Quinonez v. IMI Material Handling Logistics Inc.

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION (DAYTON)

PLINIO ALVARADO QUINONEZ, : Case No. 3:21-cv-00159

:

Plaintiff, : District Judge Walter H. Rice

: Magistrate Judge Caroline H. Gentry

vs. :

:

IMI MATERIAL HANDLING

:

LOGISTICS, INC., et al.,

:

Defendants. :

REPORT AND RECOMMENDATIONS

This action arises from injuries that Plaintiff sustained from a fall while working

as a laborer in Vandalia, Ohio. (Complaint, Doc. No. 1, PageID 2-3.) Plaintiff alleges that

his injuries were caused by inadequate training and a lack of proper safety equipment.

(Id.) One defendant is Clayco, Inc. (“Clayco”), the general contractor for the construction

project, which has denied liability for Plaintiff’s injuries. (Answer, Doc. No. 14.)

This matter is before the undersigned Magistrate Judge for a Report and

Recommendation regarding Plaintiff’s compliance, or lack thereof, with this Court’s

Order to Show Cause (Doc. No. 120). For the reasons set forth below, the undersigned

recommends that the Court dismiss Plaintiff’s claims against Clayco with prejudice as a

discovery sanction under Rule 37 of the Federal Rules of Civil Procedure.

I. STATEMENT OF FACTS

On September 14, 2022, Clayco served Plaintiff with a first set of interrogatories

and requests for production of documents. (Notice, Doc. No. 87.) Pursuant to Rules

33(b)(2) and 34(b)(2)(A) of the Federal Rules of Civil Procedure, Plaintiff was required

to respond or object to those discovery requests within thirty days. Plaintiff did not do so.

Nor did Plaintiff seek an extension of time to respond. (Doc. No. 102, PageID 1262.)

On October 21, 2022, Clayco’s counsel wrote to Plaintiff’s counsel about the

delinquent discovery responses and asked Plaintiff either to reply to the letter or provide

discovery responses within five days. (Clayco’s Exhibit B, Doc. No. 101-2.) Plaintiff did

not respond. (Doc. No. 102, PageID 1263.)

On January 19, 2023, Clayco’s counsel emailed Plaintiff’s counsel to express an

intent “to resolve [the] discovery dispute without the need for court intervention” and to

ask when Plaintiff would provide the discovery responses. (Clayco’s Exhibit C, Doc. No.

101-3, PageID 1259.) Again, Plaintiff did not respond. (Doc. No. 102, PageID 1263.)

On May 10, 2023, District Judge Walter H. Rice conducted a telephone

conference with the parties. Clayco’s counsel informed the Court that Plaintiff had yet to

respond to Clayco’s first set of discovery requests. Plaintiff’s counsel indicated that he

would review the outstanding requests.

Two days later, Clayco’s counsel emailed Plaintiff’s counsel to inquire when the

discovery responses would be provided. (Defendant Clayco’s Exhibit D, Doc. No. 101-

4.) Again, Plaintiff did not respond. (See Doc. No. 102, PageID 1264.)

On May 31, 2023, Clayco filed what would become its First Motion to Compel.

(Doc. No. 102.) Stating that it still had not received discovery responses from Plaintiff,

Clayco asked the Court to order Plaintiff to comply with Clayco’s discovery requests and

to impose sanctions on Plaintiff pursuant to Rule 37 of the Federal Rules of Civil

Procedure. (Id. at PageID 1264.)

In October 2023, while Clayco’s First Motion to Compel was pending, Judge Rice

conducted two additional telephone conferences with the parties. On October 23, 2023,

the parties filed a Joint Discovery Plan (Doc. No. 110). That document stated, in relevant

part: “Plaintiff will provide updated medical records and bills by November 3, 2023.

Responses to Clayco’s outstanding discovery requests to be provided on November 3,

2023 as well.” (Id. at PageID 1290.)

Despite these representations to the Court, however, Plaintiff did not provide the

promised discovery responses. (Memorandum in Support of Second Motion, Doc. No.

112, PageID 1298.) On November 13, 2023, Clayco’s counsel emailed Plaintiff’s counsel

to inquire about the discovery responses. (Defendant Clayco’s Second Exhibit A, Doc.

No. 112-1.) Again, Plaintiff did not respond. (Doc. No. 113, PageID 1314-15.)

On November 27, 2023, Clayco filed its Second Motion to Compel. (Doc. No.

112.) In the Second Motion, Clayco again requested an order compelling Plaintiff to

respond to Clayco’s discovery requests and imposing sanctions pursuant to Rule 37 of the

Federal Rules of Civil Procedure. (Id. at PageID 1299-1300.) In addition, Clayco asked

the Court to deem waived any objections that Plaintiff might assert in response to

Clayco’s discovery requests. As an alternative sanction, Clayco asked the Court to

dismiss Plaintiff’s case for failure to prosecute. (Id.)

