United States District Court, W.D. Tennessee, Western Division
ORDER ADOPTING THE REPORT AND RECOMMENDATION OF THE
MAGISTRATE JUDGE AND DISMISSING THE CASE WITH
McCALLA, UNITED STATES DISTRICT JUDGE.
the Court is the Report and Recommendation filed by Chief
United States Magistrate Judge Diane K. Vescovo on September
4, 2019. (ECF No. 106.) In the Report and Recommendation,
Chief Magistrate Judge Vescovo recommends that
Defendants' Motion to Dismiss (ECF No. 103) be Granted.
(ECF No. 106 at PageID 666.)
14 days after being served with a copy of the recommended
disposition, a party may serve and file specific written
objections to the proposed findings and
recommendations.” Fed.R.Civ.P. 72(b)(2). Plaintiff has
filed timely objections to the Report and Recommendation.
See Fed.R.Civ.P. 5(b)(2), 6(d), 72(b)(2).
“When no timely objection is filed, the court need only
satisfy itself that there is no clear error on the face of
the record in order to accept the recommendation.”
Fed.R.Civ.P. 72(b) advisory committee note.
timely objection has been filed, “[t]he district judge
must determine de novo any part of the magistrate judge's
disposition that has been properly objected to.”
Fed.R.Civ.P. 72(b)(3). The District Court reviews the
sections of the Reports and Recommendations for clear error
if there were no specific objections to the section.
See Fed.R.Civ.P. 72(b) advisory committee notes;
Howard v. Sec'y of Health and Human Servs., 932
F.2d 505, 509 (6th Cir. 1991) (noting that when a party makes
a general objection, “[t]he district court's
attention is not focused on any specific issues for review,
thereby making the initial reference to the magistrate
useless.”). “A general objection to the entirety
of the magistrate's report has the same effects as would
a failure to object.” Howard, 932 F.2d at 509.
Moreover, the “failure to properly file objections
constitutes a waiver of appeal.” See Howard,
932 F.2d at 508 (citing United States v. Walters,
638 F.2d 947, 950 (6th Cir. 1981)).
first Scheduling Order set July 6, 2019, as the deadline for
completing depositions and all discovery. (ECF No. 34.)
According to Defendants unopposed motion to extend the
discovery deadline, the Defendants requested that Plaintiff
be deposed on June 5 or 6, 2018, but Plaintiff responded that
she would be out of town and would let counsel know when she
would be available. (Defs.' Mot. to Extend, ECF No.
87-1.) Plaintiff never responded with an alternate date when
she would be available for her deposition. (Notice of Depo.,
ECF No. 84.) The Defendants then noticed her deposition on
May 31, 2019 for June 6, 2019, within the required discovery
deadline. (Id.) Plaintiff did not appear.
(Defs.' Mot. to Extend, ECF No. 87.) On July 10, 2019,
the Court granted the Defendants' Motion to Extend the
Discovery Deadline to August 9, 2019 for the limited purpose
of deposing Plaintiff. (Order, ECF No. 93.) The Court ordered
Plaintiff to appear and be deposed on or before August 9,
2019. (Id.) In addition, the Court warned Plaintiff
that failure to comply would lead to dismissal of her
a party . . . fails to obey an order to provide or permit
discovery, the court where the action is pending may issue
further just orders. They may include . . . [an order]
dismissing the action or proceeding in whole or in
part.” Fed.R.Civ.P. 37(b)(2)(A). The Sixth Circuit
regards the sanction of dismissal under Rule 37 for failure
to cooperate in discovery to be a “sanction of last
resort.” Beil v. Lakewood Eng'g and Mfg.
Co., 15 F.3d 546, 552 (6th Cir. 1994). Dismissal is
appropriate “only if the court concludes that a
party's failure to cooperate is due to willfulness, bad
faith or fault.” Reg'l Refuse Sys., Inc. v.
Inland Reclamation Co., 842 F.2d 150, 153-54 (6th Cir.
1988). In determining whether to dismiss an action for
failure to cooperate in discovery, the Court should consider:
(1) whether the party acted with willfulness, bad faith, or
fault; (2) whether prejudice resulted from the discovery
violation; (3) whether the party had been warned that her
conduct could lead to extreme sanctions; and (4) whether less
drastic sanctions were previously imposed or should be
considered. Mager v. Wisconsin Cent. Ltd., 924 F.3d
831, 837 (6th Cir. 2019) (citing United States v.
Reyes, 307 F.3d 451, 458 (6th Cir. 2002)).
Magistrate Judge found that:
Dismissal of this action is an appropriate sanction in this
case. The first factor of the Sixth Circuit's test is
satisfied because Cleaborn's failure to appear twice for
her deposition is due to her own willfulness and fault.
She has not offered any reason as to why she was unable to
appear for her deposition on August 9, 2019. She simply chose
not to appear. To dismiss an action with prejudice under Rule
37 the Sixth Circuit has held that the first factor is
satisfied only if “a clear record of delay or
contumacious conduct” exists. Carpenter v. City of
Flint, 723 F.3d 700, 704 (6th Cir. 2013) (quoting
Freeland v. Amigo, 103 F.3d 1271, 1277 (6th Cir.
1997)). Cleaborn has ignored an order of the court. This
course of conduct constitutes a clear record of delay.
The second factor weighs in favor of dismissal. The
Defendants have been prejudiced because they been unable to
move forward in their preparation for trial without the
Cleaborn's deposition. A jury trial is set for October
21, 2019, with a pretrial conference on October 2, 2019. The
dispositive motion deadline is September 30, 2019.
Furthermore, the Defendants have had to waste time, money,
and effort in pursuit of cooperation that Cleaborn was
legally obligated to provide under the court's order. The
third factor is satisfied because Cleaborn was sufficiently
warned that her failure to comply with the court's order
would result in dismissal of her case.
The final factor is satisfied because lesser sanctions would
not be appropriate in this case. Cleaborn has twice failed to
appear and be deposed and has failed to abide by an express
order of the court to do so after the first time she failed
to appear. Cleaborn has exhibited a disregard for the
Defendants' repeated requests for her deposition and has
shown contempt for an order of this court. Therefore, the
court recommends dismissal with prejudice under Rule 37 as a
In addition, dismissal is warranted under Rule 41(b). That
“If the plaintiff fails to prosecute or to comply with
these rules or a court order, a defendant may move to dismiss
the action or any claim against it. Unless the dismissal
order states otherwise, a dismissal under this subdivision
(b) and any dismissal not under this rule - except one for
lack of jurisdiction, improper venue, or failure to ...