,
Request
for
Production of Documents and Request for Admissions.
Plaintiffs failed to timely respond by the deadline of
March 4, 2016.
On March 11, 2016, Defendants sent
Plaintiffs’ counsel a letter notifying Plaintiffs that
the Requests for Admission were deemed admitted due to
Plaintiffs’ failure to respond, and asked that
Plaintiffs respond to the Request for Production and
Interrogatories by March 28, 2016. Plaintiffs did not
respond to Defendants’ letter, nor did Plaintiffs
respond to the follow up letter on March 31, 2016. A
status conference was held April 4, 2016 wherein the
Court directed the parties to provide additional
discovery to one another by April 18, 2016, however
Plaintiffs again failed to respond.
On April 25, 2016, Defendants sent Plaintiffs a
third letter attempting to elicit the past-due
discovery responses.
In response, on May 5, 2016,
Plaintiffs
provided
responses
to
Defendants’
Interrogatories and some responsive documents. On May
23,
2016,
Defendants
sent
Plaintiffs
a
letter
identifying the deficiencies in Plaintiffs’ production
and asking that Plaintiffs correct the deficiencies by
May 27, 2016. Plaintiffs did not respond.
On May 31, 2016, Defendants engaged Plaintiffs in
a telephone call in an attempt to resolve the
discovery issues.
Plaintiffs agreed to produce
written
responses
to
Defendants’
Requests
for
Production
and
to
produce
additional
responsive
3

documents.
Plaintiffs finally provided additional
discovery on June 8, 2016 which was insufficient.
(ECF No. 118 at 2.)
Thereafter, Defendants engaged Plaintiffs through a series
of

emails

and

telephone

withheld discovery.

calls

in

an

attempt

to

obtain

the

Defendants emailed Plaintiffs on June 9,

2016, prompting a telephone call in which Plaintiffs agreed to
produce additional documents or responses and, as to certain
document

production

conducting

a

documents.
perform.

requests,

good
(ECF

faith
Nos.

search,

65-8,

(ECF No. 65-10.)

confirm

in

writing

they

65-9.)

had

that,

no

after

additional

Plaintiffs

failed

to

On June 15, 2016, Plaintiffs again

agreed, during a telephone call with Defendants, to produce the
documents and responses promised.

(Id.)

On June 22, 2016,

Defendants emailed Plaintiffs and asked them to bring copies of
all responsive documents Plaintiffs had agreed to produce to a
deposition

scheduled

the

following

day.

(ECF

No.

65-11.)

Plaintiffs again failed to produce the requested documents and
information.

(ECF No. 65-12.)

On June 25, 2016, Defendants

emailed Plaintiffs informing them that, if the requested items
were not produced by June 27, 2016, Defendants would file a
motion to compel.

(Id.)

As the Report discusses, on June 28, 2016, after Plaintiffs
had failed to produce the requested items, Defendants filed a

4

motion

to

compel

Defendants

production

requests

for

of

all

documents

production

responsive
responses

and

to
to

Interrogatories Nos. 22 and 23 (the “Motion to Compel”).
No. 65 at 6-7.)
(ECF

No.

67

(ECF

Plaintiffs failed to respond to that motion.

at

1.)

On

July

21,

2016,

the

Court

granted

Defendants’ Motion to Compel and provided:
The
Plaintiffs
are
ordered
to
(1) produce
responsive documents to each of Defendants’ Requests
for Production or to confirm in writing that,
following a good faith search, no responsive documents
exist; and (2) provide Defendants with the information
sought in Defendants’ Interrogatories Nos. 22 & 23
within fourteen days of the date of this order.
The Plaintiffs are warned that, henceforth,
failure to comply with proper discovery requests,
discovery obligations, or orders of this court will
lead to dismissal of the complaint.
(the “July 2016 Order”) (Id. at 2.)
The Report finds that, “[f]ollowing this Order, Plaintiffs
produced an additional set of documents but failed to provide
written confirmation that they had conducted a good faith search
and

produced

all

responsive

documents,

nor

did

they

provide

written responses to Interrogatory Nos. 22&23, in contravention
of the Court’s Order.”
Addressing

(ECF No. 118 at 3.)

Defendants’

Exclusion

Motion,

the

Magistrate

Judge found the following facts, which Plaintiffs generally do
not dispute:
On
August
16,
2016,
disclosure
of
expert
witnesses, pursuant to the parties’ Scheduling Order
5

and Federal Rule of Civil Procedure 26(a)(2), was due
for “Plaintiff (or any party with burden of proof.)”
Plaintiffs did not provide any expert disclosures. On
September 16, 2016, the disclosure of “Defendant’s (or
opposing party) rule 26(a)(2) expert information” was
due, and Defendants met this deadline, serving
[Plaintiffs] with their expert report on that date.
On October 14, 2016, Plaintiffs served Defendants with
a report that they classify as a rebuttal expert
report.
(Id.)

Plaintiffs’ counsel acknowledges that the expert report

Plaintiffs

furnished

Defendants

did

not

include

the

expert’s

curriculum vitae, a list of cases in which he had testified, or
the terms of his compensation.

(ECF No. 121-1 ¶ 9 at 3.)

Plaintiff’s counsel provided that information after Defendants
had filed the Exclusion Motion.
Addressing

(Id.)

Defendants’

Pretrial-Disclosure

Sanctions

Motion, the Magistrate Judge found: “The present case was set
for

trial

on

April

17,

2017.

Accordingly,

Plaintiffs

were

required to disclose their exhibits and witnesses they intended
to present at trial by March 20, 2017.
deadline.”

