CLINTON C LOVETT V CITY OF DETROIT
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STATE OF MICHIGAN
COURT OF APPEALS
CLINTON C. LOVETT,
UNPUBLISHED
April 22, 2008
Plaintiff-Appellant,
No. 273710
Wayne Circuit Court
LC No. 05-530081-CL
v
CITY OF DETROIT, DETROIT CITY
COUNCIL, and KATHIE DONES-CARSON,
Defendants-Appellees.
Before: Whitbeck, P.J., and Owens and Schuette, JJ.
PER CURIAM.
Plaintiff Clinton C. Lovett appeals as of right the trial court order dismissing his
complaint with prejudice. On appeal, he argues that he was denied due process because
defendants’ notice and service of process of the dismissal order were insufficient, the trial court
abused its discretion in dismissing his case, and he was denied due process because the trial
judge was biased against him. We reverse and remand.
I. Basic Facts And Procedural History
Lovett filed a complaint in mid-October 2005, in which he alleged that he worked for
defendant, Detroit City Council, as a staff attorney in the Research and Analysis Department,
and defendant, Kathie Dones-Carson, was his immediate supervisor. In count one of his
complaint, Lovett alleged that defendants violated Michigan public policy by terminating him on
October 15, 2002, after he refused to sign a confidentiality form “prohibiting him from ever
discussing public business with anyone,” and drafted a legal memorandum arguing that he was
exempt from signing the form under MCL 15.243(1)(i). In count two, Lovett alleged that
defendants violated his rights of due process and equal protection when he “was notified by
[Dones-Carson] that he was arbitrary [sic] fired without cause and justification.” In count three,
Lovett alleged that, as a male over 40 years of age, he was a member of two protected classes
under Michigan’s Civil Rights Act, which defendants violated by treating him differently than
younger, female employees. In particular, Lovett alleged that, unlike younger, female
employees, he was not reimbursed for the cost of attending seminars or for business travel
expenses, was informed by Dones-Carson that he would have to pay someone to type his work
product and could no longer use the department’s secretarial services for this purpose, and was
called “pops” by the department’s managerial personnel.
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In early July 2006, defendants moved to dismiss Lovett’s complaint because he had failed
to appear for properly noticed depositions on three occasions, or, in the alternative, to order him
to appear for a deposition within ten days of the entry of the order. In either case, defendants
also asked the trial court to order Lovett to pay defendants $220 in stenographer’s fees and the
cost of filing the motion. Lovett filed a response, in which he argued that the dates on which
defendants claimed the depositions were scheduled were after the close of discovery, and thus,
notices of such depositions were void because defendants had not sought an order extending
discovery. After a hearing before the trial court, the parties agreed to hold depositions of Lovett
and Dones-Carson on July 25, 2006.
On July 21, 2006, Lovett filed an ex parte application for an order to suspend the
proceedings to permit him to obtain new legal counsel. He claimed that his attorney had failed to
prepare him to respond to written interrogatories, requests to admit, and for depositions, had
failed to conduct discovery and to obtain his personnel file from defendants, and had failed to
send him important documents and notify him of important dates.
The trial court held a hearing on Lovett’s motion to stay the proceedings on July 25,
2006. The trial court agreed to stay the proceedings for 45 days in order to give Lovett time to
obtain new counsel. The parties agreed to proceed with Lovett’s deposition on July 25, 2006,
but to delay Dones-Carson’s deposition for about 45 days. The trial court also noted that Lovett
and defense counsel could call the court around the date of the settlement conference to adjourn
the conference, if necessary.
The trial court dismissed Lovett’s complaint with prejudice after he failed to appear at the
settlement conference on September 11, 2006. At the conference, defense counsel stated:
Your Honor, today is the date and time set for the Settlement Conference in this
case. As you recall, back on July 25th, the plaintiff and his attorney appeared
before this Court seeking to remove Mr. Meyer [sic] as Mr. Lovett’s attorney. At
that time, Mr. Lovett asked for a 45 day stay on the case, indicating that he would
find out or seek out other another counsel. To date he has not done that, your
Honor. I have not received any word from him what his current status is on the
case. I did attempt to contact him this morning. I have not heard back from him.
Defense counsel then stated that he had a motion “to dismiss the case administratively” because
of Lovett’s failure to appear. After noting that it had previously questioned whether Lovett had a
cause of action, and stating, “[so] in a way I’m not surprised he’s not here,” the trial court agreed
to dismiss the case. Pursuant to MCR 2.602(B), the trial court entered the order dismissing
Lovett’s complaint with prejudice on September 21, 2006. Lovett now appeals.
