Opinion
CASE NO. 98-10061-CIV-PAINE/JOHNSON
June 5, 2003
ORDER AND REPORT AND RECOMMENDATION
THIS CAUSE is before the Court on Plaintiffs Third Motion to Compel Discovery in Aid of Execution; Motion for Sanctions and Renewed Motion for Continuing Sanctions (D.E. #231) and Plaintiffs Fourth Motion to Compel Discovery in Aid of Execution and Motion for Sanctions (D.E. #232). These matters have been referred to the undersigned United States Magistrate Judge by the Honorable James C. Paine, United States District Judge for the Southern District of Florida and are now ripe for judicial review. For the following reasons, this Court orders and recommends Plaintiffs motions be granted as hereinafter stated.
Plaintiff moves pursuant to Rule 37(b)(2) of the Federal Rules of Civil Procedure, for an order: (1) requiring Defendant to comply with Judge Paine's Discovery Order of March 5, 2003 which ordered Defendant to provide all then pending discovery responses; (2) requiring Defendant to provide responses to all discovery requests subsequently propounded; (3) sanctioning Defendant and its counsel, Mr. Robert Rigrish, by awarding Plaintiff all attorneys' fees and costs incurred in connection with all past and future attempts to obtain the subject discovery, including all attorneys' fees and costs incurred in connection with Defendant's failure to appear for deposition in Arizona; (4) imposing continuing sanctions against Defendant and its counsel in the amount of $2,000 for each day Defendant fails to provide the subject discovery responses; and, (5) sanctioning Defendant's counsel by reporting Mr. Rigrish's misconduct in these post-judgment proceedings to the Georgia Bar. Defendant did not file a response to these Motions. Pursuant to LR 7.1C, Local Rules for the Southern District of Florida, Defendant's failure to file a response to the Motions provides sufficient grounds for granting the Motions by default. Notwithstanding the foregoing, the undersigned has held a hearing on the Motions on June 2, 2003 at which both counsel for Plaintiff, Mr. Patrick Gonyea, and counsel for Defendant, Mr. Robert Rigrish, were present, and the within Order is being entered on the merits.
Mr. Rigrish appeared telephonically.
Rule 37(b)(2) provides that a court may issue sanctions for failure to obey an order to provide or permit discovery, including an order compelling discovery issued under Rule 37(a). Rule 37(b)(2) specifically authorizes the following sanctions:
(a) an order that the matters regarding the order or any other designated facts be taken to be established for the purposes of the action;
(b) an order refusing the disobedient party to support or oppose designated claims or defenses, or prohibiting the party from introducing designated matters in evidence;
(c) an order striking the pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action, or rendering a judgment by default against the disobedient party;
(d) an order of contempt against the party for failing to obey a court order; and
(e) in certain cases, an order requiring a party to produce another person for examination.
In addition, Rule 37(b)(2) provides that courts shall require the party and/or the attorney advising the party that failed to comply with the court's discovery order to pay all reasonable expenses, including attorney fees, unless substantial justification is shown for failure to comply.
The sanctions listed in Rule 37(b)(2) are not mutually exclusive. Courts are not limited to these sanctions and have broad discretion in imposing sanctions under Rule 37. See National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639 (1976); Guidry v. Continental Oil Co., 640 F.2d 523, 533 (5th Cir. 1981), cert. denied, 454 U.S. 818 (1982); Dorey v. Dorey, 609 F.2d 1128, 1135 (5th Cir 1980).
The extensive sanctions available to courts under Rule 37 for failure to comply with discovery orders are necessary to compensate the court and parties, facilitate discovery and deter abuse of the discovery process. Thus, it is important that the non-offending party be compensated by parties, and their counsel alike if the circumstances warrant, for the added expenses caused by the violation of discovery orders. Moreover, it is appropriate to strike pleadings and enter default judgment against parties who violate discovery orders. Finally, parties can be held in contempt for refusing to comply with discovery orders.See Pesaplastic v. Cincinnati Milacron Co., 799 F.2d 1510 (11th Cir. 1986); Securities and Exchange Commission v. First Fin. Group of Texas, Inc., 659 F.2d 660 (5th Cir. 1981). As stated by the Supreme Court in Gompers v. Buck's Stove Range, 221 U.S 418, 450 (1911), "the power of courts to punish for contempt is a necessary and integral part of the independence of the judiciary, and is absolutely essential to the performance of the duties imposed on them by law." See Roadway Express v. Piper, 447 U.S. 752, 764 (1980).