On February 5, 2024, in an Order that characterized Plaintiff’s conduct as

“unexcused and inexcusable,” the Court granted both Motions to Compel. (Doc. No.

114.) The Court ordered Plaintiff “to respond fully and without objection to any and all

discovery requests previously propounded by Defendant Clayco.” (Id. at PageID 1327.)

The Court declined to impose the extreme sanction of dismissal but warned: “Plaintiff is

specifically cautioned that any further evidence of delay or contumacious behavior –

including any failure to fully and timely comply with this Order – may result in the

dismissal of his claims.” (Id. at PageID 1326-27 (emphases in original).)

Despite this warning, Plaintiff did not fully comply with the Court’s February 5,

2024 Order. (See Doc. Nos. 116-1 & 116-2.) Therefore, on April 4, 2024, the Court

ordered Plaintiff to show cause why his claims against Defendant Clayco should not be

dismissed with prejudice. (Order to Show Cause, Doc. No. 120.) Plaintiff filed a

Response (Doc. No. 121) and Defendant Clayco filed a Reply (Doc. No. 122).

This matter is now before the undersigned to determine whether Plaintiff has fully

complied with the Court’s February 5, 2024 Order and, if he has not, what remedy is

appropriate. Four discovery requests remain in dispute.1 The Court will set out the

relevant facts and each party’s position with respect to each discovery request.

A. Request for Production No. 16

Request for Production No. 16 sought, and Plaintiff responded, as follows:

16. Any and all photographs, videotapes, notes, journals, diaries, or

other documents which depict, describe, relate or refer to any adverse effect

of any injuries you suffered as a result of the incident alleged in Plaintiff’s

Complaint.

1 In its Reply, Defendant Clayco also requested sanctions based upon Plaintiff’s refusal to provide a date for his

deposition. (Doc. No. 122, PageID 1397-98.) Because this issue was not addressed in the Court’s February 5, 2024

Order, and was raised for the first time in a reply memorandum, the Court will not address it further in this decision.

RESPONSE: Plaintiff refers to and relies upon the documents produced

and incorporated by reference in his response to Request No. 1, including

those Bates labeled as Quinonez00001 to Quinonez04588 and any

documents produced by any other party in this matter. Plaintiff reserves the

right to supplement and/or amend this response.

(Feb. 20, 2024 Responses to Document Requests, Doc. No. 116-2, PageID 1358.)

The Court found that Plaintiff’s reference to more than forty-five-hundred pages

that Plaintiff had produced, without specific Bates numbers, was non-responsive. (Doc.

No. 120, PageID 1370.) Moreover, because Plaintiff described these documents as

consisting of medical records and workers’ compensation records, they presumably did

not include all “photographs, videotapes, notes, journals, diaries, or other documents”

that depict Plaintiff’s injuries and resulting adverse effects. (See Doc. No. 116-2, PageID

1350-51.) The Court therefore ordered Plaintiff to show why it should not dismiss his

claims against Clayco with prejudice. (Doc. No. 120, PageID 1370-71.)

In response, Plaintiff argued that his written response to Request for Production

No. 16 expressly incorporated his written response to Request for Production No. 1.

(Doc. No. 121, PageID 1375.) According to Plaintiff, his response to Request for

Production No. 1 “includes a chart of Bates records and specifically points to a) Clayco’s

own BATES numbered production; b) the BATES numbered production of Defendant

Dematic; and c) Exhibits 1 through 4 that were attached to Doc. #65.”2 (Id.) Plaintiff did

not identify which, if any, of these documents constitute “photographs, videotapes, notes,

2 Exhibits 1-4 are titled on the docket as: (1) BWC Overpayment Worksheet by IMI, (2) letter from Gallagher

Bassett re: workers compensation benefits; (3) Dematic’s Ohio certificate of workers’ compensation; and (4)

Dematic’s California certificate of liability insurance (which is blank). (Doc. No. 65, Exhibits 1-4, PageID 1036-42.)

journals, diaries, or other documents” that depict Plaintiff’s injuries and resulting adverse

effects. Nor did Plaintiff explain why two Defendants in this matter (i.e., Clayco and

Dematic) would have possessed and produced such documents.

B. Request for Production No. 19

Request for Production No. 19 sought, and Plaintiff responded, as follows:

19. Executed authorizations/releases attached hereto including: HIPAA

compliant medical authorization form, authorization for insurance records

and authorization for employment records.

RESPONSE: Plaintiff is executing and providing updated authorizations

and releases in response to this request. Plaintiff will supplement this

request [sic].

