Category: Rule 37 Sanctions

Remember that Federal Judges Have Broad Discretion


The order is quite short, but it has important significance for those preparing for trial in federal court. The case is Elliot v. Illinois Central Railroad 2:19-cv-02807 (W.D. Tennessee, April 5, 2021). The lawsuit arose out of a collision between a train and a truck. The plaintiff missed the deadline to disclose an expert. Plaintiff made an untimely disclosure. The Defendant moved pursuant to Rule 37(c)(1). The court declined to strike the untimely opinion. The court allowed the disclosure of the opinions and noted that Defendant’s expert can dispute the opinions.

In sum, even if your disclosure is untimely, the court has discretion to allow you to proceed. Obviously, moving quickly to cure the problem is a must.

Rule 59(e) Motion to Vacate Sanctions Judgment Fails


A defendant to a foreclosure lawsuit in federal court was sanctioned pursuant to Rule 37. The lender then won summary judgment and the court entered judgment in its favor. The Defendant appealed the foreclosure judgment. After judgment was entered, the court entered a second judgment on the fees and costs incurred by the plaintiff. The Defendant then filed a Rule 59(e) motion to vacate the award of attorney fees and costs. The key point to remember is that it is proper for a federal court to enter a second judgment for attorney fees or sanctions or costs after the initial judgment has become final. There is no rule against the court entering two judgments. Should this occur to you, simply file a second notice of appeal challenging the fee or cost award.

The Defendant argued that Rule 54(d) allowed for only one judgment for fees and that Rule 37 does not allow proceedings after the judgment was entered. The court rejected both arguments. The explanation:

In her motion, Ms. Wellington argues that the Court erred in filing two attorney fee awards and contends that Rule 54(d) allows for only one post-judgment fee award. Doc. 223 at 3. This argument fails for several reasons.

First, Rule 54(d)(2) governs attorney’s fees and nontaxable expenses to the prevailing party. FED. R. CIV. P. 54(d)(2)(A)-(D) (describing the procedure to claim attorney’s fees). In this case, MTGLQ was the prevailing party and sought fees pursuant to the promissory note and mortgage agreement between the parties. Doc. 209. The Court granted MTGLQ’s motion and awarded attorney’s fees on October 7, 2020. Docs. 220, 221. The attorney’s fees awarded by the Court’s October 7, 2020 judgment are separate from the attorney’s fees previously awarded as a sanction by the Court on January 18, 2019. Doc. 145. On January 18, 2019, the Court awarded attorney’s fees to MTGLQ—and later enforced the award in the October 30, 2020 judgment—as a sanction pursuant to Rule 37. Rule 54 is not applicable to Rule 37 sanctions. Rule 54 states “[s]ubparagraphs (A)-(D) do not apply to claims for fees and expenses as sanctions for violating these rules or as sanctions under 28 U.S.C. § 1927.” FED. R. CIV. P. 54(d)(2)(E). Because Rule 54 does not apply to the attorney’s fee awarded as sanctions pursuant to Rule 37, there are not two judgments for attorney’s fees under Rule 54, as Ms. Wellington contends.

Second, the Court appropriately awarded and enforced attorney’s fees as a sanction under Rule 37. Rule 37 governs the failure to make disclosures or cooperate in discovery, and sanctions for violations of discovery orders. FED. R. CIV. P. 37. Rule 37 requires the Court to order sanctions if a motion for discovery is denied. FED. R. CIV. P. 37(a)(5)(B) (“If the motion is denied, the court . . . must, after giving an opportunity to be heard, require the movant, . . . to pay the party or deponent who opposed the motion its reasonable expenses incurred in opposing the motion, including attorney’s fees.”). Ms. Wellington filed a motion to compel that the Court denied. See Docs. 107, 114. The Court then awarded MTGLQ its reasonable expenses incurred in opposing the motion, including attorney’s fees. Doc. 145. Ms. Wellington’s failure to pay the sanction prompted MTGLQ’s motion to enforce and the Court’s October 30, 2020 judgment granting that motion. Docs. 208, 222.

