Author: eclinton

Ignoring Discovery Requests And Court Orders To Comply Results In Dismissal of Case


The case is Tenzer v. Hazel. The Plaintiff claimed that he had a health problem that prevented him from complying with discovery requests.

Between August 27, 2019, and October 23, 2019, the District repeatedly attempted to obtain discovery responses from Plaintiff Randall Tetzner.[1] When such attempts were unsuccessful, the Court ultimately entered an Order Compelling Mr. Tetzner to respond to the District’s Interrogatories and Requests for Production by November 12, 2019. Dkt. 31. While Mr. Tetzner failed to produce any discovery, he notified counsel for the District, on the date his discovery was due, that he was having an invasive medical procedure. Counsel for the District requested more information regarding Mr. Tetzner’s health situation and the impact it would have on his ability to respond to discovery but did not receive any response. Although Mr. Tetzner did not file a motion with the Court to seek an extension, nor provide it with notice or any other information regarding his health condition, the Court, in an abundance of caution, gave Mr. Tetzner another extension of time and ordered him to respond to discovery by November 29, 2019, or face dismissal. Dkt. 32. Mr. Tetzner did not respond to the District’s discovery requests by November 29, 2019, and has yet to produce the requested discovery. Id.

On December 2, 2019, Mr. Tetzner notified the District’s counsel by email that he may need surgery and that his condition was life-threatening. The District’s counsel requested additional information but did not receive a reply. Nor has the District’s counsel received a reply to any of its emails in the last four months regarding Mr. Tetzner’s obligation to respond to discovery. Despite the Court’s November 1, 2019, and November 18, 2019, orders compelling him to produce discovery, Mr. Tetzner has never filed a motion for a protective order, or any other information regarding his health condition, with the Court.

The court found the 9th Circuit factors favored dismissal of the lawsuit.

Here, the Court already assessed the five Thompson Factors to determine whether case-dispositive sanctions were warranted, and found three of the five factors weighed in favor of dismissal. Dkt. 31, at 5-7 (finding the public policy favoring disposition of cases on their merits and the availability of less drastic sanctions weighed against dismissal). Because the Court had not ordered an alternative, less severe sanction at that time, the Court allowed Mr. Tetzner an additional ten days to respond to discovery, and then extended his response deadline another two weeks, sua sponte, upon Mr. Tetzner’s notice to the District’s counsel that he was suffering from health problems. As noted, Mr. Tetzner has never contacted the Court regarding his health condition, nor filed a motion to seek an extension or to request a protective order.

In light of Mr. Tetzner’s continued failure to respond to discovery despite two orders compelling him to do so, the Court finds that four of the five Ninth Circuit factors now weigh in favor of dismissal. Where, as here, a court order has been violated, the first and second factors support case-dispositive sanctions. Adriana Int’l Corp. v. Thoeren, 913 F.2d 1406, 1412 (9th Cir. 1990). Instead of considering the merits of this case, the Court must again address Mr. Tetzner’s failure to comply with his discovery obligations. Mr. Tetzner’s conduct thus impedes the expeditious resolution of this case and the Court’s ability to manage its docket. Malone v. United States Postal Serv., 833 F.2d 128, 131 (9th Cir. 1987); Hyde & Drath, 24 F.3d 1162, 1166 (9th Cir. 1994).

Under the third factor, a party is prejudiced if the non-responding party’s conduct impairs the requesting party’s ability to go to trial or threatens to interfere with the rightful decision of the case. United States ex rel. Wiltec Guam, Inc. v. Kahaluu Constr. Co., 857 F.2d 600, 604 (9th Cir. 1988). Because Mr. Tetzner has completely ignored both the District’s discovery requests and the Court’s orders compelling him to respond, the District is unable to defend against his case. The third factor thus supports dismissal. Adriana, 913 F.3d at 1412 (failure to produce documents as ordered is considered sufficient prejudice to warrant case-dispositive sanctions).

