Bits & Pieces

Lee v. Werner Enters., Inc.

United States District Court for the Northern District of Ohio, Western Division

November 3, 2022, Filed

CASE NO. 3:22 CV 91


2022 U.S. Dist. LEXIS 200848 *; 2022 WL 16695207

SHERRY R. LEE, et al., Plaintiffs, v. WERNER ENTERPRISES, INC., et al., Defendants.

Core Terms

preemption provision, motion to dismiss, preemption, preempted, truck, vicarious liability, broker, motor carrier, reply brief, transportation, carrier, shipper, route, motor vehicle, arranging, load

Counsel:  [*1] For Sherry R. Lee, David Lee, Plaintiffs: Andrew R. Young, Law Firm for Truck Safety, Cleveland, OH; Jennifer N. Brown, Arthur Law, Defiance, OH; Joshua M. Leizerman, Rena M. Leizerman, Michael J. Leizerman, Law Firm for Truck Safety, Toledo, OH.

For Hot Shot Expedite, Inc., Dorin Braga, Defendants: David J. Fagnilli, Marshall, Dennehey, Warner, Coleman & Goggin – Cleveland, Cleveland, OH; Vincent E. Cononico, Marshall Dennehey Warner Coleman & Goggin, Cleveland, OH.


Opinion by: James R. Knepp II




Plaintiffs Sherry Lee and David Lee bring negligence, vicarious liability, and loss of consortium claims in this personal injury case arising out of a truck crash against Defendants Dorin Braga (the truck driver), Hot Shot Expedite, Inc. (Braga’s employer and owner of the truck) (“Hot Shot”), Werner Enterprises, Inc. (the owner of the truck’s trailer) (“Werner”), Target Corporation (shipper of the goods carried on the truck) (“Target”), and Lipsey Logistics Worldwide, LLC (the shipping broker which arranged the goods’ transport) (“Lipsey”). (Doc. 11). Currently pending before the Court are Defendant Lipsey’s Motion to [*2]  Dismiss (Doc. 25), Defendant Target’s Motion to Dismiss (Doc. 26), and Plaintiffs’ Motion to Strike (Doc. 34). All are fully briefed and ripe for decision. Jurisdiction is proper under 28 U.S.C. § 1332. For the reasons set forth below, the Court denies the Motion to Strike and grants both Motions to Dismiss.


This case stems from an auto accident in Paulding County, Ohio, on February 11, 2021. (Doc. 11, at 1-2). Plaintiff Sherry Lee alleges a semi-truck driven by Defendant Dorin Braga rear-ended her car as she slowed down to turn. Id. As she prepared to make a right turn, the truck failed to slow down and yield. Id. at 4. After the impact, Sherry Lee’s car veered off the north side of the roadway, struck a sign, overturned, and came to rest on its right side. Id. As a result of the accident, Sherry Lee is paralyzed from the waist down and is now a paraplegic. Id. at 2. Her injuries included a spinal cord lesion “resulting in complete loss of sensory and motor function below [the lesion],” pelvic fractures, rib fractures, vertebral fractures, a subdural hemorrhage, and a spleen laceration. Id. at 5. Plaintiff alleges Hot Shot, owner of the truck and Braga’s employer, “had its motor carrier [*3]  authority involuntarily revoked in February 2020 and was only reinstated in April 2020, less than a year before this crash.” Id. at 11.

Plaintiffs assert driver Braga was negligent in injuring Plaintiff Sherry Lee; that employer and truck owner Hot Shot, trailer owner Werner, shipper Target, and shipping broker Lipsey were negligent in their hiring; and Hot Shot, Werner, Target, and Lipsey are vicariously liable for Braga’s negligence. See Doc. 11. Plaintiff David Lee is Sherry Lee’s husband; he brings a loss of consortium claim. Id. at 14. Plaintiffs seek compensatory and punitive damages. Id.

