United States District Court, D. Kansas
MEMORANDUM AND ORDER
TERESA J. JAMES, District Judge.
The Court has before it Plaintiff's Motion to Strike Defendant Cyprus Mediterranean Amalgamated, LLC and Howard S. Flint Jr.'s Answer and Bar Defenses for Failure to Comply with Court's February 7, 2014 Order and Renewed Motion for Sanctions and to Compel Answers to Deposition Questions (ECF No. 79) (the "Motion to Strike"). Plaintiff requests an order:
a) striking the answers of Defendant pro se Howard S. Flint Jr. and Defendant Cyprus Mediterranean Amalgamated, LLC ("CMA") and prohibiting them from supporting their defenses due to their failure to comply with the terms of the Court's February 7, 2014 Memorandum and Order (ECF No. 77) and due to Flint Jr.'s refusal to meet and confer with counsel for Plaintiff regarding his redeposition;
b) awarding Plaintiff its reasonable expenses, including attorneys' fees, incurred in making the Motion to Strike; and
c) compelling Flint Jr. to respond to all of Plaintiff's deposition questions at a redeposition to occur within seven (7) days at a location of Plaintiff's choosing within 50 miles of the Robert J. Dole Courthouse, with all of the parties' costs of attendance, as well as any appearance fees for transcription, to be at Flint Jr.'s expense.
The deadline to respond to the Motion to Strike ran on March 5, 2014. To date, there has been no response filed by any Defendant to the motion. On March 12, 2014, CMA's counsel filed a Motion to Stay Ruling on Plaintiff's Motion to Strike (ECF No. 82), which the Court will address in a separate order. The Court is ready to rule on the Motion to Strike. Upon review, the Court concludes that the Motion to Strike should be granted in part and denied in part.
A. Request to Strike Answers and Bar Defenses for Failure to Comply with Order to Respond to Discovery
Plaintiff seeks an order striking the answers of Flint Jr. and CMA and barring them from supporting their defenses, for their failure to comply with the Court's February 7, 2014 order to respond to written discovery. Fed.R.Civ.P. 37(b)(2)(A) provides for a variety of sanctions for failing to obey an order to provide or permit discovery. Sanctions may include prohibiting claims or defenses, striking pleadings, and default judgment. The court should diligently apply sanctions under Rule 37 both to penalize those who have engaged in sanctionable misconduct and to deter such conduct by others. The sanction to be imposed should be the least severe of those available, which appears adequate to deter and punish the wrongdoer. Due process mandates that the court refrain from imposing harsh sanctions for a discovery violation, except when the violation is "predicated upon willfulness, bad faith, or [some] fault of petitioner' rather than inability to comply."
The discovery at issue, Plaintiff's First Sets of Requests for Admissions, Interrogatories, and Requests for Production of Documents, were served on Flint Jr. and CMA on June 24, 2013. Although Plaintiff agreed to several extensions of time for them to respond, when Flint Jr. and CMA had still not responded to Plaintiff's discovery by December 16, 2013, Plaintiff moved to compel their responses. On February 7, 2014, this Court granted Plaintiff's motion to compel and ordered Flint Jr. and CMA "to serve responses to Plaintiff's Requests for Admission, Interrogatories, and Requests for Production of Documents on or before February 14, 2014." On February 19, 2014, Plaintiff filed the instant motion, alleging that Flint Jr. and CMA had failed to respond in any way to the discovery at issue. Thereafter, on March 6, 2014, Plaintiff advised the Court that Flint Jr. and CMA had still failed to provide any responses to the discovery at issue, and had not contacted or responded to several emails from Plaintiff's counsel regarding the Motion.
Nearly a month has passed since the February 14, 2014 deadline imposed by the Court, however the Court finds that Flint Jr. and CMA have failed to respond to Plaintiff's written discovery requests despite being ordered to do so, and despite repeated attempts by Plaintiff to elicit responses. Further, Flint Jr. and CMA's failure to respond has potential adverse effects on Plaintiff's ability to pursue its claims against the other Defendants in this action, as well its claims against Flint Jr. and CMA. As a result, the Court concludes that sanctions should be imposed. At this time, however, the Court declines to impose the harsh sanctions of striking the answers and barring the defenses of Flint Jr. and CMA.
Instead, pursuant to Rules 37(b)(2)(C) and 37(d)(3), the Court will order Flint Jr. and CMA to pay the expenses caused by their failure to timely respond to the written discovery, as set out in the following Section B, titled "Request for an Award of Reasonable Expenses." The Court will also order them to serve complete, substantive, and good-faith answers to Plaintiff's First Sets of Interrogatories and Requests for Production of Documents, on or before March 26, 2014. Further, pursuant to Rule 36(a)(3), all matters contained in Plaintiff's First Set of Requests for Admissions are deemed admitted as a result of Flint Jr. and CMA's failure to respond. In addition, pursuant to Rules 37(b)(2)(A)(ii) and (iii) and D. Kan. Rules 11.1(b)(2) and (3), should either Flint Jr. or CMA fail to serve their responses as ordered, then upon the filing by Plaintiff of a notice certifying such failure and a finding by the Court of noncompliance, the noncompliant party or parties' answer(s) shall be stricken and the party's or parties' defenses shall be barred.
B. Request for an Award of Reasonable Expenses
Instead of or in addition to the sanctions provided in Rule 37(b)(2)(A) for failing to obey an order to provide or permit discovery, "the court must order the disobedient party, the attorney advising that party, or both to pay the reasonable expenses, including attorney's fees, caused by the failure unless the failure was substantially justified or other circumstances make an award of expenses unjust." Rule 37(d)(3) also requires an award of reasonable expenses upon a failure to respond to interrogatories or a request for production.
As the Motion to Strike is uncontested, the Court finds no substantial justification for Flint Jr. and CMA's failure to obey the Court's February 7, 2014 Order, nor any other circumstances making an award of expenses unjust. The Court therefore will award Plaintiff its reasonable expenses in making the Motion to Strike, including reasonable attorneys' fees approved by the Court. To aid the Court in determining the proper amount of expenses and attorneys' fees to award, Plaintiff's counsel shall file, on or before March 24, 2014, an affidavit itemizing the expenses, including attorney's fees, incurred by ...