Ms. Wellington does not cite any legal authority for the proposition that orders for sanctions made pursuant to Rule 37 cannot be later enforced by a judgment. Rule 37(b)(2) provides that if a party “fails to obey an order to provide or permit discovery, including an order under . . . 37(a), the court where the action is pending may issue further just orders.” Here, the “further just order” came in the form of a judgment enforcing the sanctions imposed on Ms. Wellington under Rule 37(a).

Further, while Ms. Wellington is correct that Rule 37 itself contains no provision for any post-judgment proceedings (Doc. 223 at 3), the Court retains jurisdiction to rule on collateral matters such as discovery sanctions. “Although filing [a] notice of appeal generally divests the district court of jurisdiction over the issues on appeal . . . the district court retains jurisdiction over collateral matters not involved in the appeal.” Lancaster v. Indep. Sch. Dist. No. 5, 149 F.3d 1228, 1237 (10th Cir. 1998)(citations and quotation omitted). “Attorney’s fees awards are collateral matters over which the district court retains jurisdiction.” Id. As the Tenth Circuit Court of Appeals explains:

While the cases typically discuss attorney’s fees awards in the context of statutory grants of attorney’s fees to the prevailing party . . ., we see no basis to distinguish those cases from one like the present case in which fee awards are granted as sanctions. In either context, the award is collateral to the merits of the underlying action. Accordingly, we conclude the district court had jurisdiction to grant the Rule 37 motion.

Id. Thus, the Court had authority to decide MTGLQ’s post-judgment motion to enforce the order awarding attorney’s fees pursuant to Rule 37.

Conclusion: the litigant would have been better off simply filing a separate appeal of the fee judgment.

Citation: MTGLQ Investors, LP v. Wellington, No. 1:17-cv-00487 (D. New Mexico, February 3, 2021).

Rule 37 Sanctions Granted For Failure to Complete Initial Disclosures


Rule 26(a) now requires most litigants to make certain disclosures of the types of documents they have that are relevant to the lawsuit and the names and addresses of witnesses. The purpose of the initial disclosures is to reduce the squabbling among lawyers over basic interrogatories and document requests. The idea is to speed up the litigation and avoid the inevitable discovery disputes that arise.

In Hill v. Alpine Sheriff Department, 18cv2470 (S.D. California) the plaintiff did not make the disclosures and then, when he was sanctioned, moved to remove the Magistrate judge. The District Court was unimpressed with his arguments:

Here, the motion to remove, which this Court deems an objection to Magistrate Judge Dembin’s Sanctions Order, is untimely. Fed.R.Civ.P. Rule 72(A). While it appears Plaintiff may have been incarcerated when the objections to the Sanctions Order were due, he waited almost one year from the issuance of the Sanctions Order to file objections.

Nevertheless, even if his objections had been timely, Plaintiff has failed to show that the Sanctions Order was “clearly erroneous” or “contrary to law.” 28 U.S.C. § 636(b)(1)(A). Magistrate Judge Dembin ordered Plaintiff to serve initial disclosures on several occasions. [Doc. Nos. 12, 21.] Plaintiff’s argument at the time was that he did not understand why he had to serve initial disclosures, as everything was contained in his complaint. [Doc. No. 30 at 1.] However, Magistrate Judge Dembin explained to Plaintiff why he could not merely rely on the allegations and exhibits to his complaint. [Doc. No. 32 at 4-5.] Nevertheless, Plaintiff failed to serve his initial disclosures.

Now, in this motion to remove, Plaintiff continues to argue that he should not have to comply with the initial disclosure rules because all the evidence is in his complaint. [Doc. No. 54 at 1; Doc. No. 62 at 1.] As Magistrate Judge Dembin previously explained to Plaintiff, reliance on exhibits submitted with his complaint is insufficient. Fed.R.Civ.P. Rule 26(a)(1); Davis v. Molina, No. 1:14-cv-01554 LJO DLB PC, 2016 W.L. 1587022, *2 (E.D. Cal., August 19, 2016) (finding a plaintiff was not substantially justified in failing to provide initial disclosures to defendants and instead referring defendants to his initial pleadings and their attachments). Moreover, the fact that Plaintiff is pro se does not negate his obligation to comply with the rules and with Court orders. Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995)(“Although we construe pleadings liberally in their favor, pro se litigants are bound by the rules of procedure.”) As a result, Plaintiff has failed to show that the Magistrate Judge’s order was “clearly erroneous” or “contrary to law.”