Although the fourth factor—the public policy favoring decisions on the merits— always weighs against dismissal or default, Wanderer v. Johnston, 910 F.2d 652, 656 (9th Cir. 1990), this policy “standing alone, is not sufficient to outweigh the other four factors.” Leon v. IDX Sys. Corp., 464 F.3d 951, 961 (9th Cir. 2006) (quoting Malone, 833 F.2d at 133 n. 2). Moreover, where, as here, a fair trial is potentially impossible due to a party’s failure to cooperate, the fourth factor should not be given much weight. Hyde & Drath, 24 F.3d at 1167.

Finally, the fifth factor requires the district court to consider alternate, less severe sanctions before entering a default judgment or ordering dismissal. The Court previously denied sanctions because it had not yet considered alternate, less severe sanctions, and entered an order compelling discovery. Now that both the Order compelling discovery and subsequent Order giving Mr. Tetzner an additional two-weeks to respond to the District’s discovery requests have both been ignored, the Court turns again to the fifth factor.

The Ninth Circuit requires a three-part test to determine whether a district court has properly considered the adequacy of less drastic sanctions: (1) whether the court implemented alternative sanctions before ordering default or dismissal; (2) whether the court warned the party of the possibility of default before ordering it; and (3) whether the court explicitly discussed the feasibility of less drastic sanctions and explained why they would be inappropriate. Malone, 833 F.2d at 130.

All three conditions are met in this case. The Court has already considered less severe sanctions by issuing two orders compelling discovery. Mr. Tetzner disregarded both orders. The Court has also twice warned Mr. Tetzner that failure to comply with its discovery orders could result in the dismissal of his case. Dkt. 31; Dkt. 32. Despite this, Mr. Tetzner failed to comply. Furthermore, if Mr. Tetzner was facing a serious or life-threatening medical condition, he should have simply notified the Court and provided supporting evidence. Ultimately, however, Mr. Tetzner failed to provide any medical information despite numerous opportunities to do so. In light of such conduct, it is clear that less drastic sanctions would be ineffective and will not provide the District with the discovery it needs to defend against Mr. Tetzner’s case. Where, as here, four of the five Ninth Circuit factors weigh in favor of case-dispositive sanctions, dismissal in warranted. Adriana, 913 F.2d at 1413. Although pro se, Mr. Tetzner “is expected to abide by the rules of the court in which he litigates.” Carter v. C.I.R., 784 F.2d 1006, 1008 (9th Cir. 1986); Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995) (“pro se litigants are bound by the rules of procedure.”).

Rule 37(d)(3) requires the Court to award attorney’s fees against a party who fails to respond to discovery unless the failure was substantially justified, or other circumstances make an award of expenses unjust. Indigency, standing alone, does not make an award of expenses or attorney’s fee unjust. Barker v. Hertz Corp., 2008 WL 2705152, at *8 (D. Ariz.). Mr. Tetzner has not offered any justification to the Court, let alone substantial justification, for his failure to comply with its discovery orders. Nevertheless, the Court concludes that Mr. Tetzner, who appears to be suffering from health problems and has been granted leave to proceed in forma pauperis, should not be required to pay fees and costs. Dkt. 20; see Elliott v. United Parcel Serv., Inc., 2009 WL 213004, at *2 (W. D. Wash. 2009) (holding “it would be unjust to require a pro se plaintiff to pay fees and costs for the depositions.”).

No Sanctions For Plaintiff Which Challenged Subject Matter Jurisdiction


In this case, Northeast Natural Energy, LLC, v. Larson, 3:18-cv-240 (W.D. Pennsylvania November 25, 2019), the plaintiff originally filed the case in state court. The Defendant removed the action to federal court. Plaintiff then filed an unsuccessful motion to challenge subject matter jurisdiction.

The procedural history: “

Defendants argue that Plaintiff’s conduct in this lawsuit warrants Rule 11 sanctions. (ECF No. 42.) Defendants state the following as Plaintiff’s “bad faith and vexatious conduct:” (1) Plaintiff filed a complaint and a motion to vacate the arbitration award in state court in West Virginia the same day it filed its Amended Motion to Vacate Arbitration Award in this Court without informing either this Court or Defendants, (2) Plaintiff did not inform this Court about any protentional lack of diversity of citizenship until after this Court issued its September 20 Order and Opinion, (3) Plaintiff served Defendants in the West Virginia action five days after this Court issued its September 20 Order and Opinion, and (4) the West Virginia action is wasteful because the West Virginia court lacks personal jurisdiction over the Defendants and service on the motion to vacate was eight months late. (ECF No. 28 ¶¶ 12-18.)

