Johnson v. Belvedere Gardens Condominium Association, Inc. et al

Filing 57

ORDER denying Motion to Dismiss and referring request for costs and attorney's fees. Signed by Judge Samuel H. Mays, Jr on 5/14/2013.

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

CECIL JOHNSON,

Plaintiff,
v.
BELVEDERE GARDENS CONDOMINIUMS
ASSOCIATION, INC. et. al,
Defendants.

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No. 12-2118

ORDER DENYING DEFENDANTS’ MOTION TO DISMISS AND REFERRING
REQUEST FOR COSTS AND ATTORNEY’S FEES

Before
Condominiums

the

Court

is

Association,

Defendants

Inc.,

Barbara

Belvedere

Gardens

(Williams)

Hasting,

JoAnn Lewallen, and Dinkenspiel, Rassmussen & Mink P.L.L.C.’s
May 3, 2013 Motion to Dismiss.
(Mem.

in

Supp.

of

Defs.’

Mot.

(Mot. to Dismiss, ECF No. 55);
to

Dismiss,

ECF

No.

55-1.)

Plaintiff Cecil Johnson (“Johnson”) responded on May 12, 2013.
(Mem. in Opp. to Defs.’ Mot. to Dismiss, ECF No. 56) (“Johnson’s
Mem.”)

Defendants seek dismissal based on Johnson’s failure to

follow the Court’s April 12, 2013 Order.
costs

and

attorney’s

fees.

For

the

Defendants’ Motion to Dismiss is DENIED.

They seek an award of
following

reasons,

Defendants’ request

for

costs

and

attorney’s

fees

is

referred

to

the

Magistrate

Judge for determination.
On April 12, 2013, the Magistrate Judge entered an order
compelling Johnson to produce several items.
ECF No. 44.)

(April 12 Order,

Johnson failed to comply with the April 12 Order.

He claims that the discovery responses had been prepared but
were never produced because they had been misplaced.

Johnson

claims

to

that

Defendants

“additional

simultaneously

discovery
with

the

is

being

filing

furnished

of

this

the

response.”

(Johnson’s Mem. 1.)
Federal Rule of Civil Procedure 37(b)(2) permits a court to
make “such orders . . . as are just” with regard to a party’s
failure “to obey an order to provide . . . discovery.”

Regional

Refuse Sys. v. Inland Reclamation Co., 842 F.2d 150, 153 (6th
Cir. 1988); see also Smith v. Nationwide Mut. Fire Ins. Co., 410
F. App’x 891, 894 (6th Cir. 2010).

Examples of orders that may

be just, depending on the circumstances, are orders “dismissing
the action or proceeding or any party thereof.”

Fed. R. Civ. P.

37(c)(1)(C).
Defendants argue that dismissal is warranted by Johnson’s
failure to comply with the April 12 Order, which they argue
explicitly warns Johnson that dismissal would be ordered if he
failed to comply.

Johnson argues that his failure to comply was

based on an honest mistake and does not prejudice Defendants.
2

The Sixth Circuit has said that “dismissal of an action for
failure to cooperate in discovery is a sanction of last resort
that

may

be

imposed

only

if

the

court

concludes

a

party’s

failure to cooperate in discovery is due to willfulness, bad
faith, or fault.”

See Bank One of Cleveland v. Abbe, 916 F.2d

1067, 1073 (6th Cir. 1990); see also Regional Refuse Sys., 842
F.2d at 154 (“Dismissal of an action for failure to cooperate in
discovery is a sanction of last resort.”).

Courts must consider

less drastic sanctions before extreme sanctions are considered.
See Regional Refuse, 842 F.3d at 154.
There is no evidence that Johnson acted willfully or in bad
faith.

Johnson’s failure to comply with the April 12 Order has

not substantially prejudiced Defendants; all pending scheduling
deadlines have been vacated and trial is not scheduled until
August, 2013.

(ECF No. 53.)

discovery

error

after

Dismissing

Johnson’s

the

Johnson promptly corrected the
filing

Complaint

would

of

Defendants’

not

serve

the

Motion.
policies

underlying Rule 37, particularly the goal of deterring “those
who might be tempted” to engage in conduct warranting sanction.
See

Regional

Mistakes,

if

Refuse,

842

promptly

F.2d

at

corrected

154

(citation

and

not

omitted).

substantially

prejudicial to the opposing party, should not be punished with
extreme sanctions.
Defendants’ Motion to Dismiss is DENIED.
3

Defendants’

request

for

costs

and

attorney’s

fees

is

referred to the Magistrate Judge for determination, considering
the entire history of this case.
So ordered this 14th day of May, 2013.

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

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