Bank of America, N.A. v. Caruk Holdings Arkansas, LLC et al

Filing 43

ORDER granting in part and denying in part 34 Motion for Contempt, as set forth. Signed by Honorable Jimm Larry Hendren on August 28, 2012. (lw)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
BANK OF AMERICA, N.A.
v.

PLAINTIFF
Civil No. 11-2096

CARUK HOLDINGS ARKANSAS, LLC;
DENISE L. CARUK; and
GORDON C. CARUK

DEFENDANTS

O R D E R
Now

on

consideration

this

28th

day

plaintiff’s

of

Motion

August,
for

2012,

Contempt

comes
and

on

for

Sanctions

(document #34), to which defendants have not responded. The Court,
being well and sufficiently advised, finds and orders as follows:
1.

Plaintiff Bank of America, N.A. (BANA) filed this action

on May 27, 2011, seeking foreclosure on real property held by
defendant Caruk Holdings. Defendants Gordon and Denise Caruk are
personal guarantors of a Loan Agreement in favor of BANA, which is
secured by the real property at issue.
Defendants Mr. and Ms. Caruk (the Caruks) proceed pro se in
this matter. Defendant Caruk Holdings is without representation.
2.

By its Order of June 8, 2012 (document # 30——in which

the Court, inter alia, granted defendants’ unopposed motion to
extend the deadline for completing discovery) the Court directed
that “all parties cooperate fully in completing discovery by this
date.”
3.

In the instant Motion, BANA asserts that the Caruks

failed to obey the Court’s order to cooperate with discovery.
Specifically, BANA says that, on June 14, 2012, it filed a Notice
to take the Caruks’ depositions on June 27, 2012, and that the
Caruks failed to appear for those depositions. Accordingly, BANA
asks the Court to grant its’ motion and to accord it the following
relief:
*

to hold the Caruks in contempt;

*

to require the Caruks to pay BANA’s reasonable expenses
and attorneys’ fees associated with the missed
depositions;

*

to strike the Caruks’ answer; and

*

to grant it a default judgment against Caruks.

4.

Caruks did not respond to the motion for contempt and,

on July 18, 2012, the Court entered a show-cause order giving the
Caruks ten (10) days in which to file a response.
5.

Caruks

failed

to

show

cause

or

otherwise

respond.

Nonetheless, the Court set the matter for hearing on August 15,
2012, and notice of the hearing was sent to the Caruks at their
last-known address.
6.

Caruks failed to appear at the hearing either in person

or by legal counsel.
Diana Borgognoni Snyder of Wright, Lindsey & Jennings, LLP
appeared on behalf of BANA and, after hearing BANA’s arguments,
the Court took the matter under advisement——stating that it would

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thereafter issue its ruling by written Order. It now does so.
7.

Pursuant to Fed. R. Civ. P. 37(d)(1)(A), the Court may

order sanctions if a party fails to appear for his own deposition
after having received proper notice thereof. If sanctions are
deemed appropriate, the Court must——at a minimum——require the
party failing to appear 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)(3).
Other sanctions may include any of the orders listed in Rule
37(b)(2)(A)(i)–(vi), namely
(i)

directing that certain matters are deemed established;

(ii)

prohibiting the use of certain evidence;

(iii) striking pleadings in whole or in part;
(iv)

staying further proceedings until an order is obeyed;

(v)

dismissing the action in whole or in part; or

(vi)

rendering a default judgment.

The rule specifically excludes a finding of contempt as a
sanction for failing to appear for one’s own deposition. See Fed.
R. Civ. P. 37(b)(2)(A)(vii).
8.

BANA argues that contempt is appropriate based on the

Caruks’ failure to comply with a court order——specifically, this
Court’s June 8, 2012 Order, in which it instructed the parties to
cooperate fully in completing discovery. However, as just noted,

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holding the Caruks in contempt would be an inappropriate sanction
for failing to appear for their depositions.
The Court has reviewed the language contained in its June 8,
2012 Order and considers it to be a general directive to cooperate
in the discovery process. If it were to be read as BANA urges, any
problem with discovery might well lead to a contempt citation. In
these circumstances, the Court does not believe that the language
of its Order was sufficiently clear and unambiguous to justify
holding Caruks in contempt for failing to appear for the scheduled
depositions. See Imageware, Inc. v. U.S. West Commc’ns, 219 F.3d
793, 797 (8th Cir. 2000). Therefore, to the extent the motion
seeks a finding of contempt, it will be denied.
9.

The

Court

notes

that,

in

the

circumstances

shown,

available sanctions could include an order striking the Caruks’
answer and entering a default judgment. However, in light of the
Court’s

Memorandum

Opinion

and

Order

to

be

entered

contemporaneously on this date, it declines to utilize them at
this time.
As

previously

stated,

however,

if

sanctions

are

deemed

appropriate, the Court must——at a minimum——require the party
failing to appear 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)(3).

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Caruks have made no showing that their failure to appear for
their own depositions was substantially justified nor have they
shown the Court any circumstances which might make an award of
expenses unjust.
Accordingly, the Court finds that Caruks should be required
to pay BANA’s reasonable expenses——including reasonable attorney’s
fees——caused

by

their

failure

to

appear

for

the

scheduled

depositions.
IT IS THEREFORE ORDERED that BANA’s Motion for Contempt and
Sanctions (document #34) is denied in part and granted in part.
IT IS FURTHER ORDERED that the Caruks pay to BANA its
reasonable expenses, including attorney’s fees, caused by their
failure to appear for their depositions on June 27, 2012. The
amount to be so paid includes BANA’s expenses incurred in bringing
the Motion for Contempt and Sanctions.
BANA is directed to submit an affidavit detailing those
reasonable expenses within thirty (30) days of the date of this
Order.
IT IS SO ORDERED.

/s/ Jimm Larry Hendren
JIMM LARRY HENDREN
UNITED STATES DISTRICT JUDGE

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