Category: Rule 37 Sanctions

Plaintiff’s Motion For Rule 37 Sanctions Based on Defense Expert’s Conduct Denied


In the Estate of Jackson v. Billingslea, No. 18-10400 (ED Michigan July 1, 2019), the plaintiff brought claims under 42 USC § 1983 arising out of the death of Jackson when he was killed in a crash with police vehicles. The complaint relied upon theories of excessive force, failure to supervise, failure to properly train and failure to intervene.

After the Defendants answered expert discovery and identified their expert, plaintiff attempted to serve a subpoena on the expert. The expert witness, identified only as “Eck” in the opinion, allegedly evaded service of the subpoena thus requiring his deposition to be cancelled several times.

Plaintiff sought to impose Rule 37 sanctions on the Defendants as a result of Eck’s failure to cooperate with discovery.

The court denied the motion and gave several reasons. First, “Eck” was not a party to the case so Rule 37 did not apply to him. Second, Plaintiff was not prejudiced. Third, plaintiff did not file a motion to compel – thus warning the defendants that there was a risk of sanctions. Fourth, the court was concerned that if the witness was stricken the Defendants would be left with no defense at all.

The court’s reasoning is quoted here:

First, the Court finds Defendants did not act willfully or in bad faith. There is no “clear record of delay or contumacious conduct.” Id. (citing Carter v. City of Memphis 636, F.2d, 159, 161 (6th Cir. 1980). Unlike Carter and Freeland, to cancel a deposition after filing a motion for a protective order is not “contumacious conduct.” E.g., Freeland, 103 F.3d at 1277-8.

Plaintiffs argue that Defendants delayed discovery when Eck avoided service of the subpoena for his deposition four times and when Defendants waited until only days before the deposition to challenge Plaintiffs’ subpoena. The Court disagrees. Rule 37(b)(2)(A) allows discovery sanctions for violations committed by parties—not by non-parties. See Powell v. State Farm Mutual Automobile Insurance Co.,No. 11-11280, 2012 WL 12930351, at *2 (E.D. Mich. 2012). The record does not indicate that Defendants had control over Eck or that they were responsible for his failure to be served. It would be improper to sanction Defendants if Eck— on his own—evaded service.

Second, the Court finds that Plaintiffs are not prejudiced. Defendants complied with all court rules pursuant to Rule 26(a)(2)(B). And there is no finding that Plaintiffs cannot prepare the case for trial by November 12, 2019. Carter, 636 F.2d at 161.

Third, “because [Plaintiffs] did not previously raise these issues with the Court before filing their motion to strike, [Defendants] never received warnings from the Court `that failure to cooperate could lead to the sanction.'” Brooks v. Skinner, No. 1:14-cv-412, 2015 WL 6964679, at *3 (S.D. Ohio 2015) (citing Freeland, 103 F.3d at 1277).

While the fourth factor regards the potential for dismissal, if the Court strikes Eck as an expert, the “litigation-ending sanction” the Plaintiffs request would be the potential for a default judgment against Defendants. The Court is not prepared to open the door to that.

No Sanctions Where Party is Two Days Late Producing Documents


Can you get Rule 37 sanctions when your opponent is two days late producing documents? Here, thankfully, the court answered “No.”

The case is captioned Tencero v. Oceaneering International, (E.D. Louisiana) (17-7438) (March 19, 2019). In the opinion, the district court denies a motion for Rule 37 sanctions. Plaintiff filed a personal injury case against the Defendant. He sought the production of documents. The defendant produced the documents two days late which forced the Plaintiff to review 1400 pages on the night before a deposition. To me, this does not sound like much of an outrage at all, and certainly not a motion for sanctions. However, the court took it seriously, but denied the motion.

There is no dispute that Oceaneering failed to comply with the court’s discovery order. The court finds that Oceaneering’s delay prejudiced Tercero, who was forced to review 1,400 new pages of documents on the day before the Walsh deposition when he should have had four days to do so. Oceaneering describes a misunderstanding as the reason for its delay, but this does not entirely excuse its failure to timely comply with the court’s order, especially in light of the Walsh deposition scheduled on February 27, 2019. While Oceaneering did ultimately comply, at the time plaintiff filed this motion, Oceaneering merely “hoped” to have the documents by February 26, 2019. The motion may have been necessary to ensure that Oceaneering’s document production was actually made on that date and not on the day of or following the Walsh deposition.