(ECF No. 118 at 3.)

Plaintiffs missed this

The Magistrate Judge found that

“Defendants did not receive Plaintiffs’ exhibit or witness lists
until two business days before this Court’s deadline for filing
motions in limine.”

(Id. at 9; see ECF No. 86 at 4.)

Two

business days before the motions-in-limine deadline was March

6

30, 2016.2

Plaintiffs do not object to the Magistrate Judge’s

finding that they did not disclose their trial exhibits and
witnesses by March 20, 2017.
The

Magistrate

Judge

(See ECF No. 121 at 10-11.)
found

that

Plaintiffs’

counsel

had

failed to timely respond to requests and interrogatories, in
violation

of

Rule

37(d),

and

had

failed

to

comply

Court’s July 2016 Order, in violation of Rule 37(b).3

with

the

(ECF No.

118 at 4.)

The Magistrate Judge considered whether dismissal

would

appropriate

be

comply

an

with

discovery

sanction

for

obligations

Plaintiffs’

based

on

the

failure

to

following

factors:

2

Plaintiffs’ counsel has filed a declaration in which he states,
“During the week of March 27, 2017, plaintiffs’ counsel
circulated a draft of the joint proposed pretrial order, which
included, among other things, plaintiffs’ witness and exhibit
lists.” (ECF No. 121-1 ¶ 11 at 4 (emphasis added).) Plaintiffs
contend that the Report “concluded that . . . the lists were
produced . . . on March 27, 2017.”
(ECF No. 121 at 17 (citing
ECF No. 118 at 9).) Plaintiffs thus argue that the exhibit and
witness lists were produced on March 27, 2017. (Id. at 17-18.)
The Report does not find that Plaintiffs’ lists were produced on
March 27, 2017.
The Report noted Plaintiffs’ argument that
their “lists were provided to Defendants during the week of
March 27th,” but found that Plaintiffs, in fact, produced their
lists two business days before the motions-in-limine deadline,
or March 30, 2017.
(ECF No. 118 at 9 (emphasis added).)
Despite submitting other emails and documentary evidence in
support of their contentions, Plaintiffs have not submitted any
record evidence that undermines the Report’s findings about the
date Plaintiffs disclosed their trial exhibits and witnesses.
Plaintiffs contentions to the contrary are not well taken.
3

Unless otherwise noted, references to “Rule __” are to the
Federal Rules of Civil Procedure.
7

(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. (quoting Harmon v. CSX Transp., Inc., 110 F.3d 364, 366-67
(6th Cir. 1997)).)

The Magistrate Judge recommends finding that

all four factors have been met and that dismissal is proper.
(Id.

at

4,

6.)

The

Magistrate

Judge

also

recommends

that

dismissal would be proper under Rule 37(c) because Plaintiffs
failed to disclose their trial exhibits and witnesses 30 days
before trial, as required by Rule 26(a)(3).

(Id. at 8-9.)

The

Magistrate Judge found the “sanction of dismissal appropriate
given

Plaintiffs’

deadlines,

counsel’s

failure

to

extreme

comply

with

pattern

Court

of

Orders,

abuse
and

of

clear

warning given that failure to do so would lead to dismissal.”
(Id. at 10.)

If the Court were to find that dismissal is not an

appropriate sanction, the Magistrate Judge recommends granting
Defendants’

Exclusion

Motion

and

excluding

the

proposed

testimony and report of Plaintiffs’ expert witness under Rule
37(c)(1)

because

Plaintiffs

failed

to

timely

disclose

their

expert and, when they did so, the disclosure was inadequate,
both in violation of Rule 26(a)(2).

8

(Id. at 6-8.)

Plaintiffs object to the Magistrate Judge’s recommendations
and contend that Defendants’ sanctions motions should be denied.
(ECF No. 121 at 3.)

Defendants counter that the recommendations

should be adopted and the case dismissed or that, alternatively,
Plaintiffs should be prohibited from calling their witnesses,
including their expert witness, or presenting their exhibits at
trial.
II.

(ECF No. 122 at 30.)

LEGAL STANDARDS
Congress enacted 28 U.S.C. § 636 to relieve the burden on

the federal judiciary by permitting the assignment of districtcourt duties to magistrate judges.
237

F.3d

States,

598,
490

602

U.S.

(6th
858,

Cir.

See United States v. Curtis,

2001)

869-70

(citing

(1989));

Gomez

see

Peterson, 67 F. App’x 308, 310 (6th Cir. 2003).

also

v.

United

Baker

v.

For dispositive

matters, including motions to involuntarily dismiss an action,
“[t]he district judge must determine de novo any part of the
magistrate judge’s disposition that has been properly objected
to.”

Fed. R. Civ. P. 72(b)(3); 28 U.S.C. § 636(b)(1).

nondispositive

pretrial

matters,

the

district

judge

For
may

reconsider the magistrate judge’s disposition if it is “‘clearly
erroneous

or

contrary

to

law.’”

Curtis,

237

F.3d

at

603

(quoting 28 U.S.C. § 636(b)(1)(A)).
On de novo review, after reviewing the evidence, the court
is free to accept, reject, or modify the
9

magistrate judge’s

proposed findings or recommendations.

28 U.S.C. § 636(b)(1).

The district court is not required to review -- under a de novo
or

any

other

standard

--

those

aspects

of

recommendation to which no objection is made.
474 U.S. 140, 150 (1985).

the

report

and

Thomas v. Arn,

The district court should adopt the

magistrate judge’s findings and rulings to which no specific
objection is filed.

