Roudachevski v. All-American Care Centers Inc et al

Filing 98

ORDER denying 95 Motion for Sanctions without prejudice. Signed by Judge Susan Webber Wright on 1/13/2014. (ks)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION

EVGUENI ROUDACHEVSKI, D.O.
Plaintiff
V.
ALL-AMERICAN CARE CENTERS,
INC. d/b/a ALL-AMERICAN CARE
OF LITTLE ROCK
Defendant

*
*
*
*
*
*
*
*
*

NO: 4:11CV00230 SWW

ORDER
Now before the Court is a motion for sanctions by Plaintiff Evgueni Roudachevski, D.O.
(“Dr. Roudachevski”) [ECF Nos. 95, 96]. The time for filing a response has expired, and
Defendant All-American Care Centers, Inc. (“All-American”) has not filed a response.1 After
careful consideration, and for reasons that follow, the motion is denied without prejudice for
failure to provide the certification required under Rule 37(d)(1)(B) of the Federal Rules of Civil
Procedure and Local Rule 7.2(g).
On March 1, 2011, Dr. Roudachevski commenced this action, claiming that AllAmerican wrongfully terminated his patient privileges at a residential nursing care facility. On

1

The Court notes that attorneys Debby Thetford Nye and Edward T. Oglesby serve as
counsel of record for Defendant All-American. On January 24, 2012, counsel moved to
withdraw representation for All-American, and by order entered January 30, 2012, the Court
held the motion in abeyance and gave All-American fifteen days in which to file a motion for
substitution of counsel. The Court noted in its order that the law does not allow a corporation to
appear pro se and that All-American would be in default if counsel withdrew. All-American did
not move for substitution of counsel, and by order entered March 13, 2012, the Court directed
counsel of record for All-American to file a report regarding the status of the motion to
withdraw. Counsel failed to file a status report as requested. Accordingly, the Court denied the
motion to withdraw, but noted that counsel could submit a renewed motion to withdraw.

May 15, 2012, the Court granted the parties’ joint motion to dismiss and retained jurisdiction for
the purpose of enforcing the terms of the parties’ settlement agreement. Subsequently, Dr.
Roudachevski sought and obtained three judgments against All-American for installments due
under the settlement agreement.
Jerry L. Rhodes serves as the president and CEO of All-American. On November 18,
2013, Dr. Roudachevski noticed Rhodes for a deposition scheduled for December 23, 2013. Dr.
Roudachevski also served All-American interrogatories and requests for production of
documents, which required responses by December 18, 2013. Dr. Roudachevski reports that
Rhodes failed to appear for deposition and that All-American failed to provide responses to his
written discovery requests.
Federal Rule of Civil Procedure 69(a) provides judgment creditors the right to postjudgment discovery in aid of the judgment. Under Rule 69(a), a party “may obtain discovery
from any person . . . in the manner provided in these rules . . . or by the practice of the state in
which the district court is held.” Fed. R. Civ. P. 69(a). Similarly, Arkansas Rule of Civil
Procedure 69 provides, “In aid of a judgment or execution, a judgment creditor . . . may obtain
discovery from any person . . . in the manner provided in these rules.” Ark. R. Civ. P. 69.
Pursuant to these rules, Dr. Roudachevski has the right to conduct reasonable post-judgment
discovery and “‘is entitled to a very thorough examination of the judgment debtor.’” See Credit
Lyonnais, S.A. v. SGC Intern., Inc., 160 F.3d 428, 430 (8th Cir. 1998)(quoting Caisson Corp. V.
County West Building Corp., 62 F.R.D. 331, 335 (E.D. Pa. 1974)).
Federal Rule of Civil Procedure 37(d)(1)(A) provides that “the court where the action is
pending may, on motion, order sanctions if: (i) a party or a party's officer, director, or managing
2

agent—or a person designated under Rule 30(b)(6) or 31(a)(4)—fails, after being served with
proper notice, to appear for that person's deposition; or (ii) a party after being properly served
with interrogatories under Rule 33 . . . fails to serve its answers, objections, or written response.”
Fed. R. Civ. P. 37(d)(1)(A).

Rule 37(d)(3) permits the imposition of a wide range of sanctions

and further provides: “Instead of or in addition to these sanctions, the court must require the
party failing to act, 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.” Fed. R. Civ. P. 37(d)(1)(A).
Although it appears that All-American has failed to comply with its discovery
obligations, Rule 37(d)(B) requires that a party moving to for sanctions for failure to answer or
respond must include a certification that the movant has in good faith conferred or attempted to
confer with the party failing to act in an effort to obtain the answer or response without court
action. Similarly, Local Rule 7.2(g) requires such certification. Because Plaintiff has failed to
provide the certification required under Rule 37(d)(B) and the Local Rules of this Court, the
Court finds that the motion for sanctions [ECF No. 95] should be and it is hereby DENIED
WITHOUT PREJUDICE.
IT IS SO ORDERED THIS 13TH DAY OF JANUARY, 2014.
/s/Susan Webber Wright
UNITED STATES DISTRICT JUDGE

3