Standard of Review

On a motion to dismiss under Federal Civil Rule 12(b)(6), the Court tests the complaint’s legal sufficiency. The Court construes the complaint in the light most favorable to Plaintiffs, accepts all factual allegations as true, and determines whether the complaint contains “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). Although a complaint need not contain “detailed factual allegations,” it requires more than “labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Id. at 555. The complaint must “contain sufficient factual matter, accepted as true, to [*4]  state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.


Plaintiffs bring negligence claims against all Defendants and vicarious liability claims against all Defendants except Braga. (Doc. 11). Defendants Braga and Hot Shot filed an Answer to the Amended Complaint. (Doc. 12).1

Defendants Lipsey and Target each filed a Motion to Dismiss. (Doc. 25; Doc. 26). Plaintiffs filed a Motion to Strike part of Defendant Lipsey’s reply brief. (Doc. 34). The Court first considers the Motion to Strike and then the Motions to Dismiss.

Motion to Strike

Plaintiffs move to strike Section C of Defendant Lipsey’s reply brief “because it raises a new issue.” (Doc. 34, at 1). Plaintiffs argue this section of the brief improperly raises the argument “that Plaintiffs failed to allege sufficient facts for the vicarious liability claim” for the first time. Id. at 2. Plaintiffs state Lipsey “does not even mention the term ‘vicarious'” in its original motion. Id. Plaintiffs argue a requirement from the Court for a [*5]  sur-reply from Plaintiffs on the new issue “would just further delay this case,” and they contend the new argument should be stricken. Id. at 3. This is necessary, Plaintiffs say, because a reply brief should “not provide the moving party with a new opportunity to present yet another issue for the court’s consideration.” Id. (quoting Scottsdale Ins. Co. v. Flowers, 513 F.3d 546, 553 (6th Cir. 2008)).

Plaintiffs fail to mention they initially raised the issue, not Lipsey. Section IV of Plaintiffs’ opposition brief to Lipsey’s motion to dismiss is titled “The FAAAA Does Not Preempt The Vicarious Liability Claim Against Lipsey.” (Doc. 31, at 19). Plaintiffs begin the section by writing:

Defendant Lipsey does not argue that the FAAAA preempts the Plaintiffs’ vicarious liability claim. But because Lipsey requests dismissal of “Plaintiffs’ claims,” rather than a singular claim or Plaintiffs’ negligent hiring claim, out of an abundance of caution, this memorandum briefly addresses the issue.

Id. Lipsey addressed section on vicarious liability in response to Plaintiffs’ argument. Courts “will generally not hear issues raised for the first time in a reply brief.” United States v. Crozier, 259 F.3d 503, 517 (6th Cir. 2001). “Court decisions have made it clear that [a litigant] cannot raise new issues in a reply brief; [*6]  he can only respond to arguments raised for the first time in [the opposing party]’s brief.” Id. (quoting United States v. Jerkins, 871 F.2d 598, 601 n.3 (6th Cir. 1989). A defendant does not err by responding in reply an argument raised by a plaintiff in a prior brief; “reply briefs reply to arguments made in the response brief”. Scottsdale Ins. Co., 513 F.3d at 553 (quoting Novosteel SA v. United States, 284 F.3d 1261, 1274 (Fed. Cir. 2002) (emphasis in original); see also 16 C. Wright, A. Miller, E. Cooper, & E. Grossman, Fed. Prac. & Proc. § 3974 at 428 (1977).

Because Lipsey did not raise a new issue on reply, but rather responded to an argument in Plaintiffs’ opposition brief, Plaintiffs’ Motion to Strike is denied.

Motions to Dismiss

The Court next turns to the Motions to Dismiss. Both Lipsey and Target argue they are entitled to dismissal of all claims.