(Feb. 20, 2024 Responses to Document Requests, Doc. No. 116-2, PageID 1359.)

The Court ordered Plaintiff to provide executed authorizations within fourteen

days of its February 5, 2024 Order. (Doc. No. 120, PageID 1369-70.) But in the above-

quoted response, Plaintiff stated only that he “is executing and providing updated

authorizations and releases in response to this request.” (Doc. No. 116-2, PageID 1359.)

This vague statement did not indicate that Plaintiff had in fact complied with this Court’s

Order. The Court therefore ordered Plaintiff to show why it should not dismiss his claims

against Clayco with prejudice. (Doc. No. 120, PageID 1370-71.)

In response, Plaintiff’s counsel stated:

[A]t the time this Court entered its order on February 5, 2024, Plaintiff was

out of the country and only returned within the last few weeks. Counsel

only recently learned that Plaintiff was not physically in the United States

for approximately the last two months. . . .

Plaintiff’s counsel requested Plaintiff provide updated authorizations to

timely comply with the Court’s order. Plaintiff’s delay in providing

authorizations was caused by his being out of country at the time the Court

issued its order. Plaintiff provided updated authorizations with an electronic

signature to his counsel, who then provided the same to Clayco and the

other defendants on March 6, 2024. Clayco responded a week later on

March 13, 2024 asking for notarized authorizations. Counsel immediately

reached out to Plaintiff to request notarized authorizations with a “wet ink”

signature to send to Plaintiff. Those “wet ink” authorizations were received

today, April 18, 2024, and placed into the mail for Clayco.

(Doc. No. 121, PageID 1381-82.)

To summarize, although the Court’s February 5, 2024 Order required Plaintiff to

provide executed authorizations by February 19, 2024, Plaintiff did not provide them to

his counsel until approximately two weeks after that deadline had passed. Then, after

Clayco advised Plaintiff’s counsel that the authorizations had been improperly executed

(a fact that Plaintiff’s counsel “immediately” advised his client of), it took Plaintiff more

than one month to provide notarized, “wet ink” authorizations to his counsel. Plaintiff

claimed that his response was untimely because “he was out of the country, not because

he was resisting authority or being disobedient.” (Doc. No. 121, PageID 1382.) But he

did not explain why he could not have used email or overnight mail to respond sooner

and in a timely fashion, even while he was out of the country.

In its Reply, which it filed on April 25, 2024, Clayco stated that although

Plaintiff’s counsel claimed to have mailed the executed authorizations on April 18, 2024,

“no authorizations have been received.” (Doc. No. 122, PageID 1396.) There have been

no further filings by either party regarding the status of the executed authorizations.

C. Interrogatory No. 17

Interrogatory No. 17 requested, and Plaintiff responded, as follows:

17. State the names and addresses of all doctors, hospitals or health care

providers who have treated, examined or attended Plaintiff since the

incident in question and because of it, and for each listed, please

state:

(a) The amount of the bill from each such health care provider for

services rendered because of the incident in question;

(b) The number of visits and the specific dates of each visit Plaintiff has

made to each of these health care providers because of the incident;

(c) The conditions for which Plaintiff was examined or treated;

(d) If you claim that Plaintiff received a medical examination, care or

treatment because of the incident mentioned in the Complaint, please

sign and return the attached medical authorization, after inserting the

names and addresses of the doctors, hospitals or health care

providers.

ANSWER: Plaintiff refers to his medical records, treatment notes,

and workers’ compensation evaluations produced in Quinonez00001 to

Quinonez04588. Plaintiff does not have itemized bills from each provider,

but has, on several occasions, requested an itemized lien from Gallagher

Bassett Services, Inc. and has not yet received it. Plaintiff understands that

as of 12/04/2023 he had an outstanding lien of approximately $725,000

directly related to the incident. Plaintiff will supplement this response with

an authorization. Plaintiff reserves the right to supplement and/or amend

this response.

(Feb. 20, 2024 Responses to Interrogatories, Doc. No. 116-1, PageID 1346-47.)

Plaintiff’s interrogatory answer plainly did not provide the names and addresses of

all of his treating providers. Defendant Clayco complained, and the Court agreed, that

Plaintiff’s reference to more than forty-five-hundred pages that he had produced, without

specific Bates numbers, was non-responsive and left it unclear whether (and the extent to

which) Plaintiff had responded to the request. (Reply, Doc. No. 116, PageID 1333; Order

to Show Cause, Doc. No. 120, PageID 1370.) In addition, as discussed above, the

authorizations that Plaintiff provided were improperly executed. (Id.) The Court therefore

ordered Plaintiff to show why it should not dismiss his claims against Clayco with

prejudice. (Doc. No. 120, PageID 1370-71.)