II. Dismissal With Prejudice
A. Standard Of Review
Lovett argues that the trial court erred in dismissing the case with prejudice because of
his failure to appear at the settlement conference. Although Lovett failed to preserve this issue,
we may address an unpreserved issue if it presents a question of law and the necessary facts have
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been presented.1
discretion.2
We review a trial court’s decision to dismiss an action for an abuse of
B. Legal Standards
Under MCR 2.401(G) and MCR 2.504(B), dismissal is a possible sanction for a party’s
failure to attend a settlement conference. However, “[d]ismissal is a drastic step that should be
taken cautiously.”3 According to this Court’s precedent, “[b]efore imposing such a sanction, the
trial court is required to carefully evaluate all available options on the record and conclude that
the sanction of dismissal is just and proper.”4 The trial court also should consider whether
dismissal is appropriate under the circumstances by considering:
(1) whether the violation was willful or accidental; (2) the party’s history of
refusing to comply with previous court orders; (3) the prejudice to the opposing
party; (4) whether there exists a history of deliberate delay; (5) the degree of
compliance with other parts of the court’s orders; (6) attempts to cure the defect;
and (7) whether a lesser sanction would better serve the interests of justice.[5]
C. Applying The Standards
Here, Lovett failed to appear at three scheduled depositions, which he claims was the
result of problems with an attorney that he eventually dismissed. He also claims that his absence
from the September 11, 2006 settlement conference was accidental because he was unaware of
the conference due to the fact that a new attorney who was evaluating his case was in possession
of the case file from August 8, 2006, until September 13, 2006. However, the conference was
apparently scheduled before the file was handed over to the new attorney and while Lovett was
still represented by counsel. Therefore, he should have appeared at the conference absent further
communication from the trial court or defense counsel. Nevertheless, because dismissal is a
drastic sanction, we conclude that the trial court abused its discretion in dismissing the case
without evaluating all the available options on the record and determining whether dismissal was
1
Brown v Loveman, 260 Mich App 576, 599; 680 NW2d 432 (2004).
2
Vicencio v Jaime Ramirez, MD, PC, 211 Mich App 501, 506; 536 NW2d 280 (1995).
3
Id.
4
Id. But see Dubuc v Golden & Kunz, PC, 469 Mich 942; 674 NW2d 152 (2003) (Corrigan,
C.J., concurring) (stating belief that, contrary to Vicencio, the plain language of MCR 2.401(G)
does not require a trial court to evaluate all available options on the record before concluding that
the sanction of dismissal is proper).
5
Vicencio, supra at 507.
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the most appropriate option given the circumstances.6 Accordingly, we remand to the trial court
for the requisite consideration of the various factors set forth above.
III. Due Process
Lovett argues that the trial court’s entry of the order of dismissal pursuant to MCR
2.602(B)(3)7 eight days after defendants mailed the notice of presentment, but only three days
after he received it, violated his due process rights. Citing MCR 2.105, he argues that, because
defendants sent the notice by certified mail, service was complete only upon his receipt of the
notice.8
6
Id.; see also Houston v Southwest Detroit Hosp, 166 Mich App 623, 420 NW2d 835 (1987)
(stating that remand is appropriate because it is the trial court’s function in the first instance to go
through an analytical process that takes into account on the record all of the options available
short of dismissal and come to a reasoned conclusion on the record regarding which sanctions,
including dismissal, would be the most appropriate under all of the circumstances).
7
MCR 2.602 provides, in pertinent part, as follows:
(B) Procedure of Entry of Judgments and Orders. An order or judgment shall be
entered by one of the following methods:
***
(3) Within 7 days after the granting of the judgment or order, or later if the court
allows, a party may serve a copy of the proposed judgment or order on the other
parties, with a notice to them that it will be submitted to the court for signing if no
written objections to its accuracy or completeness are filed with the court clerk
within 7 days after service of the notice. The party must file with the court clerk
the original of the proposed judgment or order and proof of its service on the
other parties.
(a) If no written objections are filed within 7 days, the clerk shall submit the
judgment or order to the court, and the court shall then sign it if, in the court's
determination, it comports with the court's decision. If the proposed judgment or
order does not comport with the decision, the court shall direct the clerk to notify
the parties to appear before the court on a specified date for settlement of the
matter.
(b) Objections regarding the accuracy or completeness of the judgment or order
must state with specificity the inaccuracy or omission.
(c) The party filing the objections must serve them on all parties as required by
MCR 2.107, together with a notice of hearing and an alternative proposed
judgment or order.
8
See MCR 2.105 provides, in pertinent part, as follows:
(A) Individuals. Process may be served on a resident or nonresident individual by
***
(continued…)
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MCR 2.105 governs service of process for the summons and complaint, while MCR
2.107 governs service of all other pleadings and papers subsequent to the summons and
complaint. Therefore, Lovett’s reliance on MCR 2.105 is misplaced. Under MCR 2.107, service
of other papers, like the proposed order here, is complete at the time of mailing. Here,
defendants mailed the notice of presentment on September 13, 2006, and the trial court entered
the order of dismissal eight days later on September 21, 2006. Thus, because the procedural
rules were satisfied, Lovett’s due process claim is without merit.