In response, Plaintiff asserts that sanctions are not warranted because its conduct was not vexatious or in bad faith. (ECF No. 41.) Plaintiff asserts that it filed its Motion to Vacate and the West Virginia action to preserve its case. (Id.)”

The district court denied the motion for sanctions on the ground that Plaintiff had an absolute right to challenge subject matter jurisdiction, at any time during the litigation.

Here, Plaintiff has a right to challenge subject-matter jurisdiction at any time, even for the first time on appeal, or even if the party had previously acknowledged the Court’s jurisdiction. See Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 434-35 (2011). Plaintiff has filed an appeal in this action and therefore could have skipped over this Court and raised the issue of subject-matter jurisdiction for the first time before the Third Circuit. The Court finds that Plaintiff filed the Motion to Vacate for the Court to address its jurisdiction before the Third Circuit would address it.

The Third Circuit has held Rule 11 sanctions unwarranted when a party files a motion as of right. See Lony v. E.I. Du Pont de Nemours & Co., 935 F.2d 604, 616 (3d Cir. 1991) (holding that defendant’s filing of a forum non conveniens motion did not warrant Rule 11 sanctions because defendant had a right to move for such a dismissal). Because Plaintiff had a right to challenge this Court’s subject-matter jurisdiction at any time, the Court will not impose sanctions on Plaintiff for exercising this right. The Court holds that Plaintiff’s filing of the Motion to Vacate was reasonable under the circumstances of this case.

Accordingly, Plaintiff’s conduct does not warrant Rule 11 sanctions.

Edward X. Clinton, Jr.

http://www.clintonlaw.net

Undisclosed Expert Opinion Survives Rule 37 Motion


The case, Centrella v. Ritz-Craft Corporation, 16-729- cv, decided by the Second Circuit on November 5, 2019 (unpublished) allowed a party to present an undisclosed opinion of its expert at trial despite a motion to exclude that opinion. The district court took active measures to allow the other side to cross-examine and rebut the opinion. The Second Circuit affirmed the judgment.

Ritz-Craft argues that the district court erred by permitting the Centrellas’ expert, James Bradley, to testify regarding an opinion that Bradley did not include in his expert report. The district court responded to Bradley’s undisclosed testimony by permitting Ritz-Craft to cross-examine Bradley on his undisclosed testimony and allowing Ritz-Craft’s expert to rebut Bradley’s undisclosed testimony.

Federal Rule of Civil Procedure 37 permits the court to sanction a party that fails to make the disclosures that Federal Rule of Civil Procedure 26 requires. Fed. R. Civ. P. 37(c)(1). “A district court has wide discretion to impose sanctions, including severe sanctions, under Federal Rule of Civil Procedure 37, and its ruling will be reversed only if it constitutes an abuse of discretion.” Design Strategy, Inc. v. Davis, 469 F.3d 284, 294 (2d Cir. 2006). We consider four factors to determine whether the district court’s Rule 37 sanctions in this case were an abuse of discretion: “(1) the party’s explanation for the failure to comply with the disclosure requirement; (2) the importance of the testimony . . .; (3) the prejudice suffered by the opposing party as a result of having to prepare to meet the new testimony; and (4) the possibility of a continuance.” Patterson v. Balsamico, 440 F.3d 104, 117 (2d Cir. 2006) (alteration omitted) (internal quotation marks omitted). The Centrellas have not offered any explanation for their failure to disclose Bradley’s opinion prior to his testimony, and the testimony, an expert’s opinion that Ritz-Craft modular homes could not meet Vermont energy code because of a design flaw, was certainly important to the case. These factors support a strong sanction. However, Ritz-Craft agrees in its brief on appeal that the trial court’s “effort[] in permitting Ritz-Craft’s experts to testify on this issue was sufficient to cure any error,” Appellant’s Br. at 30, and there is no indication that Ritz-Craft sought a continuance to meet the testimony. Given these considerations, the district court acted within its substantial discretion by permitting Ritz-Craft to cross-examine Bradley on his undisclosed testimony and permitting Ritz-Craft’s expert to offer an opinion in response.