This case is unpublished, but it offers a reminder to follow the rules, produce the disclosures and spend time on the merits of the litigation. Also, of course, do not attack the judge who disagreed with you.

Ed Clinton, Jr.

Rule 37 Sanctions Awarded Where Party Refused to be Deposed


In this case, the plaintiff sought to collect a Maryland judgment in the Virgin Islands. Defendants resisted the efforts to take discovery concerning their assets and walked out of a scheduled deposition. Rule 37 sanctions were awarded. The explanation:

Plaintiff seeks sanctions for Defendants’ failure to proceed with the noticed depositions. The Court agrees that sanctions are warranted under the circumstances here.

In Goodwin v. City of Boston, 118 F.R.D. 297 (D. Mass. 1988), a Massachusetts federal district court was faced with a situation similar to that in the instant matter. The court there stated:

The filing of a motion to quash or a motion for protective order does not automatically operate to stay a deposition or other discovery. When it appears that a Court is not going to be able to decide a motion to quash or a motion for protective order before the date set for a deposition, counsel for the movant should contact counsel for the party noticing the deposition and attempt to reach an agreement staying the deposition until after the court acts on the motion to quash and/or the motion for a protective order. If agreement cannot be reached, it is incumbent on counsel for the movant to file a motion to stay the deposition until the court acts on the motion to quash and/or for a protective order and to alert the clerk to the need for immediate action on the motion to stay.

Id. at 298 (emphasis added); see also Barnes v. Madison, 79 F. App’x 691, 707 (5th Cir. 2003) (“[T]he mere act of filing a motion for protective order does not relieve a party of the duty to appear; the party is obliged to appear until some order of the court excuses attendance.”); Hepperle v. Johnston, 590 F.2d 609, 613 (5th Cir. 1979) (“The court’s inaction on appellant’s motion [for a protective order] to postpone the taking of his deposition … did not relieve him of the duty to appear for his deposition); Unlimited Holdings, Inc. v. Bertram Yacht, Inc., 2008 WL 4642191, at *5 (D.V.I. Oct. 15, 2008) (denying defendant’s request for sanction of dismissal, but noting that “[i]n the absence of a protective order, [plaintiff] was obligated to attend the deposition. . . .”); Sutherland v. Mesa Air Group, Inc., 2003 WL 21402549, at *5 n.10 (S.D. Fla. June 6, 2003) (“[T]he filing of a motion for a protective order alone would still not have relieved defense counsel of his obligation to attend the depositions; only when the district court grants the motion does the obligation to comply with a notice of deposition dissipate.”).

Shortly before the depositions at issue here were to take place, Defendants appealed the Magistrate Judge’s ruling and filed a motion for a protective order, but did not seek and obtain a stay of the depositions pending a ruling by the Court. By relying on their 39-minute-old appeal of the Magistrate Judge’s Order instead of a stay by the Court, and choosing to walk out of the deposition—or not appear at all—instead of adopting the suggestion presented by Plaintiff’s counsel to contact the Magistrate Judge, Defendants and their counsel acted at their peril.

Judge Miller’s Order denying the motion to quash the notices of depositions did not bring the case—nor any of the pending deadlines or scheduled discovery—to a halt. Judge Miller’s Order—even if Defendants disagreed with it—did not obviate the need for their continued compliance with the pending depositions, in the absence of a stay or protective order. Nor did Defendants’ motion for a protective order have the effect of staying the depositions. Simply stated, in the absence of a stay entered by the Court, Defendants were not relieved of their obligation to proceed with the depositions. Thus, the Court finds that Defendants failed to comply with their discovery obligation without just cause.