9
IV. Bias
A. Standard Of Review
Lovett argues that he was denied due process because the trial judge was biased. Because
Lovett failed to object to the trial court’s conduct or move for disqualification under MCR 2.003,
this issue is unpreserved.10 Regardless, we may address an unpreserved issue if it presents a
question of law and the necessary facts have been presented.11 We review de novo constitutional
questions, including the question whether a party was denied due process.12
B. Legal Standards
MCR 2.003(B)(1) governs judicial disqualification. Lovett never argued below that the
trial judge should have been disqualified. Rather, he argues, for the first time on appeal, that he
was denied due process because the trial judge was biased.
“The Due Process Clause requires an unbiased and impartial decisionmaker. Thus, where
the requirement of showing actual bias or prejudice under MCR 2.003(B)(1) has not been met, or
where the court rule is otherwise inapplicable, parties have pursued disqualification on the basis
(…continued)
(2) sending a summons and a copy of the complaint by registered or certified
mail, return receipt requested, and delivery restricted to the addressee. Service is
made when the defendant acknowledges receipt of the mail.
9
MCR 2.107 provides, in pertinent part, as follows:
(C) Manner of Service. . . . Service on a party must be made by delivery or by
mailing to the party at the address stated in the party’s pleadings.
***
(3) Mailing. Mailing a copy under this rule means enclosing it in a sealed
envelope with first class postage fully prepaid, addressed to the person to be
served, and depositing the envelope and its contents in the United States mail.
Service by mail is complete at the time of mailing.
10
Bracco v Michigan Technological Univ (On Remand), 231 Mich App 578, 602 n 16; 588
NW2d 467 (1998); Meagher v Wayne State Univ, 222 Mich App 700, 725-726; 565 NW2d 401
(1997).
11
Brown v Loveman, 260 Mich App 576, 599; 680 NW2d 432 (2004).
12
York v Civil Service Comm, 263 Mich App 694, 699; 689 NW2d 533 (2004).
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of the due process impartiality requirement.”13 Given Lovett’s failure to raise this issue below,
he does not argue that the trial judge should have been disqualified; however, the issue whether
he was denied due process because of the trial court’s alleged bias is properly decided according
to the same standards. The Michigan Supreme Court has recognized four examples of situations
identified by the United States Supreme Court in which “experience teaches that the probability
of actual bias on the part of the judge or decisionmaker is too high to be constitutionally
tolerable”: where the judge or decisionmaker
(1) has a pecuniary interest in the outcome;
(2) has been the target of personal abuse or criticism from the party before him;
(3) is enmeshed in [other] matters involving petitioner; or
(4) might have prejudged the case because of prior participation as an accuser,
investigator, fact finder or initial decisionmaker.[14]
The Due Process Clause requires disqualification for bias or prejudice in only the most extreme
cases,15 and “the party who challenges a judge on the basis of bias or prejudice must overcome a
heavy presumption of judicial impartiality.”16
C. Applying The Standards
In arguing that he was denied due process because the trial court was biased against him,
Lovett first points to the judge’s treatment of his motion to stay the proceedings. At the hearing
on his motion, Lovett stated that he had been trying to bring his motion before the trial court for
three days. The trial court responded, “We don’t do things on three days [sic] notice.” Lovett
claims that the contrast between this statement and the trial court’s willingness to enter the order
of dismissal pursuant to MCR 2.603(B)(3) three days after he received the notice of presentment
demonstrates the trial court’s bias. However, the trial court entered the order eight days after
defendants mailed the notice of presentment. Entry of the order does not demonstrate bias
because it reflects a reasonable reading of MCR 2.603(B)(3).
Second, Lovett points to the trial court’s comments at the settlement conference at which
he failed to appear. After defendants’ attorney said he had a motion “to dismiss the case
administratively” based on Lovett’s failure to appear, the trial court replied, “Nothing
administrative about it or I’m gonna dismiss it for good. He’s not appeared.” After defense
counsel reminded the trial court of what Lovett was claiming in his lawsuit, the trial court stated:
“I remember him making those remarks. And if [sic] struck me then as questionable that he had
a recognized cause of action. So in a way I’m not surprised he’s not here. This case is
13
Cain v Michigan Dep’t of Corrections, 451 Mich 470, 479; 548 NW2d 210 (1996).
14
Id. at 498 (change in Cain; emphasis deleted; citation and quotations omitted).
15
Id.
16
Id. at 497.
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dismissed. You may present a judgement [sic] of no cause for action.” These comments, at
most, cast Lovett’s case in a negative light. They do not rise to the level of a violation of due
process, as is apparent from the examples set forth in Cain, supra. Neither these comments, nor
anything else in the record, indicate the sort of conflict of interest suggested by the examples in
Cain. Thus, Lovett has failed to overcome the presumption of judicial impartiality.
Reversed and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction.
/s/ William C. Whitbeck
/s/ Donald S. Owens
/s/ Bill Schuette
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