The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
PLINIO ALVARADO :
QUINONEZ,
Plaintiff, Case No. 3:21-cv-159
y Judge Walter H. Rice
IMI MATERIAL HANDLING Mag. Judge Caroline H. Gentry
LOGISTICS, INC., et a/., :
Defendants.
DECISION AND ENTRY ADOPTING REPORT AND
RECOMMENDATIONS OF MAGISTRATE JUDGE (DOC. #123) AND
OVERRULING OBJECTIONS THERETO (DOC. #126); PLAINTIFF
PLINIO ALVARADO QUINONEZ’S CLAIMS AGAINST DEFENDANT
CLAYCO, INC. (DOC. #1) ARE DISMISSED WITH PREJUDICE;
JUDGMENT SHALL ULTIMATELY ENTER IN FAVOR OF CLAYCO AND
AGAINST PLAINTIFF; PLAINTIFF AND HIS COUNSEL ARE JOINTLY
AND SEVERALLY LIABLE FOR COSTS AND ATTORNEY FEES
INCURRED BY CLAYCO DUE TO PLAINTIFF’S FAILURE TO COMPLY
WITH FEBRUARY 5, AND APRIL 4, 2024, ORDERS; CLAYCO SHALL
SUBMIT WITHIN TWENTY-EIGHT (28) DAYS A CALCULATION OF
COSTS AND FEES INCURRED; PLAINTIFF AND HIS COUNSEL MAY
OBJECT WITHIN FOURTEEN (14) DAYS OF CLAYCO’S SUBMISSION;
PLAINTIFF IS ORDERED TO SHOW CAUSE WITHIN TWENTY-EIGHT
(28) DAYS WHY JOHN DOE DEFENDANTS 1-7 SHOULD NOT BE
DISMISSED WITHOUT PREJUDICE FOR FAILURE TO SERVE;
CONSIDERATION OF ALTERNATIVE DISPUTE RESOLUTION
Before the Court are the Report and Recommendations of Magistrate Judge
Caroline H. Gentry, recommending that Plaintiff Plinio Alvarado Quinonez’s claims
against Defendant Clayco, Inc. (“Clayco”), be dismissed with prejudice for failure
to prosecute his claims against Clayco and that Plaintiff, his attorney, or both
should be required to compensate Clayco for costs and attorney fees incurred due
to Plaintiff's failure to so prosecute. (Report, Doc. #123, PAGEID 1427). Also
before the Court are Plaintiff’s Objections to the Report (Doc. #126) and Clayco’s
Response to Objections (Doc. #128). For the reasons set forth below, the Report
is ADOPTED, the Objections are OVERRULED, and Plaintiff’s claims against Clayco
are DISMISSED WITH PREJUDICE. In addition, the Court TAXES Clayco’s costs
and reasonable attorney fees against Plaintiff and his counsel jointly and severally.
l. Factual Background and Procedural History’
Clayco propounded Interrogatories (ROGs) and Requests for Production of
Documents (RFPDs) upon Plaintiff on September 14, 2022. (Notice of Disc., Doc.
#87). Counsel for Clayco contacted counsel for Plaintiff on at least two occasions
thereafter, reminding the latter of Plaintiff's obligations to respond. Nonetheless,
no complete responses were produced; nor did Plaintiff seek an extension of time
to respond completely. (Oct. 21, 2022, Corr., Doc. #101-2; Jan. 19, 2023, Corr.,
Doc. #101-3; Memo. in Support of Sanctions, Doc. #102, PAGEID 1262-63). On
May 10, 2023, the undersigned conducted a status conference, at which Plaintiff's
counsel stated that he would review outstanding discovery requests. However,
despite a follow-up email from Clayco’s counsel on May 12, 2023, Plaintiff never
responded to the requests (Doc. #123, PAGEID 1407, citing May 10, 2023,
The factual background was set forth at length in the Report (Doc. #123, PAGEID 1406-16), and
the Court adopts that discussion and incorporates it by reference.
Minute Entry; May 12, 2023, Corr., Doc. #101-4; Doc. #102, PAGEID 1264). On
May 31, 2023, Clayco filed a Motion to Compel and for Sanctions (“First Motion”).
Counsel for Plaintiff represented that he would respond to Clayco’s discovery
requests by November 3, 2023. The Court deferred ruling on this Motion based
upon this representation; yet, despite a reminder email from Clayco’s counsel,
Plaintiff still did not fully respond. (/d. at PAGEID 1408, citing Second Motion,
Doc. #112, PAGEID 1298, 4{ 11-12; Nov. 13, 2023, Corr., Doc. #112-1; Memo.
in Support of Second Motion, Doc. #113, PAGEID 1314-15).
On November 27, 2023, Clayco filed its Second Rule 37 Motion to Compel
Discovery and for Sanctions (“Second Motion”). Clayco asked that any objections
Clayco might raise be deemed waived, or that the case be dismissed for failure to
prosecute. (Doc. #112, PAGEID 1299-1300). On February 5, 2024, Magistrate
Judge Caroline H. Gentry sustained both motions, concluding that “Plaintiff's
unexplained failures to comply with that [discovery response] deadline and respond
to Clayco’s repeated efforts to resolve this dispute are unexcused and
inexcusable.” (Doc. #114, PAGEID 1325). The Court ordered Plaintiff to respond
“fully and without objection” to Clayco’s discovery requests, and cautioned
Plaintiff that further delay could result in dismissal. (/d. at PAGEID 1326-27). The
Magistrate Judge subsequently concluded that Plaintiff had not complied with the
February 5, 2024, Order. Thus, this Court, on April 4, 2024, issued an Order to
Show Cause why Plaintiff's claims should not be dismissed with Prejudice.
