United States District Court, E.D. Kentucky
JULIAN SHULMAN, PLAINTIFF.
AMAZON.COM.KYDC LLC, et al., Defendants.
DAVID L. BUNNING, District Judge.
This matter is before the Court on Magistrate Judge Robert E. Wier's Recommended Disposition (Doc. # 64) of Defendants' Motion for Sanctions (Doc. # 27). Defendants having filed specific Objections thereto (Doc. # 65), and Plaintiff having responded (Docs. # 67 and 68), this matter is now ripe for the Court's review. For reasons set forth herein, Defendants' Objections are denied and Judge Wier's Recommended Disposition is adopted as the findings of fact and conclusions of law of this Court.
II. Factual and Procedural Background
In December 2012, Plaintiff Julian Shulman filed this pro se action against his former employer, the Amazon Defendants, alleging violations of the Americans with Disabilities Act, Kentucky Civil Rights Act and Employee Retirement Income Security Act. (Doc. # 1-1). Plaintiff also complained that Defendants breached the implied contract of continued employment. ( Id. ).
On August 29, 2013, the district court entered its Scheduling Order, setting forth general deadlines for the parties and referring all discovery issues to Judge Wier for resolution. (Doc. # 12). Plaintiff failed to make his initial disclosures by the prescribed deadline, prompting Defendants to file a Motion to Compel Disclosures. (Doc. # 15). Judge Wier denied Defendants' Motion as premature and set this matter for a phone conference, at which Plaintiff failed to appear. (Docs. # 17 and 18). Plaintiff was also absent at a subsequently scheduled show cause hearing. (Doc. # 20). At this juncture, Judge Wier indicated that further absences would likely result in sanctions, up to and including dismissal of this action. ( Id. ).
Plaintiff appeared at a second show cause hearing on December 13, 2013 and stated his intent to continue prosecuting this case. (Doc. # 23). After impressing upon Plaintiff the importance of reading filings and appearing at proceedings, Judge Wier ordered Plaintiff to provide Defendants with full and compliant Rule 26(a)(1) disclosures on or before December 20, 2013. ( Id. ). He further stated that Plaintiff would be precluded from using undisclosed information at future proceedings. ( Id. ).
At this hearing, Judge Wier also stated his intent to award sanctions "designed to address and prevent prejudice to Defendants from Plaintiff's conduct." ( Id. ). He reviewed Defendants' Report of Expenses and Attorneys Fees and ordered Plaintiff to submit the sum of $3, 681.75 to Defendants. (Docs. # 26 and 29). Plaintiff objected to the financial award and Defendants filed a timely response. (Docs. # 38 and 44). This Court reviewed the filings, found that Judge Wier's Order was reasonable, and denied Plaintiff's Objections. (Doc. # 61).
As the Court considered the monetary sanctions issue, the parties directed their efforts towards discovery. Plaintiff emailed Defendants his Rule 26(a)(1) disclosures on the prescribed date, although he "omitted from the list of names... any non-management current employees of [Amazon], " citing concerns about retaliation. (Doc. # 27-3). Defendants also took Plaintiff's deposition on January 8, 2014. (Doc. # 25). However, this progress ground to a halt on February 7, 2014, when Defendants filed the Motion for Sanctions currently before this Court. (Doc. # 27). After requesting and receiving an extension of time, Plaintiff filed his response within the revised deadline and Defendants filed a timely reply. (Docs. # 30, 54, 56 and 58). In accordance with the district court's Referral Order, the Motion was then submitted to Judge Wier for the preparation of a report and recommendation. (Doc. # 28).
In his Recommended Disposition, Judge Wier acknowledged that this case began badly for Plaintiff, who "showed up at the final show-cause hearing in December with the action hanging by a thread." (Doc. # 64 at 4). However, Judge Wier also noted that Plaintiff had actively participated in the litigation since then. ( Id. ). Having reviewed Defendants' allegation of further discovery violations, bearing in mind the leeway afforded to pro se plaintiffs, Judge Wier did not believe that dismissal was warranted. ( Id. ). Instead, he found preclusive sanctions to be an adequate remedy for any discovery violations committed by Plaintiff. ( Id. ).
Defendants now ask this Court to disregard Judge Wier's Recommended Disposition and impose the ultimate sanction of dismissal, to be accompanied by an award of attorney's fees. First, Defendants argue that Judge Wier should have held Plaintiff responsible for violating the Court's Order and/or the applicable civil rules in the following ways: (1) failing to provide compliant initial disclosures; (2) failing to provide relevant documents allegedly located in a Lexington storage locker; (3) refusing to respond to Defendants' request for witness information at his deposition; and (4) failing to read and comply with Defendants' subpoena duces tecum. Defendants also take issue with Judge Wier's "charitable" characterization of Plaintiff's conduct and simultaneous criticism of Defendants' litigation tactics and discovery strategies. Finally, Defendants complain that the Recommended Disposition erroneously presented the facts of this case as though all allegations contained in Plaintiff's Complaint were true.
A. Standard of Review
The Sixth Circuit generally views the resolution of a motion for sanctions, costs and fees as a dispositive matter. See Massey v. City of Ferndale, 7 F.3d 506 (6th Cir. 1993)( citing Bennett v. Gen. Caster Serv. of N. Gordon Co., Inc., 976 F.3d 995, 999 (6th Cir. 1992)). Accordingly, the magistrate judge may only issue a report and recommendation regarding sanctions. See 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b). The magistrate judge must conduct the necessary proceedings and enter a recommended disposition in a timely manner. Fed.R.Civ.P. 72(b)(1). Once the parties are served with a copy of the recommended disposition, they have fourteen days to "serve and file specific written objections to the proposed findings and recommendations." Fed.R.Civ.P. 72(b)(2). Once such objections are filed and briefed, the district court judge must review the contested portions of the recommended disposition de novo. Fed.R.Civ.P. 72©. The district court "may accept, reject or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions." Id.
B. Factors for Dismissal as a Sanction
When deciding whether dismissal is an appropriate sanction for discovery violations, courts should consider the following 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., Inc., 110 F.3d 364, 366-67 (6th Cir. 1997). Because dismissal is ...