Id. at 151.

Arguments made in an objection

to a magistrate judge’s report and recommendation that were not
first presented to the magistrate judge for consideration are
deemed waived.
450

F.

See, e.g., Becker v. Clermont Cty. Prosecutor,

App’x

438,

439

(6th

Cir.

2011);

The

Glidden

Co.

v.

Kinsella, 386 F. App’x 535, 544 (6th Cir. 2010); Murr v. United
States, 200 F.3d 895, 902 n.1 (6th Cir. 2000).
III. ANALYSIS
Plaintiffs

contend

that

the

Magistrate

Judge

erred

in

finding that Plaintiffs failed to comply with the Court’s July
2016 Order, in violation of Rule 37(b), and that they failed to
disclose

their

trial

exhibits

and

witnesses

trial, as required by Rule 26(a)(3).
even

if

the

Court

finds

a

30

days

before

Plaintiffs argue that,

violation

of

either

rule,

the

Magistrate Judge erred in recommending dismissal based on the
factors articulated in Harmon.
Magistrate

Judge

erred

in

Plaintiffs also contend that the

finding

their

expert

disclosures

untimely and inadequate, in violation of Rule 26(a)(2), and in
10

recommending

that

their

expert’s

testimony

and

report

be

excluded under Rule 37(c)(1).
A.

Discovery and Disclosure Violations Findings
1.

Under

Rule 37(b) Violations

Rule

37(b),

“[i]f

a

party . . . fails

to

obey

an

order to provide or permit discovery . . . the court where the
action is pending may issue further just orders.”
P.

37(b)(2)(A).

noncompliance,

The

rule

including

authorizes

dismissal.

Fed. R. Civ.

various
See

sanctions

Fed.

for

R.

Civ.

P.

had

violated

37(b)(2)(A)(i)-(vii).
The

Magistrate

Judge

found

that

Plaintiffs

Rule 37(b) because they had failed to comply with the Court’s
July 2016 Order.
finding,

the

(ECF No. 118 at 4.)

Report

notes

that,

although

In support of that
Plaintiffs

produced

additional documents following the July 2016 Order, they failed
to provide written confirmation that they had conducted a good
faith

search

Plaintiffs

and

produced

failed

to

all

responsive

documents

and

written

responses

to

provide

Interrogatories Nos. 22 and 23.

(Id. at 3.)

Addressing the ordered production of documents, Plaintiffs
contend

that,

by

ordering

Plaintiffs

to

“produce

responsive

documents to each of Defendants’ Requests for Production or to
confirm

in

writing

that,

following

a

good

faith

search,

no

responsive documents exist,” the July 2016 Order gave Plaintiffs
11

the option of either producing documents or providing written
confirmation.

(ECF No. 121 at 13.)

Plaintiffs contend that,

because they produced documents following the July 2016 Order,
no written confirmation was required, and they did not violate
the order.
As

(Id. at 5, 13.)

Defendants

Plaintiffs
Defendants’

to

point

“produce

Requests

for

out,

the

responsive

July

Order

documents

Production.”

(emphasis added); ECF No. 122 at 13.)

2016

(ECF

to
No.

required
each
67

of

at

2

Plaintiffs do not contend

or demonstrate that their production following the July 2016
Order responded to each of Defendants’ requests.
ECF No. 121 at 5, 13; ECF No. 123 at 2-3.)

(See generally
As one example,

Defendants’ Request for Production No. 27 asked Plaintiffs to
“[p]roduce the most recent resume of any expert(s) Plaintiffs
have retained, or which Plaintiffs intend to retain, to testify
at

the

hearing

in

this

matter.”

(ECF

No.

65-1

at

20.)

Plaintiffs acknowledge that they did not provide their expert’s
resume to Defendants until November 22, 2016, (ECF No. 121 at
10), which was well after the August 4, 2016 due date imposed by
the July 2016 Order.4

Plaintiffs do not present evidence that

undermines the Magistrate Judge’s finding that, by failing to

4

Plaintiffs do not say when they retained their expert witness,
but it was before October 14, 2016, the date they served
Defendants with Plaintiffs’ expert’s report. (See ECF No. 121-1
¶ 9 at 3.)
12

provide

written

confirmation

that

they

had

conducted

a

good

faith search and produced all responsive documents, Plaintiffs
violated the July 2016 Order.
Addressing their failure to provide a written response to
Interrogatory No. 22, Plaintiffs contend that they provided a
written response
available

to that

information

interrogatory

and

in May 2016 based on

disclosed

additional

responsive

information as it became available.

(ECF No. 121 at 13-15.)

In

response

which

to

to

Interrogatory

No.

22,

asked

Plaintiffs

“[i]dentify any and all recoveries Plaintiffs have made and the
amount of money Plaintiffs have received from any Defendant, any
brokerage firm, the State or SEC Fair Fund or any other source
as

a

result

of

Plaintiffs’

investments

in

the

RMK

Funds,”

Plaintiffs answered, “Plaintiff believes she may have and is in
the process of trying to [sic] whether she in fact did and, if
so, the amount.”

(ECF No. 121-2 at 9.)

Plaintiffs argue that,

following the July 2016 Order, they had no new information to
provide.
on

(ECF No. 121 at 14.)

information

mediation

received”

conference

at

Plaintiffs contend that, “based
a

between

November
the

2016

settlement

parties,

and

“plaintiffs

investigated further, found some documentation relevant to the
issue, and provided the documentation to defendants’ counsel.”
(Id.)