Plaintiffs bring against Lipsey a negligence claim for “failing to exercise due care in arranging the transportation for the load, by hiring and/or retaining Hot Shot Expedite, Inc.[,] when Lipsey either knew or should have known that Hot Shot Expedite, Inc.[,] posed a risk of harm to others and was otherwise incompetent and unfit to perform the duties of an interstate motor carrier, or intentionally chose not to know” and a vicarious liability claim for “actions and omissions of Defendant Dorin [*7]  Braga . . . committed within the course and scope of his employment and/or agency with Defendant Lipsey” and “the acts of Defendants Hot Shot Expedite, Inc.[,] and Werner” as “principal or employer”. (Doc. 11, at 10-11).

Plaintiffs bring nearly identical claims against Target: a negligence claim for “breach[ing] its duty, which it owed to the motoring public, including Sherry Lee, by failing to exercise due care in arranging the transportation for the load, by failing to ensure the load was being shipped by a safe and competent motor carrier” and a vicarious liability claim for “[t]he negligent and reckless actions and omissions of Defendants Dorin Braga, Hot Shot Expedite, Inc., Werner, and Lipsey . . . committed within the course and scope of their respective employment or agency with Defendant Target.” Id. at 13-14.

Defendants Lipsey and Target each argue they are shielded from Plaintiffs’ claims by the preemption provision of the Federal Aviation Authorization Administration Act (“FAAAA”). (Doc. 25, at 1; Doc. 26, at 1). Plaintiffs contend their claims are not preempted by the FAAAA, or in the alternative, the claims fall within the “safety exception” of the preemption provision. [*8]  (Doc. 30, at 2; Doc. 31, at 10).

FAAAA Preemption Provision

The FAAAA preemption provision reads as follows:

(c) Motor carriers of property. –

(1) General rule. -Except as provided in paragraphs (2) and (3), a State, political subdivision of a State, or political authority of 2 or more States may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of any motor carrier (other than a carrier affiliated with a direct air carrier covered by section 41713(b)(4)) or any motor private carrier, broker, or freight forwarder with respect to the transportation of property.

49 U.S.C. §14501(c)(1).2

The Supreme Court made four holdings regarding interpretation of an identical preemption provision in the Airline Deregulation Act of 1978:

(1) that state enforcement actions having a connection with, or reference to, carrier rates, routes, or services are pre-empted;

(2) that such pre-emption may occur even if a state law’s effect on rates, routes, or services is only indirect;

(3) that, in respect to pre-emption, it makes no difference whether a state law is consistent or inconsistent with federal regulation; and

(4) that pre-emption occurs at least where state laws have a significant [*9]  impact related to Congress’ deregulatory and pre-emption-related objectives.

Morales v. Trans World Airlines, Inc., 504 U.S. 374, 384-87, 112 S. Ct. 2031, 119 L. Ed. 2d 157 (1992) (cleaned up).

Several years later, the Supreme Court held the same rulings apply to the preemption provision of the FAAAA:

In Morales, this Court interpreted the pre-emption provision in the Airline Deregulation Act of 1978. And we follow Morales in interpreting similar language in the 1994 Act before us here. We have said that “when judicial interpretations have settled the meaning of an existing statutory provision, repetition of the same language in a new statute indicates, as a general matter, the intent to incorporate its judicial interpretations as well.”

Rowe v. New Hampshire Motor Transp. Ass’n, 552 U.S. 364, 370, 128 S. Ct. 989, 169 L. Ed. 2d 933 (2008).