“Plaintiff filed a Responsel,] and Defendant Clayco filed a Reply.” (Doc. #123,
PAGEID 1409, citing Order, Doc. #120, Resp., Doc. #121, Reply, Doc. #122).
On May 7, 2024, the Magistrate Judge issued the Report under discussion
herein. In the Report, the Magistrate Judge noted several responses by Plaintiff
that, despite months of prodding, were deficient and incomplete. First, in RFPD
16, Clayco requested “[a]ny 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.” In response, Plaintiff “refer[red] to and relie[d] upon the documents
produced and incorporated by reference in his response to Request No. 1, including
those Bates labeled as QuinonezO0001 to Quinonez04588 and any documents
produced by any other party in this matter.” (Doc. #123, PAGEID 1409-10,
quoting Feb. 20, 2024, RFPD Resp., Doc. #116-2, PAGEID 1358)). The
Magistrate Judge found that, his passing reference to a 4,500-page production
notwithstanding, Plaintiff failed to “identify which, if any, of these documents
constitute ‘photographs, videotapes, notes, journals, diaries, or other documents’
that depict Plaintiff's injuries and resulting adverse effects.” Moreover, even
Plaintiff’s attempt to incorporate by reference his response to RFPD 1 was
insufficient, because that response did not describe the documents with any
specificity. (/d. at PAGEID 1410-11).
Second, as to RFPD 19, the Magistrate Judge noted that, despite Clayco
requesting in September 2022 that Plaintiff execute and provide to Clayco medical
and other record release authorizations, and despite the Court ordering Plaintiff to
do so by February 19, 2024, Plaintiff did not attempt to provide them until March
6, 2024. Even then, Clayco had to inform Plaintiff that the authorizations were
improper because they were not notarized. Plaintiff then claimed to have sent the
proper authorizations to Clayco on April 18, 2024, but Clayco had not received
them as of April 25. (Doc. #123, PAGEID 1411-12, citing Doc. #120, PAGEID
1369-70; Doc. #121, PAGEID 1381-82; Doc. #122, PAGEID 1396).
Third, in ROG 17, Clayco asked Plaintiff to disclose all medical treatment
since the date of the accident, including the amount incurred. Plaintiff responded
by referring to his initial disclosures and the 4,500-page production and stating
that he does not have itemized bills; however, he also responded that he has an
outstanding medical lien of approximately $725,000 related to the incident. The
Magistrate Judge concluded that this answer was non-responsive because, as
Clayco noted, the initial disclosures listed only two of the forty-eight medical
sources, and Plaintiff had not identified anywhere his treating sources from after
January 2022, despite there being records of treatment since that time. (Doc.
#123, PAGEID 1413-14, quoting Feb. 20, 2024, ROG Resp., Doc. #116-1,
PAGEID 1346-47; Doc. #120, PAGEID 1370-71). Finally, in ROG 18, Clayco
asked Plaintiff for details regarding his wage and non-employment economic losses
that he had claimed. Plaintiff, despite claiming to have provided all the information
he could remember, had not provided copies of his tax returns or even a precise
amount of lost wages claimed. Thus, the Magistrate Judge concluded, Plaintiff
had not responded fully to the discovery requests as ordered by the Court, and
_thus had not shown cause to avoid dismissal. (/d. at PAGEID 1415-16, 1418,
quoting Doc. #121, PAGEID 1381; citing Doc. #122, PAGEID 1396).
Turning to sanctions, the Magistrate Judge applied the four factors set forth
in Mager v. Wisconsin Central Ltd., under which the Court must consider whether:
(1) The party’s failure is due to willfulness, bad faith, or fault;
(2) The adversary was prejudiced by the dismissed party’s conduct:
(3) The dismissed party was warned that failure to cooperate could
lead to dismissal; and
(4) Less drastic sanctions were imposed or considered before
dismissal was ordered.
Mager, 924 F.3d 831, 837 (6th Cir. 2019), quoting United States v. Reyes, 307
F.3d 451, 458 (6th Cir. 2002).
First, the Magistrate Judge rejected Plaintiff's implicit invocation of Rule
33’s “business records option” through his reference to the 4,500-page document
production. (Doc. #123, PAGEID 1418-19, citing Fep.R.Civ.P. 33(d)). The
Magistrate Judge noted that that option is available only “if the burden of deriving
or ascertaining the answer will be substantially the same for either party,” and if
the producer identifies the records to be reviewed with such specificity that a
particular document can be retrieved from the bulk production as easily by the
recipient as by the producer. Plaintiff failed to do either of these things. Plaintiff's
remaining responses were deficient for the reasons discussed above. (/d. at
PAGEID 1419-20, quoting Fep.R.Civ.P. 33(d)(1); citing Brown v. Blue Cross & Blue
Shield of Ala., No. 3:13-cv-121, 2014 WL 3519100, *3 (W.D.N.C. Jul. 15,
2014); Henderson v. Holiday CVS, L.L.C., No. 09-80909, 2010 WL 11505168,
*2 (S.D. Fla. Aug. 11, 2010)).