Plaintiffs contend that their conduct did not violate the

July 2016 Order as to Interrogatory No. 22.
13

Plaintiffs’ argument assumes that their initial May 2016
response was adequate.
that it was not.
the

Court

to

The July 2016 Order decided, however,

In Defendants’ Motion to Compel, they asked

order

Plaintiffs,

inter

alia,

to

produce

the

information sought in Interrogatory No. 22 on the ground that
Plaintiffs had not provided a sufficient response.
at 6-7.)

(ECF No. 65

Plaintiffs failed to respond to that motion and waived

any argument to the contrary.

The Court granted Defendants’

Motion to Compel and ordered Plaintiffs to provide an adequate
response by August 4, 2016.

Plaintiffs neither timely responded

nor notified Defendants that, after making a good faith effort
to find the information requested, Plaintiffs were unable to do
so.
2016

Although Plaintiffs point to efforts they took in November
to

provide

the

requested

information,

they

make

no

representation that they have ever submitted a written response
to Interrogatory No. 22.

Plaintiffs do not present evidence

undermining the Magistrate Judge’s finding that, by failing to
timely respond to Interrogatory No. 22, Plaintiffs violated the
July 2016 Order.5
Addressing their failure to provide a written response to
Interrogatory

No.

23,

Plaintiffs

5

contend

that

their

counsel

Plaintiffs’ vague suggestion that “information received” at the
November 2016 settlement conference enabled them to locate the
information originally requested is difficult to credit because
Plaintiffs do not explain what information was received, what
information was located, or how the two were related.
14

verbally

communicated

to

Defendants’

counsel

information

responsive to that interrogatory in August 2016, after the July
2016

Order.

(ECF

No.

121

at

15.)

Plaintiffs

argue

that,

because the July 2016 Order did not require them to answer the
interrogatories

in

writing,

the

Magistrate

Judge

erred

finding that Plaintiffs violated the July 2016 Order.

in

(Id.)

Plaintiffs argue that “[i]t may have been better practice to
convey

the

information

in

writing,

but

given

the

relative

insignificance of the information to the action, the failure to
provide the information in writing does not rise to the level of
violating
action.”

the

Court’s

Order

and

justifying

dismissal

of

the

(Id.)

Responding

to

interrogatories

in

writing

is

not

simply

“better practice”; it is required by the Federal Rules.

Rule

33 provides that “[e]ach interrogatory must, to the extent it is
not objected to, be answered separately and fully in writing
under oath.”

Fed. R. Civ. P. 33(b)(3).

In ordering Plaintiffs

to respond to Defendants’ interrogatories, the July 2016 Order
did not suspend Rule 33 or any other Rule.

Plaintiffs cite

nothing in that order that suggests otherwise.

Compliance with

the Rules is presumed.

Plaintiffs’ oral response was not in

writing or under oath.

Whether Plaintiffs were required to

comply with the July 2016 Order did not depend on Plaintiffs’
estimation

of

the

relative

significance
15

of

the

information

sought.

Even granting Plaintiffs’ contentions, Plaintiffs fail

to show that they provided the information required by the July
2016 Order on or before the August 4 deadline set by the Order.
The

Magistrate

Judge

correctly

found

that

Plaintiffs

had

violated the July 2016 Order by failing to respond properly to
Interrogatory No. 23.
Plaintiffs violated the July 2016 Order in multiple ways
and, by doing so, violated Rule 37(b).
2.
The

Rule 37(d) Violations

Magistrate

Judge

also

found

that

Plaintiffs

had

violated Rule 37(d) because their counsel’s failure to timely
respond to requests and interrogatories established a “pattern
of delay and disregard.”

(ECF No. 118 at 4.)

Under Rule 37(d),

the court may, on motion, order sanctions if “a party, after
being

properly

33 . . . fails
response.”

to

served
serve

with
its

interrogatories

answers,

under

objections,

Fed. R. Civ. P. 37(d)(1)(A)(ii).

or

Rule

written

Rule 33 requires a

responding party to “serve its answers and any objections within
30 days after being served with the interrogatories.” Fed. R.
Civ. P. 33(b)(2).
not

excused

on

A failure by a party to respond properly “is
the

ground

that

the

discovery

sought

was

objectionable, unless the party failing to act has a pending
motion

for

a

protective

order.”

Fed.

R.

Civ.

P.

37(d)(2).

Permissible sanctions for Rule 37(d) violations include, inter
16

alia, dismissal of the action.

Fed. R. Civ. P. 37(d)(3); see

Fed. R. Civ. P. 37(b)(2)(A)(v).
Plaintiffs

focus

narrowly

on

whether

they

violated

the

Court’s July 2016 Order, and therefore violated Rule 37(b), but
they

do

not

object

to

the

Magistrate

Judge’s

finding

that

Plaintiffs violated Rule 37(d).

Plaintiffs violated Rule 37(d)

when

respond

they

failed

to

timely

Interrogatories by March 4, 2016.

to

Defendants

First

Plaintiffs did not respond to

any interrogatories until May 5, 2016, over two months late,
after three requests by Defendants that Plaintiffs do so and a
court order that the parties exchange additional discovery by
April 18, 2016, a date Plaintiffs also missed.

When Plaintiffs

did respond, some of their answers were clearly insufficient.
For example, in response to Interrogatory No. 23, Plaintiffs
objected, contending that the question called for information
not relevant to any claims or defenses.
ECF No. 121-2 at 3, 9.)

(ECF No. 65-5 at 6-7;

At no point, however, did Plaintiffs

file a motion for a protective order that might have justified
their failure to respond.