In his Response, Plaintiff contended that he did not need to list the names and

addresses of his providers because: (1) he provided that information in his Rule 26(a)(1)

initial disclosures on January 18, 2022; and (2) the information can be found in medical

records that he produced. (Doc. No. 121, PageID 1374-80.)

In its Reply, Clayco argued that the answer to Interrogatory No. 17 is deficient

because Plaintiff’s initial disclosures (1) “list[ed] no less than 48 medical providers and

addresses for only 2 of those providers,” (2) failed to identify whether the providers in the

initial disclosures for whom no addresses were provided are located in Ohio or

California, and (3) failed to identify any providers who treated Plaintiff for the first time

after January 2022, even though some documents that were produced show that Plaintiff

was, in fact, treated by new providers after January 2022. (Doc. No. 122, PageID 1397.)

D. Interrogatory No. 18

Interrogatory No. 18 requested, and Plaintiff responded, as follows:

18. Does Plaintiff claim a loss of earnings, wages or income as a result

of the incident? If so, please state:

(a) The name and address of Plaintiff’s employer at the time of the

incident;

(b) The rate of pay with that employer;

(c) The amount of Plaintiff’s claim, and show exactly how that amount

was calculated;

(d) List each day, by specific date, that Plaintiff claims he/she has been

unable to work because of the incident;

(e) If Plaintiff had a loss of income other than missing time from work,

state the amount of the loss, the nature of the loss, and how the

amount of the loss was calculated;

(f) Please sign the attached employer authorization and insert the name

and address of the employer.

ANSWER: Plaintiff worked for Defendant IMI Material Handling

at the time of the incident. He does not recall his exact rate of pay but will

supplement with tax returns and wage information. Plaintiff has not been

able to work since the date of the incident and has received temporary and

total disability benefits. Plaintiff will supplement with the employer

authorization. Plaintiff reserves the right to supplement and/or amend this

answer.

(Feb. 20, 2024 Responses to Interrogatories, Doc. No. 116-1, PageID 1347.)

Plaintiff’s answer to this interrogatory was almost entirely non-responsive.

Although Plaintiff is seeking compensatory damages (Complaint, Doc. No. 1, PageID 24)

and such awards can include lost earnings, wages or income, he has refused to provide

his rate of pay, the amount of his lost earnings, or the method of calculating that amount.

(Doc. No. 120, PageID 1370.) Plaintiff also failed to provide the promised tax returns,

wage information, or executed employer authorization. (Reply, Doc. No. 116, PageID

1333.) The Court therefore ordered Plaintiff to show why it should not dismiss his claims

against Clayco with prejudice. (Doc. No. 120, PageID 1370-71.)

In his Response, Plaintiff argued that he “has provided the information he can

remember, and has signed authorizations to permit defendants to verify his claims.” (Doc.

No. 121, PageID 1381.) But despite having filed this lawsuit and demanded damages,

Plaintiff did not provide the amount of his claimed damages for lost earnings, wages or

income. He also did not address his failure to provide tax returns or wage information.

In its Reply, Clayco stated that Plaintiff provided tax transcripts and one W-2 on

March 6, 2024, but did not provide his full tax returns. (Doc. 122, PageID 1396.) Plaintiff

also did not provide the amount of his claimed lost earnings or related information. (Id.)

II. LAW AND ANALYSIS

If a party fails to comply with a Court order that requires it to provide or permit

discovery, then the Court may issue an order:

(i) directing that the matters embraced in the order or other designated facts

be taken as established for purposes of the action, as the prevailing party

claims; (ii) prohibiting the disobedient party from supporting or opposing

designated claims or defenses, or from introducing designated matters in

evidence; (iii) striking pleadings in whole or in part; (iv) staying further

proceedings until the order is obeyed; (v) dismissing the action or

proceeding in whole or in part; (vi) rendering a default judgment against the

disobedient party; or (vii) treating as contempt of court the failure to obey

any order except an order to submit to a physical or mental examination.

Fed. R. Civ. P. 37(b)(2)(A). In addition to or in lieu of issuing such an order, the Court

“must order the disobedient party, the attorney advising that party, or both to pay the

reasonable expenses, including attorney’s fees, caused by the failure, unless the failure

was substantially justified or other circumstances make an award of expenses unjust.”

Fed. R. Civ. P. 37(b)(2)(C).

Before it dismisses an action as a sanction for a party’s failure to comply with an

order to permit or provide discovery, this Court must consider four factors:

(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.

U.S. v. Reyes, 307 F.3d 451, 458 (6th Cir. 2002). None of these factors is dispositive. Id.

“[D]ismissal is proper if the record demonstrates delay or contumacious conduct.” Id.