Moving to the fault issue, the Magistrate Judge noted that Plaintiff
attempted to explain the delay in signing and having notarized the authorizations
between the March 6, 2024, reminder email and April 18, 2024, transmission by
stating that he was out of the country during that time. However, that statement
does not explain why Plaintiff failed to execute the releases in the seventeen
months between when he received the discovery requests and when the Court
ordered him to respond. Plaintiff also does not explain why he waited more than a
month after that order even to attempt to sign and transmit the releases, or why
he could not sign the releases while he was abroad (Doc. #123, PAGEID 1421-
22). Plaintiff’s delays, while perhaps not done with the intent to thwart
proceedings, were nonetheless in contravention of judicial authority and thus, were
contumacious conduct. (/d. at PAGEID 1421, quoting Schafer v. City of Defiance
Police Dep't, 529 F.3d 731, 737 (6th Cir. 2008)). Further, Plaintiff's delays could
not be attributed solely to counsel, because he “did not notify his attorney that he
would be abroad for an extended period[.]” (/d.). Thus, the Magistrate Judge
concluded, Plaintiff’s failure to comply was willful, and the first Mager factor
weighed in favor of dismissal. (/d. at PAGEID 1421-22).
The Magistrate Judge also concluded that the second Mager factor weighed
in favor of dismissal, as Plaintiff's delay in providing the authorizations prevented
Clayco from subpoenaing third parties for Plaintiff’s treatment records, meaning
that Clayco has been unable to formulate a defense. (Doc. #123, PAGEID 1423).
The third factor also weighed in favor, as Clayco had twice moved for dismissal of
Plaintiff's claims against it, and the Court had warned Plaintiff that failure to show
cause would result in dismissal of those claims. (/d. at PAGEID 1423-24), Finally,
the Court had imposed the lesser sanctions of: convening status conferences and
requiring counsel to explain on record the reasons for delay; granting Clayco’s First
and Second Motions to Compel; and taxing Clayco’s costs and attorney fees
against Plaintiff. However, those sanctions have not been effective. (/d. at
PAGEID 1425-26, citing Mager, 924 F.3d at 840; Kovacie v. Tyco Valves &
Controls, 433 F. App’x 376, 383 (6th Cir. 2011)). Further, and importantly for
reasons discussed below, Plaintiff’s claims against other Defendants remain
pending, and thus, any “order that establishes certain facts, strikes claims or
defenses, prohibits the introduction of evidence, or strikes pleadings or portions
thereof” would be overbroad. (/d. at PAGEID 1426, citing Fep.R.Civ.P.
37(b)(2)(A)). Finally, staying the proceedings or imposing lesser sanctions would
only further prejudice Clayco by further delaying the case, which is no closer to
resolution today than when it was filed nearly three years ago.
In sum, the Magistrate Judge concluded, because of Plaintiff's “unexcused
and inexcusable behavior” dismissal with prejudice against Clayco will “serve the
interests of justice” and “protect the integrity of the pretrial process.” Thus, the
fourth Mager factor weighed in favor of dismissal. (Doc. #126, PAGEID 1427,
quoting Carpenter v. City of Flint, 723 F.3d 700, 709 (6th Cir. 2013)).
Consequently, the Magistrate Judge recommended: (1) dismissing Plaintiff's claims
against Clayco with prejudice, and (2) awarding Clayco’s costs and reasonable
attorney fees that were incurred as a result of “Plaintiff’s failures.” (/d.).
In his Objections, Plaintiff notes that, after the Court's February 5, 2024,
Order to provide complete discovery responses within fourteen days, he provided,
on February 20, 2024, what he considered to be complete discovery responses
and an explanation why an award of attorney fees was not warranted. (Objs.,
Doc. #126, PAGEID 1456). That same day, Plaintiff's counsel provided all
responsive documents, approximately 4,500 pages. (/d. at PAGEID 1458). “[T]he
documents were organized and indexed in two separate ways to aid in their review
quickly and easily. As additional information has been received— specifically,
executed authorizations from Plaintiff and wage information for Plaintiff —that
information has also been provided to defense counsel.” (/d. at PAGEID 1458-59).
On March 6, 2024, Plaintiff's counsel transmitted to Clayco’s counsel the
medical record release authorizations that had been electronically signed by
Plaintiff. After Clayco’s counsel stated that notarized, “wet ink” signatures were
necessary for the records to be released, on March 18, 2024, Plaintiff’s counsel
stated that he was working to get those signatures but had just learned that
Plaintiff was traveling outside the United States. (Doc. #126, PAGEID 1456-57,
citing Mar. 13, 2024, email, Doc. #126-1). Ten days later, Plaintiff’s counsel
informed Clayco’s counsel that Plaintiff was returning to the United States and also
proposed the week of May 13, 2024, for Plaintiff's deposition. (/d. at PAGEID
1457). Plaintiff sent the wet ink authorizations, which were delivered to Clayco’s
counsel on April 29, 2024. (/d., citing USPS Tracking, Doc. #126-2, PAGEID
1476).
Plaintiff argues the Magistrate Judge was incorrect with respect to each of
the four discovery responses. First, Plaintiff's response to ROG 17 was not a
“data dump”; rather, Plaintiff provided the specificity under Rule 33(d) in multiple
ways. In his Rule 26(a) initial disclosures, Plaintiff stated that he was treated at
Kettering Memorial Hospital, “with the address and phone number for Kettering
Memorial Hospital, and then listed the providers that treated him at Kettering.”