There is no binding law on this Court holding whether personal injury tort claims against shippers and brokers are preempted under the FAAAA as interpreted by Rowe and Morales. Plaintiffs argue the parallel preemption provision of the Airline Deregulation Act does not preempt personal injury claims. (Doc. 31, at 15). Contrary to Plaintiffs’ characterization of the case law, the decision they cite for this proposition notes only that one of the parties “does not urge that the ADA preempts personal injury claims relating to airline operations.” American Airlines, Inc. v. Wolens, 513 U.S. 219, 231 n.7, 115 S. Ct. 817, 130 L. Ed. 2d 715 (1995). The Supreme Court did not make [*10]  a holding on the issue in Wolens. In a later case, however, the Supreme Court expressly ruled the Airline Deregulation Act’s preemption provision applies to state common law claims, which have “the force and effect of law.” Northwest, Inc. v. Ginsberg, 572 U.S. 273, 281-82, 134 S. Ct. 1422, 188 L. Ed. 2d 538 (2014). This Court finds the holding in Northwest supports a reading of the FAAAA preemption section as applicable to Plaintiffs’ claims.

Plaintiffs next argue their claims are not sufficiently “related to a price, route, or service” as required by the preemption provision. See Doc. 31, at 16. “The phrase ‘related to[]’ . . . embraces state laws having a connection with or reference to carrier rates, routes, or services, whether directly or indirectly . . . At the same time, the breadth of the words ‘related to’ does not mean the sky is the limit.” Dan’s City Used Cars, Inc. v. Pelkey, 569 U.S. 251, 260, 133 S. Ct. 1769, 185 L. Ed. 2d 909 (2013).

The relation need not be explicit or direct; the preemption provision is to be read broadly. Rowe, 552 U.S. at 370. Plaintiffs’ claims against Lipsey stem entirely from Lipsey’s “arranging the transportation for the load” and “hiring and/or retaining” of the other Defendants. (Doc. 11, at 11). Plaintiffs’ claims against Target similarly stem entirely from Target’s alleged negligence in “arranging the transportation for the load” and Target’s employment or agency [*11]  relationships with other Defendants. Id. at 14. In short, Plaintiffs’ claims arise from these Defendants’ services.

Another Judge of this Court previously held — in a truck crash case — that negligence claims brought against a shipper and broker “fall[] squarely within the preemption of the FAAAA.” Creagan v. Wal-Mart Trans., LLC, 354 F. Supp. 3d 808, 813 (N.D. Ohio 2018). This Court agrees with and adopts the reasoning in Creagan. All of Plaintiffs’ tort claims are included within the scope of the FAAAA preemption provision.

Safety Exception

Plaintiffs next argue that even if their claims against Lipsey and Target are encompassed by the preemption provision, they fall within an exception thereto. The FAAAA exempts from preemption:

the safety regulatory authority of a State with respect to motor vehicles, the authority of a State to impose highway route controls or limitations based on the size or weight of the motor vehicle or the hazardous nature of the cargo, or the authority of a State to regulate motor carriers with regard to minimum amounts of financial responsibility relating to insurance requirements and self-insurance authorization[.]

49 U.S.C. §14501(c)(2)(A).

Plaintiffs argue this Court should follow the example of the Ninth Circuit in finding the safety exception protects the claims [*12]  from dismissal. The Ninth Circuit held the language “safety regulatory authority of a State” includes common law tort claims and allows such claims to go forward. Miller v. C.H. Robinson Worldwide, Inc., 976 F.3d 1016, 1025-26 (9th Cir. 2020). The Ninth Circuit held “the phrase ‘with respect to’ in the safety exception is synonymous with ‘relating to.’ Consequently, the FAAAA’s safety exception exempts from preemption safety regulations that ‘have a connection with’ motor vehicles,” and while a tort claim does not directly regulate motor vehicles, it promotes safety on the road and is thus a safety regulation. Id. at 1030 (internal quotations and citations omitted).

