United States District Court, D. Kansas
GREAT PLAINS THEATRE FOUNDATION, INC. and GREAT PLAINS THEATRE FESTIVALS COMPANY, Plaintiffs,
WARD MANUFACTURING, LLC Defendant.
MEMORANDUM AND ORDER
E. BIRZER United States Magistrate Judge
matter is before the Court on Plaintiffs' Motion for
Discovery Sanctions (Motion) (ECF No. 41).
Defendant responded to Plaintiffs' Motion on March 21,
2018. (ECF No. 44). On March 27, 2018, at the request of
Defendant, the Court convened the parties to address the
Motion. Plaintiffs appeared through counsel, Marc A. Powell.
Defendant appeared through counsel, Mark A. Katz. After
consideration of both the arguments of counsel and the
parties' briefing, the Court DENIED
Plaintiffs' Motion. (See Order, ECF No. 46). The
previously-announced ruling of the Court is now memorialized
case arises out of a 2014 fire that substantially destroyed
the Great Plains Theatre in Abilene, Kansas. (ECF No. 4,
¶ 5). The Great Plains Theatre building and its contents
were owned by Plaintiffs. (Id. at ¶ 6).
Plaintiffs assert their building was destroyed when
Defendant's product, Wardflex, was perforated by
lightening, resulting in the escape of natural gas and the
subsequent fire. (ECF No. 44, p.1). Wardflex is corrugated
stainless steel tubing (CSST) that can be used to convey
natural gas (among other things) from one point to another in
a structure. (Id.). Plaintiffs' causes of action
against Defendant are strict product liability, breach of
express and implied warranties, and negligence. (ECF No. 4,
¶¶ 12-28). Defendant denies liability. (ECF No. 5).
filed their Complaint on January 30, 2016 (ECF No. 1) and
amended it on February 27, 2016 (ECF No. 4), to which
Defendant timely answered (ECF No. 5). On April 28, 2016, the
Court held a scheduling conference and entered a Scheduling
Order setting discovery and other deadlines. (ECF No. 10).
From April 28, 2016 to the present, the Court has revised the
Scheduling Order four times, due to circumstances beyond the
control of the parties, but largely due to issues with
Plaintiffs' experts. (See ECF Nos. 23, 30, 35,
36, and 40).
February 28, 2018, Plaintiffs filed the present Motion. (ECF
No. 41). Defendant responded on March 21, 2018 (ECF No. 44)
and requested a conference with the Court to discuss the
same. The Court accordingly convened the parties on March 27,
Plaintiffs' Motion for Discovery Sanctions
Motion centers around Defendant's failure to: (1) respond
to Plaintiffs' ten discovery requests, which have been
pending for approximately one year and (2) pay
Plaintiffs' expert witnesses' outstanding deposition
invoices, totaling in excess of $10, 000.00. Citing
Fed.R.Civ.P. 37(b)(2), Plaintiffs ask the Court to impose the
following sanctions: (1) direct the opinions of
Plaintiffs' experts on the origin and cause of the fire
to be taken as established facts; (2) prohibit Defendant from
using any of its expert witnesses at trial; (3) strike
Defendant's pleadings pertaining to its defenses on the
cause of the fire; (4) double the amount of funds owed to
Plaintiffs for their outstanding expert witness fees; and (5)
award attorney fees to Plaintiffs' counsel for bringing
argues since Plaintiffs' Motion was filed, all experts
have been paid. Defendant also advises the Court of several
challenges in responding to Plaintiffs' discovery
requests, including technical difficulties in converting
electronically stored information (ESI) into a usable format.
Nevertheless, Defendant committed to providing complete
discovery responses no later than April 27, 2018.
(See Order, ECF No. 46).
Rule 37(b)(2) authorizes sanctions, the Court has discretion
in deciding to impose them. The Court's discretion,
however, is limited in that any sanction “must be in
the interests of justice and proportional to the specific
violation of the rules.” Sanctions under Rule 37 are
intended to ensure a party does not benefit from its failure
to comply, and to deter others from similar conduct in the
absence of such a deterrent.
Discussion Regarding Imposing Sanctions
the first three of Plaintiffs' requested sanctions would
amount to a default judgment against Defendant. The Court
should refrain from imposing harsh sanctions, such as
dismissal or its equivalence, for a discovery violation,
except when the violation is “predicated upon
‘willfulness, bad faith, or [some] fault . . . rather
than inability to comply.” After reviewing the
briefings and based on Defendant's arguments justifying
the delay in responding to the discovery requests, the Court
does not believe Defendant or its counsel acted willfully or
in bad faith, and will decline to impose these
sanctions.However, the Court reminds Defendant and
its counsel that failure to fully answer Plaintiff's
outstanding discovery requests by April 27, 2018 will be
considered a direct violation of the Court's orders and
imposition of sanctions will be re-examined. The Court also
declines to impose the fourth requested sanction because
Defendant has paid the outstanding expert invoices.
the Court declines to award attorney fees to Plaintiffs'
counsel for this Motion. Rule 37(b)(2)(C) states in addition
to or instead of ordering sanctions, 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.” The Court, based
on Defendant's explanations of the ESI and other issues
in responding to Plaintiff's discovery, finds substantial
justification exists, making an award of fees
unjust.Additionally, Defendant has committed to
providing complete discovery responses by April 27, 2018,
which will not further substantially delay the case or