                          STATE OF MICHIGAN

                           COURT OF APPEALS



MARCIA SHAWUANG GEE,                                                UNPUBLISHED
                                                                    February 21, 2017
               Plaintiff-Appellant,

v                                                                   No. 329990
                                                                    Wayne Circuit Court
CITIZENS INSURANCE COMPANY OF                                       LC No. 13-010872-NF
AMERICA,

               Defendant-Appellee.


Before: GLEICHER, P.J., and MURRAY and FORT HOOD, JJ.

PER CURIAM.

       Plaintiff appeals as of right the trial court’s order dismissing plaintiff’s lawsuit against
defendant in this first-party action brought pursuant to the no-fault act, MCL 500.3101 et seq.
We affirm.

       On appeal, plaintiff asserts that the trial court abused its discretion in dismissing her
lawsuit on the basis of discovery abuses throughout the lower court proceedings. We disagree.

        In dismissing plaintiff’s lawsuit, the trial court relied on MCR 2.313 and MCR 2.504. In
Jilek v Stockson, 297 Mich App 663, 665; 825 NW2d 358 (2012), this Court set forth the legal
standard for reviewing a trial court’s decision concerning sanctions arising from a discovery
violation.

               The standard of review for decisions regarding sanctions for discovery
       violations is abuse of discretion. An abuse of discretion occurs when the decision
       results in an outcome falling outside the range of principled outcomes.
       [Quotation marks and citations omitted.]

       MCR 2.313 provides, in pertinent part, as follows:

       (B) Failure to Comply With Order.

                                             * * *

       (2) Sanctions by Court in Which Action Is Pending. If a party or an officer,
       director, or managing agent of a party, or a person designated under MCR

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       2.306(B)(5) or 2.307(A)(1) to testify on behalf of a party, fails to obey an order to
       provide or permit discovery, including an order entered under subrule (A) of this
       rule or under MCR 2.311, the court in which the action is pending may order such
       sanctions as are just, including, but not limited to the following:

       (a) an order that the matters regarding which the order was entered or other
       designated facts may be taken to be established for the purposes of the action in
       accordance with the claim of the party obtaining the order;

       (b) an order refusing to allow the disobedient party to support or oppose
       designated claims or defenses, or prohibiting the party from introducing
       designated matters into evidence;

       (c) an order striking pleadings or parts of pleadings, staying further proceedings
       until the order is obeyed, dismissing the action or proceeding or a part of it, or
       rendering a judgment by default against the disobedient party[.] [Emphasis
       added.]

       Likewise, MCR 2.504 provides, in pertinent part, as follows:

       (B) Involuntary Dismissal; Effect.

       (1) If a party fails to comply with these rules or a court order, upon motion by an
       opposing party, or sua sponte, the court may enter a default against the
       noncomplying party or a dismissal of the noncomplying party’s action or claims.
       [Emphasis supplied.]

       In Zantop Int’l Airlines, Inc v Eastern Airlines, 200 Mich App 344, 360; 503 NW2d 915
(1993), this Court observed that the dismissal of an action is a harsh consequence and set forth
relevant factors for trial courts to consider before imposing dismissal as a sanction:

       Recognizing the harsh nature of dismissal, this Court has established standards by
       which to measure the sanction. In Dean v Tucker, 182 Mich App 27, 32-33; 451
       NW2d 571 (1990), we summarized some of the factors that a court should
       consider before imposing the sanction of dismissal: (1) whether the violation was
       willful or accidental; (2) the party’s history of refusing to comply with previous
       court orders; (3) the prejudice to the opposing party; (4) whether there exists a
       history of deliberate delay; (5) the degree of compliance with other parts of the
       court’s orders; (6) attempts to cure the defect; and (7) whether a lesser sanction
       would better serve the interests of justice. The Dean Court also noted that “[t]his
       list should not be considered exhaustive.” Id. at 33.

