                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 10a0758n.06

                                           No. 09–2201                                  FILED
                                                                                     Dec 15, 2010
                            UNITED STATES COURT OF APPEALS                     LEONARD GREEN, Clerk
                                 FOR THE SIXTH CIRCUIT

TYRONE SMITH ,
     Plaintiff-Appellant,

                                                     On Appeal from the United
               v.                                    States District Court for the
                                                     Eastern District of Michigan
NATIONWIDE MUTUAL FIRE
INSURANCE COMPANY ,
      Defendant-Appellee.

______________________________

Before: KENNEDY, COLE, and ROGERS, Circuit Judges.

       CORNELIA G. KENNEDY, Circuit Judge. Plaintiff-Appellant Tyrone Smith appeals the

district court’s dismissal of his lawsuits against his insurer, Defendant-Appellee Nationwide Mutual

Fire Insurance Company (“Nationwide”), over Nationwide’s denial of a claim on his personal-

property-protection insurance policy and a claim on his automobile insurance policy. The district

court dismissed the actions for willful failure to cooperate in discovery after Mr. Smith repeatedly

submitted inadequate responses to Nationwide’s discovery requests, despite two intervening court

orders and the imposition of $1000 in sanctions. Because the district court did not abuse its

discretion by dismissing Mr. Smith’s claims under these circumstances, we AFFIRM.

                     FACTUAL AND PROCEDURAL BACKGROUND

       On May 17, 2007, Tyrone and Crystal Smith reported to Nationwide, their insurer, the theft

of three pieces of jewelry worth $176,000. On May 26, 2007, Mr. Smith informed Nationwide that,

while driving his 2005 Corvette in Detroit the previous day, he had been involved in a hit-and-run
car accident. Nationwide’s investigation of both claims uncovered several red flags, including: an

unexplained delay in reporting both the theft and the accident to the police; the fact that the Smiths

had obtained insurance coverage for their jewelry on May 3, 2007, only thirteen days before the

alleged theft; the Smiths’ inability to produce proof of their ownership of the stolen jewelry; an

examination of the Corvette indicating that the accident could not have occurred in the manner

described by Mr. Smith; a 1999 insurance claim filed by Mr. Smith alleging a hit-and-run accident

remarkably similar to the current claim; and sparse, contradictory evidence of the Smiths’ household

income. Based on these facts, Nationwide denied both claims for fraud and misrepresentation in

December 2007.

       On April 16, 2008, the Smiths filed two complaints in Michigan’s Wayne County Circuit

Court, seeking to recover damages for the alleged theft (the “jewelry case”) as well as no-fault,

personal-injury-protection benefits from the alleged automobile accident (the “PIP case”).

Nationwide removed both suits to the United States District Court for the Eastern District of

Michigan on May 19, 2008. The actions were consolidated for discovery on October 8, 2008.1

       In the spring and summer of 2008, Nationwide presented to the Smiths’ attorney several

discovery requests: interrogatories in both the jewelry case and the PIP case were served on May 27,

2008; requests to produce documents in the jewelry case were served on June 27, 2008; and a second

set of requests to produce documents in the jewelry case were served on July 21, 2008. On July 17,

2008, the Smiths’ attorney submitted Mr. Smith’s unsigned responses to both sets of interrogatories.



       1
        Mrs. Smith was dismissed as a plaintiff in the PIP case by stipulation of the parties on April
16, 2009, but she remained a party to the jewelry case throughout the district court proceedings.
Because she was subject to some of the district court’s discovery orders in the consolidated cases,
we refer to the Plaintiff in these actions as “the Smiths.”

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Nationwide’s counsel sent two letters to the Smiths’ attorney on August 6, 2008, requesting that the

Smiths respond to the requests to produce and provide Mrs. Smith’s answers to the interrogatories

served in the jewelry case. The letters also pointed out several incomplete responses in Mr. Smith’s

answers to both sets of interrogatories, and asked that he supplement his responses accordingly and

provide a signed copy of his answers.