Plaintiffs continued to object to

Interrogatory No. 23 until at least June 10, 2016.
they

agreed

to

withdraw

their

forthcoming until August 2016.

objection,

no

Even after
answer

was

(See ECF No. 65-9 at 2; ECF No.

65-10 at 2; ECF No. 121-1 ¶ 6 at 3.)

17

Plaintiffs’ response to

Interrogatory No. 22 was likewise insufficient as decided by the
July 2016 Order.
Plaintiffs violated Rule 37(d) in multiple ways.

Those

violations, which preceded Plaintiffs’ violation of Rule 37(b),
provide

further

warrant

for

the

sanction

recommended

by

the

Report.
3.
The
violated

Rule 26(a)(3) Violation

Magistrate
Rule

Judge

26(a)(3)

also

by

found

failing

that

to

Plaintiffs

disclose

had

Plaintiffs’

proposed trial exhibits and witnesses to Defendants by the March
20,

2017

deadline.

(ECF

No.

118

at

8-10.)

Rule

26(a)(3)

requires each party to disclose the name and contact information
for each witness expected to, or who may, testify at trial and
to identify each document or exhibit the party expects to, or
may, offer at trial.

Fed. R. Civ. P. 26(a)(3)(A)(i) and (iii).

The rule provides that, “[u]nless the court orders otherwise,
these disclosures must be made at least 30 days before trial.”
Fed. R. Civ. P. 26(a)(3)(B).
information

or

identify

a

“If a party fails to provide
witness

as

required

by

Rule

26(a) . . . the party is not allowed to use that information or
witness to supply evidence

. . . at a trial, unless the failure

was substantially justified or is harmless.”
37(c)(1).

Fed. R. Civ. P.

A court may impose other sanctions for noncompliance,

18

including dismissal.

Fed. R. Civ. P. 37(c)(1)(C); see Fed. R.

Civ. P. 37(b)(2)(A)(i)-(vi).
On December 6, 2016, the Court entered a Scheduling Order
setting

a

trial

date

of

April

17,

2017,

and

requiring

the

parties, inter alia, to submit a joint proposed pretrial order
no later than March 31, 2017.

(ECF No. 87 at 1.)

Also entered

on December 6, 2016, was a setting letter stating the Scheduling
Order’s requirements and notifying the parties of other pretrial
procedures they were required to follow.
Among

those

parties

to

26(a)(3)

procedures,
comply

“requires

exhibits . . . to
trial.”

with

the

(Id. at 4.)

the

setting

Rule

(ECF No. 86 at 1-2.)

26(a)(3)

disclosures
opposing

letter
and

of

counsel

instructed
noted

that

the
Rule

witnesses . . . and
thirty

days

before

Given the April 17, 2017 trial date, as

the Report notes, Plaintiffs were required to disclose their
trial exhibits and witnesses by March 20, 2017.

They failed to

do so.
Plaintiffs contend that Rule 26(a)(3)’s 30-day disclosure
requirement applies “[u]nless the court orders otherwise,” and,
here,

the

Scheduling

Order

ordered

otherwise

by

instructing:

“The Proposed joint pretrial order should include any stipulated
facts, contested issues of fact and law, list of witnesses and
exhibits,
parties.”

and

should

(ECF

No.

be
121

signed
15-16
19

by

the

(quoting

attorneys
ECF

No.

87

for

all

at

2).)

Plaintiffs contend that, because the Scheduling Order required
the parties to submit a joint proposed pretrial order by March
31, 2017, and because that document “was to include the very
same items that Rule 26(a)(3)(A) requires be disclosed in the
absence

of

reasonably

a

conflicting

interpreted

court

the

order,”

Scheduling

Plaintiffs’

Order

to

counsel

override

Rule

26(a)(3) and provide a different deadline for the production of
trial exhibits and witnesses, March 31, 2017, rather than March
20, 2017.

(Id. at 16.)

Plaintiffs argue that any instruction

to the contrary in the setting letter
because

it

Plaintiffs

is

not

a

conclude

court

that

order.

they

did

should be disregarded

(ECF
not

No.

violate

123

at

Rule

3-4.)

26(a)(3)

because Rule 26(a)(3) did not apply.
Plaintiffs’
reasonable.

construction

of

the

Scheduling

Order

is

not

The portion of the Scheduling Order that Plaintiffs

cite addressed the information the parties were to include in
the proposed joint pretrial order to be submitted to the court.
It did not address the information the parties were required to
disclose to each other, as provided by Rule 26(a)(3).
in

the

Scheduling

requirements

of

contemporaneously

Rule

Order

contradicted

26(a)(3).

with

the

The

or

setting

Scheduling

Nothing

suspended
letter,

Order,

the

entered

reminded

the

parties that the disclosure requirements of Rule 26(a)(3) were
in effect.

The Scheduling Order fully cohered with the setting
20

letter’s

instructions,

and

any

suggestion

that

those

violated

Rule

instructions were optional is not well taken.
Plaintiffs
26(a)(3),

contend

“there

is

to

that,

assuming

they

be

sanction

if

no

‘substantially justified or is harmless.’”
(quoting Fed. R. Civ. P. 37(c)(1)).)
Rule

26(a)(3)

violation

on

the

failure

was

(ECF No. 121 at 17

Plaintiffs argue that any

their

part

was

substantially

justified because their construction of the Scheduling Order was
reasonable.
ambiguity

(Id.)

where

It was not.

there

was

Plaintiffs’ efforts to contrive

none

do

not

substantially

justify

their failure to follow Rule 26(a)(3).6
Plaintiffs failed to disclose trial exhibits and witnesses
to Defendants by the March 20, 2017 deadline.