This is an interesting opinion, which cannot be cited because it was unpublished. It does offer a pathway for a lawyer who mistakenly omits an opinion to correct that error at trial.

Ed Clinton, Jr.

http://www.clintonlaw.net

You Gotta Warn Em First


In Smith v. Fischer, 13-cv-6127 (September 30, 2019), the defendant moved for Rule 37 sanctions – specifically dismissal when the plaintiff did not comply with discovery requests.

The result – motion denied because the court had not given the plaintiff a warning.

Under Rule 37(b), a court may dismiss a case or impose other sanctions if a party does not obey an order to provide or permit discovery. Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 106-07 (2d Cir. 2002). In evaluating whether to dismiss a case for this reason, a court considers: “1) the willfulness of the non-compliant party or the reason for noncompliance; 2) the duration of the period of non-compliance; 3) whether the non-compliant party had been warned of the consequences of noncompliance; and 4) the efficacy of lesser sanctions.” Ferrer v. Fischer, No. 9:13-CV-0031 NAM/ATB, 2014 WL 5859139, at *2 (N.D.N.Y. Nov. 12, 2014) (citation omitted). Dismissal is a “harsh remedy” to be used “only in extreme situations.” Id. (citation omitted).

The Court declines to analyze each factor here because it finds that the third factor precludes dismissal; that is, Plaintiff has not been warned that his non-compliance with Defendants’ discovery demands could result in the dismissal of his case. The Second Circuit has repeatedly affirmed that courts may not dismiss a pro selitigant’s case under Rule 37 without warning him of the consequences of not complying with discovery obligations. See, e.g., S.E.C. v. Setteducate, 419 F. App’x 23, 24 (2d Cir. 2011) (“[e]ven the most severe Rule 37 sanctions may be imposed even against a plaintiff who is proceeding pro se, so long as a warning has been given that noncompliance can result in a sanction”) (quotation marks omitted and emphasis added) (summary order); Agiwal v. Mid Island Mortg. Corp.,555 F.3d 298, 302 (2d Cir. 2009) (same).

Consistent with this settled authority, courts routinely deny motions to dismiss based on a pro se litigant’s non-compliance with discovery orders where the litigant had not been warned in advance that his non-compliance could result in dismissal. See, e.g., Velazquez v. Vermont Dep’t of Corr., No. 2:07 CV 244, 2009 WL 819445, *2 (D. Vt. 2009) (declining to order dismissal where pro se plaintiff did not appear for a deposition or respond to written discovery requests but “ha[d] not yet been warned that his failure to participate in discovery might result in the dismissal of his case”); Burke v. Miron, No. 3:07CV1181(RNC), 2009 WL 952097, *1 (D. Conn. 2009) (declining to dismiss the pro se plaintiff’s case for non-compliance with discovery, even though he was “a prolific and experienced litigator” because “Second Circuit precedent require[es] a clear warning to pro selitigants” that their case may be dismissed). Accordingly, the Court denies Defendants’ motion to dismiss this case.

Comment: A warning is required before you can move for dismissal.

Edward X. Clinton, Jr.

Don’t Sue the Court Reporter


In Karageorge v. Urlacher, 18 C 3146 (ND IL) the plaintiff was engaged in state court litigation with the father of her child. She then filed a federal lawsuit against Urlacher, his lawyers and the court reporter. She alleged that the court reporter had altered a transcript. Karageorge was pro se, but the district court dismissed the case and granted the court reporter’s motion for Rule 11 sanctions.

