Benitez v. Roelfsema et al

Filing 28

ORDER striking Defendant's 7 Motion to Remand, without leave to refile. See document for complete details. Signed by Judge John J Tuchi on 8/10/2018. (ATD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Maria C Benitez,
Plaintiff,

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ORDER

v.

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No. CV-17-04209-PHX-JJT

Gene Gordon Roelfsema, et al.,

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Defendants.

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At issue is Plaintiff Maria Benitez’s Motion to Remand (Doc 7.), to which

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Defendant Gene Gordan Roelfsema filed a Response (Doc. 9, Resp.), and to which

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Plaintiff filed a Reply (Doc. 10, Reply). On March 1, 2018, the Court issued an Order

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denying the Motion to Remand with leave to refile following the exchange of initial

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discovery disclosures under the Court’s Mandatory Initial Discovery Pilot Project

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(“MIDP”). (Doc. 16, Mar. 1, 2018 Order at 6.) In accordance with that Order, the parties

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filed supplemental briefing on the Motion to Remand (Doc. 19, Pl’s Br.; Doc. 20, Def’s

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Br.) Upon review of that supplemental briefing, however, the Court concluded that

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Plaintiff failed to comply with the Court’s Order to exchange discovery disclosures

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pursuant to the MIDP. (Doc. 21, June 8, 2018 Order.) In particular, Plaintiff failed to

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disclose a computation of and evidence pertaining to her prayer for lost wages despite

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evidence in the record that Plaintiff did not in fact work for a period of time following her

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accident. As a result, the Court issued an Order to Show Cause why Plaintiff should not

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be sanctioned for her failure to comply with the Court’s March 1, 2018 Order and the

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MIDP. (June 8, 2018 Order.) Plaintiff has now filed a Response to that Order (Doc. 24,

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Pl’s OSC Br.), and Defendants filed a Response (Doc. 27, Defs’ OSC Br.)

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Plaintiff’s Response to the Order to Show Cause fails to justify her failure. In

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support of the Response, Plaintiff’s counsel attaches an affidavit from his litigation

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paralegal stating that she repeatedly attempted to obtain information from Plaintiff to

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verify Plaintiff’s lost wages, but that Plaintiff failed to comply with these requests. (Doc.

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24-1, Hahn Decl. ¶ 3–8.) Although this explanation may excuse the conduct of Plaintiff’s

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attorney, it is Plaintiff’s duty to disclose information relating to the damages she sought

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in her Complaint.

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Under Federal Rule of Civil Procedure 37(b)(2), the Court may sanction a party

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who “fails to obey an order to provide or permit discovery.” The Court’s March 1, 2018

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Order was such an order requiring that all parties in this matter provide discovery

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pursuant to the MIDP. Sanctions for a party’s noncompliance may include “directing that

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the matters embraced in the order . . . be taken as established for purposes of the action”

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and “striking pleadings in whole.” Fed. R. Civ. P. 37(b)(2)(A)(i), (iii). Because Plaintiff

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failed to obey this Court’s Order to turn over a computation of all of the damages that she

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seeks to recover in her Complaint, pursuant to the MIDP, the Court will issue two such

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sanctions. First, the Court will strike Plaintiff’s Motion to Remand, without leave to

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refile, because Plaintiff’s failure to make adequate disclosures contravenes the very

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purpose of the Court’s earlier Order. As the Court articulated in its earlier ruling,

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Defendant’s Notice of Removal contains plausible allegations that the amount in

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controversy exceeds the Court’s jurisdictional requirements. (Mar. 1, 2018 Order at 3–4.)

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Thus, the Court may assume jurisdiction over the matter in the absence of any challenge

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by Plaintiff. Second, even if Plaintiff later produces evidence demonstrating that she

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suffered lost wages as a result of her injuries, she shall be estopped from presenting such

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evidence or recovering any such damages.

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....

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....

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IT IS THEREFORE ORDERED striking Defendant’s Motion to Remand, without
leave to refile.
Dated this 10th day of August, 2018.

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Honorable John J. Tuchi
United States District Judge

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