Opinion
Civil Action 00-0261-RV-S.
December 20, 2000
RECOMMENDATION OF MAGISTRATE JUDGE
This cause is before the Court on Plaintiffs Motion for Sanctions (Doc. 25); Plaintiffs Second Motion for Sanctions (Doc. 31); and Plaintiffs Third Motion for Sanctions (Doc. 33). These motions came before the Court for oral argument on December 15, 2000. Participating at the hearing were attorneys Lawrence B. Voit for the Plaintiff, and Robert R. Blair for the Defendants. Upon consideration of all matters presented, and for the reasons set forth herein, it is recommended that Plaintiffs motion for sanctions be GRANTED.
On June 13, 2000, this Court entered its Preliminary Scheduling Order (Doc. 11) ordering the parties to meet and file a report pursuant to Fed.R.Civ.P. 26(f) not later than July 28, 2000. That deadline was extended until August 18, 2000 (Doc. 18) to accommodate the schedule of counsel for the Defendants (Doc. 17). The deadline passed without the filing of the Rule 26(f) report and, on August 25, 2000, this Court entered a show cause order (Doc. 19) ordering the parties to file by September 5, 2000, the Rule 26(f) report or show cause by that date why they were unable to do so. On August 30, 2000, a report of the parties' planning meeting (Doc. 20) was filed by Plaintiffs counsel unsigned by Defendants' counsel. In Plaintiffs Motion for Sanctions (Doc. 25), Plaintiff explains that, with regard to the Rule 26(f) report,
Counsel for the parties met telephonically on August 17, 2000. As a result of the conference, Plaintiffs counsel prepared a draft report of parties' planning meeting, and submitted it to Defendants' counsel for his additions. When no response was forthcoming, Plaintiffs counsel filed the report unilaterally, by the September 5, 2000 deadline without the signature of Defendants' counsel and without the Defendants' narrative statement, when Defendants' counsel failed to submit the Defendants' narrative statement and sign the proposed joint report.
Also, in Plaintiffs Motion for Sanctions (Doc. 25) Plaintiff notes that, notwithstanding this Court's Order directing the parties to produce their Fed.R.Civ.P. 26(a)(1) initial disclosures on or before September 29, 2000, Defendants failed to produce their initial disclosures. On October 24, 2000, this Court entered an Order (Doc. 26) ordering Defendants by November 8, 2000, to show cause why Plaintiffs Motion for Sanctions should not be granted. In response, on November 9, 2000, Defendants filed a Motion for Extension of Time (Doc. 28) seeking additional time in which to make the initial disclosures. The motion was granted (Doc. 29) and Defendants were ordered by November 17, 2000, to produce the Rule 26(a)(1) disclosures. When these disclosures were not forthcoming, Plaintiff filed its Second Motion for Sanctions (Doc. 31) noting Defendants' failure to produce this information and also noting Defendants' failure to produce documents identified in a deposition notice duces tecum. As a result of Defendants' failure to produce this information, Plaintiff was forced to cancel the depositions. Upon receipt of Plaintiffs Second Motion for Sanctions (Doc. 31), this Court entered a show cause order on November 16, 2000 (Doc. 32) ordering Defendants by November 27, 2000, to show cause why the Second Motion for Sanctions should not be granted. When Defendants failed to respond to this Court's Order, Plaintiff filed Plaintiffs Third Motion for Sanctions (Doc. 33) on November 28, 2000.
After receiving Plaintiffs Third Motion for Sanctions (Doc. 33), and after noting Defendants' failure to respond to this Court's show cause order, this Court set these motions for oral argument on December 15, 2000 (Doc. 34). Because of recent eye surgery, Defendants' counsel was unable to attend the hearing in person but participated by telephone conference. During the conference, Defendants' counsel was afforded the opportunity to explain why he failed to submit or sign the Report of the Parties' Planning Meeting, why Defendants failed to produce their initial disclosures, why Defendants failed to produce documents requested in the deposition notice duces tecum, and why Defendants failed to respond to this Court's show cause order. Counsel's only offered explanation for these failures was that counsel had experienced some physical problems which resulted in eye surgery during the week preceding the hearing, and that counsel was experiencing communication problems with his clients.
Upon consideration of all matters presented, the Court finds that Defendants have offered no reasonable justification for their failure to submit the Rule 26(f) report, their failure to produce their initial disclosures, their failure to produce documents associated with the scheduled depositions, and their failure to respond to this Court's show cause order. While the Court is sympathetic to Defendants' counsel's physical problems, it is noted that counsel's eye surgery occurred only recently and does not appear to be the cause of Defendants' failure to comply with the orders of this Court. It is noted that the discovery completion date is less than two weeks away. Even assuming that Defendants would respond to an order compelling them to produce documents (which, based on the Defendants' performance to date, is quite uncertain), it is now impossible to complete discovery before the December 29, 2000, discovery completion date. An extension of that date would serve only to reward Defendants' wrongful conduct and punish Plaintiff who, from all appearances, has done everything possible to get the Defendants to comply with the orders of this Court. Therefore, the date will not be extended.
Given the nature of Defendants' actions and failure to act, and given Defendants' failure to proffer any substantial justification for these failures, and after reviewing the sanctions available pursuant to Fed.R.Civ.P. 37(b) and (c), the Court finds that only the sanction of judgment by default is appropriate under these circumstances as no lesser sanction will suffice. Therefore, it is the recommendation of the undersigned that this Court enter a judgment by default against the Defendants.