       When the Smiths’ attorney did not respond to the August 6, 2008 correspondence, on

September 16, 2008 Nationwide filed a motion to compel the Smiths to fulfill the discovery requests

in each case. On October 6, 2008, the Smiths’ attorney sent Nationwide’s counsel Mr. Smith’s

supplemental answers to both sets of interrogatories. Nationwide’s counsel sent two more letters

to the Smiths’ attorney on October 8, 2008, explaining that several of Mr. Smith’s answers to the

interrogatories were still insufficient and again asking that the Smiths respond to the requests to

produce. On October 13, 2008, the Smiths filed a motion for a protective order in both cases,

claiming that Nationwide’s unanswered discovery requests sought irrelevant information and should

be quashed under Federal Rule of Civil Procedure 26(c) to protect the Smiths from “annoyance,

embarrassment, oppression, [and] undue burden or expense.” Both sets of motions were referred

to a magistrate judge, who issued a November 17, 2008 order granting Nationwide’s motions to

compel and denying the Smiths’ motions for protective orders. The magistrate concluded that all

of Nationwide’s discovery requests were relevant and minimally intrusive and were therefore

allowable. He also set out a detailed list of the information the Smiths needed to provide to

Nationwide in order to fully respond to the discovery requests. Furthermore, the magistrate required

that, if the Smiths did not have the information or documents requested, they had to so swear under




                                                 3
penalty of perjury and, if possible, provide a valid release allowing Nationwide to obtain the relevant

records.

       On December 22, 2008, the Smiths’ attorney sent Nationwide’s counsel Mr. Smith’s updated

answers to both sets of interrogatories and his first set of responses to the requests to produce. Upon

reviewing these submissions, Nationwide’s counsel determined they were still inadequate and, on

February 4, 2009, sent the Smiths’ attorney two detailed letters to that effect. After once more

receiving no response from the Smiths or their attorney, on March 19, 2009 Nationwide filed a

motion to dismiss both claims under Federal Rule of Civil Procedure 37(b) for willful failure to

cooperate in discovery. The motion was again referred to the magistrate judge, who granted it in

part. In an April 27, 2009 order, the magistrate concluded that the Smiths had not fully complied

with his previous discovery order and provided another thorough explanation of the information,

releases, and sworn statements the Smiths were required to provide to Nationwide. The magistrate

also found ample evidence that the Smiths had acted in bad faith and warned that any further failure

to comply with the court’s discovery orders could result in a dismissal of both cases. The magistrate

set discovery deadlines of April 30, 2009 and May 15, 2009, by which time the Smiths were to send

Nationwide their updated discovery responses. In addition, he assessed a $1000 sanction against the

Smiths to be paid to Nationwide by June 1, 2009.

       On April 30, 2009 and again on May 15, 2009, the Smiths’ attorney forwarded a set of the

Smiths’ supplemental discovery responses to Nationwide’s counsel. Once more, Nationwide’s

counsel determined they were incomplete. Furthermore, neither the Smiths nor their lawyer paid the

$1000 sanction by the June 1 deadline, though on June 4, 2009 and June 11, 2009 the Smiths’

attorney emailed Nationwide’s counsel indicating that his office would issue a draft of the $1000 by


                                                  4
July 15, 2009. Nationwide filed a second motion to dismiss under Rule 37(b) on June 12, 2009,

asserting that the Smiths’ most recent supplemental responses violated the magistrate’s orders. On

August 13, 2009, the district judge heard oral argument on the motion, during which it determined

that the $1000 sanction had still not been paid. The judge then noted Nationwide’s allegation that

the Smiths’ most recent discovery responses were still incomplete, adopted the magistrate’s findings

that the Smiths’ failure to cooperate in the discovery process evidenced bad faith, and found that

Nationwide was prejudiced by this failure. The judge also determined that the magistrate’s April 27,

2009 order constituted both a warning to the Smiths that any continued failure to cooperate could

lead to dismissal and an attempt to utilize sanctions less drastic than dismissal. The district court

dismissed both the jewelry case and the PIP case with prejudice in an August 21, 2009 judgment.

