Opinion
Case No. 8:01-cv-2154-T-17TBM
November 19, 2002
REPORT AND RECOMMENDATION
THIS MATTER is before the court on the Government's Motion for Contempt and Motion for Order to Show Cause (Doc. 66), the court's Order to Show Cause (Doc. 71), and the Defendant's Answer to the Court's Order to Show Cause (Doc. 73). A hearing on the matter of contempt was conducted on November 18, 2002.
A review of the history of this litigation reveals the pro se Defendant's unwillingness to participate in discovery. On June 10, 2002, the Government filed a motion to compel (Doc. 21) seeking an Order compelling the Defendant to respond to document requests and interrogatories served on February 26, 2002. Mr. Bosset failed to file a response in opposition. Thus, the court entered an Order (Doc. 24) deeming the motion unopposed, granting the motion to compel, and directing Mr. Bosset to respond to the requests for production and interrogatories within twenty days from the date of the Order. Mr. Bosset objected to the Order and sought de novo review by the district judge. As grounds, Mr. Bosset explained that he had not consented to the exercise of magistrate jurisdiction and advised the court of his contemporaneously filed motion to have the case redesignated as a Track 2 case. See (Docs. 25, 26). By Order of July 22, 2002, the district judge granted the motion to redesignate the case as a Track 2 case, explained the authority of the magistrate judge to rule on discovery matters and non-dispositive motions, and advised Mr. Bosset that if he required additional time to respond to the discovery request, he could direct such request to the magistrate judge. See (Doc. 34). Additionally, the court overruled Mr. Bosset's objections and expressly noted that "the redesignation of this case does not excuse Defendant from complying with the Order granting the Motion to Compel." Id. at 3.
This case was originally designated as a Track One case under Middle District of Florida Rule 3.05. Nevertheless, the parties met telephonically on January 10, 2002, and agreed to procedures for the exchange of documents. See (Doc. 22). Although the parties are exempt from the disclosure requirements of Rule 26 of the Federal Rules of Civil Procedure in Track One cases, based upon their agreement, the Government made its Rule 26 disclosures. The Defendant made no disclosures, thus prompting the Government's initiation of formal discovery in February 2002.
Thereafter, Mr. Bosset filed Respondent's Emergency Demand to Immediately Stay Discovery in the Civil Case While Criminal Indictment or Investigation is Pending and Demand Asserting Fifth Amendment Protections and Notice of Violation of This Court of Equal Protection of the Laws (Doc. 35). A hearing on the motion was conducted on August 22, 2002. See (Doc. 48). The court entered an Order (Doc. 47) denying Mr. Bosset's emergency demand to stay discovery because there was no evidence of an ongoing criminal investigation against Mr. Bosset. At the hearing and in the Order, the court granted Mr. Bosset an additional twenty days to respond to all outstanding discovery requests and warned Mr. Bosset that a failure to do so may result in sanctions against him. Id.
On September 11, 2002, each of the parties filed a unilateral Case Management Report. See (Docs. 56, 57). Although the reports reflect that the parties met on August 22, 2002, and agreed to a unified discovery and case management schedule, as reflected in the Government's unilateral report, the parties were unable to agree upon certain language added by the Defendant. See (Doc. 56). The Case Management and Scheduling Order was entered September 23, 2002. See (Doc. 61). By this Order, the parties are required to meet the agreed upon terms of the Case Management Reports.
On September 30, 2002, the Government filed the instant Motion for Contempt and Motion for Order to Show Cause (Doc. 66). In its memorandum in support of its motion (Doc. 67), the Government complains that Mr. Bosset has still not responded to the Government's discovery requests despite this court's prior Orders. The court entered an Order to Show Cause (Doc. 71) directing Mr. Bosset to show cause why he should not be sanctioned or held in contempt of court for his failure to comply with this court's discovery Orders. Mr. Bosset filed Defendant's Answer to the Court's Order to Show Cause (Doc. 73) asserting that "all 'outstanding discovery requests' have been responded to" and, for the first time, contending that the Government's discovery requests failed to conform with Middle District of Florida Rule 3.03 because the Government failed to attach a computer disk to its discovery requests. At the November 18, 2002, hearing, Mr. Bosset reasserted his position that there is no outstanding discovery to which he is obliged to respond because the government's written discovery requests were not accompanied by a computer disk. Mr. Bosset offers no other excuse for his failure to comply with the discovery or this court's orders.
The pertinent provisions of this rule urge counsel to maximize their use of computer technology and, as an example, suggest that interrogatories be served with a copy of the questions on disk in addition to the require printed copy.