This Court is not convinced. The plain meaning of the words “safety regulatory authority of a State” does not support the inclusion of private tort claims. See United States ex rel. Felten v. William Beaumont Hosp., 993 F.3d 428, 431 (6th Cir. 2021) (courts “usually interpret a statute according to its plain meaning”). Additionally, if the safety exception preserved all claims related to motor vehicles, as urged by Plaintiffs and Miller, “all preempted claims would then be ‘saved’ by the exception.” Creagan, 354 F. Supp. 3d at 814. This would make the entirety of the preemption provision redundant. Rather, this Court finds “it cannot ignore the straightforward preemption analysis as laid out by the Supreme Court, and finds instructive [*13]  the analysis in Rowe.” Volkova v. C.H. Robinson Co., 2018 U.S. Dist. LEXIS 19877, 2018 WL 741441, at *4 (N.D. Ill.). To the eye of this Court, the FAAAA’s preemption provision protects precisely parties such as the shipper and broker, who did not have direct involvement in the accident that injured Plaintiffs. “Contrary to Plaintiff[s’] argument that a finding of preemption leaves her without a remedy, [they] may and [have] sought recourse against the carrier . . . and [the] driver”. Id. This Court therefore finds Plaintiffs’ claims are not encompassed by the safety exception.

Because the Court finds Plaintiffs’ claims against shipper Target and broker Lipsey are preempted by the FAAAA and not protected by the safety exception, the claims must be dismissed.


For the foregoing reasons, good cause appearing, it is

ORDERED that Plaintiffs’ Motion to Strike (Doc. 34), be, and the same hereby is, DENIED; and it is

FURTHER ORDERED that Defendant Lipsey Logistics Worldwide, LLC’s Motion to Dismiss (Doc. 25), be, and the same hereby is, GRANTED; and it is

FURTHER ORDERED that Defendant Target Corporation’s Motion to Dismiss (Doc. 26), be and the same hereby is, GRANTED.

/s/ James R. Knepp II


End of Document

Defendant Werner filed a Motion to Dismiss (Doc. 43), and Plaintiffs voluntarily dismissed Werner from the case under Rule 41(a)(1) (Doc. 46).

Brokers are expressly included in this provision. Shippers are not. Plaintiffs argue this supports a conclusion that shipper Target is not covered by the law. (Doc. 30, at 2). The Supreme Court in Rowe considered shippers to be included as well. Rowe v. New Hampshire Motor Transp. Ass’n, 552 U.S. 364, 372, 128 S. Ct. 989, 169 L. Ed. 2d 933 (2008). This Court accordingly interprets the FAAAA preemption provision as applicable to both shippers and brokers.

Carroll v Eagle Tranz, Inc.

2021 WL 5985140

United States District Court, E.D. Tennessee, Northern Division,
at Knoxville.
Rainell CARROLL, Plaintiff,
EAGLE TRANZ, INC., and Varinder Pal Singh, Defendants.
No. 3:20-CV-366-TRM-DCP
Filed 12/16/2021
Attorneys and Law Firms
Carson A. Royal, Harriss & Hartman Law Firm, P.C., Rossville, GA, Patrick A. Cruise, The Hamilton Firm, Chattanooga, TN, for Plaintiff.
Cynthia D. Hall, William J. Rieder, Spears, Moore, Rebman & Williams P.C., Chattanooga, TN, for Defendants.

Debra C. Poplin, United States Magistrate Judge
*1 This case is before the undersigned pursuant to 28 U.S.C. § 636, the Rules of this Court, and Standing Order 13-02.

Now before the Court is Plaintiff’s Motion for Sanctions [Doc. 47] and Defendants’ Response to Order to Show Cause [Doc. 52]. The Court has considered the parties’ positions in their filings and the procedural history of this case. Accordingly, for the reasons explained below, the Court GRANTS IN PART AND DENIES IN PART [Doc. 47] Plaintiff’s Motion.