It is completely understandable that the child custody proceedings were extremely upsetting to Karageorge. But even considering her pro se status, Karageorge’s distress in connection with those proceedings did not give her license to file a lawsuit making factually dubious and legally unsupportable allegations against a court reporter, forcing her to spend time and money fighting the suit. As the court explained in its dismissal order, Karageorge’s legal theories against Miyuskovich were clearly meritless, Doc. 49 at 2; in fact, Karageorge did not even bother to defend them. Karageorge’s factual allegations against Miyuskovich were neither tested nor debunked in discovery or at summary judgment or trial, but that is only because this case did not make it past the pleading stage. On their face, Karageorge’s factual allegations were extraordinarily farfetched, and given the chance to present supporting evidence in her response to Miyuskovich’s sanctions motion, Karageorge presented none, confirming that they were groundless. Under these circumstances, Rule 11 sanctions are warranted. See Fed. R. Civ. P. 11(b)(2)-(3); Bell v. Vacuforce, LLC, 908 F.3d 1075, 1080-81 (7th Cir. 2018) (affirming sanctions against a party that sought relief based on an “infirm factual foundation”) (internal quotation marks omitted);

Edward X. Clinton, Jr.

Rule 37 Dismissal Sanction Unavailable In Absence of A Court Order Compelling Discovery


The case of King v. Harwood, 15-cv-762 WD Kentucky September 30, 2019 presents an interesting question – can a defendant obtain dismissal of a case where the plaintiff refuses to answer questions in her deposition? Here the court answered this question with a “No.”

King brought a civil rights case against Harwood after she was exonerated of a murder. During her deposition, King refused (on Fifth Amendment grounds) to answer certain questions concerning bullet holes in her floor. The Defendant moved under Rule 37 for the dismissal of the case because King did not answer those questions.

The Magistrate and the District Judge rejected the Rule 37 motion because Harwood never moved to compel. Because he did not move to compel, there was no court order requiring King to answer the questions. Because she did not violate a court order, the Rule 37 sanction of dismissal was not available.

Fed. R. Civ. P. 37(b) provides that if a party “fails to obey an order to provide or permit discovery, including an order under Rule 26(f), 25, or 37(a), the court where the action is pending may issue further just orders.” Fed. R. Civ. P. 37(b)(2)(A). Such “just orders” may include “dismissing the action or proceeding in whole or in part.” Id. at 37(b)(2)(A)(v). However, the Sixth Circuit has stated that “[b]y its terms, Rule 37(b) requires a party seeking a sanction of default against a party to secure a court order compelling disclosure or discovery.” Burley v. Gagacki, 729 F.3d 610, 618 (6th Cir. 2013). In Burley, the Sixth Circuit affirmed the district court’s denial of a motion for a sanction of default under Rule 37, because the moving party had never moved to compel discovery even though “it was apparent that [the opposing party] did not fully respond to the interrogatories.” Id. at 618. That being the case, there was no violation of a court order to justify any sanction under Rule 37. Id.Further, the Sixth Circuit has made clear that dismissal is the sanction of last resort. See id.; Beil v. Lakewood Eng’g and Mfg. Co., 15. F.3d 546, 552 (6th Cir. 1994).

The court also determined that the bullet holes found in the floor of King’s home were not relevant to the lawsuit. The bullet holes were not fired by the same gun used in the murder and were found years after the murder had occurred.

Comment: if you wish to obtain Rule 37 sanctions, you should move to compel and obtain an order compelling discovery. Once that order is violated, you can move for Rule 37 sanctions.

If you have any questions about Rule 37 or federal procedure, do not hesitate to contact me.

Edward X. Clinton, Jr.

http://www.clintonlaw.net

District Court Awards Sanctions for Spoliation of Evidence


The defendant in this lawsuit allowed a key item to be destroyed and sold for scrap – after it had notice that the item was relevant to discovery requests. The court ordered an award of attorney fees and costs and also permitted plaintiff an adverse inference instruction to be read to the jury.

This is a breach of contract case. TVI sued Harmony Enterprises and alleged that a baler manufactured by Harmony was defective. Defendant sold the baler for scrap.