        A review of the trial court’s July 10, 2015 bench ruling confirms that it duly considered
the gravity of dismissal of plaintiff’s lawsuit in its entirety before imposing dismissal as a
sanction. The trial court first evaluated whether plaintiff’s behavior was willful or accidental.
Zantop, 200 Mich App at 360. Specifically, the trial court took care to note that plaintiff
engaged in a “repeated abuse of the [discovery] process . . . .” The trial court went on to observe
that plaintiff had deleted information from her Facebook account, and that she did so in an

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intentional and deliberate manner to evade discovery. Considering the history of plaintiff’s
violations of the trial court’s orders and whether plaintiff engaged in a pattern of deliberate
delay, Zantop, 200 Mich App at 360, the trial court further stated that plaintiff “repeatedly
refused to appear” for scheduled independent medical examinations (IMEs), some of which were
court-ordered, and that she “repeatedly refused to provide [information responsive] to discovery
requests.” Specifically, the trial court expressly stated that plaintiff’s behavior evinced a
complete failure to show any regard for the trial court’s authority.

       A review of the record supports the trial court’s conclusions on these factors. First, the
record confirms that plaintiff demonstrated very minimal compliance with attending scheduled
IMEs. For example, on September 8, 2014, the trial court had to order plaintiff to attend IMEs
with Dr. W. John Baker, Dr. Elliot Wagenheim and Dr. Gary Trock. On June 2, 2015, the trial
court was required to enter a second order again compelling plaintiff to attend IMEs with Dr.
Wagenheim and Dr. Trock. While plaintiff asserts on appeal that she did not refuse to attend
these IMEs, and that transportation issues precluded her from attending, the clear fact discerned
from the record is that she had to be ordered by the trial court twice to attend these IMEs.

        Additionally, a close review of the record confirms that plaintiff, although (1) ordered on
June 2, 2015 to provide information regarding her Facebook account to defendant, and (2)
forbidden by the trial court’s December 18, 2014 protective order from deleting any material
from her Facebook page, deleted material in deliberate defiance of the trial court’s orders. While
plaintiff submitted a sworn affidavit averring that she did not delete any information from her
Facebook account, defendant produced evidence in support of its third renewed motion to
dismiss showing the difference between plaintiff’s Facebook page on June 25, 2015 and June 26,
2015, confirming that significant deletions had taken place on plaintiff’s Facebook page.
Accordingly, the trial court’s conclusion that plaintiff deleted the sought-after material from
Facebook was grounded in the record and therefore reasonable.

        Over the course of the lower court proceedings, the trial court was also aware that
defendant was incurring significant expense as a result of plaintiff’s failure to attend scheduled
IMEs. Zantop, 200 Mich App at 360. The trial court was also cognizant that defendant sought
information from plaintiff’s Facebook account as necessary to defend its case. Additionally, the
trial court gave plaintiff several opportunities to correct her behavior and provide the requested
information from Facebook before ultimately dismissing the case. Plaintiff was also warned on
more than one occasion that the trial court would dismiss her lawsuit if she did not comply with
discovery. Put simply, plaintiff had many opportunities to rectify the issue of not providing
requested discovery, and she failed to do so. Id. And, contrary to what plaintiff claims on
appeal, the trial court’s ruling makes it abundantly clear that the trial court faulted plaintiff alone
for the discovery abuses, and was not holding her responsible for the actions of her mother,
Marcia L. Gee, or anyone else that had not cooperated with discovery. Under the circumstances
of this case, we are convinced that the trial court’s decision to dismiss plaintiff’s lawsuit was
supported by the record, and a lesser sanction would not have better served the interests of




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justice following plaintiff’s repeated and flagrant defiance of the trial court’s authority. Id.1 Put
another way, the trial court, over the course of the lower court proceedings, did consider other
less drastic options before ultimately imposing dismissal as the sanction it considered just and
proper under the circumstances. See, e.g., Houston v Southwest Detroit Hosp, 166 Mich App
623, 629-630; 420 NW2d 835 (1988). Viewed against the backdrop of repeated discovery
violations by plaintiff that caused unnecessary delay in these proceedings and great expense to
defendant, the trial court’s decision to dismiss plaintiff’s lawsuit fell within the range of
principled outcomes and was not an abuse of discretion.

       Affirmed. Defendant, as the prevailing party, may tax costs pursuant to MCR 7.219.




                                                              /s/ Elizabeth L. Gleicher
                                                              /s/ Christopher M. Murray
                                                              /s/ Karen M. Fort Hood




1
  While plaintiff argues on appeal that the trial court ought to have conducted an evidentiary
hearing on the issue whether plaintiff herself deleted the material from her Facebook account,
and therefore violated the trial court’s orders, plaintiff has not provided any authority standing
for the legal proposition that an evidentiary hearing was necessary, and our research did not yield
any such authority.


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