As stated by the Supreme Court, even the "most severe in the spectrum of sanctions provided by statute or rule must be available to the district court in appropriate cases, not merely to penalize those whose conduct may be deemed to warrant such a sanction but to deter those who might be tempted to such conduct in the absence of such deterrent."National Hockey League, 427 U.S at 643. Accord Gratton v. Great American Communications, 178 F.3d 1373, 1374-75 (11th Cir. 1999)("Rule 37 sanctions are intended to prevent unfair prejudice to the litigants and insure the integrity of the discovery process.");BankAtlantic v. Blythe Eastman Paine Webber, Inc., 130 F.R.D. 153, 154 (S.D. Fla. 1990) ("Enforcement of the sanctions order is necessary to serve the punishment and deterrence goals of the rule and to vindicate the integrity of the Court and discovery process"). Furthermore, sanctions should insure that the party complying with discovery is not prejudiced. See Black Panther Party v. Smith, 661 F.2d 1243, 1255 (D.C. Cir. 1981), vacated and remanded on other grounds, 458 U.S. 1118 (1982).
Similarly, the Eleventh Circuit recognizes the purposes sanctions should serve. They include: "1) compensating the court and other parties for the added expense caused by the abusive conduct; 2) compelling discovery; 3) deterring others from engaging in similar conduct; and 4) penalizing the guilty party or attorney." See Carlucci v. Piper Aircraft Corp., 775 F.2d 1440, 1453 (11th Cir. 1985).
See In re Southeast Banking Corp., 204 F.3d 1322, 1335 (11th Cir. 2000)("No litigant and no attorney . . . may be permitted to exhibit . . . contumacious conduct without risk of sanctions under Rule 37."); Pesaplastic v. Cincinnati Milacron Co., 799 F.2d 1410 (11th Cir. 1986) (court ordered defendant and defense counsel to pay costs incurred in applying for relief for violation of discovery orders); Carlucci, 775 F.2d 1440 (court ordered $10,000 sanction payable to court registry for defense counsel's noncompliance with court's discovery orders); BankAtlantic, 130 F.R.D. at 154 (discovery abuses of prior counsel and defendants warranted sanctions despite present trial counsel's professional conduct).
Adolph Coors Co. v Movement Against Racism, 777 F.2d 1538 (11th Cir. 1985) (court ordered default judgment because defendants refused to comply with discovery order); see Buchanan v. Bowman, 820 F.2d 359 (11th Cir. 1987) (court struck answer and issued default judgment for failing to comply with court order compelling discovery).
Once the moving party makes a prima facie showing that the other party violated the court's discovery order, the non-moving party must prove that it was impossible to comply in order to avoid sanctions. In re Chase Sanborn Corp. et al, 872 F.2d 397 (11th Cir. 1989). Moreover, the non-moving party must show that all reasonable efforts were made to comply with the court's order. United States v. Rizzo, 539 F.2d 458, 465 (5th Cir. 1976). The non-moving party cannot prove impossibility to comply with the discovery order through mere assertions.United States v. Haves, 722 F.2d 723, 725 (11th Cir. 1984);see In re Chase Sanborn Corp., 872 F.2d at 400 (respondent failed to meet burden of production of impossibility to comply in merely asserting that compliance with discovery order would violate its domestic laws).