Mr. Smith timely appealed the dismissal of both cases.

                                              ANALYSIS

        Mr. Smith argues that the district court erred by dismissing both of his claims as a sanction

for his failure to comply with the court’s discovery orders. Under Federal Rule of Civil Procedure

37(b), “[i]f a party . . . fails to obey an order to provide or permit discovery, . . . the court where the

action is pending may . . . dismiss[] the action or proceeding in whole or in part.” Fed. R. Civ. P.

37(b)(2)(v). “An order of the district court dismissing an action under Rule 37(b) . . . for willful

failure to cooperate in discovery is reviewed under an abuse of discretion standard.” Bass v. Jostens,

Inc., 71 F.3d 237, 241 (6th Cir. 1995) (citing Nat’l Hockey League v. Metro. Hockey Club, Inc., 427

U.S. 639, 643 (1976) and Reg’l Refuse Sys., Inc. v. Inland Reclamation Co., 842 F.2d 150, 154 (6th

Cir. 1988)). When assessing the dismissal of a complaint as a sanction for discovery, this court

considers four factors:


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        (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) (quoting Reg’l Refuse, 842 F.2d

at 153–55). “Although no one factor is dispositive, dismissal is proper if the record demonstrates

delay or contumacious conduct.” United States v. Reyes, 307 F.3d 451, 458 (6th Cir. 2002). In this

case, consideration of all four factors demonstrates that the district court did not abuse its discretion

by dismissing the Smiths’ claims.

        First, ample evidence supports the district court’s conclusion that the Smiths’ failure to

cooperate in discovery was in bad faith. By the time the district court dismissed their claims in

August of 2009, the Smiths still had yet to provide Nationwide with adequate responses to the

interrogatories and requests to produce served fourteen months earlier, despite two court orders

demanding they do so. The record further reveals that the Smiths’ failure to cooperate in discovery

was the result of delay and contumacious conduct rather than the Smiths’ inability to produce the

requested information, or even the carelessness of their attorney. The magistrate twice ordered that

the Smiths turn over all of the information they possessed relating to Nationwide’s discovery

requests—with the second order explicitly requiring that the Smiths search for this information—or

to execute valid releases for it. However, Nationwide’s examination of the documents and releases

provided by the Smiths revealed that they had withheld records and information within the scope of

the discovery orders. This disingenuous behavior is evidenced by the following examples:


•       Nationwide asked the Smiths to provide or release the records from all telephones in use by
        the Smiths in May 2007. The Smiths’ December 22, 2008 supplemental responses provided


                                                   6
       releases for the records from one cell phone registered to Mr. Smith and one cell phone
       registered to Mrs. Smith, but did not release the records of the Smiths’ home telephone or
       a second cell phone known to belong to Mrs. Smith.

•      In response to Nationwide’s request for bank statements, Mr. Smith provided a release in the
       December 22, 2008 supplemental responses for single account number at Credit Union One
       and a single account number at First Federal of Michigan. The records obtained by
       Nationwide for these accounts revealed four other accounts belonging to Mr. Smith or his
       business for which the Smiths had not provided releases.

•      Nationwide requested any and all lease agreements between the Smiths and any tenants
       residing at the Smiths’ known rental properties. While the August 2007 examinations under
       oath of Mr. and Mrs. Smith confirmed that they did own and earn income from rental
       properties, they never produced any lease agreements, or even the names and contact
       information for their tenants.

•      To facilitate Nationwide’s request for Mr. Smith’s relevant medical records, the magistrate
       judge ordered Mr. Smith to “provide defense counsel with a signed declaration . . . or
       affidavit stating any and all doctors or hospitals where he [was] treated prior to or following
       the alleged car accident.” In the April 30, 2009 supplemental responses, Mr. Smith
       submitted an affidavit refusing to comply with this order: “I have provided information
       related to any treating hospital or physician for any treatment before the accident. Any
       treatment after the accident that is not claimed as part of the no fault claim for medical
       benefit [sic] in this case is not required.”