The Court further finds that sanctions are appropriate for Defendants’ flagrant disregard of well-established legal principles regarding the need for a court-ordered stay under the circumstances here. While the Court concludes that it would be too severe a sanction to deem it established that Defendants do not have sufficient personal property to satisfy the judgment, the Court nonetheless finds that Plaintiff should be awarded reasonable attorneys’ fees and costs associated with Defendants’ unjustified failure to proceed with the depositions. Plaintiff will be required to submit to the Court an application for such attorneys’ fees and costs for a determination of an appropriate award by the Court.

Choice Hotels International, Inc. v. Special Spaces, Inc., 2013-MC-0023, June 3, 2020 (D. Virgin Islands).

Noncompliant Plaintiff Avoids Rule 37 Dismissal


If a party disregards a court order to produce documents or update discovery responses, the court may order dismissal of the case pursuant to Rule 37. In Glover v. CoreCivic of Tennessee, No. 18-cv-2330 (S.D. Cal. February 11. 2020), the plaintiff failed to comply with an order to supplement its discovery responses, but the court denied the defendant’s motion to dismiss. The court reasoned that both parties were not dealing with each other in an appropriate and civil manner.

Rule 37 allows for terminating sanctions to be levied against a party for not obeying an order to supplement discovery responses. Fed. R. Civ. P. 37(c)(1)(C). It is so harsh a penalty that it should only be imposed as a sanction in extreme circumstances. Henderson, 779 F.2d at 1423 (9th Cir. 1986). When sanctions for dismissal are considered, the court weighs: (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to defendant; (4) the public policy favoring disposition of cases on the merits; and (5) the availability of less drastic sanctions. Thompson v. Hous. Auth. of City of L.A., 782 F.2d 829, 831 (9th Cir. 1986).

The public’s interest in expeditious resolution of litigation is not a factor that weighs in Defendant’s favor. The parties’ seeming inability to work cooperatively in bringing this case to trial or settlement is evidenced by the recent flurry of motion practice in this case. Since this motion has been filed Plaintiff has filed a Motion for Evidentiary and Monetary Sanctions for Spoliation of Evidence (Doc. No. 34), a Motion for Extension of Time to File an Opposition to the Current Motion (Doc. No. 40), a Motion to Disqualify Counsel (Doc. No. 41) and a Motion for Relief from Court Order Pursuant to Fed. R. Civ. P. 60(B); Motion for Sanctions (Doc. No. 42), and Defendant has filed three motions to stay related to Plaintiff’s motion to disqualify, spoliation of evidence and its own motion to dismiss (Doc. Nos. 45, 46, 47.) But the responsibility for this cannot be laid entirely at Plaintiff’s door.

None of the remaining factors weigh in Defendant’s favor either. The delay in producing the documents is not so prejudicial to CoreCivics that it cannot be remedied by, for example, extending the discovery cut-off date. Furthermore, by its own admission, GEO Group has produced countless records related to Mr. Glover, including those under his aliases. Notably, absent from Defendant’s motion is any mention of the fact that the video of the alleged fall has been destroyed.

Finally, Defendant argues that the imposition of lesser sanctions is not feasible because Plaintiff has not produced or disclosed the information sought because it is unfavorable to him and that prohibiting him for producing evidence of injury would nullify his claim. But Defendant’s all or nothing approach is extreme and ignores other less drastic measures such as monetary sanctions, evidence and issue preclusion, or tailored jury instructions.[2] See Fed. R. Civ. P. Fed. R. Civ. P. 37(c)(1)(A)-(B). But Mr. Kaufman is in violation of Judge Stormes’ order, and the court has given him “crystal clear” warning of the significant consequences available to the court for any continuing failures. Henderson, 779 F.2d at 1424. At bottom, however, the record here does not reveal a long history of inexcusable delay and neglect on the part of plaintiff’s counsel and, as far as this court is aware, Mr. Kaufman has not violated any other discovery orders.