The Complaint in this case stems from a vehicular accident. Specifically, the Complaint alleges that Plaintiff backed her vehicle into a parking spot at the Love’s Travel Shop in Dandridge, Tennessee. [Doc. 1 at ¶ 10]. At that time, Defendant Singh was operating a 2018 Kenworth Tractor-Trailer, and he stopped within the fuel island for fuel. [Id. at ¶ 11]. The Complaint states that Defendant Singh did not set the air brakes, and his tractor-trailer rolled backwards striking Plaintiff’s vehicle. [Id. at ¶ 12]. The Complaint alleges that, at the time of the accident, Defendant Singh was driving in the course and scope of his employment with Defendant Eagle Tranz, Inc. (“Eagle Tranz”). [Id. at ¶ 14]. Plaintiff alleges negligence and negligence per se and requests damages for her injuries. [Id. at 5]. In their Answer, Defendants admit that Defendant Singh did not set the air brakes in his tractor-trailer and that it rolled backwards and came into contact with Plaintiff’s vehicle. [Doc. 7 at ¶ 12].

On March 31, 2021, Plaintiff filed a motion to compel discovery [Doc. 34], stating that she served Defendants with her First Set of Interrogatories and First Requests for Production of Documents (“Discovery Requests”) on December 31, 2020, and despite multiple extensions, Defendants had not responded. Defendants did not respond to Plaintiff’s motion to compel discovery, and therefore, the Court granted in part Plaintiff’s motion to compel and directed Defendants to respond to the Discovery Requests within fourteen (14) days (i.e., May 4, 2021) [Doc. 35].1 The Court warned Defendants that failure to respond may lead to sanctions, including default judgment.

On May 26, 2021, the parties filed a joint motion [Doc. 36], requesting that the deadlines contained in the Scheduling Order be extended because Plaintiff was still seeking treatment for her injuries and Defendants were under a Court Order to respond to discovery but were not able to respond. The Court extended the deadlines [Doc. 39] and also ordered the parties to mediation. [Doc. 38]. The parties participated in mediation on October 21, 2021, but were unsuccessful in resolving the case.

Plaintiff filed the instant Motion on October 22, 2021. Plaintiff states that Defendants have not responded to the Discovery Requests. In addition, Plaintiff states that Defendant Singh failed to attend his properly noticed deposition. Plaintiff states that Defendants’ conduct has hampered her ability to pursue her claims. The Motion seeks (1) an order deeming Plaintiff’s allegations in the Complaint admitted, (2) default judgment against Defendants, (3) an order prohibiting Defendants from opposing Plaintiff’s claims for liability and damages, (4) an order prohibiting Defendants from raising any defenses at trial, (5) an order prohibiting Defendants from introducing any evidence or presenting any witnesses at trial, and (6) an order allowing Plaintiff’s counsel to submit an affidavit in support of an award of attorney’s fees.

*2 Defendants did not respond to Plaintiff’s Motion, and therefore, on December 1, 2021, the Court entered an Order [Doc. 50] directing Defendants to show cause as to why Plaintiff’s Motion should not be granted. Defendants responded [Doc. 52] to the Court’s Order, requesting that Plaintiff’s Motion be denied. With respect to Defendant Singh, defense counsel explains that they have lost all contact with him, despite numerous prior and continued attempts.

Defendant Eagle Tranz acknowledges that its discovery responses are unreasonably late. Defendant Eagle Tranz states that it produced responsive documents last week and that a number of circumstances have contributed to the delay in production as follows: (1) Defendant Eagle Tranz has experienced staff turnover, (2) the person responsible for compiling and maintaining documents at the time of the accident and at the time the Discovery Requests were served is no longer employed with Defendant Eagle Tranz, (3) Defendant Eagle Tranz has moved its corporate headquarters from Fresno, California, to Phoenix, Arizona, (4) Defendant Eagle Tranz changed its name to “Eagle Trans” with a corresponding change to respective e-mail addresses and corporate telephone numbers, which delayed communication with its Tennessee counsel for an extended period of time, and (5) Defendant Eagle Tranz learned that an outside, third-party consultant group, Transportation Safety Consultants, Inc., possesses many of the documents related to Defendant Singh’s pre-employment records.