(Doc. #126, PAGEID 1459, citing Resp., Doc. #121, PAGEID 1374). “Likewise,
he identified his treatment at the Centre for Neuro Skills (‘CNS’) in Bakersfield, CA,
the address and phone number for CNS, and then providers at CNS who have
treated Plaintiff.” (/d., citing Doc. #121, PAGEID 1374). In response to ROG 17,
Plaintiff provided the above-described 4,500 pages of documents, with (1) a
sequential Bates-range “and the response to request for production number one
included a chart identifying the applicable time periods for each BATES range”; and
(2) “the same records in 174 individual PDF files that identified the date of service
and the provider .. . . Those files also contain the address and contact information
for the treating provider on the individual records.” (/d. at PAGEID 1460). Further,
Plaintiff had worked earnestly since March 2022 to obtain a copy of his workers’
compensation lien, but he could not obtain the copy until March 2024; Plaintiff
10
claims that he promptly supplemented his response to ROG 17 once he received
the lien information. (/d. at PAGEID 1460-61, citing Robinson v. Bates, 112 Ohio
St. 3d 17, 2006-Ohio-6362, { 9).
Second, in response to ROG 18 asking for Plaintiff's lost wage and income
information, Plaintiff stated that he had not worked since the day of the injury and
that, due to the injury, he could not remember his exact rate of pay. (Doc. #126,
PAGEID 1461). On March 6, 2024, Plaintiff’s W-2 information from 2014 through
2019 was provided to Clayco’s counsel, from which Plaintiff's expert ascertained
lost earnings as $321,798.00. (/d.). Third, as to RFPD 16, asking for documents
supporting Plaintiff’s injury claims, Plaintiff produced medical and workers’
compensation records since the incident; Occupational Safety and Health
Administration (“OSHA”) investigation into the fall; and documents regarding the
fall and injuries. “Again, those records were produced both in a sequential BATES
range and as individual files by date of service and provider.” (/d. at PAGEID
1462). The OSHA documents “discuss not only the failures that lead to Plaintiff's
injuries, but the immediate and noticeable severity of Plaintiff's injuries. The
investigation makes reference to the types of injuries suffered by Plaintiff and his
immediate need for emergent care and resulting hospitalization[,]" while Plaintiff
also produced his personal notes from his injury. (/d. at PAGEID 1462-63).
Plaintiff claims to have no further responsive documents. (/d. at PAGEID 1463).
Finally, as to RFPD 19, which asked for medical records, Plaintiff emphasizes
11
counsel's earnest efforts to get wet ink authorizations and asserts that he has now
responded fully. (/d. at PAGEID 1463-64 n.1).
Plaintiff notes that the United States Court of Appeals for the Sixth Circuit
considers dismissal a harsh sanction that should only be imposed for: a plaintiff
engaging in contumacious conduct, having been expressly warned that failure to
comply will result in dismissal, and that lesser sanctions have been considered and
found to be inadequate. (Doc. #126, PAGEID 1464, citing Harmon v. CSX
Transp., Inc., 110 F.3d 364, 366-67 (6th Cir. 1997)). Plaintiff argues that he was
not warned of dismissal as a possible sanction until the Magistrate Judge’s
February 5, 2024, Order; thereafter, he claims, he worked diligently to complete
discovery, producing over 4,500 pages of documents in two readily-accessible
formats and supplementing production promptly when necessary. (/d. at PAGEID
1464-65). He claims that, because of his full compliance and his contention that
“[d]ismissal at this juncture would not promote resolution on the merits, and this
case can still be resolved” by the deadlines set forth in the Court's scheduling
order, dismissal is not an appropriate sanction. (/d. at PAGEID 1465).
Plaintiff also argues that a further award of attorney fees would be
procedurally inappropriate and substantively unjust. He asserts that the $3,000
attorney fee payment made on April 4, 2024, was compensation for any delays in
discovery through February 5, 2024, and that he and his counsel have engaged in
no conduct since then that would warrant an additional award of fees. (Doc.
#126, PAGEID 1465, citing Doc. #120, PAGEID 1371). It was not until Clayco’s
12
April 25, 2024, reply brief, that it raised arguments in support of an additional fee
award: (1) Clayco had not received the record release authorizations; (2) Plaintiff
had not provided the amount of lost wages or how damages were calculated; (3)
Plaintiff's response to ROG 17 was insufficient; and (4) Plaintiff had not provided a
date for a deposition. (/d. at PAGEID 1466, citing Reply, Doc. #122).
Plaintiff asserts that all four arguments are unfounded. First, Plaintiff had
provided electronic signatures in March, and that the wet ink signatures were en
route to Clayco at the time Clayco filed its reply. Second, the claim for lost wages
required an expert calculation in response to ROG 18 that Plaintiff was not
qualified to give. However, Plaintiff provided the report of Cliff Hawley, his expert,
and the documents upon which he relied, on May 13, 2024, in accordance with
expert disclosure deadlines. (/d. at PAGEID 1466-67). Third, “Plaintiff identified
the majority of his medical providers related to his injuries in January 2022.” He
provided additional records in February 2024, and was not aware of any supposed
incompleteness until Clayco’s April 25, 2024, filing. Further, Clayco’s statement
that it could not “even discern whether those providers were located in Ohio or
California” rings hollow, since the produced records “identify[] the service location
with corresponding address information requested in Interrogatory No. 17.” (/d. at
PAGEID 1467). Finally, contrary to Clayco’s argument, Plaintiff had proposed a
deposition date. (/d.). Taken together, Plaintiff asserts, there is no basis for the
Magistrate Judge to conclude that he had failed to comply with the February 5,
13
2024, Order and, consequently, no basis upon which to impose sanctions or
attorney fees. (/d. at PAGEID 1467-68, citing Fep.R.Civ.P. 37(b)({2).