This action was instituted by Plaintiff, Beth Sutherland ("Sutherland"), against her former employer, Defendant Mesa Air Group, Inc. ("Mesa"), on August 3, 1998, pursuant to 42 U.S.C. § 2000e and the Florida Civil Rights Act, Fla. Stat. § 760.10 et. seq., for unlawful retaliation as a result of complaining about sexual harassment by her supervisor. After two trials lasting five days each the Plaintiff received a verdict in her favor in the amount of $340,000. This judgment was appealed and, on March 25, 2003, the Eleventh Circuit affirmed the final judgment in part, reversed it in part, and remanded with instructions to the District Court to remit the jury's damages award to a total of $251,600. Consequently, pursuant to Fed.R.Civ.P. 62 and S.D.Fla.L.R. 62.1, to stay execution of the judgment or any proceedings to enforce the judgment, Defendant was required to post a supersedeas bond in an amount equal to 110% of the judgment ($374,000) by December 6, 2001. Defendant failed to timely post said bond.
Plaintiff's Complaint also included causes of action for self-compelled defamation and hostile environment sexual harassment which were subsequently voluntarily dismissed.
The first trial in October 2000 resulted in a mistrial because of a "hung jury."
Meanwhile, on December 16, 2002, the District Court affirmed and adopted the undersigned's Report and Recommendation awarding Plaintiff her attorney's fees and costs for a total amount of $275,730.94. This attorney's fee award is currently on appeal and pending before the Eleventh Circuit.
On June 11, 2002, after nearly six months of unsuccessfully attempting to have Defendant post a supersedeas bond to avoid proceedings to enforce the judgment, Plaintiff served on Defendant a Request to Produce in Aid of Execution. Defendant's responses to this discovery were due by July 11, 2002. Defendant completely failed to respond to said discovery requests. On August 7, 2002, more than three weeks after the deadline to respond to Plaintiffs discovery requests, and more than eight months after the deadline to post a supersedeas bond, Defendant filed a Motion seeking Waiver of Supersedeas Bond and/or Stay of Execution, and for Stay of Discovery. On August 26, 2002, Plaintiff filed her Response in Opposition to Defendant's Waiver Motion, along with her First Motion to Compel Discovery in Aid of Execution. Defendant completely failed to respond to this Motion.
Accordingly, on December 17, 2002, the District Court issued several orders, two of which are relevant here: (1) Order denying Defendant's Waiver Motion; and, (2) Order granting Plaintiffs Motion to Compel Discovery Responses. The Order granting Plaintiffs Motion to Compel gave Defendant fifteen days within which to provide responses to Plaintiffs outstanding discovery requests (D.E. #214).
As things then stood, it was necessary for Defendant to provide full and complete answers to Plaintiffs outstanding discovery requests by December 31, 2002 and, to halt further proceedings to enforce Plaintiffs judgment, Defendant was required to post a supersedeas bond. Notwithstanding the District Court's first Order expressly requiring Defendant to either provide discovery responses or post a supersedeas bond, Defendant still failed to do either. Instead, one month after the deadline to provide discovery responses or post a supersedeas bond had passed, and well over a year after judgment was entered against it, Defendant filed, on January 31, 2003, a Motion for Extension of Time in which to comply with Judge Paine's Order. This Motion was granted by the District Court on January 6, 2003 giving Defendant until January 31, 2003 within which to serve discovery and/or post a supersedeas bond (D.E. #218).
Notwithstanding the District Court's second Order expressly requiring Defendant to either provide discovery responses or post a supersedeas bond, Defendant still failed to do either This led to Plaintiff moving for the second time, for an order compelling Defendant to respond to Plaintiffs discovery requests in aid of execution, and sanctioning Defendant, its counsel and/or both (D.E. #220). The District Court granted Plaintiffs Motion on March 4, 2003 compelling Defendant "to provide Discovery responses not later than fifteen (15) days from the date of this Order." (D.E. #224). In that Order Judge Paine denied Plaintiffs request for continuing sanctions against Defendant and Defendant's counsel, but expressly noted that "should the Defendant fail to submit the requested discovery, the Court will entertain a renewed motion for the continuing sanctions."id. Notwithstanding Judge Paine's third Order expressly requiring Defendant to either provide discovery responses or post a supersedeas bond, as of the date of the hearing on June 2, 2003, Defendant has still failed to do either, in direct contravention of the express Orders of the District Court.
