Kline #765850 v. Rewerts et al

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
DEREK KLINE #765850, 	Case No. 1:24-cv-01103
Plaintiff, 	Hon. 	Jane M. Beckering
U.S. District Judge
v.
RANDEE REWERTS, et al.,
Defendants.
/
REPORT AND RECOMMENDATION
I. 	Introduction
This is a civil rights action brought by state prisoner Derick Kline pursuant to
42 U.S.C. § 1983 alleging a violation of his Eighth Amendment rights by the last
remaining Defendant – Registered Nurse (RN) Baubit. 	Defendant Baubit now
moves to dismiss the case under Fed. R. Civ. P 37 because Plaintiff refused to
participate in his properly-noticed deposition, failed to engage in discovery, failed to
respond to defense counsel’s discovery requests and telephone calls, and failed to
prosecute this case. 	Fed. R. Civ. P. 30. 	(ECF No. 27) 	In addition, Defendant
moves to recoup the costs for the court reporter expended for the deposition.
II. 	Analysis
As noted by Defendant, Fed. R. Civ. P. 37(d)(1)(A)(i) specifically provides that
when a party fails to attend his own deposition after being properly notified, he or
she may be sanctioned by the court. 	Pursuant to Fed. R. Civ. P. 37(b)(2)(A)(v) and
37(d)(3), sanctions may include dismissal. 	In addition, Fed. R. Civ. P. 41(b) provides
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that where a Plaintiff fails to prosecute or to comply with the rules or a court order,
a defendant may move to dismiss the action or any claim against it.
In Woodson v. Morris, 70 F.3d 1273 (6th Cir. 1995), the court noted that the
plaintiff had adequate advance notice of the date of the deposition but willfully
refused to participate in the deposition. 	The court held that the district court
properly granted the defendant’s motion for dismissal pursuant to Fed. R. Civ. P. 37
and 41(b). 	Id., at *1. 	Dismissal is appropriate where Plaintiff fails to attend an
ordered deposition. 	Voit v. Jefferson County Sheriff’s Dep’t, 31 F. App’x. 189 (6th
Cir. 	2002). 	It is not an abuse of discretion for the trial court to impose sanctions
due to a party’s failure to participate in discovery:
Rule 37(b)(2) authorizes a district court to enter a default judgment and
dismiss a case where the sanctioned party failed to obey an order to
provide or permit discovery. 	This court considers four factors in
assessing the appropriateness of the district court's decision to dismiss
a complaint: (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 Trsp., Inc.],
110 F.3d [364] at 366–67 [(6th Cir. 1997)]. Pre-dismissal warning of the
sanction is pivotal to the determination of willfulness. See Harris v.
Callwood, 844 F.2d 1254, 1256 (6th Cir.1988). Dismissal with prejudice
“should be imposed only if the court concludes that the party's failure to
cooperate in discovery was willful, in bad faith, or due to its own fault.”
Beil v. Lakewood Eng'g & Mfg. Co., 15 F.3d 546, 552 (6th Cir.1994).
Wittman v. Wilson, 95 F. App’x 752, 754 (6th Cir. 2004). 	In addition, Fed. R. Civ. P.
16(f)(1) provides that sanctions, including dismissal of the case, may be imposed when
either counsel or a party fails or refuses to appear at a scheduling or pretrial
conference, fails to participate in the conference, or fails to obey a scheduling order or
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other pretrial order.
A Case Management Order was issued on September 2, 2025, setting a
discovery deadline of December 1, 2025. 	(ECF No. 23.) 	On September 8, 2025,
Defendants then properly noticed and scheduled the deposition for October 14, 2025.
(ECF Nos. 25 and 28-4.) 	Plaintiff filed no objections to the notice and failed to move
for a protective order to attempt to prevent the deposition. 	Consequently, the
deposition was authorized and properly noticed under the Court rules. 	Defendants
were entitled to take Plaintiff’s deposition.
On October 14, 2025, defense counsel appeared by video conference to take
Plaintiff’s 	deposition. 	At 	the 	time 	of 	the 	deposition 	Plaintiff 	was 	no 	longer
incarcerated within the MDOC and was on parole. 	(ECF Nos. 28-2, 28-3, 28-5.)
Plaintiff did not appear for his deposition. 	Plaintiff has not responded to this
motion. 	Plaintiff has failed to respond to discovery requests or to defense counsel’s
telephone calls. 	(ECF No. 26, ECF No. 28, PageID.185, 28-6, PageID.213 (phone call
logs).) 	Plaintiff has failed to engage in discovery and he has not filed anything with
the Court since August 5, 2025. 	(ECF No. 20.) 	It appears that Plaintiff has
abandoned the prosecution of this case.
Plaintiff failed to appear for his deposition, failed to respond to discovery
requests, and Defendant represents that her attempts to contact Plaintiff have failed.
It appears that Plaintiff’s failure to participate in discovery was due to his own fault
and in bad faith. 	Defendant has been prejudiced. 	Discovery is now closed and
defense counsel has been unable to locate Plaintiff or obtain appropriate discovery
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from him. 	Plaintiff refused to appear for his deposition. 	Further, Plaintiff has
failed to prosecute this case. 	Defendants paid $314.77 for the deposition.
III. 	Recommendation
Accordingly, it is recommended that the Court grant Defendant’s motion (ECF
No. 27) and dismiss this lawsuit due to Plaintiff’s failure to prosecute this action and
further require Plaintiff to reimburse Defendant in the amount of $314.77.
NOTICE TO PARTIES: 	Objections to this Report and Recommendation must
be served on opposing parties and filed with the Clerk of the Court within fourteen
(14) days of receipt of this Report and Recommendation. 	28 U.S.C. § 636(b)(1)(C);
Fed. R. Civ. P. 72(b); W.D. Mich. LCivR 72.3(b). 	Failure to file timely objections
constitutes a waiver of any further right to appeal. 	United States v. Walters, 638
F.2d 947 (6th Cir. 1981). 	See also Thomas v. Arn, 474 U.S. 140 (1985).
Dated: 	December 23, 2025 	/s/ `ttÜàxÇ ixÜÅttà
MAARTEN VERMAAT
U.S. MAGISTRATE JUDGE
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