In the Response, Clayco argues that Plaintiff had not complied with his
discovery response obligations with respect to any of the four discovery responses
at issue—ROGS 17 and 18 and RFPDs 16 and 19. First, as to ROG 17, Clayco
argues that Plaintiff merely provided a “single sentence of more than 48 medical
providers and a document dump of nearly 5,000 pages[.]” (Doc. #128, PAGEID
1484-85). Plaintiff only listed the addresses for two of the forty-eight treating
sources identified; he also did not state the healthcare agency with whom those
sources were affiliated, or even whether they were based in Ohio or California.
Nor did Plaintiff supplement the initial disclosures even after he was treated by
sources not listed in the disclosures. Thus, Clayco claims that it is no closer now
to knowing all of Plaintiff's treating medical sources than when it propounded
discovery. (/d. at PAGEID 1483-84). Second, as to ROG 18, dealing with the
amount and types of damages sought, Clayco notes that, despite Plaintiff’s expert
adding, “Lost Household Services” as a damages category in his report, Plaintiff
did not supplement his answer to ROG 18; nor did he provide all the documents
and information provided to his expert. (/d. at PAGEID 1486, citing Resp. to
ROGs, Doc. #116-1, PAGEID 1347; Hawley Report, Doc. #128-2). “Thus, an
entirely new category of damages is now being claimed and Plaintiff continues to
fail to produce the documents and discovery responses from which Clayco can
evaluate potential damages and defend itself.” (/d.).
14
Third, Clayco’s request in RFPD 16 was for “[a]ny and all photographs,
videotapes, notes, journals, diaries, or other documents which depict, describe,
relate or refer to any adverse effect of any injuries suffered.” (Doc. #128, PAGEID
1486 (alterations in original), quoting Resp. to RFPD, Doc. #116-2, PAGEID 1358).
Yet, despite this specificity:
Plaintiff does not identify which, if any, of these documents constitute
photographs, videotapes, notes, journals, diaries, or other documents
that depict Plaintiff's injuries and resulting adverse effects. Plaintiff
has not supplemented his responses, nor has he amended the
response to identify the documents as expressly described by the
Court. Plaintiff has been directed, multiple times, to fully respond to
the discovery responses.
(/d. at PAGEID 1487). Rather, Plaintiff has ignored this Court's entreaties to
supplement or modify the response and merely attempted to explain why a 4,500-
page indexed document dump is sufficient. Clayco argues that this obstinance has
significantly prejudiced Clayco. (/d. at PAGEID 1487-88, quoting Schafer, 529
F.3d at 740). Finally, Plaintiff did not provide valid record release authorizations
until at least April 29, 2024, “eighty-five (85) days from the date of the order, and
more than a year and a half after they were requested. If Clayco can decipher
from the 5,000 pages of documents and the list of doctors’ names without
addresses, it will now be able to request medical records.” (/d. at PAGEID 1488).
Clayco asserts that, in addition to Plaintiff's contumacious conduct, the
other Mager elements are met. Clayco has been prejudiced for the reasons set
forth supra. Moreover, Plaintiff was expressly warned on two separate occasions
that failure to comply with Clayco’s discovery requests may result in dismissal of
15
claims. Yet, despite these warnings and orders, and having more than twenty
months to respond fully to discovery requests, Plaintiff has not done so. (Doc.
#128, PAGEID 1488). Thus, Clayco argues, dismissal with prejudice is
appropriate. (/d. at PAGEID 1488-89).
The matter is now ripe for decision.
il. Applicable Law
“[T]he dismissal of a claim for failure to prosecute is a harsh sanction which
the court should order only in extreme situations showing a clear record of
contumacious conduct by the plaintiff.” Schafer, 529 F.3d at 736 (internal
quotation marks and citation omitted). The sanction is particularly harsh because
involuntary dismissal is with prejudice. See Feo.R.Civ.P. 41(b) (A dismissal for
failure to prosecute “operates as an adjudication on the merits.”). The Magistrate
Judge correctly set forth and applied the four Mager factors that the Court must
use to determine whether to dismiss claims involuntarily:
(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.
16
Mager, 924 F.3d at 837 (internal citation omitted).”
“Although no one factor is dispositive, dismissal is proper if the record
demonstrates delay or contumacious conduct.” Reyes, 307 F.3d at 458.
“Contumacious conduct refers to behavior that is perverse in resisting authority
and stubbornly disobedient.” Carpenter, 723 F.3d at 704-05 (internal quotation
marks and citation omitted). A party “is prejudiced by a plaintiff's dilatory conduct
if the defendant is required to waste time, money, and effort in pursuit of
cooperation which [the plaintiff] was legally obligated to provide.” /d. at 707
(brackets in original) (citation omitted). Orders of involuntary dismissal are often
reversed “when the district courts did not put the derelict parties on notice that
further noncompliance would result in dismissal.” Harris v. Callwood, 844 F.2d
1254, 1256 (collecting cases). While Rule 37(b) requires the Court to consider
lesser sanctions, Mager, 924 F.3d at 840, “[wle have never held that a district
court is without power to dismiss a complaint, as the first and only sanction, and
we are loath to require the district court to incant a litany of lesser available
sanctions.” Fharmacy Records v. Nassar, 379 F. App’x 522, 524 (6th Cir. 2010),
quoting Schafer, 529 F.3d at 738 (cleaned up).
2 “IWle note, as other circuits have found, that the factors considered when reviewing a dismissal
under Rule 41{b), Rule 37(b), or a court's inherent power are largely the same.” Cofeman v. Am.
Red Cross, 23 F.3d 1091, 1094 n.1 (6th Cir. 1994).