While the court is not condoning Plaintiff’s failure to comply with Judge Stormes’ order, dismissal of this case is not warranted under either Rule 37 or Rule 41. Accordingly, the court DENIES Defendant’s Motion to Dismiss for Lack of Prosecution (Doc. No. 31). The parties are reminded that the basic standards of professionalism are expected of all attorneys appearing before this court. See CivLR 83.4(a)(1)(a)-(b), (2)(a)-(b).

Comment: civil conduct is often the best way to avoid problems in any court.

Rule 37 Sanctions Denied Even Though Defendant Failed to Produce Documents


Gym Door Repairs, Inc. v. Young Equipment Sales, Inc. (No. 15-cv-4244 March 11, 2020) discusses a Rule 37 sanctions motion where one party failed to produce some documents. Here the court denied sanctions because the documents that were not produced would not have changed the outcome of the case. The plaintiffs obtained the documents by serving a FOIA request on a governmental body. The reasoning is included here:

In an opinion also dated January 28, 2020, the Magistrate Judge denied the plaintiffs’ request for Rule 37 sanctions based on the alleged failure of the Defendants to produce the documents that were disclosed as a result of the FOIL request. Federal Rule of Civil Procedure 72(a) requires this Court to set aside any portion of the order under review “that is clearly erroneous or is contrary to law.” As a “non-dispositive matter,” a Magistrate Judge’s pretrial discovery ruling is reviewed under this highly deferential standard. See Thomas E. Hoar, Inc. v. Sara Lee Corp., 900 F.2d 522, 525 (2d Cir. 1990). An order is clearly erroneous if the reviewing court is “left with the definite and firm conviction that a mistake has been committed.” See Easley v. Cromartie, 532 U.S. 234, 242 (2001) (citation and internal quotation marks omitted). “An order is contrary to law when it fails to apply or misapplies relevant statutes, case law or rules of procedure.” Thompson v. Keane, No. 95-CV-2442 (SHS), 1996 WL 229887, at *1 (S.D.N.Y. May 6, 1996) (citation and internal quotation marks omitted). See also Frydman v. Verschleiser, No. 14-CV-8084 (JGK), 2017 WL 1155919, at *2 (S.D.N.Y. Mar. 27, 2017).

It is not clear that the plaintiffs have filed a timely appeal from the denial of sanctions under Rule 37. The plaintiffs have not denominated their pleading as an appeal from the Magistrate Judge’s ruling, and have referred to Rule 37 only in the final sentence of their objections to the Magistrate Judge’s Report and Recommendation relating to Rule 11 sanctions. Even then, the plaintiffs do not detail any objections to the denial of their request for Rule 37 sanctions.

In any event, in this case, far from being erroneous, the Magistrate Judge correctly concluded that there was no basis for imposing any sanctions under Rule 37 because the failure to produce the documents disclosed in response to the FOIL request would not have changed the outcome of the summary judgment motions at all. There were numerous reasons to grant the summary judgment motions against the plaintiffs and the documents produced in response to the FOIL request would not have changed that result. Therefore, the decision of the Magistrate Judge was not clearly erroneous or contrary to law but was plainly correct.

The court denied all requests for sanctions.

Plaintiff Given One More Chance – Rule 37 Sanctions Denied


In Rhodes v. Hilton Resorts Corporation, LLC 2-19-cv-00938-JAD-EJY, the defendant served discovery requests on the plaintiff. Plaintiff did not answer any of them and the defendant moved for Rule 37 sanctions and requested dismissal of the case.

Plaintiff has not complied with her discovery obligations pursuant to Fed. R. Civ. P. 33 or 34. Plaintiff’s responses to discovery propounded by Defendants was untimely (resulting in a waiver of all objections), incomplete, and misleading. After a meet and confer in which Plaintiff’s Counsel did not disagree with Defendants’ position, Plaintiff continued to ignore her duties to engage in discovery in a timely and appropriate manner.