In this case, each of these factors weighs in favor of dismissing this action with

prejudice. Furthermore, the record establishes a clear record of delay and contumacious

conduct by Plaintiff, his counsel, or both. Accordingly, the undersigned recommends that

the Court dismiss this matter with prejudice.

A. Plaintiff Failed To Provide Discovery Due To Willfulness, Bad Faith

Or Fault, And The Record Shows Delay And Contumacious Behavior.

Based upon the record before the Court, the undersigned finds that Plaintiff’s

failure to provide discovery is due to willfulness, bad faith, or fault. This factor requires

“a clear record of delay or contumacious conduct.” Freeland v. Amigo, 103 F.3d 1271,

1277 (6th Cir. 1997). “The plaintiff’s conduct must display either an intent to thwart

judicial proceedings or a reckless disregard for the effect of his conduct on those

proceedings.” Carpenter v. City of Flint, 723 F.3d 700, 705 (6th Cir. 2013) (cleaned up).

Typically the plaintiff must bear some responsibility for the conduct, as “[d]ismissal is

usually inappropriate where the neglect is solely the fault of the attorney.” Carter v.

Memphis, 636 F.2d 159, 161 (6th Cir. 1980).

Here, Plaintiff had more than seventeen months to provide discovery responses.

On May 10 and October 23, 2023—the latter date being more than one year after Clayco

propounded the discovery requests—Plaintiff’s counsel promised Clayco’s counsel and

the Court that Plaintiff would provide the long-delinquent discovery responses. He did

not do so. Moreover, Plaintiff’s counsel repeatedly refused to respond to inquiries from

Clayco’s counsel about the responses. Plaintiff has not provided any excuse, much less a

valid excuse, for these violations of his discovery obligations and the applicable rules.

Furthermore, even after the Court granted Clayco’s Motions to Compel, Plaintiff

still failed to provide complete responses to Clayco’s discovery requests. Astonishingly,

although the undersigned previously concluded that Plaintiff’s interrogatory answers

were deficient because they did not provide the names and addresses of his providers, or

state the amount of his claimed damages for lost earnings, wages or income, Plaintiff still

has not provided this basic and essential information. His failure to do so is inexplicable.

Plaintiff “has the burden of showing that his failure to comply was due to inability,

not willfulness or bad faith.” U.S. v. Reyes, 307 F.3d 451, 458 (6th Cir. 2002). In an effort

to make this showing, Plaintiff has argued that he did (belatedly) comply with Clayco’s

discovery requests except for the executed authorizations, which he could not timely

provide because he was out of the country when the Court granted Clayco’s Motions to

Compel (Doc. No. 121, PageID 1374-83.) These arguments are not well-taken.

1. Plaintiff has not provided complete discovery responses.

Having considered Plaintiff’s arguments and Clayco’s responses, the undersigned

again concludes that Plaintiff did not provide complete responses to Interrogatory Nos.

17 and 18, and Request for Production Nos. 16 and 19, despite being ordered to do so.

With respect to Interrogatory No. 17 and Request for Production No. 16, Plaintiff

responded by referring to more than 4,500 pages of documents that he had produced. In

his latest filing, he relied both upon that reference and upon his response to Request for

Production No. 1, which referenced all documents produced by all parties. Although he

did not say so, Plaintiff is presumably relying upon the business records option in Federal

Rule of Civil Procedure 33(d).

The Court concludes that Plaintiff’s reference to thousands of pages of documents

is insufficient to comply with the Court’s Order that Plaintiff “respond fully and without

objection.” (Doc. No. 120, PageID 1369-71.) Rule 33(d) only permits a party to produce

business records in lieu of an answer “if the burden of deriving or ascertaining the answer

will be substantially the same for either party.” Fed. R. Civ. P. 33(d). Plaintiff cannot

reasonably assert that he must review thousands of pages of documents to identify all of

his medical providers. By contrast, Clayco obviously will have to review each of these

pages to compile a list of Plaintiff’s providers. Thus, the burden on Clayco of deriving

the requested information is not “substantially the same” as the burden on Plaintiff. Id.

Moreover, even if Plaintiff had made such a showing, he did not “specify[] the

records that must be reviewed, in sufficient detail to enable the interrogating party to

locate and identify them as readily as the responding party could.” Fed. R. Civ. P.

33(d)(1). For both of these reasons, Plaintiff did not meet the requirements for invoking

the business records option in Rule 33. See, e.g., Henderson v. Holiday CVS, No. 09-

80909, 2010 WL 11505168, at *2 (S.D. Fla. Aug. 11, 2010) (party may not respond to a

discovery request with “a wholesale ‘document dump’ with an instruction to the

requesting party to ‘go fish’); Brown v. Blue Cross & Blue Shield of Ala., No. 3:13-CV-

00121, 2014 WL 3519100, at *3 (W.D.N.C. July 15, 2014) (party responding to

interrogatory with citation to documents “must specify for each interrogatory the

documents that will actually reveal answers to the interrogatories. Document dumps or

vague references to documents do not suffice”).