17
iil. Analysis
A. Dismissal
1. Contumacious Conduct
In the Report, the Magistrate Judge noted that Plaintiff failed to respond to
discovery responses for seventeen months, broke promises to respond to requests,
and never proffered a good reason. Even after being warned of dismissal, Plaintiff
still has not disclosed claimed damages or names and addresses of medical
providers. For the reasons discussed above, the Magistrate Judge concluded that
Plaintiff's “failure to do so is inexplicable” (Doc. #123, PAGEID 1418), and that
Plaintiff's failure was at least partially his responsibility, rather than solely that of
his attorney. Plaintiff argues that, once he became aware of dismissal as a
possible sanction in the February 5, 2024, Order, he “timely provided discovery
responses and a response to the show cause portion of the order on February 20,
2024.” (Doc. #126, PAGEID 1464). Further, Plaintiff claims that his “counsel has
continually supplemented information to Clayco and the other defendants as it has
been received from Plaintiff.” (/d. at PAGEID 1465).
Plaintiff's argument is unavailing, for several reasons. First, despite being
given, on February 5, 2024, fourteen days “to respond fully and without objection
to any and all [Clayco] discovery requests” (Order, Doc. #114, PAGEID 1327),
Plaintiff concedes that he did not produce any additional discovery responses until
February 20, 2024. (Doc. #126, PAGEID 1456). While submitting one day late
would not normally constitute non-compliance, in its Order, the Court expressed its
18
frustration at Plaintiff's inability to comply with deadlines and warned that “any
further evidence of delay .. . may result in dismissal of [Plaintiff’s] claims.” (Doc.
#114, PAGEID 1326-27 (emphasis added)). Thus, the Court expressly stated that
strict and total compliance with the fourteen-day deadline was required. Yet, even
when faced with potential dismissal, Plaintiff did not submit discovery responses
on time.
Second, the responses are still woefully incomplete. For example, as to
ROG 17, Plaintiff claims that he provided, in his initial disclosures, a list of sources
who treated him at Kettering Memorial Hospital (“KMH”) in Kettering, Ohio, and
the Centre for Neuro Skills (“CNS”) in Bakersfield, California. (Doc. #126, PAGEID
1459, citing Doc. #121, PAGEID 1374). By Plaintiff's admission, his list of
providers was comma-separated, rather than numbered, did not specify, beyond a
generic statement of “physicians and staff” (/¢.), who treated him at KMH and
CNS, and provided no information for the sources that are not directly employed by
KMH or CNS—which, from what the Court can discern, is the vast majority of
sources. Plaintiff’s response, in effect, forced Clayco to go on a wild goose chase
to identify the correct treating sources and attempt to obtain contact information—
precisely what Clayco’s request and Rule 33 in general were designed to prevent.
Third, Plaintiff has not satisfied the “business records” exception.
FED.R.Civ.P.33(d). Plaintiff claims that he provided documents in response to ROG
17 in two ways: (1) A sequential Bates-range “and the response to request for
production number one included a chart identifying the applicable time periods for
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each BATES range”; and (2) “the same records in 174 individual [portable
document (“PDF”)] files that identified the date of service and the provider... .
Those files also contain the address and contact information for the treating
provider on the individual records.” (Doc. #126, PAGEID 1460). This Court
examined a nearly-identical issue several years ago, when “Defendants produced
343,000 pages of documents. According to Defendants, the documents [wel]re
produced by project in specific folders which allows for ease in comprehension.”
United States v. Quebe, No. 3:15-cv-294, 2017 WL 279539, *23 (S.D. Ohio Jan.
23, 2017) (Ovington, Mag. J.). The Court rejected the argument that such
production satisfied Rule 33(d), stating that “it is difficult to imagine the number of
folders that would be necessary to allow ease in comprehension or to significantly
reduce the high burden imposed upon Plaintiff by this large number of documents
or folders.” /d. Similarly, it strains credulity that Clayco could go through 174
PDFs comprised of 4,500 pages and find the names and addresses of treating
medical sources—some who were heretofore unknown to Clayco—as easily as
could Plaintiff. Rule 33(d) is designed to be difficult to meet, because a party's
obligation to respond fully and directly to interrogatories should not be easily
excused. As Plaintiff did not meet his obligation, his answer to ROG 17 is still
incomplete.
Plaintiff’s other discovery responses at issue are also deficient or untimely.
As to ROG 18, relating to lost wages and other income, Plaintiff claims that he
complied by providing his W-2 statements both to Clayco and Plaintiff’s expert,
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and the expert used that information to calculate Plaintiff's damages. (Doc. #126,
PAGEID 1461-62). Yet, Plaintiff's expert added a new category of damages for
“lost household services,” and those documents have not been provided to Clayco.
As to lost wages, Plaintiff states that he does not remember his exact rate of pay
on the date of the incident. (/d. at PAGEID 1461). Yet, he does not claim that he
has, for example, asked Defendant IMI Materials Holdings Logistics, Inc. (“IMI"),
his employer at the time, what his rate of pay was, even though that information
was presumably in IMI’s records. Plaintiff has not provided Clayco with the
requested information necessary to evaluate Plaintiff’s damages claim and the
Court finds no reason to believe he will do so.
As to RFPD 16, which requested “[a]ny and all photographs, videotapes,
notes, journals, diaries, or other documents which depict, describe, relate or refer
to any adverse effect of any injuries Plaintiff suffered[.]” (Doc. #116-2, PAGEID
1358). Plaintiff provided numerous documents, but as the Magistrate Judge
noted, Plaintiff did not specify which documents were produced. (Doc. #123,
PAGEID 1420). Even now, Plaintiff can only state that the documents consisted of
“Plaintiff's medical records and workers’ compensation records since June 17,
2019 (Quinonez0001 to Quinonez02313, Quinonez2493 to Quinonez04588); an
Occupational Health and Safety Administration investigation regarding the fall that
caused Plaintiff's injuries (QuinonezO2314 to Quinonez2492); and documents
produced in the case that talk about the incident and Plaintiff's injuries.” (Doc.