In addition, Eagle Tranz states that it is in the process of bringing counsel from Phoenix, Arizona, on board to assist in the document production and the deposition of the corporate representative, which Plaintiff has agreed to take on January 28, 2022. The Response states that Defendants have admitted liability and that the remaining issues in this case are the extent and amount of Plaintiff’s damages. Further, the Response states that while Defendant Singh did not attend his deposition, he has admitted fault for the accident and has acknowledged he failed to set his air brake while he stopped for gas, which allowed his truck to roll into the parked vehicle occupied by Plaintiff. Defendants request that Plaintiff’s Motion be denied.

Accordingly, the Court has considered the filings summarized above and the procedural history of this case, and for the reasons more fully explained below, the Court GRANTS IN PART AND DENIES IN PART Plaintiff’s Motion for Sanctions [Doc. 47].

As mentioned above, Plaintiff moves for various relief because Defendants did not comply with the Court’s Order [Doc. 35] to respond to the Discovery Requests by May 4, 2021, and Defendant Singh did not attend his deposition that was noticed for June 24, 2021. See [Doc. 40]. Federal Rule of Civil Procedure 37(b)(2) provides a list of sanctions when parties do not comply with a discovery order. Specifically, Rule 37(b)(2) states that the court may issue “further just orders,” which may include the following:
(i) directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims;
(ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence;
(iii) striking pleadings in whole or in part;
(iv) staying further proceedings until the order is obeyed;
(v) dismissing the action or proceeding in whole or in part;
*3 (vi) rendering a default judgment against the disobedient party; or
(vii) treating as contempt of court the failure to obey any order except an order to submit to a physical or mental examination.
Fed. R. Civ. P. 37(b)(2)(A)(i)-(vii). The Rule further provides:
(C) Payment of Expenses. Instead of or in addition to the orders above, the court must order the disobedient party, the attorney advising that party, or both to pay the reasonable expenses, including attorney’s fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust.
Fed. R. Civ. P. 37(b)(2)(C). With respect to failing to appear for a deposition, Rule 37(d) provides that the Court may order the sanctions listed in Rule 36(b)(2)(A)(i)-(vi).

As an initial matter, Plaintiff simply lists various sanctions, requesting that they all be entered, but she does not sufficiently explain why all the sanctions are appropriate under Rule 37. The Court notes that if all the requested sanctions were granted, such would essentially result in a default judgment against Defendants (which has also been requested). Thus, the Court will analyze the Motion as a request for a default judgment against Defendants. The Sixth Circuit has directed courts to consider four factors when determining whether dismissal or default is an appropriate sanction for failure to comply with the discovery obligations or other court order as follows:
(1) whether the party’s failure is due to willfulness, bad faith, or fault; (2) whether the adversary was prejudiced by the dismissed party’s conduct; (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.
Mager v. Wisconsin Cent. Ltd., 924 F.3d 831, 837 (6th Cir. 2019) (quoting United States v. Reyes, 307 F.3d 451, 458 (6th Cir. 2002)) (other quotations omitted).

The Court has strongly considered recommending a default judgment for Defendants’ failure to comply with the Court’s Order [Doc. 35] and Defendant Singh’s failure to attend his deposition.2 The Court has also considered recommending a default judgment given that Defendants failed to respond to Plaintiff’s Motion and only filed their Response after the Court directed them to do so. The Court, however, has weighed the above factors and finds that they slightly weigh in favor of denying Plaintiff’s request for dispositive relief.

*4 With respect to the first factor, “To show that a party’s failure to comply was motivated by bad faith, willfulness, or fault, the conduct ‘must display either an intent to thwart judicial proceedings or a reckless disregard for the effect of [his] conduct on those proceedings.’ ” Mager, 942 F.3d at 837 (quoting Carpenter v. City of Flint, 723 F.3d 700, 705 (6th Cir. 2013)). Given Defendant Eagle Tranz’s explanation in its Response as to why it has not produced responses to the Discovery Requests, the Court cannot find that its actions, or lack thereof, were motivated to thwart the judicial proceedings or show a reckless disregard thereof. The Court furthers observes that Defendant Eagle Tranz has somewhat participated in this case as the parties recently mediated on October 21, 2021.