Nonetheless, the court finds no evidence of willfulness in Oceaneering’s delayed production of documents. Additionally, although Tercero’s counsel represents that he had a lot of work to do the day before the deposition, he has not identified any specific documents that he was unable to identify from the mass of 1,400 pages until after the deposition. At this time, then, it does not appear necessary to order a second deposition of Walsh. The court notes that the borrowed servant issue was being developed at this late date, and on an expedited basis, as a result of plaintiff’s actions, not Oceaneering’s. Accordingly, the severe sanctions proposed by Tercero (prohibiting Oceaneering’s witnesses from testifying or deeming Tercero the borrowed servant of Oceaneering) are not appropriate here.

Non-compliant Plaintiff Narrowly Escapes Dismissal But Is Sanctioned


The case is Macklin v. Charles Schwab No. DKC 16-3923 (D. Maryland) (January 8, 2019). The plaintiff in the case did not comply with discovery, but did make efforts to remedy the noncompliance when Schwab moved for Rule 37 sanctions. The Court elected not to dismiss the case, but to bar plaintiff from using any late-produced evidence.  The explanation:

Plaintiff acted in bad faith by repeatedly failing to comply with the court’s Orders to provide complete discovery responses. The court’s May 22, 2018 Memorandum Opinion provided Plaintiff with a detailed list of the discovery requests that remained outstanding at that time, and directed Plaintiff to “provide full and complete responses to all the interrogatories and the request for production . . . in a signed writing under oath.” (ECF No. 24, at 6). In response, Plaintiff failed to comply with the court’s orders and provided only a meager amount of additional information that hardly qualified as a full and complete response to the outstanding discovery requests. However, it is unlikely that Defendant is substantially prejudiced by Plaintiff’s lack of compliance. While insufficient, Plaintiff’s responses provide Defendant with enough information to begin building a defense. As for the need to deter future noncompliance, it is evident that Plaintiff requires such deterrence based on her continued defiance of the court’s Orders. Lastly, as explained in further detail below, dismissal is not the only sanction that would effectively deter Plaintiff’s potential future noncompliance.

Based on the four factors, sanctions are warranted but dismissal is not the appropriate sanction at this time. The sanction of dismissal is to be used sparingly, and is usually called upon in cases where a party is unresponsive or largely absent. See Mut. Fed. Sav. & Loan Ass’n v. Richards & Assocs., Inc., 872 F.2d 88, 92 (4th Cir. 1989) (“[O]nly the most flagrant case, where the party’s noncompliance represents bad faith and callous disregard for the authority of the district court and the Rules, will result in the extreme sanction of dismissal or judgment by default.”); Roman v. ESB, Inc., 550 F.2d 1343, 1349 (4th Cir. 1976) (finding dismissal sanction appropriate where plaintiffs “had failed to respond to interrogatories; failed to respond to an order entered by the district court requiring a response to the interrogatories; and additionally failed to respond upon specific request after the court had denied, without prejudice, a first motion to dismiss”); Malry v. Montgomery Cty. Pub. Sch., No. 11-CV-00361-AW, 2013 WL 812020, at *2 (D.Md. Mar. 3, 2013) (dismissing pro se plaintiff’s employment discrimination complaint pursuant to Rule 37(d) where he failed to respond to interrogatories, produce requested documents, or attend a properly noticed deposition). Given Plaintiff’s pro se status, her correspondence and attachments are construed as an attempt to satisfy the court’s August 21, 2018 Order.[3] Although Plaintiff’s discovery responses remain incomplete, Plaintiff supplemented her prior discovery responses by providing Defendant with further information via e-mail on September 10, 2018. (ECF No. 32-1, at 2). Finally, Plaintiff also provided Defendant with her availability in an attempt to schedule a deposition (id.), but Defendant failed to clarify a preferred deposition date and time in its reply email (ECF No. 32-2, at 2). Because dismissal is reserved for more egregious cases of noncompliance, it is not a suitable sanction at this time in light of Plaintiff’s attempts to comply. Additionally, as directed in the foregoing Order, the parties are instructed to schedule and complete Plaintiff’s deposition.