To justify his failure to list his providers in his answer to Interrogatory No. 17,

Plaintiff argued that he identified his medical providers in initial disclosures that he had

provided in January 2022. But as Clayco points out, that list was neither complete (since

it did not identify later providers that are known to exist) nor responsive (since it

provided only a few addresses). Thus, Plaintiff’s initial disclosures do not provide a

complete response to this discovery request, which still has not been answered.

With respect to Request for Production No. 16, Plaintiff did not explain, and it is

not evident, why Defendants would have produced “photographs, videotapes, notes,

journals, diaries, or other documents” that depict Plaintiff’s injuries and resulting adverse

effects. Moreover, because Plaintiff’s response did not identify responsive documents

that were produced or state that there were no responsive documents, it is insufficient.

With respect to Interrogatory No. 18, Plaintiff still has not provided the amount of

his claimed lost wages, earnings or income, or the methodology for calculating the same.

Although he promised to produce tax returns and wage information—which might shed

light on the issue but still would not be a substitute for Plaintiff’s own description of the

monetary relief that he seeks in this case—Clayco states that Plaintiff has produced just a

few such documents. Plainly, Plaintiff’s response to this request is insufficient.

Finally, with respect to Interrogatory Nos. 17 and 18, and Request for Production

No. 19, it is still unclear whether Plaintiff has provided properly executed authorizations.

Thus, the Court cannot conclude that Plaintiff has fully complied with this request.

2. Plaintiff’s trip abroad does not excuse an 18-month failure.

Plaintiff has argued that his “inability . . . to produce current medical, insurance,

and employment authorizations stems from his being out of the country at the time the

Court entered its February 5, 2024 order and having only recently returned.” (Doc. No.

121, PageID 1383.) But Clayco initially requested those documents more than a year-

and-a-half ago. Plaintiff was out of the country for only two months. (Id. at PageID

1382.) Plaintiff offered no explanation as to why he did not provide the authorizations

before he left the country. He also did not explain why he did not use email or overnight

mail to provide the authorizations while he was abroad. Thus, this excuse falls flat.

3. Plaintiff bears some culpability for these failures.

Although some (and perhaps many) of these failures likely are the fault of

Plaintiff’s counsel, Plaintiff also bears some culpability. Plaintiff did not notify his

attorney that he would be abroad for an extended period, and did not promptly provide

the requested (but improperly executed) authorizations. (Doc. No. 121, PageID 1381-82.)

Furthermore, after counsel contacted Plaintiff and asked him to provide wet-ink

signatures on the authorizations, Plaintiff delayed an additional month before executing

and returning the authorizations (assuming that he in fact did so). (Id. at PageID 1382.)

Plaintiff argued that he did not execute the authorizations “because he was out of

the country, not because he was resisting authority or being disobedient.” (Doc. No. 121,

PageID 1382.) But an “intent to thwart judicial proceedings” is not necessary to establish

contumacious behavior, Schafer v. City of Defiance Police Dep’t, 529 F.3d 731, 737 (6th

Cir. 2008) (internal quotation omitted). The first factor will also weigh in favor of

dismissal if the plaintiff evinces “reckless disregard for the effect of his conduct on those

proceedings.” Id.

Here, the record supports a finding of contumacious behavior. Initially, Plaintiff

failed to execute the authorizations for approximately seventeen months after they were

requested—a delay for which he has provided no excuse. Then, after this Court ordered

Plaintiff to execute the authorizations, he waited a month before he did so improperly.

Finally, after his attorney asked him to execute the authorizations properly, he delayed

another month before doing so (assuming that he indeed did execute them). Through

these actions and, more importantly, through his long and unexplained period of inaction,

Plaintiff exhibited reckless disregard for the effect of his conduct on this litigation.

Accordingly, the undersigned finds that Plaintiff’s failure to provide discovery is

due, at least in part, to his own willfulness, bad faith, or fault. Furthermore, the other

failures described above—including Plaintiff’s repeated failures to communicate with

Clayco about the discovery responses, and his failures to honor his promises to Clayco

and the Court that he would provide the discovery responses—are also due to willfulness,

bad faith or fault rather than an inability to provide the requested discovery.

B. Defendant Clayco was prejudiced by Plaintiff’s failures.

“The key to finding prejudice . . . is whether the defendants wasted time, money,

and effort in pursuit of cooperation which the plaintiff was legally obligated to provide.”

