Rapp v. Hoffman et al
ORDER by Magistrate Judge Boyd N. Boland on 6/3/14. The Motion for Default Judgment 43 is DENIED insofar as it seeks the entry of default judgment as a sanction for failure to make disclosures and discovery as required, andGRANTED insofar as it may be construed as a motion to compel discovery. Ms. Hoffman shall make full disclosures and discovery responses that comply with the formalities of the Federal Rules of Civil Procedure on or before June 17, 2014. A Final Pretrial Conference set for 8/6/2014 02:30 PM in Courtroom A 401 before Magistrate Judge Boyd N. Boland. A Final Pretrial Order shall be prepared by the parties and submitted to the court no later than July 30, 2014. (bsimm)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Boyd N. Boland
Civil Action No. 13-cv-00908-RM-BNB
Dr. DORIS RAPP,
KARIN HOFFMAN, and
TENDRIL PRESS, LLC
This matter arises on the plaintiff’s Motion for Default Judgment Pursuant to Fed. R.
Civ. P. 37(b) and (c) [Doc. # 43, filed 3/19/2014] (the “Motion for Default Judgment”). The
plaintiff seeks default judgment against defendant Karin Hoffman based on her failure to comply
with my order to make Rule 26(a)(1) disclosures and her failure to respond to written discovery
requests. I held a hearing on the Motion for Default Judgment on June 2, 2014, and made oral
rulings from the bench, which are incorporated here. The Motion for Default Judgment is
DENIED insofar as it seeks the entry of a default judgment as a discovery sanction; is construed
instead as a motion to compel; and is GRANTED as specified below.
Ms. Hoffman is proceeding pro se. “In general, litigants proceeding pro se are held to the
same procedural standards as those with counsel.” U.S. v. Distefano, 279 F.3d 1241, 1245 (10th
Pursuant to the Scheduling Order [Doc. # 34], Ms. Hoffman was required to make Rule
26(a)(1) disclosures on or before July 23, 2013. Id. at Part 6(c). No such disclosures were
made. At the hearing, Ms. Hoffman argued that she had not made the disclosures as ordered
because she does not know what is required. To the contrary, at the scheduling conference I
directed Ms. Howard to review the Federal Rules of Civil Procedure, including particularly Rule
26(a)(1), and I discussed with her in detail the nature of those disclosures. I also allowed Ms.
Hoffman to make her disclosures one week after the plaintiff’s disclosures so that she would
have the benefit of reviewing those before making her own. In any event, as noted, “litigants
proceeding pro se are held to the same procedural standards as those with counsel.” Distefano,
279 F.3d at 1245.
The plaintiff served written discovery, including interrogatories, requests for production
of documents, and requests for admissions on September 17, 2013. Affidavit of Thomas P.
Howard [Doc. # 43-1] at ¶10. Responses were due on October 21, 2013. Ms. Hoffman did not
respond to the written discovery requests on that date or at any time prior to the filing of the
Motion for Default Judgment. Id. at ¶11. Months later, on May 28, 2014, Ms. Hoffman
submitted a series or exhibits, purportedly to be used during the hearing on the Motion for
Default Judgment, which include at Exhibits D and E apparent responses to the written discovery
requests and the production of certain documents. Even those responses are manifestly
inadequate because, at a minimum, the interrogatory answers are not signed under oath as
required by Fed. R. Civ. P. 33(b)(3); Ms. Hoffman purports to produce “available documents”
rather than all responsive documents in her possession, custody, and control; and Ms. Hoffman
attempts to assert denials to the requests for admissions without first obtaining a court order
under Fed. R. Civ. P. 36(b) allowing her to withdraw prior admissions.1
Importantly, the plaintiff did not bring to Ms. Hoffman’s attention the disclosure and
discovery failures; there is no evidence that the plaintiff ever conferred under D.C.COLO.LCivR
7.1(a) with Ms. Hoffman about her failures to make disclosures and discovery; and the plaintiff
never moved to compel the disclosures or discovery. The discovery requests were served by
United States mail, first class postage prepaid, as permitted under Fed. R. Civ. P. 5(b)(2)(C).
Ms. Hoffman claims that she did not receive the requests. The dispute concerning delivery of
the requests should have been resolved months ago through a conference under
D.C.COLO.LCivR 7.1(a). See Hoelzel v. First Select Corp., 214 F.R.D. 634, 635 (D. Colo.
