Court to Detroit: Don't Disappear from Discovery Process and then Cry Foul on Default

After nine months of “neglect and inattention,” followed by a complete disappearance from the scene, the City of Detroit learned the hard way that discovery abuse doesn’t pay -- in the form of a granted default motion. In Brown v. City of Detroit (E.D. Mich. May 16, 2011), the defendant exhibited some unusual behavior.

The City repeatedly missed discovery deadlines agreed to by both parties. It ignored court orders, and by the time the default judgment as to liability was entered, the City “had stopped speaking to Plaintiff’s attorneys, responding to Plaintiff’s written inquiries, and appearing for Court-ordered hearings.” In the court’s view, the Defendant “demonstrated that it was unwilling or at least no longer interested in defending the case.”  The court thus entered its default as to liability alone.

What happened next? The City sprang into action, of course, moving to set aside the default and citing a list of “unremarkable excuses and explanations for their inattention to the merits of the case or the consensual discovery agreements.”

The City set forth several arguments, all of which the court rejected, while still allowing the City to try the case with respect to damages.

First, the City argued that the default judgment was harsh in light of the unknown size of the class action. The court reiterated that the default was only as to liability, and that the “definition and therefore scope of the [plaintiff] classes [had] yet to be determined.” Accordingly, the amount of damages that might be implicated are completely unknown.” The court also stated:

The extent of Defendant’s potential liability would have been a good reason to responsibly address the case at its commencement. It does not constitute a good reason to set aside a default entered in accordance with law after a party’s disregard of the case or the consequences of its inattention to the case.

Second, the City argued that after a year’s absence from the scene, it would “redouble its discovery efforts going forward” and that any attending delay would not inconvenience the plaintiff.  The court noted that the City did not cite a single legal authority justifying such a second chance and summed up the City’s arguments as “unconvincing.”

Third, the Defendant contented that its non-compliance was the result of the “literally overwhelming” volume of the plaintiff’s discovery requests. The court cut to the chase, noting the consequences of the City’s absence.

The Court would consider a motion for a protective order challenging Plaintiff’s entitlement to specific items or requesting time extensions based on the volume of the request. But the Defendant has not filed a single discovery motion challenging Plaintiff’s substantive entitlement . . . to a particular item of discovery, or requesting additional time. (emphasis added).

Fourth, the City argued that its lead attorney had experienced significant health problems. The court dispensed with this quickly. The City has an entire legal department, not just one attorney.  No dice, epecially when the plaintiff contacted both “the lead attorney and his supervisor on numerous occasions, receiving no response.” (emphasis added).

Closing Thought

As I was doing research for one of my law school papers during the second semester of my 1L year, I distinctly remember reading a First Circuit opinion by Judge Selya, who wrote:

Like the bark of a dog to Sherlock Holmes, the [party’s] reasoning is most indicative by its absence.

So too here, where “absence” certainly takes on a double entrendre when it comes to all aspects of the City of Detroit’s behavior in this case.

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