#126, PAGEID 1462). The first category obliquely refers to Plaintiff's 4,500-page
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document dump and provides no detail about which of those medical and workers’
compensation records are responsive to the RFPD. The third category does not
identify any document whatsoever. Plaintiff's response falls well short of the strict
compliance ordered by this Court.
Finally, as to RFPD 19, Plaintiff argues that he and his counsel worked
earnestly to provide Clayco with the release authorizations, first with the electronic
signatures on March 6, 2024, and eventually the wet ink authorizations on April
29, 2024. (Doc. #126, PAGEID 1463-64 n.1). Yet, Plaintiff does not address
why it took him an entire month after the Order—more than two weeks after the
Court-imposed deadline—even to provide the electronic signatures. Nor does he
explain why, after Clayco attempted to resolve the dispute informally through a
March 6, 2024, email requesting the wet ink authorizations, it took him almost
two months to provide them. (/d.). While Plaintiff states that he was out of the
country before February 5, 2024, and was returning shortly after March 28, he
never attempts to explain why he could not have filled out the wet ink
authorizations before or during his travel.
In sum, despite the Court giving Plaintiff multiple chances to produce
complete responses to ROGs 17 and 18 and RFPDs 16 and 19, and warning
Plaintiff that failure to make complete responses would result in dismissal, Plaintiff
has repeatedly refused to do so. Even if the Court were to consider Plaintiff's
Objections to the Report as part of his discovery responses, they would still be
incomplete. In sum, Plaintiff has engaged in contumacious conduct, i.e., “behavior
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that is perverse in resisting authority and stubbornly disobedient.” Carpenter, 723
F.3d at 704-05 (internal quotation marks and citation omitted). Accordingly, the
first Mager factor weighs in favor of dismissal.
2. Prejudice
Clayco’s prejudice is apparent. It is undisputed that Plaintiff did not comply
with his discovery response obligations from the time Clayco propounded the
ROGs and RFPDs in late 2022 until the Court’s February 5, 2024, Order, and that
Clayco incurred significant time and financial costs in attempting to get Plaintiff to
comply. Those costs continued after the Order, with Clayco’s counsel having to
undertake informal efforts to get “wet ink” authorizations on the medical records
releases. Plaintiff did not provide the proper authorizations until at least April 29,
2024, meaning that Clayco could only begin the process of attempting to ascertain
Plaintiff’s true damages at that time. In a personal injury case, inability to assess
damages is tantamount to an inability to defend at all. Clayco has also been
prejudiced by having to do unnecessary investigative work to obtain the names of
all treating medical sources. Plaintiff’s belated responses failed to address the new
subset of damages that his expert detailed in his report, meaning Clayco is still
attempting to defend itself without having all relevant information. Thus, the
second Mager factor weighs heavily in favor of dismissal.
3. Notice of Possible Dismissal
As discussed above, in the February 5, 2024, Order, the Court “specifically
cautioned” Plaintiff for the first time that “any failure to fully and timely comply”
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could result in dismissal with prejudice. (Doc. #114, PAGEID 1326-27). On April
4, 2024, the Court expressly warned Plaintiff that his claims against Clayco would
be dismissed with prejudice if he did not show cause within fourteen days. (Doc.
#120, PAGEID 1371). Plaintiff was on sufficient notice to satisfy the third Mager
factor.
4. Lesser Sanctions
This Court previously imposed the lesser sanction of requiring Plaintiff to pay
Clayco’s attorney fees incurred with respect to Clayco’s Motions to Compel (Doc.
#120, PAGEID 1371), and twice explained that Plaintiff’s “repeated and
inexplicable” failures over nearly eighteen months to comply with deadlines and
discovery requests left the Court to conclude that dismissal was the only suitable
sanction, given the length and severity of Plaintiff's misconduct. Moreover, this is
the rare instance in which dismissal with prejudice is not the harshest sanction the
Court could impose. As discussed below, Plaintiff has numerous claims pending
against multiple defendants. If, for example, the Court were to prohibit Plaintiff
from claiming “lost household services” damages at all, FED.R.Civ.P. 37(b)(2)(A)(ii),
then Plaintiff would be prejudiced not only as against Clayco, but as to all
remaining Defendants. Given: (a) the above; (b) Clayco’s past efforts, formal and
informal, to obtain compliance from Plaintiff; and (c) the unfairness of requiring
Clayco to participate further in light of Plaintiff's obstinance, the fourth Mager
factor weighs in favor of dismissal.
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The undersigned agrees with the Magistrate Judge that all four factors
dictate dismissal with prejudice of Plaintiff's claims against Clayco. Accordingly,
the Court adopts that portion of the Report and overrules Plaintiff's Objections
thereto.
B. Attorney Fees
The Magistrate Judge recommended “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.” (Doc. #123, PAGEID 1427, citing Feb.R.Civ.P.