With respect to the second factor (i.e., prejudice to Plaintiff), the Court finds that it slightly weighs in favor of granting Plaintiff’s Motion. The Court finds that Defendants’ failure to participate in discovery has generally affected this case causing some prejudice. See [Doc. 48]. The Court notes, however, that Plaintiff has not sufficiently explained how Defendants’ conduct has hampered her ability to pursue her claims given that Defendants have admitted liability and the remaining issues are the extent of Plaintiff’s injuries and whether they are related to the accident. It seems that the most important discovery would be directed to Plaintiff. In addition, the Court also observes that Plaintiff filed the instant Motion six (6) months after Defendants’ deadline to respond to the Discovery Requests and after the parties attended the mediation. Thus, the Court finds this factor slightly weighs in favor of granting Plaintiff’s Motion.

With respect to the third factor, the Court previously warned Defendants that the failure to comply with the Court’s Order [Doc. 35] may lead to sanctions, including default judgment. Thus, this factor weighs in favor of granting the Motion. Finally, the Court must also consider whether less drastic sanctions were previously imposed or considered. The Court has not imposed less drastic sanctions, and the Court is encouraged that less drastic sanctions (as explained below) will correct Defendant Eagle Tranz’s deficiencies.

Accordingly, the Court has weighed the above factors, and the Court finds that they weigh in favor of denying Plaintiff’s request for dispositive relief. Moving forward, the Court expects Defendants to comply with all orders from the Court and the Federal Rules of Civil Procedure. The Court ADMONISHES Defendants that future discovery abuses of similar magnitude will lead to additional sanctions, including entering a default judgment against them. Fed. R. Civ. P. 37(b)(2). Defendants should construe this Memorandum and Order as their final warning.

Further, and as explained above, Rule 37 states that the Court must order the disobedient party to pay reasonable expenses, unless the failure was substantially justified. The Court does not find that Defendants’ failures were substantially justified, and the Court further finds that Plaintiff is entitled to her reasonable expenses, including attorney’s fees, incurred with respect to her Motion for Sanctions [Doc. 47] and the related filings.

Accordingly, for the reasons explained above, the Court GRANTS IN PART AND DENIES IN PART Plaintiff’s Motion for Sanctions. [Doc. 47]. Plaintiff SHALL provide Defendants, within fourteen (14) days of this Memorandum and Order, with her reasonable expenses, including attorney’s fees, that were incurred with respect to her Motion for Sanctions and the related filings. If the parties cannot agree on the reasonableness of Plaintiff’s expenses, after a meaningful meet and confer, they may bring the matter to the Court’s attention.


All Citations
Slip Copy, 2021 WL 5985140


The Court declined to award sanctions because Plaintiff did not explain the sanctions she sought. [Doc. 35].

The Court has also considered whether it is appropriate to recommend a default judgment against only Defendant Singh given that he failed to comply with the Court’s Order [Doc. 35], he did not attend his deposition, and his counsel cannot contact him despite numerous attempts to do so. It appears to the Court that Defendant Singh has lost interest in defending this action. Plaintiff’s Motion, however, requests dispositive sanctions against both Defendants. Even though Defendants do not dispute liability, the parties have not briefed how a default judgment against Defendant Singh could affect Defendant Eagle Tranz. See generally Kimberly v. Coastline Coal Corp., 857 F.2d 1474 (Table), 1988 WL 93305, at *3 (6th Cir. 1988) (explaining that entering a final decree against one defendant on the merits while the other defendants remained in the case could result in inconsistent verdicts) (citing Frow v. De La Vega, 82 U.S. 552 (1872)). In absence of any briefing, the Court declines to recommend a default judgment against only Defendant Singh.

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