It is undisputed that Defendant had control over the Mt. Vernon baler when it sold it for scrap, and Defendant does not dispute that the Mt. Vernon baler was relevant to this litigation. (See Dkt. No. 30 at 1, 7-9.) Defendant argues that it did not have an obligation to preserve the Mt. Vernon baler and could not have acted with a culpable state of mind because Plaintiff asked Defendant to dispose of it on October 3, 2017. (Dkt. No. 30 at 8-9; see Dkt. No. 20 at 8.) But Plaintiff’s initial request was followed by multiple indications that Defendant had a duty to preserve the Mt. Vernon baler, including Plaintiff’s October 10, 2017 letter reserving its right to pursue legal or equitable remedies related to the Mt. Vernon baler’s failure and Defendant’s own inspection of the Mt. Vernon baler that revealed unnecessary welds that contributed to its failure. (See id. at 2-4, 31-32; Dkt. No. 21 at 14-15, 25.) Further, Defendant shared a summary of its inspection with its counsel, who may have informed Defendant of the possibility of future litigation. (Dkt. No. 21 at 20-22.) All of this occurred while Defendant was still in possession of the Mt. Vernon baler. (See Dkt. No. 21 at 19.) Thus, Defendant was on notice of its obligation to preserve the Mt. Vernon baler, and consciously disregarded that obligation when it sold the Mt. Vernon baler for scrap. See Apple Inc., 888 F. Supp. 2d. at 989, 998Surowiec, 790 F. Supp. 2d at 1005.[2] The Court finds that Plaintiff has carried its burden of establishing that Defendant spoliated the Mt. Vernon baler….

Defendant had exclusive control over the Mt. Vernon baler, was on notice of the obligation to preserve it, and consciously disregarded its obligation by selling the baler for scrap. See supra. Plaintiff has been substantially prejudiced by Defendant’s destruction of the Mt. Vernon baler, as Plaintiff cannot conduct its own examination following Defendant’s disclosures about the reasons for the baler’s failure during discovery. See Apple Inc., 888 F. Supp. 2d at 992.[3] Thus, the Court finds that an adverse jury instruction regarding Defendant’s spoliation of the Mt. Vernon baler is an appropriate sanction. The instruction shall inform the jury that Defendant was on notice that it had an obligation to preserve the Mt. Vernon baler, that Defendant destroyed the Mt. Vernon baler before Plaintiff could inspect it, that the Mt. Vernon baler was relevant to Plaintiff’s claims, and that an inspection of the Mt. Vernon baler would have corroborated Plaintiff’s claim that it was defective.

Defendant then moved for reconsideration. That motion was denied. The explanation:

Defendant moves for reconsideration of the Court’s order, arguing that the Court committed manifest error in imposing its spoliation sanction and awarding Plaintiff attorney fees. (See generally Dkt. No. 42.) ….Defendant contends that the Court committed manifest error when it found that Plaintiff is entitled to an adverse jury instruction following Defendant’s spoliation of the Mt. Vernon baler. (Dkt. No. 42 at 10-13.) Defendant argues that the Court erred by looking only to Defendant’s conscious disregard of its discovery obligations to determine that Defendant’s degree of fault warranted an adverse jury instruction. (See id. at 10-12.) But the Court’s order looked beyond Defendant’s conscious disregard in finding that an adverse jury instruction was warranted. Specifically, the Court considered: Defendant’s exclusive control over the Mt. Vernon baler; Defendant’s substantial prior notice that it had an obligation to preserve the Mt. Vernon baler; and Defendant’s subsequent conscious disregard of that obligation when it sold the Mt. Vernon baler for scrap. (See Dkt. No. 39 at 2-3, 6.) Defendant’s remaining arguments opposing the Court’s evaluation of Defendant’s degree of fault simply restate those it raised in its response to Plaintiff’s original motion. (Compare Dkt. No. 42 at 11-12, with Dkt. No. 30 at 8-9.) Thus, Defendant has not identified a manifest error in the Court’s evaluation of Defendant’s degree of fault in spoliating the Mt. Vernon baler. See Premier Harvest, Case No. C17-0784-JCC, Dkt. No. 61 at 1; W.D. Wash. Local Civ. R. 7(h)(1).

The case is TVI, Inc. v. Harmony Enterprises, Inc. Case No. C18-1461-JCC. (D. W.D. Washington).

This case is instructive for any lawyer handling litigation involving an allegedly defective product. Preserve the product until both sides have had an opportunity to examine it. Failing to preserve the product risks a spoliation of evidence instruction to the jury and an award of fees and costs.