Frederick v. Panda No 1, LLC
Filing
95
ORDER ADOPTING IN PART THE APRIL 9, 2018 CERTIFICATION AND RECOMMENDATION OF MAGISTRATE JUDGE, by Judge William J. Martinez on 9/26/2018. (dhans, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 17-cv-0420-WJM-KMT
TERRELL FREDERICK, on behalf of LF, his minor child,
TERRELL FREDERICK, individually,
Plaintiffs,
v.
PANDA NO. 1, LLC,
Defendant.
ORDER ADOPTING IN PART THE APRIL 9, 2018 CERTIFICATION AND
RECOMMENDATION OF MAGISTRATE JUDGE
Plaintiff Terrell Frederick, individually and on behalf of his minor child LF
(“Plaintiff”), sued Defendant Panda No. 1, LLC (“Defendant”), for violating the
Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq. This matter is
before the Court on the November 16, 2017 Order to Show Cause (ECF No. 70),
Defendant’s “Motion for Order to Show Cause: Contempt Against Litigation
Management & Financial Services, LLC” (“Defendant’s Motion”) (ECF No. 85), and the
April 9, 2018 Certification on Contempt of Court and Recommendation by United States
Magistrate Judge Kathleen M. Tafoya (“Recommendation”) (ECF No. 88). For the
reasons set forth below, the Court adopts in part Judge Tafoya’s recommendation,
imposes modified sanctions, and dismisses Plaintiff’s claims with prejudice.
I. BACKGROUND & PROCEDURAL HISTORY
This summary is drawn from the Recommendation, the parties’ filings in this
case, and Plaintiff’s response to the Court’s Order to Show Cause (ECF No. 92).
Plaintiff Terrell Frederick filed this lawsuit, and forty-two other separate but nearly
identical lawsuits, against forty-three Colorado Springs restaurants and retail
establishments alleging violations of the ADA. (ECF No. 88 at 2.) Plaintiff made nearly
identical allegations against the establishments, changing only the date of visit and the
alleged barriers at each location. (Id.) Plaintiff’s daughter has dystonic cerebral palsy,
has mobility issues, and uses a service dog. (ECF No. 82-1 at 4.)
Defendant maintains that it did not violate the ADA and there are no barriers to
access. Defendant further contends that these lawsuits were brought to generate
settlements and corresponding attorneys’ fees that would benefit Litigation
Management and Financial Services, LLC (“LitMan”).1 (ECF No. 88 at 2.) To support
its theory, Defendant sought written discovery and deposition testimony from both
Plaintiff and a representative of LitMan about LitMan’s role in the litigation. (Id.; ECF
Nos. 38-1; 85-2.) When Plaintiff failed to timely respond to Defendant’s discovery
requests, Defendant filed its first Motion to Compel on August 23, 2017. (ECF No. 38.)
Judge Tafoya noted that Plaintiff’s counsel had “refused all efforts at conferral.” (ECF
No. 88 at 8.) Plaintiff’s counsel disputes this characterization, stating that he was willing
to engage in communication with Defendant, but “[d]efense counsel may not have liked
the responses that he was receiving during these conferrals.” (ECF No. 92 at 7.)
Conferral requires more than a mere willingness to communicate; it requires that the
parties “compare views, consult together.” See Heinrich v. Master Craft, 2014 WL
1
Plaintiff and his counsel contend that they did not file the lawsuits to abuse the legal
system, that Plaintiff was motivated by his desire to spread awareness of disabilities and better
his community, and that his counsel was motivated by a “sincere desire to assist individuals
with disabilities in their demand for equal access.” (ECF No. 92 at 2–3.)
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2179353, at *1 (D. Colo. May 24, 2014). Plaintiff has not put forward evidence to
dispute Judge Tafoya’s conclusion that Plaintiff’s counsel refused to confer with
Defendant regarding discovery responses.
