Roney v. Starwood Hotels & Resorts Worldwide, Inc.

236 F.R.D. 346, 64 Fed. R. Serv. 3d 757, 2006 U.S. Dist. LEXIS 23985, 2006 WL 1059415
CourtDistrict Court, E.D. Michigan
DecidedApril 18, 2006
DocketNo. CIV. 05-71911
StatusPublished

This text of 236 F.R.D. 346 (Roney v. Starwood Hotels & Resorts Worldwide, Inc.) is published on Counsel Stack Legal Research, covering District Court, E.D. Michigan primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Roney v. Starwood Hotels & Resorts Worldwide, Inc., 236 F.R.D. 346, 64 Fed. R. Serv. 3d 757, 2006 U.S. Dist. LEXIS 23985, 2006 WL 1059415 (E.D. Mich. 2006).

Opinion

OPINION AND ORDER

FEIKENS, District Judge.

Plaintiff Denise Roney brings suit for sexual harassment under Michigan’s Elliotts Larsen Civil Rights Act. Defendants Star-wood Hotels & Resorts Worldwide, Inc. (“Starwood”) and Merritt Hospitality1 (“Merritt”) move for dismissal as a discovery sanction pursuant to Federal Rule of Civil Procedure 37. For the reasons that follow, Defendants’ Motion to Dismiss is GRANTED.

[347]*347I. FACTUAL BACKGROUND

Defendants move for dismissal on the basis that Plaintiffs counsel, Mr. Ivie Shelton, has repeatedly violated court orders and has failed to cooperate with Defendants’ discovery efforts in a timely manner.

On June 27, 2005, Defendant Merritt served Plaintiff with its first set of interrogatories and first request for production of documents. (Defs.’ Joint Mot. for Protective Order, Ex. 11.) Plaintiff failed to respond to either the interrogatories or the request for production. (Defs.’ Br., 2.) Consequently, Defendants filed a joint motion for protective order, and Defendant Merritt filed a motion to compel discovery. On November 1, 2005, this Court granted those motions in part and ordered Plaintiff to provide complete responses to Defendant Merritt’s first set of interrogatories and first request for production of documents within ten days. On November 14, 2005, this Court ordered Plaintiff to pay Defendant Merritt’s costs and attorney’s fees of $704.00 incurred in bringing its motion to compel.

Plaintiff failed to comply with either the November 1 or the November 14 order. Defense counsel’s November 23, 2005 letter expressly warned Plaintiffs counsel that Defendants would seek dismissal of the case if Plaintiff did not follow those orders by November 30. (Defs.’ Br., Ex. 3.) On December 1, 2005, Plaintiff served an untimely written response to Defendant Merritt’s first request for production of documents, despite this Court’s November 1 order to do so within ten days. (Defs.’ Br., 4.) Plaintiff failed to produce a single document; instead, her written response stated that she did not have certain documents and would produce others within ten business days. (Defs.’ Br., Ex. 4.) Plaintiff provided no response whatsoever to Defendant Merritt’s first set of interrogatories, in violation of this Court’s November 1 order. (Defs.’ Br., 4.) Moreover, Plaintiff did not pay Defendant Merritt’s costs and attorney’s fees as ordered on November 14. Id. As a result of Plaintiffs repeated failure to cooperate in discovery and violation of this Court’s orders, Defendants filed a joint motion to dismiss on December 5, 2005.

A hearing on Defendants’ motion to dismiss was held on February 9, 2006, at which time Plaintiff still had failed to comply with this Court’s prior orders. Plaintiff had not paid Defendant Merritt’s costs and attorney’s fees, had not answered any interrogatories, and had not produced any of the requested documents. (Tr., 10-35.) This Court warned Plaintiffs counsel that Plaintiff had ten days to comply with this Court’s orders of November 1 and November 14, and failure to do so would result in the dismissal of Plaintiffs case. (Tr., 4-9).

The hearing on Defendant’s motion to dismiss was continued on February 21, 2006. As of that date, Plaintiff still had not paid Defendant Merritt’s costs and attorney’s fees as ordered on November 14. (Tr., 8.) Counsel for Defendant Merritt indicated that Plaintiff had answered the interrogatories sufficiently. (Tr., 16-17.) Counsel also said that Plaintiff provided a second written response to Defendant Merritt’s first request for production of documents. (Tr., 7-8.) However, Plaintiff had not produced any documents, despite having said in her December 1 response that she would produce some of the documents within ten business days. (Tr., 7-8; Defs.’ Br., Ex. 4.) Of the documents that were not produced, Merritt’s counsel said that Plaintiff had executed authorizations that would enable Defendants to obtain Plaintiffs tax returns, employment records, and medical records. (Tr., 17-18.)

II. ANALYSIS

A. Standard of Review for Dismissal Under Fed.R.Civ.P. 37

Federal Rule of Civil Procedure 37 gives a district court the authority to dismiss a case as a sanction against a party who frustrates the discovery process. Specifically, a dismissal may be based on a party’s failure to respond to interrogatories or requests for production of documents. Fed.R.Civ.P. 37(d). A case may also be dismissed if a party does not comply with a court order compelling discovery. Fed.R.Civ.P. 37(b)(2)(C).

There is ample support in the ease law for dismissal under Rule 37 based on [348]*348facts similar to the case at hand. To determine whether a Rule 37 dismissal is an appropriate discovery sanction, a district court must consider four factors: “(1) whether the party’s failure to cooperate in discovery is due to willfulness, bad faith, or fault; (2) whether the adversary was prejudiced by the dismissed party’s failure to cooperate in discovery; (3) whether the dismissed party was warned that failure to cooperate could lead to dismissal; and (4) whether less drastic sanctions were imposed or considered before dismissal was ordered.” Harmon v. CSX Transp., 110 F.3d 364, 366-67 (6th Cir.1997) (quoting Regional Refuse Sys., Inc. v. Inland Reclamation Co., 842 F.2d 150, 153-55 (6th Cir.1988)). Where an attorney’s conduct is the basis for dismissal, as in the present case, these factors are applied more stringently. Id. at 367.

With regard to the first factor, the Sixth Circuit has said that dismissal of a case for an attorney’s misconduct is appropriate only where there is a “clear record of delay or contumacious conduct.” Harmon, 110 F.3d at 367 (citation and internal quotation marks omitted). In Harmon, the Sixth Circuit found that such a record existed and upheld the district court’s dismissal of the case under Rule 37. Id. at 368. Harmon’s facts are sufficiently similar to the case at hand. The plaintiff failed to respond to interrogatories and requests for production, despite a court order compelling a response and several attempts by opposing counsel to secure a response. Id. at 365-66. The Sixth Circuit held that the record was “more than adequate” to establish “a clear record of delay and contumacious conduct” on the part of the plaintiffs attorney. Id.

Clearly such a record exists in the present case as well. Plaintiff, through Shelton, repeatedly violated this Court’s orders, as well as the Federal Rules of Civil Procedure. Plaintiff did not answer Defendant Merritt’s interrogatories until February 17, 2006, which was two and one-half months after this Court’s November 1 order compelling answers, and nearly eight months after the interrogatories were served on Plaintiff. (Defs.’ Supp.

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236 F.R.D. 346, 64 Fed. R. Serv. 3d 757, 2006 U.S. Dist. LEXIS 23985, 2006 WL 1059415, Counsel Stack Legal Research, https://law.counselstack.com/opinion/roney-v-starwood-hotels-resorts-worldwide-inc-mied-2006.