37(b)(2)(C)). Plaintiff argues that such an award “appears duplicative of the
Court’s previous order with which Plaintiff has already complied.” (Doc. #126,
PAGEID 1468). Plaintiff is wrong for two reasons. First, as discussed above,
Plaintiff has complied with neither the February 5, 2024, Order regarding sanctions
nor the April 4, 2024, Order to Show Cause. Second, since the date of the
February 5, 2024, Order (for which Plaintiff previously paid to Clayco $3,000 in
attorney fees), Clayco has incurred additional expenses, both in informal attempts
to get Plaintiff to respond fully to its discovery requests and having to file
responses to the show cause Order and the Report. (Docs. #122, 128). None of
this work would have been necessary had Plaintiff fully responded, as ordered, by
February 19, 2024. Moreover, the plain language of Rule 37 favors the
assessment of attorney fees as a remedy for violating discovery orders: “the
[Clourt 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,
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unless the failure was substantially justified or other circumstances make an award
of expenses unjust.” Fed.R.Civ.P. 37 (b)(2)(C) (emphasis added).
For the reasons set forth above, there was no justification, much less a
substantial one, for failing to comply with the Court’s February and April 2024
Orders. Plaintiff attempts to frame an award as unjust by stating that he, a native
Spanish speaker with a traumatic brain injury, and his counsel had worked
diligently to provide the necessary documents. He further argues that it would be
unjust because Clayco made only one additional filing, the April 25, 2024, reply to
the April 4, 2024, Order, which was a mere rehashing of previous arguments.
(Doc. #126, PAGEID 1468, citing Doc. #122). Yet, Plaintiff and his counsel were
not diligent in producing responses and documents, and Clayco’s counsel did
significantly more than a single filing, work which would not have been necessary
had Plaintiff complied with the Court’s Orders. If Plaintiff thinks that the amount
of time spent by Clayco’s counsel is unjust, then he may challenge Clayco’s
lodestar calculation. But Plaintiff caused Clayco to incur costs and attorney fees,
and Rule 37 requires this Court to tax those fees against Plaintiff in this
circumstance.
Finally, Plaintiff's failures—submitting late and incomplete discovery
responses and traveling outside the country without the ability to provide wet ink
authorizations —are the fault of both Plaintiff and his counsel. As the Court may
impose the payment obligation on “the disobedient party, the attorney advising
that party, or both[,]” Fep.R.Civ.P. 37 (b)}{(2)(C), the Court holds Plaintiff and his
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counsel jointly and severally liable for the costs and fees incurred by Clayco.
Accordingly, Clayco shall submit an itemized calculation of costs and attorney fees
within twenty-eight days of this Entry. Plaintiff and his counsel may object to the
lodestar calculation within fourteen days of Clayco’s submission; if they do not,
then they must pay Clayco that amount within twenty-eight days of the
submission.
IV. Remaining Claims.
With the dismissal of Plaintiff's claims against Clayco, the Court turns to
Plaintiff's claims against:
1. IMI, Inc. - Only Claim | remains (Order, Doc. #78); proceedings
against IMI are stayed pending IMI’s bankruptcy proceedings
(Amended Order, Doc. #109);
2. Dematic Corp., Sergio Romero, Lorenzo Avila, Justin Parsons—
Claims | and II remain in part, Claims III through VI remain in toto.
(Entry, Doc. #98, PAGEID 1246);
3. NP Dayton Building, NPD Mgmt., Northpoint Devel. (“NP
Defendants”); and
4, LaPorte Consultants
In addition, the following cross-claims and third-party claims remain
extant:
1. NP Defendants against Clayco (Cross-Claim, Doc. #35);
2. NP Defendants against Crocs, Inc. (Third-Party Complaint, Doc.
#53, as amended at Doc. #57); and
3. Crocs, against Dematic, Avila, Parsons, Romero (Cross-Claim,
Doc. #63).
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Also, Plaintiff's Complaint (Doc. #1, PAGEID 1-2) lists seven John Does,
who, after nearly three years of litigation, have not even been identified, much less
served. Plaintiff is ORDERED TO SHOW CAUSE within twenty-eight days of this
Entry why all claims against John Does One through Seven should not be
DISMISSED WITHOUT PREJUDICE for failure to effect service pursuant to
FeD.R.Civ.P. 4.
The remaining parties, with the exception of Defendant IMI, are ORDERED,
within twenty-eight days of this Entry, to inform the Court via telephone or in
writing as to whether they wish the undersigned to refer the case to a Magistrate
Judge for Alternative Dispute Resolution (“ADR”).°
V. Conclusion
For the foregoing reasons, the Magistrate Judge’s Report (Doc. #123) is
ADOPTED and Plaintiff’s Objections thereto (Doc. #126) are OVERRULED.
Plaintiff’s claims against Clayco are DISMISSED WITH PREJUDICE. Judgment
shall ultimately enter in favor of Clayco and against Plaintiff. Clayco may, within
twenty-eight days of Entry, submit an itemized list of costs and attorney fees
incurred since the February 5, 2024, Order, for which Plaintiff and his counsel are
jointly and severally liable. Plaintiff or his counsel may object to Clayco’s
calculation within fourteen days of submission. If neither Plaintiff nor counsel
3 |MI may elect to participate in any mediation, but would bear the responsibility for how that
Participation may affect the automatic stay of proceedings against it.
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objects within that time, then one or both of them must pay the full amount
claimed by Clayco within twenty-eight days of Clayco’s initial submission.
Further, Plaintiff is ORDERED TO SHOW CAUSE within twenty-eight days
why his claims against John Does One through Seven should not be dismissed
without prejudice for failure to serve. All parties except for IM! are ORDERED to
notify the Court within twenty-eight days whether they are amenable to ADR
before one of the Magistrate Judges.
IT IS SO ORDERED.
□ Sear wi, aver
WALTER H. RICE, JUDGE
June 25, 2024 UNITED STATES DISTRICT COURT
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