Plaintiff responded to the Motion to Compel with a single paragraph stating that
Plaintiff had (belatedly) “produced his responses to Defendant’s discovery requests” as
of August 30, 2017. (ECF No. 42.) Judge Tafoya characterized Plaintiff’s response as
a “direct lie” because no discovery had been produced at that time. (ECF No. 88 at 3.)
Again, Plaintiff’s counsel resists this characterization. (ECF No. 92 at 8.) He goes on
to explain that his belated responses were justified because Defendant took similar
liberties with responding to discovery requests. He also perplexingly states that he was
“accused of lying to the court for explaining to the court the exact reasons why I was
withholding the information,” suggesting that he had, indeed, provided no or limited
information to the Defendant. (Id.) Whatever the merits of Plaintiff’s counsel’s
assertions, two wrongs do not make a right. A review of the record shows that Plaintiff
had not produced any documents in response to Defendant’s request as of August 30,
2017. However, Plaintiff did not claim to have produced discovery as of that date, but
rather “produced his responses” as of that date. (ECF No. 42.) This is technically
correct because Plaintiff did respond to Defendant’s interrogatories and request for
production that day.
On October 3, 2017, Judge Tafoya held a hearing on outstanding discovery
issues. (ECF No. 54 [Minutes]; ECF No. 67 [Transcript].) Plaintiff had objected to and
refused to answer even basic questions about the case. (ECF No. 88 at 3.) Because
Defendant’s requests and interrogatories were straightforward and Plaintiff’s objections
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unsustainable, Judge Tafoya then ordered Plaintiff to provide supplemental responses
on or before October 13, 2017. (ECF No. 88 at 4.) Judge Tafoya also awarded
Defendant attorneys’ fees and costs incurred for bringing the Motion to Compel. (Id.)
On October 13, 2017, Plaintiff filed notice claiming that he had complied with
Judge Tafoya’s order to serve amended responses (ECF No. 57). On October 17,
2017, Defendant filed a response noting that Plaintiff’s responses were still plagued by
deficiencies. (ECF No. 59 at 1–2.) Judge Tafoya reviewed Plaintiff’s responses,
agreed that they remained deficient, and set another hearing for October 30, 2017.
(ECF No. 66 [Minutes]; ECF No. 68 [Transcript].)
At the October 30, 2017 hearing, Judge Tafoya warned Plaintiff’s counsel that
the responses were still deficient. Plaintiff’s counsel once again raised Defendant’s
failure to comply with discovery as a reason for Plaintiff’s recalcitrance on discovery.
(ECF No. 68 at 20.) Judge Tafoya gave Plaintiff a deadline of November 13, 2017 by
which to provide “full and complete responses to Defendant’s discovery requests,
together with unredacted documents.” (ECF No. 66 at 2.)
On November 14, 2017, Defendant filed a notice that the Plaintiff did not provide
additional discovery or a privilege log by November 13, 2017. (ECF No. 69.) Judge
Tafoya issued an Order to Show Cause on November 16, 2017 (ECF No. 70), to which
Plaintiff responded on November 30 (ECF No. 71). Plaintiff attached unredacted copies
of documents to his response to comply with Judge Tafoya’s order including (1) the fee
agreement between Plaintiff and his counsel; (2) a litigation funding agreement
between Plaintiff and LitMan; and (3) a litigation management agreement between
Plaintiff’s counsel and LitMan. (Id.; ECF No. 71-3.) He also explained that he did not
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timely comply with Judge Tafoya’s order because his computer crashed. (ECF No. 71
at 2—3.) As Judge Tafoya noted, the documents produced were in the possession of
LitMan and its employees, so Plaintiff’s counsel’s computer failure would not have
necessarily impacted Plaintiff’s ability to timely produce documents. (ECF No. 88 at 5.)