Upon consideration, I find that Mr. Bosset has willfully failed to comply with long-outstanding discovery requests and at least two prior Orders of this court directing him to respond. His claim that he has complied with discovery or that there are no outstanding requests is specious at best and is clearly calculated to obstruct these proceedings by delay. Contrary to Mr. Bosset's argument, the record reveals that he has made no effort at all to respond to the discovery or the court's Orders. In these circumstances, I find that a severe sanction is not only warranted but necessary.
Rule 37(d) of the Federal Rules of Civil Procedure provides in pertinent part:
If a party . . . fails . . . (2) to serve answers or objections to interrogatories submitted under Rule 33, after proper service of the interrogatories, or (3) serve a written response to a request for inspection submitted under Rule 34, after proper service of the request, the court in which the action is pending on the motion may make such orders in regard to the failure as are just and may take any action authorized under subparagraphs (A), (B), and (C) of subdivision (b)(2) of this rule.
Fed.R.Civ.P. 37(d). Rule 37(b)(2) provides:
If a party . . . fails to obey an order to provide or permit discovery, . . . the court in which the action is pending may make such order in regard to the failure as are just, and among other the following:
(A) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;
(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;
(C) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party; . . .
Fed.R.Civ.P. 37(b)(2). This rule grants the court broad authority to impose sanctions upon a party for failure to obey a court order to provide or permit discovery. Gratton v. Great Am. Communications. 178 F.3d 1373, 1374 (11th Cir. 1999); BankAtlantic v. Blythe Eastman Paine Webber, Inc., 12 F.3d 1045, 1048 (11th Cir. 1994). However, the court is only authorized to impose such sanctions "as are just" against a party that violates an order compelling discovery. Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1966 (11th Cir. 1997).
Additionally, courts have the power to enforce compliance with their lawful orders through civil contempt. See Citronelle-Mobile Gathering, Inc. v. Watkins, 943 F.2d 1297, 1301 (11th Cir. 1991) (citing Shillitani v. United States, 384 U.S. 364, 370 (1966)). Once the party moving for a contempt order makes a prima facie showing that a party subject to a court order has violated the court's orders, the burden shifts to that party to produce evidence explaining his noncompliance.Citronelle-Mobile, 943 F.2d at 1301 (citing United States v. Rylander, 460 U.S. 752, 755 (1983)). That party must demonstrate an inability to comply with the court's order by showing that he has made "in good faith all reasonable efforts to comply." Id. (citing United States v. Ryan, 402 U.S. 530, 534 (1971)). Due process requires that the court inform the alleged contemnor of the contemptuous conduct and provide a hearing to allow the contemnor to explain why the court should not make a contempt finding. Id. at 1305 (citing Mercer v. Mitchell, 908 F.2d 763, 767 (11th Cir. 1990)). Contempt sanctions should be designed to ensure compliance with the court's orders, but the sanctions should not be any greater than necessary to ensure such compliance or be so excessive as to be punitive in nature. Id. (citations omitted). In cases where an act constituting a civil contempt is committed before a magistrate judge, 28 U.S.C. § 636 provides that
the magistrate judge shall forthwith certify the facts to a district judge and may serve or cause to be served, upon any person whose behavior is brought into question under this paragraph, an order requiring such person to appear before a district judge upon a day certain to show cause why that person should not be adjudged in contempt by reason of the facts so certified. The district judge shall thereupon hear the evidence as to the act or conduct complained of and, if it is such as to warrant punishment, punish such person in the same manner and to the same extent as for a contempt committed before a district judge.28 U.S.C. § 636(e)(6)(A)(iii).
I make the following alternative recommended dispositions:
1) The circumstances of this case reveal that Mr. Bosset is in willful contempt of the Orders of this court. Absent Mr. Bosset purging such contempt, a period of incarceration should be imposed. Thus, in accordance with the provisions of 29 U.S.C. § 636, I hereby certify the foregoing facts to the district judge as true and correct and recommend that she conduct further proceedings consistent with this statute; OR
2) The circumstances reveal a clear violation of the rules of discovery. In accordance with Rule 37(b)(2)(B) and (C), the court should deny Mr. Bosset an opportunity to support his defenses, order that the Mr. Bosset's Answer and defenses (Doc. 5) be stricken, and enter a default judgment against him.
NOTICE TO PARTIES
Failure to file written objections to the proposed findings and recommendations contained in this report within ten days from the date of its service shall bar an aggrieved party from attacking the factual findings on appeal and a de novo determination by a district judge. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72; see also Fed.R.Civ.P. 6; M.D. Fla. R. 4.20.