The case of King v. Harwood, 15-cv-762 WD Kentucky September 30, 2019 presents an interesting question – can a defendant obtain dismissal of a case where the plaintiff refuses to answer questions in her deposition? Here the court answered this question with a “No.”
King brought a civil rights case against Harwood after she was exonerated of a murder. During her deposition, King refused (on Fifth Amendment grounds) to answer certain questions concerning bullet holes in her floor. The Defendant moved under Rule 37 for the dismissal of the case because King did not answer those questions.
The Magistrate and the District Judge rejected the Rule 37 motion because Harwood never moved to compel. Because he did not move to compel, there was no court order requiring King to answer the questions. Because she did not violate a court order, the Rule 37 sanction of dismissal was not available.
Fed. R. Civ. P. 37(b) provides that if a party “fails to obey an order to provide or permit discovery, including an order under Rule 26(f), 25, or 37(a), the court where the action is pending may issue further just orders.” Fed. R. Civ. P. 37(b)(2)(A). Such “just orders” may include “dismissing the action or proceeding in whole or in part.” Id. at 37(b)(2)(A)(v). However, the Sixth Circuit has stated that “[b]y its terms, Rule 37(b) requires a party seeking a sanction of default against a party to secure a court order compelling disclosure or discovery.” Burley v. Gagacki, 729 F.3d 610, 618 (6th Cir. 2013). In Burley, the Sixth Circuit affirmed the district court’s denial of a motion for a sanction of default under Rule 37, because the moving party had never moved to compel discovery even though “it was apparent that [the opposing party] did not fully respond to the interrogatories.” Id. at 618. That being the case, there was no violation of a court order to justify any sanction under Rule 37. Id.Further, the Sixth Circuit has made clear that dismissal is the sanction of last resort. See id.; Beil v. Lakewood Eng’g and Mfg. Co., 15. F.3d 546, 552 (6th Cir. 1994).
The court also determined that the bullet holes found in the floor of King’s home were not relevant to the lawsuit. The bullet holes were not fired by the same gun used in the murder and were found years after the murder had occurred.
Comment: if you wish to obtain Rule 37 sanctions, you should move to compel and obtain an order compelling discovery. Once that order is violated, you can move for Rule 37 sanctions.
If you have any questions about Rule 37 or federal procedure, do not hesitate to contact me.
Edward X. Clinton, Jr.
fedcivilprocedure 