By failing to do

so, Plaintiffs violated Rule 26(a)(3).
B.

Dismissal Recommendation

Plaintiffs

contend

that

the

Magistrate

Judge

erred

in

recommending dismissal based on his analysis of the four Harmon
factors.

The Magistrate Judge analyzed the Harmon factors in

conjunction

with

Plaintiffs’

Rule

37(b)

and

Rule

37(d)

violations.7

6

Plaintiffs also argue that any violation on their part was
harmless.
Those arguments are addressed below, along with
Plaintiffs’ prejudice arguments.
7

The Magistrate Judge also recommends dismissal under Rule 37(c)
based on Plaintiffs Rule 26(a)(3) violation, but did not
21

1.

Willfulness, Bad Faith or Fault

In recommending dismissal, the Magistrate Judge considered
whether Plaintiffs’ failure to cooperate in discovery was due to
willfulness, bad faith, or fault.
67.

See Harmon, 110 F.3d at 366-

The Magistrate Judge noted this Circuit’s requirement that

“dismissal of an action for an attorney’s failure to comply
should only be ordered where there is a clear record of delay or
contumacious conduct.”

Id. at 367 (quotation marks omitted).

“Contumacious

is

conduct”

behavior

that

is

“perverse

resisting authority” and “stubbornly disobedient.”
City

of

2008).

Defiance

Police

Culpable

conduct

thwart

judicial

effect

of

Detroit

of

“must

proceedings

[that]

Bd.

Dep’t,

conduct
Educ.,

or

on

261

529

F.3d

display
a

737

either

an

reckless

those
F.3d

731,

586,

591

Schafer v.
(6th

(6th

Cir.

intent

disregard

proceedings.”

in

for

Mulbah
Cir.

to
the
v.

2001)

(quotation marks omitted).
In finding Harmon’s first factor satisfied, the Magistrate
Judge found the delays created by Plaintiffs’ conduct were the
delays discussed in Harmon.

In Harmon, the court found a clear

record of delay and contumacious conduct where a party failed to
properly respond to the opposing party’s persistent discovery
requests for almost a year, failed to respond to a motion to

separately analyze the Harmon factors in conjunction with that
violation.
22

compel, and failed to comply with the district court’s discovery
order.
The

See id. at 365-66, 368.

Report

notes

that

The same conduct occurred here.

“Defendants

have

outlined

the

myriad

attempts at communication and cooperation, which were largely
ignored, resulting in an Order that Plaintiff failed to fully
comply with.”

(ECF No. 118 at 4.)

Plaintiffs

argue

that

Harmon

is

distinguishable

because

that case was about a party’s refusal to provide discovery, but
here the dispute is about the timeliness of the discovery or the
manner

in

which

it

was

provided.

(ECF

No.

121

at

20.)

Plaintiffs contend that they produced documents following the
July 2016 Order, that they responded to Interrogatories Nos. 22
and 23 as they were able, and that they ultimately provided
trial exhibit and witness lists.

(Id. at 20-21.)

They contend

that the only disputes are whether Plaintiffs were required to
provide written confirmation

about their document production,

whether their interrogatory responses had to be in writing, and
whether

their

exhibit

and

witness

disclosures

were

timely.

(Id.)
Plaintiffs’
refusal/manner

distinctions

dichotomy

is

are

not

inapt.

supported

by

Plaintiffs’
Harmon.

The

sanctioned party in Harmon did not refuse outright to produce
any discovery.

He answered discovery requests, but his answers

were late, inadequate, and improper.
23

See Harmon, 110 F.3d at

365.

Plaintiffs’ responses were likewise late, inadequate, and

improper.

As discussed above, Plaintiffs have not shown that

they produced all responsive documents as required by the July
2016

Order,

and

they

have

not

shown

that

they

have

ever

adequately responded to the interrogatory requests in writing
and under oath.
their

numerous

Plaintiffs’ argument also fails to account for
failures

to

respond

to

Defendants’

repeated

requests as well as comply with the Court’s April 4, 2016 Order
in

the

months

preceding

the

July

2016

Order.

Plaintiffs’

repeated failures to properly respond or cooperate from March
2016 to March 2017 were stubbornly disobedient and exhibited a
reckless disregard for the effect of their conduct on these
proceedings.

See Schafer, 529 F.3d at 737; Mulbah, 261 F.3d at

591.
Plaintiffs cite Patterson v. Twp. of Grand Blanc, 760 F.2d
686 (6th Cir. 1985), and Carpenter v. City of Flint, 723 F.3d
700

(6th

contrary

Cir.

2013).

conclusion.

Those
In

authorities

Patterson,

the

do

not

support

district

a

court’s

dismissal was pursuant to Rule 41(b) for failure to prosecute,
not

Rule

37(b)

for

failure

to

engage

in

dismissal appears to have been sua sponte.

discovery,

and

the

760 F.2d at 687-88.

In Carpenter, the dismissal was also sua sponte for failure to
prosecute and the opposing party had not been prejudiced.
F.3d at 701-02, 707-08.
24

723

The Court agrees with the Magistrate Judge that this factor
favors dismissal.
2.

Prejudice to Defendants

The Magistrate Judge also considered whether Defendants had
been

prejudiced

discovery,

see

by

Plaintiffs’

Harmon,

Defendants had been.