Although Plaintiff’s attempts to comply shield her case from dismissal, they do not shelter her from the alternative sanctions permitted under Rule 37(b)(2)(A). Specifically applicable here is Rule 37(b)(2)(A)(ii), which provides the court discretion to “prohibit[] the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence.” In the event that Plaintiff’s case proceeds to an adjudication on the merits, according to Rule 37(b)(2)(A)(ii), Plaintiff will be barred from introducing evidence that was not already provided to Defendant through initial disclosures or discovery. This sanction more appropriately addresses any potential prejudice to Defendant by limiting Plaintiff’s ability to bolster her claims with additional dilatory evidence in the same way Defendant has been limited by her scant discovery responses.

The court also rejected arguments that the case should be dismissed under Rule 41(b) which allows the court to dismiss an action for noncompliance with court orders or the failure to prosecute the claim.

The Clinton Law Firm, LLC

Plaintiff’s Flooding Lawsuit Goes Down the Drain Because Of Discovery Violations


The case is captioned Justice v. Cabot Oil and Gas, 17-cv-2986 S.D. West Virginia. One of the plaintiffs, James Grimes alleged that Cabot Oil caused flooding on his property by failing to “reasonably divert water from its natural course.” According to Grimes, this caused damage to his property.

After Grimes failed to participate in discovery, Cabot Oil moved to dismiss as a sanction under Rule 37. The court granted the motion. The explanation:

Cabot summarizes in the motion the relevant and undisputed facts that led to the pending motion’s filing. (ECF No. 60 at 1-2.) In short, since Grimes filed his Complaint on April 13, 2017, he has failed to respond to Cabot’s written discovery requests, failed to submit to a deposition, failed to respond to Cabot’s motion to compel, failed to comply with Magistrate Judge Tinsley’s discovery order, and has otherwise failed to participate in this litigation at all. (See id.) It is apparent that Rule 37 sanctions are appropriate in this situation.

First, Grimes has acted in bad faith by blatantly disregarding this litigation since he filed the Complaint well over fifteen months ago. Grimes never responded to initial discovery requests, and his counsel similarly refused to respond to multiple correspondence from Cabot’s counsel inquiring as to the whereabouts of his responses. (See id.) While the failure to participate in initial discovery could be rectified through later involvement, bad faith became even more apparent here through Grimes’ noncompliance with a very specific discovery order entered by Magistrate Judge Tinsley. Cabot suggests that Grimes “moved away . . . since at least January 25, 2018,” (id. at 4), but the discovery order was entered on December 18, 2017, (ECF No. 17). That order was electronically transmitted to Grimes’ counsel upon entry, so Grimes clearly had notice of the court order with which he still has not complied. Simply put, Grimes’ actions—or lack thereof—since the litigation’s commencement serve as a distinct example of bad faith.

Second, the Court agrees with Cabot that it has suffered prejudice because of Grimes’ misconduct. As Cabot notes, Grimes has “deprived Cabot of any knowledge regarding [his] claims,” (ECF No. 60 at 4), and with summary judgment motions due on August 2, 2018, Cabot has been unable to develop any evidence to rebut those claims. Grimes supposedly no longer owns the property that he claims was flooded. (Id.) Thus, Cabot’s experts have been unable to examine the alleged damage suffered. (Id. (“Likewise, counsel for Mr. Grimes did not take Cabot’s experts to the location where the mobile home was previously located and, accordingly, Cabot’s experts do not even know the location of the alleged flooding.”).) The ability to inspect the property and develop expert opinions related to the cause of the supposed damage is essential to Cabot’s defense. In short, the inability to defend itself due to Grimes’ noncompliance with Magistrate Judge Tinsley’s order indicates that Cabot has already suffered great prejudice.

Third, “stalling and ignoring the direct orders of the court with impunity . . . must obviously be deterred.” Mut. Fed. Savs. & Loan Ass’n, 872 F.2d at 93. This applies not only to future litigants who will appear before this Court but also to those who are involved in the instant action. Cabot filed a motion to compel against all Plaintiffs in this matter after almost two months passed from the date when Cabot served its initial discovery requests. (See ECF Nos. 12, 13, 14.) It took Magistrate Judge Tinsley’s order for the other Plaintiffs in this case to respond to those requests. (See ECF No. 20.) While the Court is unaware of additional misconduct by those Plaintiffs, they should be aware of the consequences that may arise from noncompliance with this Court’s orders.

