Mr. Smith Goes to Cincinnati and Loses an Appeal Before the Sixth Circuit for Failure to Cooperate in Discovery

1.6.11    By Joe Kelly    Tags ,

Mr. and Mrs. Smith took out an insurance policy on a car and three pieces of jewelry. Thirteen days later, they claimed the jewelry was stolen during a car accident. After finding out, among other things, that the Smiths could not prove ownership of the jewelry, that the car “accident” could not have happened as the Smiths described, and that Mr. Smith had filed an identical claim a few years earlier, the insurance company denied the claim based on fraud. The Smiths sued.

The insurance company sought discovery. The Smiths were not very cooperative. For example, when asked to identify all bank accounts, the Smiths identified only one of five. When asked to disclose phone records, the Smiths produced records of only one phone, when they had many. This pattern continued. The insurance company obtained orders compelling discovery. The Smiths would provide some answers, but not complete ones. Ultimately, the Court imposed a $1,000 sanction for non-compliance. The Smiths did not pay the fine.

The insurance company then successfully moved for dismissal for failure to cooperate in discovery. The Smiths appealed the dismissal. When assessing the dismissal of a complaint as a sanction for discovery, the court of appeals considered four factors:

(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.”

No one factor is dispositive, but dismissal is proper if the record demonstrates delay or contumacious conduct. Dismissal was upheld as appropriate in this case. See Smith v. Nationwide Mutual Fire Insurance Co., 2010 WL 5158538 (6th Cir. Dec. 5, 2010).

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