United States District Court, E.D. Kentucky, Northern Division, Covington
ORDER ADOPTING REPORT AND RECOMMENDATION
L. Bunning United States District Judge.
matter is before the Court on Magistrate Judge Edward B.
Atkins's Report and Recommendation
(“R&R”) (Doc. # 89), wherein he recommends
that Defendants' Motion for Sanctions (Doc. # 86) be
granted, Plaintiff's Complaint be dismissed, and
Defendants' Motion for Extension of Time (Doc. # 88) be
denied as moot. Plaintiff has filed Objections to the R&R
(Doc. # 90), and Defendants have filed a Response to
Plaintiff's Objections (Doc. # 91). Having reviewed the
parties' briefings, the Court will adopt the R&R as
the findings of fact and conclusions of law of the Court.
to 28 U.S.C. § 636(b)(1), a party may file written
objections within fourteen days after being served with a
copy of a Magistrate's R&R. If a party is properly
informed of the consequences of failing to file an objection,
and fails to file an objection, “the party waives
subsequent review by the district court.” Miller v.
Currie, 50 F.3d 373, 380 (6th Cir. 1995). Objections
must specifically challenge portions of the report or the
proposed findings or recommendations. Filing vague, general,
or conclusory objections does not meet the specificity
requirements, and such objections may be treated as a
complete failure to file. Zimmerman v. Cason, 354
F.App'x 228, 230 (6th Cir. 2009) (citing Cole v.
Yukins, 7 F.App'x 354, 356 (6th Cir. 2001)).
courts in the Sixth Circuit have also held that, “an
‘objection' that does nothing more than state a
disagreement with a magistrate's suggested resolution, or
simply summarizes what has been presented before, is not an
‘objection' as that term is used in this
context.” VanDiver v. Martin, 304 F.Supp.2d
934, 938 (E.D. Mich. 2004); Holl v. Potter, No.
C-1-09-618, 2011 WL 4337038, at *1 (S.D. Ohio Sept. 15, 2011)
(holding that “objections that merely restate arguments
raised in the memoranda considered by the Magistrate Judge
are not proper, and the Court may consider such repetitive
arguments waived”). Therefore, these
“objections” fail to put the Court on notice of
any potential errors in the Magistrate's R&R.
VanDiver, 304 F.Supp.2d at 938.
Plaintiff failed to file objections to the R&R within the
ordered fourteen day period. However, because the Plaintiff
is proceeding pro se, and the objections were only
one day late, the Court will consider Plaintiff's
objections on the merits.
Plaintiff suggests that the Magistrate Judge unnecessarily
“interfered” with the proceedings, claiming that
Defendants' first Motion to Compel was of the Magistrate
Judge's “own making, ” and that Plaintiff had
already fully responded to interrogatories. (Doc. # 90,
¶¶ 6 and 7). The record does not support
Plaintiff's claims. Defendants requested and secured
leave to file the Motion, and the Magistrate Judge granted
the Motion after full briefing. (Docs. # 69, 70, 71, and 75).
Plaintiff argues that the Magistrate Judge's
recommendation was inappropriate under Rule 37(b). (Doc. #
90, ¶¶ 19-25). The Sixth Circuit considers the
following factors in determining whether dismissal under Rule
37(b) is appropriate: whether (1) the failure to cooperate
was due to willfulness, bad faith, or fault; (2) the
adversary was prejudiced by the failure to cooperate; (3) the
party was warned that failure to cooperate could lead to
dismissal; and (4) less drastic sanctions were imposed or
considered. Tech. Tecycling Corp. V. City of
Taylor, 186 Fed.Appx. 624, 632 (6th Cir. 2006).
Magistrate Judge thoughtfully considered the aforementioned
factors in finding that they weigh in favor of dismissal:
Despite Defendants' multiple attempts to schedule his
deposition and generally communicate with him, Plaintiff
missed multiple noticed depositions and was consistently hard
to reach, and the Court finds bad faith underlying his
repeated absences and failures to communicate with the
opposing party. Second, Defendants have clearly been
prejudiced by his failures to appear, having wasted time and
resources by preparing and appearing for fruitless
depositions. Third, Plaintiff was warned by the Court, on
more than one occasion, that further failures to comply could
result in dismissal. Finally, the Court has considered and
employed less drastic sanctions in the past, having denied
Defendants' earlier motions for sanctions, in order to
provide Plaintiff an additional opportunity to properly
comply with discovery requirements under the Federal Rules
and adhere to the Court's mandates. Plaintiff has failed
to do so.
(Doc. # 89, p. 4-5) (internal citations omitted). The Court
agrees with the Magistrate Judge's analysis.
failed to answer Defendants' interrogatories as ordered
by the Court following Defendants' first Motion to
Compel. (Doc. # 75). Then, when Plaintiff failed to respond
to Defendants' Motion for Sanctions after Plaintiff
failed to appear for a deposition (Doc. # 73), the Court
warned Plaintiff that “further failure to cooperate in
the discovery process . . . will result in sanctions or a
recommendation that his complaint be stricken and this action
be dismissed.” (Doc. # 76). Again, Plaintiff failed to
adhere to the Court's orders. Finally, the Court entered
an Order setting Plaintiff's deposition for November 1,
2016, in which it warned Plaintiff that his failure to appear
would “result in the recommendation, by the undersigned
to the District Judge, that this case be dismissed and
stricken from the Court's active docket.” (Doc. #
83). Once again, Plaintiff failed to appear. Plaintiff
squandered every chance he was given to comply with the
Court's Orders despite multiple warnings, and with no
regard for the opposing party. Accordingly, for the reasons
set forth herein, IT IS ORDERED as follows:
Defendants' Motion for Sanctions (Doc. # 86) is
Magistrate Judge's Report and Recommendation (Doc. # 89)
is adopted as the findings of fact and
conclusions of law of the Court; and
Plaintiff's claims are DISMISSED, and
this matter is STRICKEN from the ...