Schafer v. City of Defiance Police Dep’t, 529 F.3d 731, 740 (6th Cir. 2008) (cleaned up).

The record plainly establishes that this prejudice has occurred. Plaintiff failed to comply

with its discovery obligations for approximately a year and a half. During that time,

Clayco repeatedly and unsuccessfully attempted to communicate with Plaintiff’s counsel

about the delinquent responses, engaged in multiple discovery conferences that might

otherwise have been unnecessary, and was forced to draft, file, and brief two separate

motions to compel, as well as replies to the Court’s Orders to Show Cause.

The prejudice that Clayco has suffered goes beyond these harms, however.

Clayco was also significantly prejudiced by Plaintiff’s long delay in providing (if he has

indeed provided) the requested authorizations. It is worth noting that the purpose of such

an authorization is to enable Clayco’s counsel to subpoena records from third parties that

are private or confidential, and that otherwise would not be provided. Only after Clayco

has obtained these records—through a process that can take considerable time—will it

have the necessary information to question Plaintiff and other witnesses about the facts in

those records. For these reasons, authorizations should be provided at the outset of

discovery. Plaintiff’s inexplicable failure to provide them has greatly hampered Clayco’s

ability to understand the facts of this case, assess its potential liability, prepare its experts,

depose witnesses, prepare motions for summary judgment, and prepare for trial.

On this record, it is clear that Clayco has been prejudiced. The second factor

therefore also weighs in favor of a dismissal of Plaintiff’s claims with prejudice.

C. Plaintiff was repeatedly warned that failure to cooperate would lead to

dismissal.

Plaintiff was first put on notice of the possibility of an involuntary dismissal

nearly a year ago, on May 31, 2023, when Defendant Clayco filed its First Motion to

Compel (Doc. Nos. 101, 102.) In that Motion, Clayco sought sanctions “up to and

including[] striking Plaintiff’s pleadings.” (Doc. No. 101, PageID 1253.) See Ocelot Oil

Corp. v. Sparrow Indus., 842 F.2d 1458, 1462 (10th Cir. 1988) (striking of pleadings is

equivalent to involuntary dismissal) (cited with approval by Bennett v. Gen. Caster Serv.

of N. Gordon Co., 976 F.2d 995, 997 (6th Cir. 1992)).

On November 27, 2023, Defendant Clayco filed its Second Motion to Compel.

(Doc. Nos. 112, 113.) In that Motion, Clayco explicitly requested that the Court dismiss

Plaintiff’s claims for failure to prosecute. (Doc. No. 112, PageID 1300.)

In its Order granting Clayco’s Motions to Compel, the Court noted that it had not

previously given Plaintiff explicit warning of the possibility of dismissal. (Doc. No. 114,

PageID 1326.) Therefore, the Court declined to “consider dismissal at this time.” (Id. at

PageID 1327 (emphasis added).) However, the Court stated: “Plaintiff is specifically

cautioned that any further evidence of delay or contumacious behavior – including

any failure to fully and timely comply with this Order – may result in the dismissal

of his claims.” (Id. at PageID 1326-27 (emphases in original).) Thus, Plaintiff was

explicitly warned that a failure to provide discovery could lead to dismissal.

In his Response to the Court’s February 5, 2024 Order, Plaintiff’s counsel stated

that he “underst[ood] and appreciate[d] the Court’s clear frustration on the present issue.”

(Doc. No. 115, PageID 1329.) Even so, as detailed above, Plaintiff continued to fail to

comply with the Court’s Order and provide the requested discovery. Therefore, the Court

again warned Plaintiff that it may dismiss his claims against Clayco, and gave him the

opportunity to show why such a sanction should not be imposed. (Doc. No. 120, PageID

1370-71.)

Plaintiff had ample warning that his claims may be dismissed due to his failure to

provide discovery. Therefore, the third factor weighs in favor of dismissal with prejudice.

D. The Court has imposed and considered less drastic sanctions.

Involuntary dismissal “is a harsh sanction which the court should order only in

extreme situations.” Carter v. Memphis, 636 F.2d 159, 161 (6th Cir. 1980). The Court

should order dismissal with prejudice only if “a lesser sanction would not better serve the

interests of justice.” Consolidation Coal Co. v. Gooding, 703 F.2d 230, 232-33 (6th Cir.

1983). Moreover, “where the district court has not manifested consideration of less

drastic sanctions, it is more difficult . . . for [the Court of Appeals] to conclude that the

district court exercised its discretion with appropriate forethought.” Harmon v. CSX

Transp., 110 F.3d 364, 368-69 (6th Cir. 1997). Therefore, the undersigned will expressly

consider whether less drastic sanctions could and should be imposed at this juncture.