To add insult to injury, while all of this was going on, Plaintiff, on February 26, 2003, served Notices of Taking Deposition Duces Tecum on several of Defendant's employees and corporate representatives. The depositions were scheduled to be taken in Phoenix, Arizona on April 4, 2003. When, as of April 3, 2003, Plaintiffs counsel had not received any requests to cancel and/or reschedule the depositions and no motion for protective order had been filed, Plaintiffs counsel traveled to Arizona and timely appeared at the place and time designated for the depositions. None of the subpoenaed individuals appeared. Plaintiffs counsel waited until 12:35 p.m., more than 31/2 hours after the first deposition was scheduled to commence, for the subpoenaed individuals to appear, or at the very least, to call to explain their non-appearance, all to no avail. Accordingly, Plaintiffs counsel was forced to return to Florida without any success in receiving his clients rightful discovery in aid of execution. It is now time for Defendant and its counsel to pay the piper.
Despite having been provided ample opportunities to comply with the Federal Rules of Civil Procedure and the express orders of the District Court, Defendant and its counsel Mr. Robert Rigrish have repeatedly flouted the District Court's authority and completely ignored Plaintiffs requests for discovery in aid of execution. As has been typical throughout these post-judgment proceedings, Defendant's counsel did not bother to file responses to the two subject motions to compel and for sanctions. Defense counsel did, however, appear at the hearing this Court set on the Motions telephonically. What did counsel have to say for himself and his client at this hearing to excuse their flagrant and repeated failure to comply with the requirements of discovery and the latest Order of the District Court? "Timing," said Mr. Rigrish, "it was all a matter of timing." According to Defendant's counsel, the filing of his Motion to Post Treasury Securities in Lieu of Supersedeas Bond on March 5, 2003, excused his obligation both to comply with the March 4, 2003, Order of the District Court and to ensure his client's appearance at the lawfully scheduled depositions noticed several days previously. T. at pp. 2-6. When asked at the hearing to identify where in the Federal Rules of Civil Procedure it provides that the filing of a motion seeking supersedeas relief excuses a party's obligation to comply with an express Order of the District Court or to appear for a lawfully noticed deposition, Mr. Rigrish candidly admitted "[the Federal Rules of Civil Procedure] [do] not say that". T. at pp. 3-4. Well, Mr. Rigrish, this Court is also unaware of any such provision in the Federal Rules of Civil Procedure, or in the Local Rules of this Court for that matter. It seems simple really: When a district court enters an order, that order should be followed — it should not be viewed as an advisory opinion that one chooses to follow or not at his or her whim or convenience. If Mr. Rigrish desired a modification of Judge Paine's Order or additional time in which to comply with the Order's requirements, he should have filed a motion in that regard. Clearly, he should not have done what he did in this instance and simply ignore the Order's dictates.
"The Court notes that while the undersigned's Notice setting this matter for hearing allowed Defendant's counsel to appear telephonically, counsel was required by the terms of the Notice to notify chambers 48 hours in advance of the hearing. Mr. Rigrish, in what appears to be a disturbing pattern in this case of ignoring Court orders to suit himself, notified chambers less than 24 hours before the hearing of his intention to appear telephonically. Despite such late notice, Mr. Rigrish was permitted to appear at the hearing by telephone.
Transcript of June 2, 2003 Hearing Before Magistrate Judge Johnson (hereinafter "T. at p.___"), pp. 6, 12.