The Court is empowered with wide discretion, pursuant to Fed. R. Civ. P. 37, to fashion a sanction for Plaintiff’s repeated discovery failures. When a party believes its opponent has failed to timely comply with the requirements of disclosure, that party may move for sanctions under Rule 37(c). Rule 37 “gives teeth” to the disclosure requirements of Rule 26(e). Yeti by Molly, Ltd. v. Deckers Outdoor Corp.,259 F.3d 1101, 1106 (9th Cir. 2001). District courts are entrusted with wide latitude when exercising their discretion to impose Rule 37(c) sanctions. Id.

Defendants are correct that dismissal of Plaintiff’s Complaint is severe. In fact, even in the face of bad faith or willfulness courts are loathe to enter a case-terminating sanction in the first instance. See Cooley v. Leung, Case No. 2:10-cv-1138-RLH-RJJ, 2013 WL 209730, *1-2 (D. Nev. Jan. 16, 2013). Here, Plaintiff’s conduct is egregious; however, the Court considers alternative sanctions before it will order dismissal of Plaintiff’s Complaint. Specifically, the Court provides Plaintiff one opportunity to change her course and participate timely and in good faith in the case that she brought to Court. Plaintiff’s failure to obey this Court Order will result in an Order to Show Cause why her case should not be dismissed.

Comment: the court granted the motion to compel and gave the plaintiff one more chance to comply with discovery.

Ed Clinton, Jr.

Litigant Should Have Moved to Compel – Sanctions Denied


This case, Finato v. Fink, 18-55044, Ninth Circuit February 18, 2020, is unpublished but does illustrate an important point. Finato sued his former lawyers for legal malpractice. They obtained summary judgment against him. He claimed that the district court erred in rejecting his Rule 37 sanctions motion because the defendant disclosed insufficient information about its attorney fees. The trial court and the Ninth Circuit disagreed.

The district court did not err by denying Finato’s motion for Rule 37 sanctions. We review a district court’s decision on “the imposition of discovery sanctions under Rule 37 for abuse of discretion,” Fjelstad v. Am. Honda Motor Co., 762 F.2d 1334, 1337 (9th Cir. 1985), giving “particularly wide latitude to the district court’s discretion,” Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001). Under Rule 26(a)(1)(A)(iii), a party must provide in its initial disclosures “a computation of each category of damages claimed by the disclosing party—who must also make available for inspection . . . the documents or other evidentiary material . . . on which each computation is based.” If it does not, the party may be subject to Rule 37 sanctions, “unless the failure to disclose is `substantially justified or harmless.'” Ingenco Holdings, LLC v. Ace Am. Ins. Co., 921 F.3d 803, 821 (9th Cir. 2019) (quoting Fed. R. Civ. P. 37(c)(1)).

Finato moved for sanctions on the ground that KFA provided no notice of its claimed fees or how they were computed in its Rule 26 disclosures, but instead presented them for the first time at trial. KFA’s Rule 26 disclosures were brief and not at all detailed. But if Finato believed the computations needed to be more specific, he should have filed a motion to compel, not a Rule 37 motion for sanctions. Cf. Patelco Credit Union v. Sahni, 262 F.3d 897, 913 (9th Cir. 2001) (finding the defendants’ Rule 37 motion was, “in essence, a motion to compel discovery from plaintiffs,” and thus any “failure to obtain the requested documents [was] due to [defendants’] own lack of diligence” in not filing a motion to compel). In addition, Finato signed the final pretrial order, which explicitly stated that “[a]ll disclosures under [Rule] 26(a)(3) have been made.” Even if KFA violated Rule 26, any failure to disclose was harmless. The court had all the evidence before it at trial, including KFA’s estimates and the witnesses’ testimonies regarding the hours they worked, and Finato failed to show how not having this information prior to trial harmed his case. Thus, the district court did not abuse its discretion in denying Finato’s Rule 37 motion for sanctions.

The take-away here is that if you receive disclosures which are insufficient you must move to compel and obtain a court order requiring more information. Then, when the other party fails to comply with the court order, you can move for Rule 37 sanctions.

Edward X. Clinton, Jr.

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.