As a very mild sanction, the Court could “call a status conference sua sponte [and]

provid[e] counsel with an opportunity to explain the missed deadlines.” Kovacic v. Tyco

Valves & Controls, 433 F. App’x 376, 383 (6th Cir. 2011) (affirming dismissal after

district court took these actions and explicitly “indicated its concerns with counsel’s

failure to meet pretrial deadlines”). In this case, Judge Rice already took this step in May

2023 and October 2023. Those efforts proved to be unavailing, as detailed above.

A more substantial sanction is an order “compelling [the plaintiff] to respond to

the defendant[’s] discovery requests within fourteen days, rather than granting [an] initial

motion to dismiss outright,” Marsh v. Rhodes, No. 17-1211, 2017 WL 7833767, at *3

(6th Cir. Dec. 14, 2017). The Court previously entered such an order (Doc. No. 114).

Nevertheless, Plaintiff failed to comply fully with Clayco’s discovery requests.

Another substantial sanction is an order “imposing costs” on the party at fault, as

is required by Rule 37. Mager v. Wis. Ctrl. Ltd., 924 F.3d 831, 841 (6th Cir. 2019). The

Court also entered such an order (Doc. No. 120), but it did not have the desired effect.

Other available sanctions include staying the proceedings or holding Plaintiff in

contempt until he fully complies with the Court’s February 5, 2024 Order. Fed. R. Civ. P.

37(b)(2)(A). However, because this case was filed nearly three years ago—and because

Clayco needs the very basic missing information to formulate and mount a defense in this

litigation—the resulting additional delay is difficult to justify and would be inadvisable.

The Court also is empowered to enter an order that establishes certain facts, strikes

claims or defenses, prohibits the introduction of evidence, or strikes pleadings or portions

thereof. Fed. R. Civ. P. 37(b)(2)(A). There are two reasons why these sanctions would be

ineffective. First, because Plaintiff failed to provide very basic information about his

claims (i.e., the amount and method of calculating his lost earnings, and the names and

addresses of his medical providers), it does not appear that the Court could enter any

adverse evidentiary ruling or established fact that would cure the prejudice to Clayco.

Second, because Plaintiff has asserted claims against other Defendants in this case, an

order striking part or all of the claims in the Complaint would risk being overbroad.

Accordingly, the undersigned concludes that no available sanction is likely to

compel Plaintiff to comply with the Court’s Order and remedy the prejudice to Clayco.

Instead, after eighteen months of failing to produce the requested discovery, multiple

status conferences, an order to compel, two orders to show cause, and explicit warnings

that Plaintiff’s “unexcused and inexcusable” behavior could lead to dismissal of his

claims, no sanction short of dismissal will “serve the interests of justice” and “protect the

integrity of the pretrial process.” Carpenter v. City of Flint, 723 F.3d 700, 710 (6th Cir.

2013) (collecting cases) (internal quotations omitted). See also Harmon v. CSX Transp.,

Inc. 110 F.3d 364 (6th Cir. 1997) (affirming dismissal on similar facts where plaintiff

failed to answer interrogatories for over a year, failed to respond to a motion to compel,

and failed to fully comply with an order compelling discovery).

III. CONCLUSION

In sum, for the reasons set forth above, the undersigned RECOMMENDS that the

Court DISMISS WITH PREJUDICE Plaintiff’s claims against Defendant Clayco as a

sanction for Plaintiff’s failures to provide discovery and comply with this Court’s orders.

See Fed. R. Civ. P. 37(b)(2). In addition, the undersigned RECOMMENDS that the

Court order Plaintiff, his attorney, or both to pay Clayco’s reasonable expenses, including

its attorney’s fees, caused by Plaintiff’s failures. See Fed. R. Civ. P. 37(b)(2)(C).

IT IS SO RECOMMENDED.

/s/ Caroline H. Gentry

Caroline H. Gentry

United States Magistrate Judge

Procedure on Objections

If any party objects to this Report and Recommendation (Report), that party may,

within fourteen (14) days of the date that this Report was filed, file and serve written

objections to specific findings or recommendations along with supporting authority for

the objection(s). Responses to objections are due ten days after objections are filed and

replies by the objecting party are due seven days thereafter. A District Judge will then

make a de novo determination of the portions of the report, findings, or recommendations

to which objection is made. The District Judge may accept, reject, or modify, in whole or

in part, this Court’s findings or recommendations, may receive further evidence, or may

recommit this matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1).

The parties are advised that a failure to object to the Report will result in a waiver

of a party’s right (1) to have the District Judge review the Report de novo and (2) to

appeal a decision of the District Court adopting the Report. See Thomas v. Arn, 474 U.S.

140 (1985); U.S. v. Walters, 638 F.2d 947 (6th Cir. 1981).