In light of this evidence of the Smiths’ pattern of noncompliance, the district court did not abuse its

discretion by concluding that the Smiths had shown bad faith by “fail[ing] to respond timely to

[Nationwide]’s discovery requests or provide adequate reasons why they failed to do so.” Cf.

Harmon, 110 F.3d at 368 (finding a bad-faith failure to cooperate in discovery when party did not

adequately answer discovery requests served almost one year previously, “in disregard for [the

requesting party]’s persistent requests and with contempt for an order of the court”).

       Second, the district court did not err by determining that Nationwide was prejudiced by the

Smith’s failure to cooperate in discovery. This failure compromised Nationwide’s ability to prepare

its defense in each action, as the magistrate determined that all of Nationwide’s discovery requests



                                                  7
were “potentially relevant to [the Smiths’] claims in these cases”; the Smiths’ argument to the

contrary is foreclosed by their failure to file objections to the magistrate’s ruling, United States v.

Walters, 638 F.2d 947, 949–50 (6th Cir. 1981) (“[A] party shall file objections [to a magistrate’s

ruling] with the district court or else waive right to appeal.”). Moreover, prejudice results “[n]ot only

[when the aggrieved party is] unable to secure the information requested, but . . . also [when it is]

required to waste time, money, and effort in pursuit of cooperation which [the other party] was

legally obligated to provide.” Harmon, 110 F.3d at 368. The Smiths’ failure to provide adequate

discovery prompted Nationwide to expend time and money cataloguing the deficiencies in the

Smiths’ proffered responses, drafting multiple letters to the Smiths’ attorney asking for supplemental

responses, and filing and arguing the three discovery-related motions brought before the district

court. This alone establishes prejudice to Nationwide.

        Third and fourth, the magistrate’s order granting in part Nationwide’s first motion to dismiss

both warned the Smiths that further failure to cooperate could lead to dismissal and attempted to

induce the Smiths’ compliance by imposing a sanction less drastic than dismissal. The order

contains a bolded section that reads as follows: “NOTICE AND WARNING TO PLAINTIFFS[:]

If Plaintiffs do not fulfill their discovery obligations, including complying with the present

Order, this Court will consider granting Defendant’s request that Plaintiffs’ case be dismissed

with prejudice.” The order also imposed a $1000 fine on the Smiths for not complying with the

order granting Nationwide’s motion to compel; this sanction was never paid,2 and it did not prevent

        2
        Mr. Smith claims that the failure to pay the $1000 sanction was solely the fault of his
attorney. However, even if this were the case, it does not excuse the Smiths’ overall conduct. Mr.
Smith “voluntarily chose this attorney as his representative in the action, and he cannot now avoid
the consequences of the acts or omissions of this freely selected agent.” Link v. Wabash R.R. Co.,
370 U.S. 626, 633–34 (1962). The discovery violations perpetrated in this case are egregious enough

                                                   8
the Smiths from presenting yet another set of incomplete responses. See Schafer v. City of Defiance

Police Dep’t, 529 F.3d 731, 742 (6th Cir. 2008) (finding the district court had satisfied its obligation

to consider a sanction less drastic than dismissal when it ordered a party to pay the costs incurred in

connection with her nonappearance at a deposition, and she failed to do so). Therefore, like the first

two factors, the final two prongs of the applicable test support dismissal of the jewelry case and the

PIP case, and the district court’s decision to do so was not an abuse of discretion.

                                          CONCLUSION

       For the foregoing reasons, we AFFIRM the district court’s dismissal with prejudice of both

Mr. Smith’s claims under Federal Rule of Civil Procedure 37(b).




to justify dismissal even if some of them are attributable to the Smiths’ attorney. See Harmon, 110
F.3d at 367–38 (noting that dismissal under Rule 37(b) is appropriate when the record reflects bad
faith and contumacious conduct, even if a party’s attorney is responsible for the failure to cooperate
in discovery).

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