Opinion
Civil Action 2:05-CV-98.
April 25, 2006
OPINION AND ORDER
Plaintiff asserts a variety of claims in connection with the defendant's servicing of her mortgage loan. This matter is now before the Court on plaintiff's motion for sanctions, Doc. No. 15, [" Motion for Sanctions"]. Defendant has responded, Doc. No. 16, and plaintiff has replied in support of her request. Doc. No. 17.
The Preliminary Pretrial Order, Doc. No. 10, entered in this case established a discovery completion date of January 15, 2006, and dispositive motions were to have been filed no later than February 28, 2006. Preliminary Pretrial Order. The action is scheduled for trial before Judge Marbley beginning October 2, 2006. Doc. No. 18.
In her Motion for Sanctions, plaintiff asks that the defendant be prohibited "from opposing plaintiff's claims or supporting any defense previously asserted" by defendant in this action. Motion for Sanctions, at p. 1. Plaintiff propounded interrogatories and requests for production of documents to defendant in September 2005. Exhibit 1, attached to Motion for Sanctions. Although defendant's counsel obtained extensions of time to respond to those discovery requests, see Exhibit 2, attached to Motion for Sanctions, defendant did not in fact respond to the discovery requests until March 28, 2006, when the defendant filed its response to the Motion for Sanctions . In that response, defendant offers no explanation for its failure to respond to the discovery requests for more than six months, but contends only that plaintiff "has not been prejudiced by defense counsel's delay in serving defendant's responses to plaintiff's discovery." Doc. No. 16, at p. 2.
When a party fails to respond to interrogatories or requests for production of documents, the Court may "make such orders . . . as are just," including actions authorized by Rule 37(b)(2). F.R. Civ. P. 37(d). Included among the remedies available to the Court under Rule 37(b)(2) is:
(B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting that party from introducing designated matters in evidence;
F.R. Civ. P. 37(b)(2)(B).
The sanction sought by plaintiff is tantamount to default judgment. However, such action is a sanction of last resort "that may be imposed only if the court concludes that a party's failure to cooperate in discovery is due to willfulness, bad faith or fault." Bank One of Cleveland, N.A. v. Abbe, 916 F.2d 1067, 1073 (6th Cir. 1990), quoting Regional Refuse System, Inc. v. Inland Reclamation Co., 842 F.2d 150, 153-54 (6th Cir. 1988); Patton v. Aerojet Ordnance Co., 765 F.2d 604, 607 (6th Cir. 1985). Additional factors that must be considered include prejudice, prior warning of the possibility of that sanction and the suitability of lesser sanctions. Id.
Defense counsel has offered no explanation for the apparently unwarranted delay in responding to the interrogatories and requests for production; nevertheless, there is no evidence of willfulness or bad faith on the part of either defendant or its counsel beyond simple inattentiveness to counsel's obligations vis à vis the litigation. Moreover, a lesser sanction, perhaps in the form of monetary sanctions, could both remedy the default and serve as a deterrent to future misconduct. Finally, there has been no prior warning that defendant's failure to make discovery responses could result in the sanction requested by plaintiff.
Accordingly, plaintiff's request for sanctions, Doc. No. 15, is DENIED. This denial is without prejudice, however, to a motion, if plaintiff chooses to file one, for an award of monetary sanctions under F.R. Civ. P. 37(a)(4)(A).