2003)(noting that local rule 7.1(a) “serves a particularly important function in connection with
discovery disputes”). Instead, the plaintiff waited until after the discovery cut-off and the
dispositive motion deadline and, rather than requesting an order compelling the disclosures and
discovery, sought instead the ultimate sanction of a default judgment. I disapproved of this
tactic in Buttler v. Benson, 193 F.R.D. 664, 666 (D. Colo. 2000), stating:
Ordinarily, if a failure to make discovery comes to light, the
remedy is to order production and to take any other steps necessary
to cure any prejudice.
* * *
The plaintiff’s unexplained delay in seeking court assistance to
obtain [discovery], coupled with his request for sanctions in the
form of an order precluding defendants from opposing his damage
claims and from offering evidence at trial, raises the inference that
the plaintiff is not as concerned with obtaining the documents as he
is with holding in abeyance a putative discovery violation for the
Pursuant to Fed. R. Civ. P. 36(a)(3), the requests for admissions were deemed admitted
because Ms. Hoffman did not within 30 days after being served with them “serve on the
requesting party a written answer or objection addressed to the matter and signed by the party or
strategic purpose of using it late in the proceedings as a basis to
prevent defendants from defending the claims against them.
(Internal quotation and citation omitted.)
Under these circumstances, the severe sanction of a default judgment is not appropriate.
Ms. Hoffman’s unexcused failures to comply with her disclosure and discovery
obligations may not be overlooked, however. Consequently, I have construed the Motion for
Default Judgment as a motion to compel, which is granted.
I will not attempt to determine at this time the adequacy of Ms. Hoffman’s answers to the
plaintiff’s interrogatories. I note only that Rule 33(b)(3) requires that “[e]ach interrogatory must
. . . be answered separately and fully in writing under oath,” and Rule 33(b)(5) requires that “the
person who makes the answers must sign them. . . .” The answers currently are not signed and
are not made under oath. Any additional inadequacies in the interrogatory answers which may
be identified by the plaintiff must be addressed in a meaningful conference under
D.C.COLO.LCivR 7.1(a) and, if not resolved, may be raised in a motion to compel discovery.2
Similarly, I will not attempt at this time to determine the adequacy of Ms. Hoffman’s
production of documents in response to the plaintiff’s request. I note, however, that Ms.
Hoffman is required to produce all responsive documents in her “possession, custody, or
control,” Fed. R. Civ. P. 34(a), and not merely the “available documents.” Cf. Response to
Plaintiff First Request for Production of Documents, Exh. D, at ¶15. Any inadequacies in Ms.
Hoffman’s production identified by the plaintiff must be addressed in a meaningful conference
I am, of course, familiar with the requirements of Fed. R. Civ. P. 37(a)(5) concerning the
award of reasonable expenses, including attorney’s fees, to the party prevailing on a motion to
under D.C.COLO.LCivR 7.1(a) and, if not resolved, may be raised in a motion to compel
Finally, Fed. R. Civ. P. 36(a)(3) provides that “[a] matter is admitted unless, within 30
days after being served, the party to whom the request is directed serves on the requesting party a
written answer or objection addressed to the matter and signed by the party or its attorney.”
Where, as here, service was by mail, it is “complete upon mailing.” Fed. R. Civ. P. 5(b)(2)(C).
It is undisputed that Ms. Hoffman did not answer or object to the requests for admissions within
30 days after service. Consequently, the admissions are deemed admitted. Rule 36(b) provides a
mechanism by which an admission may be withdrawn or amended, but Ms. Hoffman has not
availed herself of that procedure. Consequently, the plaintiff’s requests for admissions stand
admitted until such time as there is an order to the contrary.
I have identified several deficiencies in Ms. Hoffman’s tardy discovery responses--i.e.,
the failure to sign her interrogatory answers under oath, and the apparent failure to produce all
responsive documents in her possession, custody, and control. In addition, Ms. Hoffman still has
not made the disclosures required by Fed. R. Civ. P. 26(a)(1). I will allow Ms. Hoffman two
weeks within which to make full discovery responses and disclosures that meet the formalities of
the Federal Rules of Civil Procedure.
IT IS ORDERED:
The Motion for Default Judgment is DENIED insofar as it seeks the entry of
default judgment as a sanction for failure to make disclosures and discovery as required, and
GRANTED insofar as it may be construed as a motion to compel discovery;
Ms. Hoffman shall make full disclosures and discovery responses that comply
with the formalities of the Federal Rules of Civil Procedure on or before June 17, 2014; and
A final pretrial conference is set for August 6, 2014, at 2:30 p.m., in Courtroom
401, 4th floor, Alfred A. Arraj United States Courthouse, 901 19th Street, Denver, Colorado. A
Final Pretrial Order shall be prepared by the parties and submitted to the court no later than July
Dated June 3, 2014.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge
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