Defense counsel's timing argument is rendered even more disingenuous when one considers that defense counsel never filed a motion for protective order in connection with the Notices of Taking Deposition Duces Tecum served on Defendant's employees and corporate representatives on February 26, 2003. Those depositions were scheduled to go forward in Phoenix, Arizona on April 4, 2003. Not only did Mr. Rigrish fail to file a motion for protective order, he did not even have the courtesy to call Plaintiffs counsel to let him know his clients would not be appearing at the scheduled depositions. Did defense counsel assume counsel for Plaintiff would divine his intention not to appear? Mr. Rigrish's lack of professional courtesy, his unfamiliarity with, or total disregard of, the Federal Rules of Civil Procedure and the Local Rules of this Court, and his willful, continuous and repeated failure to comply with the Orders of the District Court justify sanctions in this case against both Defendant and his counsel. In accordance with the above and foregoing, it is hereby,
The Court notes that the filing of a motion for 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.Hepperle v. Johnston, 590 F.2d 609, 613 (5th Cir. 1979) (the court's inaction on plaintiff's motion for a protective order to postpone the taking of his deposition did not relieve plaintiff of the duty to appear for deposition); Hare v. Gov't. Employees Ins. Co., 132 F.R.D. 448, 450 (E.D. Tex. 1990)("A deponent who realizes he cannot appear at a scheduled deposition bears the burden under Rule 30 of the Federal Rules to get an order postponing the deposition. In the absence of such an order, the duty to appear remains."); Goodwin v. City of Boston, 118 F.R.D. 297 (D. Mass. 1988)(same); Fisher v. Henderson, 105 F.R.D. 515 (N.D. Tex. 1985)(same).
Counsel for Plaintiff testified at the hearing that throughout these post-judgment proceedings, including prior to the time the instant motions to compel were filed and just before boarding a plane to Arizona to attend the noticed depositions, he has left numerous telephone calls for Mr. Rigrish at his office which go unresponded to. T. at pp. 10-11. Mr. Rigrish did not deny this assertion at the hearing.
ORDERED AND ADJUDGED that Plaintiffs Third Motion to Compel Discovery in Aid of Execution; Motion for Sanctions and Renewed Motion for Continuing Sanctions (D.E. #231) and Plaintiffs Fourth Motion to Compel Discovery in Aid of Execution and Motion for Sanctions (D.E. #232) is GRANTED AS FOLLOWS:
(1) Defendant is hereby ordered to fully and completely respond to all pending discovery requests or file a supersedeas bond within ten (10) days from the date of this Order; and
(2) Both Defendant and its counsel, Mr. Robert Rigrish, are hereby sanctioned for their willful, continuous and repeated failure to comply with the Orders of the District Court and to cooperate in discovery by awarding Plaintiff all attorneys1 fees and costs incurred in connection with its efforts to obtain discovery in aid of execution. A determination of amount shall be handled by the undersigned subsequent to the Eleventh Circuit's decision on Defendant's current appeal in accordance with the undersigned's May 30, 2003 Order allowing Plaintiff 30 days from the Eleventh Circuit's decision within which to file its motion for supplemental attorney's fees and costs. It is further,
RECOMMENDED that Plaintiffs Third Motion to Compel Discovery in Aid of Execution; Motion for Sanctions and Renewed Motion for Continuing Sanctions (D.E. #231) and Plaintiffs Fourth Motion to Compel Discovery in Aid of Execution and Motion for Sanctions (D.E. #232) be GRANTED AS FOLLOWS:
(1) Defendant and its counsel Mr. Robert Rigrish should be sanctioned in the amount of $1,000 per day for each day that Defendant fails to respond to the outstanding discovery requests; and
(4) Mr. Rigrish's misconduct in these post-judgment proceedings should be reported to the Georgia Bar.
The Court notes that Mr. Rigrish is not a member of the Florida Bar, but appears in this case, as he does in many other cases here in the Southern District, pro hac vice. This is so despite the fact that in Mr. Rigrish's October 9, 1998 Application to Appear Pro Hac Vice, Mr. Rigrish asserted that he "took and passed the bar examination for The Florida Bar, and my application for admission to the Florida Bar is pending." id. at 2. A telephone call to the Florida Bar and admission by Mr. Rigrish at the June 2, 2003 hearing reveals that Mr. Rigrish is not a member of The Florida Bar and has no application there currently pending.
The parties have ten (10) days from the date of this Report and Recommendation within which to serve and file written objections, if any, with the Honorable James C. Paine, United States District Judge. Failure to file objections timely shall bar the parties from attacking on appeal the factual findings contained herein. LoConte v. Dugger, 847 F.2d 745 (11th Cir. 1988). cert. denied, 488 U.S. 958 (1988);RTC v. Hallmark Builders, Inc., 996 F.2d 1144, 1149 (11th Cir. 1993).
RESPECTFULLY SUBMITTED.