THOMAS B. SMITH, Magistrate Judge.
This case comes before the Court on Plaintiff's Motion for Sanctions and Second Motion to Compel Responses and Documents Responsive to Plaintiff's First Set of Interrogatories and First Request for Production of Documents (Doc. 24). Plaintiff brings this action for violation of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (Doc. 1). Defendant denies liability and has asserted nine affirmative defenses. (Doc. 8).
In September, 2014, Plaintiff propounded interrogatories and requests for production to Defendant which did not respond. (Doc. 19). In October, Plaintiff filed a motion to compel and Defendant did not file a response to the motion. (
On December 12, 2014, Plaintiff filed her Notice of Non-Compliance to inform the Court that Defendant had not complied with the Order. (Doc. 23). At 5:41 p.m. on December 12, 2014, Defendant provided a further partial response to Plaintiff's discovery requests. (Doc. 24 at 3). On December 22, 2014, Plaintiff filed the instant motion to compel. Defendant has not responded to this motion and the time within to do so has expired. Now, Plaintiff asks the Court to enter default judgment against Defendant and/or enter an order striking Defendant's pleadings. (
There were actions Defendant could have taken if it had issues with Plaintiff's written discovery or problems in complying with that discovery. For example, Defendant could have (but never did) motion the Court for a protective order or for additional time within to comply with Plaintiff's discovery requests. Defendant also failed to take advantage of its opportunities to provide written response to Plaintiff's original motion to compel and the pending motion for sanctions and second motion to compel.
Federal Rule of Civil Procedure 37(b)(2) provides that "[i]f a party . . . fails to obey an order to provide or permit discovery . . . the court where the action is pending may issue further just orders." FED. R. CIV. P. 37(b)(2). Courts have broad discretion to impose sanctions under Rule 37.
"[D]ismissing the action or proceeding in whole or in part" and "rendering a default judgment against the disobedient party" are the harshest sanctions the court may impose. FED. R. CIV. P. 37(b)(2)(A)(v) and (vi). Courts strongly prefer to decide cases on the merits.
The moving party has the burden to make a prima facie showing that the opponent violated a court's discovery order.
The imposition of sanctions is warranted. The Court's December 5, 2014 discovery Order was clear and unambiguous. Defendant had until the close of business on December 11, 2014 to fully comply with Plaintiff's interrogatories and production requests. Defendant has not complied and not provided any explanation for its conduct. However, this case is not so extreme as to cause the Court to submit a report and recommendation that Defendant's pleadings be stricken and default judgment be entered at this time. Instead, the Court will impose the following alternative sanctions:
(1) Defendant shall pay Plaintiff's reasonable legal expenses, including attorney's fees and costs, for the prosecution of Plaintiff's motion for sanctions and second motion to compel. If counsel are unable to agree on the amount within 14 days from the rendition of this Order, Plaintiff should file a motion for award of legal expenses and then Defendant will have an opportunity to respond.
(2) Defendant shall explain in writing why it disobeyed the Court's December 5, 2014 Order. This explanation is due by the close of business on January 20, 2015.
(3) Defendant shall fully comply with Plaintiff's interrogatories and production requests on or before the close of business on January 20, 2015.
Defendant is cautioned that if it disobeys this Order the Court will treat Defendant's action as persuasive evidence to support a finding of willfulness or bad faith, and a report and recommendation to the district judge that Defendant's pleadings be stricken and that default judgment be entered against it.
DONE AND ORDERED.
(i) directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims;
(ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence;
(iii) striking pleadings in whole or in part;
(iv) staying further proceedings until the order is obeyed;
(v) dismissing the action or proceeding in whole or in part;
(vi) rendering a default judgment against the disobedient party; or
(vii) treating as contempt of court the failure to obey any order except an order to submit to a physical or mental examination.
FED. R. CIV. P. 37(b)(2).