Lastly, no less drastic sanctions than dismissal will be effective in this situation. Cabot has been left with no information regarding Grimes’ claims, and the dispositive motions deadline is looming. Grimes has shown no interest in participating in this action or even communicating with his attorney even though his counsel has not moved to withdraw representation. There is no indication before the Court that Grimes has any intention of obeying Magistrate Judge Tinsley’s order in the future or further pursuing his claims against Cabot. Accordingly, Grimes forfeited his right to prosecute this case, and dismissal of his claims appears to be the only appropriate sanction under Rule 37.

Comment: the plaintiff must participate in the litigation. If the plaintiff does not comply with discovery, plaintiff essentially forfeits the lawsuit.

Ed Clinton, Jr.

 

Lawyers Sue Client For Legal Fees And Seek Rule 37 Sanctions


Center for Individual Rights v. Chevaldina (S.D. Florida)

The Plaintiff is a law firm that represented Chevaldina in a copyright case. Plaintiff sued Chevaldina for legal fees after the copyright case was settled by another law firm. Plaintiff claimed that Chevaldina did not prosecute its claim for a legal fee award from the court. The law firm was suing for the failure of the plaintiff to pursue a claim for legal fees.

The law firm sought discovery from Chevaldina, but she did not produce documents. The law firm then filed a motion for a default judgment under Rule 37, which allows the court to enter a default judgment against a party that fails to participate in discovery.

Because Chevaldina was pro se, the court declined to award sanctions. It reasoned that Chevaldina did not fully understand her obligations to produce documents and denied the default judgment.

In conclusion, the court gave a pro se litigant a break in this case.

District Court Awards Sanctions To Prisoner


A prisoner who sued the Illinois Department of Corrections has obtained an award of Rule 37 sanctions. The district court held that the Department of Corrections failed to produce relevant documents and then violated a court order to produce those same documents. The court found that there was no bad faith by the Department of Corrections. Instead, it was a simple case of negligence. The court entered an order granting the motion, requiring production of the documents and requiring the Department to present the Warden for a second deposition. Additionally, appointed counsel had leave to submit a fee petition.

Source: Cozad v. Illinois Department of Corrections, Dist. Court, CD Illinois 2017 – Google Scholar

Homeowners’ Association Required to Pay Bank’s Legal Fees


This is a Rule 37 sanctions case for the failure by a Homeowners’ Association, Daisy Trust, to produce documents in response to JP Morgan’s discovery requests. The case is a simple one: the Homeowners’ Association moved to foreclose a single family residence. JP Morgan, which made a loan on the property, served discovery requests. The discovery requests were directed to issues of jurisdiction, and sought to determine the citizenship of the Trust.

The court granted the motion to compel and imposed sanctions by requiring the Daisy Trust to pay the bank’s legal fees. The court reasoned that the discovery requests were proper and that there was not a legitimate basis for refusing to respond.  The court’s explanation is provided in pertinent part:

“Daisy Trust must pay Chase’s reasonable attorney’s fees and expenses. Daisy Trust refused to provide adequate information contrary to Judge Jones’ order. In response to an interrogatory, Daisy Trust merely responded that it was a “trust” and that its trustee is Resources Group, LLC. (ECF No. 93 at 5). However, without information on the type of trust, the identity of the trustee is not enough to determine citizenship. Second, despite Chase’s attempt to meet to discuss the inadequate responses, Daisy Trust was unwilling to provide the necessary information even after they were directed to the court order requiring them to respond to jurisdictional discovery. This is impermissible. The discovery rules are designed to be self-executing to avoid unnecessary court involvement and the needless accrual of costs and expenses. See Goodman v. Staples, 644 F.3d 817, 827 (9th Cir. 2011) (stating that Rule 37 “gives teeth” to the rules’ discovery requirements). Here, Daisy Trust disregarded discovery requests served pursuant to the Court’s order to obtain information concerning Daisy Trust’s citizenship to proceed with this matter.”

Source: DAISY TRUST v. JP Morgan Chase Bank, NA, Dist. Court, D. Nevada 2017 – Google Scholar

Edward X. Clinton, Jr.

http://www.clintonlaw.net