110

F.3d

failure
at

to

367,

cooperate

and

concluded

in
that

The Report finds that “Defendants have

documented more than eight months of letters, e-mails, calls and
a Motion, to which no response was filed, and a court Order,
which has not been fully complied with, all to obtain complete
answers

with

requests.”

regard

to

Defendants’

(ECF No. 118 at 5.)

first

set

of

discovery

The Magistrate Judge concluded

that “Plaintiffs’ failure to cooperate in discovery has cost
time and money to Defendants and delayed the progression of the
case,

thus

prejudicing

them

and

meeting

the

second

factor.”

(Id.)
Plaintiffs

contend

that

the

only

relevant

prejudice

Defendants have suffered, if any, is that caused by the delay in
their receiving Plaintiffs’ discovery materials.
at 22.)
delay

(ECF No. 121

The Sixth Circuit has been reluctant to find that mere

amounts

to

prejudice

that

warrants

dismissal.

E.g.,

Mulbah, 261 F.3d at 589-90, 592 (“Unlike other cases in which we
found dismissal proper, in the instant case Plaintiff has not
failed

to

respond

to

any

discovery
25

requests

propounded

by

Defendants,

nor

has

he

acted

in

contempt

of

compelling cooperation with such requests.”).

a

court

order

This is not a

case of mere delay.
Plaintiffs’ conduct required Defendants to draft numerous
letters and emails and participate in countless telephone calls
with

Plaintiffs,

deadline

for

file

filing

three

motions

discovery

to

motions

extend
to

allow

Defendants’
Plaintiffs

additional time to cooperate (See ECF Nos. 58, 60, 62), and file
a Motion to Compel, all in an effort to obtain the discovery
responses

Plaintiffs

were

required

to

provide.8

Plaintiffs

untimely disclosure of their trial exhibits and witnesses left
Defendants with two business days to prepare and file motions in
limine.

Plaintiffs’ conduct throughout led Defendants to file

the sanctions motions that are now pending before the Court.9
Like

the

“required

prejudiced
to

waste

cooperation,”

which

party
time,

in

Harmon,

money,

Plaintiffs

and
were

Defendants
effort
“legally

in

have

been

pursuit

of

obligated

to

8

Plaintiffs contend that no prejudice caused by their conduct
preceding the July 2016 Order is of consequence.
(ECF No. 123
at 5.)
That argument ignores that the Magistrate Judge’s
dismissal recommendation is based, in part, on Plaintiffs’ Rule
37(d) violations preceding the July 2016 Order, which Plaintiffs
do not deny.
9

Defendants were also prejudiced by Plaintiffs’ untimely and
inadequate expert witness disclosures, the subject of the
Exclusion Motion discussed below.
26

provide.”

110 F.3d at 368.

Considering Plaintiffs’ pattern of

conduct as a whole, the prejudice to Defendants is significant.
Plaintiffs suggest that there is no prejudice to Defendants
because everything of relevance ultimately has been provided.
(ECF No. 123 at 5.)10

Plaintiffs have never provided written,

sworn responses to Interrogatories Nos. 22 and 23, and it does
not appear that they have produced documents responsive to each
of

Defendants’

discovery

requests.

Plaintiffs

have

never

provided written confirmation that their discovery production is
fully

responsive

and

complete.11

Plaintiffs

have

contempt of a court order compelling cooperation.

acted

in

Plaintiffs’

belated argument that nothing remains outstanding is inadequate
given

Plaintiffs’

repeated

refusals

to

cooperate

and

their

incomplete, piecemeal disclosures.
The Court agrees with the Magistrate Judge that this factor
favors dismissal.12

10

Plaintiffs’ contention is actually more guarded. They contend
that “there is no evidence in the record that plaintiffs are
withholding documents or information in violation of the Court’s
Order.” (ECF No. 123 at 5 (emphasis added).)
11

To the extent there is any ambiguity in the record about
whether Plaintiffs’ document production is now complete,
Plaintiffs have had the ability to clarify that ambiguity by
providing written confirmation.
Plaintiffs have refused to do
so.
12

Plaintiffs contend that this Court must also consider
Defendants’ dilatory conduct in assessing prejudice.
(ECF No.
121 at 22.)
Plaintiffs raise that argument for the first time
27

3.

Warning of Dismissal

The Magistrate Judge also considered whether Plaintiffs had
been warned that failure to cooperate could lead to dismissal,
see Harmon, 110 F.3d at 367, and found that Plaintiffs had been.
Plaintiffs do not dispute that finding.

(ECF No. 121 at 19.)

As

Order’s

the

Report

unequivocal:
failure

to

notes,

“The
comply

the

July

Plaintiffs
with

are

proper

2016

warned

discovery

that,

warning

was

henceforth,

requests,

discovery

obligations, or orders of this court will lead to dismissal of
the complaint.”

The Court agrees with the Magistrate Judge that

this factor favors dismissal.
4.

Consideration of Less Drastic Sanctions

The Magistrate Judge also considered whether less drastic
sanctions should be imposed in lieu of dismissal, see Harmon,
110 F.3d at 367, but concluded, after “careful consideration of
the record,” that “less drastic sanctions would [not] cure the
harm caused by Plaintiffs’ repeated failure to move this case
in
objecting
to
the
Magistrate
Judge’s
findings
and
recommendations and have waived it.
See Murr, 200 F.3d at 902
n.1. Plaintiffs contend that Defendants relied on documents not
produced in discovery in support of Defendants’ summary judgment
motion and that Defendants produced over 3,000 pages of new
documents in March 2017, six months after the close of
discovery.
(ECF No. 121 at 23-25.)
Defendants contend that
Plaintiffs failed to sue the correct parties, that Plaintiffs
failed to amend the Complaint to name the correct parties, and
that Defendants’ recent disclosures relate to the unnamed
parties Plaintiffs now seek to name as Defendants (the subject
of a separate motion (see ECF No. 95)). (ECF No. 122 at 23-24.)
Plaintiffs offer no response. (See generally ECF No. 123.)
28

forward

by

ignoring

deadlines

Order.”

(ECF No. 118 at 5.)

failure

to

cooperate

and

disregarding

the

Court’s

The Report explains: “Plaintiffs’

throughout

the

discovery

process

and

failure to respect the Orders and deadlines set in this case
have

resulted

in

wasted

time,

Defendants, and a re-set trial.

shortened

deadlines

There has been no improvement

in Plaintiffs’ conduct even after warning of dismissal.”
Plaintiffs’

arguments

for

challenging

the

Magistrate

(Id.)
Judge’s

conclusions assume that Plaintiffs did not violate the July 2016
Order, which the Court has found they did, and focus on whether
there

is

sufficient

evidence

that

Plaintiffs

withholding relevant documents or information.
26.)

Plaintiffs

do

not

offer

any

pattern of delay and nondisclosure.

are

currently

(ECF No. 121 at

justification

for

their

Plaintiffs do not suggest

what lesser sanction would be appropriate in this case.

By

arguing that Defendants’ sanctions motions should be denied in
their entirety, Plaintiffs take the position that no sanctions
are warranted.

The Magistrate Judge did not err in failing to

consider a lesser sanction that Plaintiffs themselves do not
consider.
As to Plaintiffs’ Rule 26(a)(3) violation for failure to
timely

disclose

trial

exhibits

and

witnesses,

courts

have

recognized that exclusion of testimony pursuant to Rule 37(c) is
automatic

unless

a

party’s

nondisclosure
29

is

justified

or

harmless, which Plaintiffs have failed to establish.

See, e.g.,

Colebrook v. Ky. Dep’t of Motor Vehicle Enforcement, No. 08-110JGW,

2011

WL

573820,

at

*2

(E.D.

Ky.

Feb.

15,

2011)

(“[P]laintiff bears the burden to show that his inexplicable
noncompliance
substantially

with

the

Court’s

justified

or

scheduling

order

harmless.”).

The

was

either

result

of

Plaintiffs’ failure to timely disclose their trial exhibits and
witnesses is that they are not entitled to present that evidence
at trial, further underscoring that dismissal of this action is
appropriate.
The Court agrees with the Magistrate Judge that this factor
favors dismissal.
Because

all

of

the

Harmon

factors

favor

dismissal,

dismissal is the appropriate sanction for Plaintiffs’ violations
of Rule 26(a)(3), Rule 37(b), and Rule 37(d).
C.

Expert Disclosure Violations and Recommendation

Because

dismissal

of

this

action

is

warranted

based

on

Plaintiffs’ violations of Rule 26(a)(3), Rule 37(b), and Rule
37(d), it is unnecessary to address in detail the Magistrate
Judge’s

recommendation

that

the

testimony

and

report

of

Plaintiffs’ proposed expert be excluded because of Plaintiffs’
failure

to

timely

and

adequately

violation of Rule 26(a)(2).

disclose

their

expert,

in

Plaintiffs have not demonstrated

that the Magistrate Judge’s findings and recommendation on this
30

nondispositive pretrial motion are clearly erroneous or contrary
to law.

See Curtis, 237 F.3d at 603.

Plaintiffs argue that their proposed expert is a rebuttal
expert

and

that

their

October

14,

2016

disclosure

of

that

expert’s report (after Plaintiffs’ August 16, 2016 deadline for
disclosure of expert witnesses and after Defendants’ September
16, 2016 deadline for expert disclosures, which Defendants met)
was timely.

(ECF No. 121 at 26-30.)

The Magistrate Judge

rejected that argument, finding that Plaintiffs’ expert’s report
“seems to primarily consist of affirmative opinions rather than
rebutting Defendants’ expert’s opinion.”
Under

the

Federal

Rules,

a

(ECF No. 118 at 7.)

party

may

make

expert

disclosures “within 30 days after the other party’s disclosure”
only “if the evidence is intended solely to contradict or rebut
evidence on the same subject matter identified by” the other
party

pursuant

obligations.

to

that

party’s

initial

expert

disclosure

Fed. R. Civ. P. 26(a)(2)(D)(ii) (emphasis added).

Plaintiffs’ expert’s “report” is a one-page letter written
by P. Richard Evans that contains one paragraph responding to
Defendants’ proposed expert’s opinions, followed by a 71-page
slide presentation.
slides

in

Evans’

(ECF No. 121-3 at 1-73.)
presentation

addresses

Defendants’ expert or his opinions.
expert.

His disclosure was untimely.
31

or

None of the
responds

to

Evans is not a rebuttal
Plaintiffs’ failure to

timely

disclose

their

justified or harmless.

proposed

expert

was

not

substantially

Fed. R. Civ. P. 37(c)(1).

The Court agrees with the Magistrate Judge that exclusion
of Plaintiffs’ expert’s testimony and report is proper under
Rule 37(c).
IV.

CONCLUSION
For

the

foregoing

reasons,

the

Report

is

ADOPTED,

Defendants’ Discovery Sanctions Motion, Exclusion Motion, and
Pretrial-Disclosure Sanctions Motion are GRANTED, and this case
is DISMISSED.

So ordered this 17th day of August, 2017.

/s/ Samuel H. Mays, Jr._____
SAMUEL H. MAYS, JR.
UNITED STATES DISTRICT JUDGE

32