Plaintiff’s counsel admits that LitMan had the records in its possession, but explains
that his attempts to contact LitMan for such information went unanswered. (ECF No. 92
at 9.) Plaintiff also continued to raise Defendant’s supposed failure to comply with
discovery requirements. (ECF No. 71 at 3.) Plaintiff did not supplement responses to
the interrogatories; produce communications between and among Plaintiff, Plaintiff’s
counsel, and LitMan; or produce a privilege log concerning any communications.
On November 30, 2017, Plaintiff also filed a Motion to Dismiss Without Prejudice
(ECF No. 72), which Defendant opposed (ECF No. 80).
In early December 2017, Plaintiff sought the Court’s assistance in delaying his
deposition. (ECF No. 74.) Judge Tafoya found that Plaintiff had set forth no legally
cognizable grounds for a stay and that Defendant stated a need, particularly in light of
Plaintiff’s continued failure to meet his discovery obligations. (ECF No. 77.)
Plaintiff’s deposition revealed information about how the case had been
prepared and litigated, and the division of work among Plaintiff, Plaintiff’s counsel, and
LitMan. Plaintiff’s former co-worker Emily Branch asked Plaintiff if he would be
interested in getting involved in ADA cases because of his daughter’s disability. (ECF
No. 82-1 at 5.) Plaintiff would be paid $50 initially, and $50 after an additional period of
time per case. (Id. at 5.) Plaintiff agreed and LitMan provided him with a copy of the
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ADA rules, a measuring instrument, forms to fill out for each establishment, and an iPad
with electronic forms. (Id. at 10–13.)
Plaintiff had correspondence with LitMan concerning his contract with LitMan, the
violations at establishments, and the payments, but had never been asked to collect or
produce the documents. (Id. at 7, 35.) Indeed, Plaintiff testified that the first time he
had seen Defendant’s First Set of Discovery Requests (dated June 30, 2017) was a
week before his deposition (on December 8, 2017) when Emily at LitMan emailed him.
Similarly, he had not seen Plaintiff’s responses to those requests, or signed those
responses. (Id. at 34.) Plaintiff also had not previously seen the November 13, 2017
Order to Show Cause. (Id. at 8.) He was also unaware of any settlement proposals or
settlements in connection with the 43 cases filed. (Id. at 15, 17–18, 26.)
LitMan put Plaintiff in touch with Plaintiff’s counsel. (Id. at 18.) Plaintiff also
explained that LitMan was responsible for paying Plaintiff’s counsel, and that Plaintiff
had no obligation to pay his counsel. (Id. at 10.) Plaintiff was not informed that he
could be responsible for Defendant’s fees or costs, or that Judge Tafoya had ordered
attorneys’ fees to be paid by Plaintiff and Plaintiff’s counsel. (Id. at 33.) The prior
award of sanctions to Defendant was apparently paid from Plaintiff’s counsel’s trust or
operating account. (Id.)
Both Plaintiff and Plaintiff’s counsel eventually realized LitMan’s interest diverged
from Plaintiff’s interest. (ECF No. 92 at 7, 10.) Plaintiff and his counsel “believe that
they were intentionally deceived by Lit[M]an, which became exceedingly obvious . . .
after the deposition of Mr. Frederick.” (Id. at 10.)
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On December 18, 2017, Defendant served LitMan with a subpoena pursuant to
Rule 45 and a Rule 30(b)(6) deposition notice for January 2, 2018 at 9:00 a.m. (ECF
No. 85-2; ECF No. 85-3.) LitMan failed to appear and testify on January 2, and failed to
produce any documents pursuant to the subpoena or otherwise respond. (ECF No. 854.) LitMan did not move to quash or modify the subpoena or otherwise file any
document to protest the deposition or document requests. LitMan failed to set forth any
legal basis to quash the subpoena, and thus under Rule 45 w as required to comply with
it. Defendant thereafter sought to hold LitMan in contempt of court by filing a motion
for an order to show cause as to why LitMan should not be held in contempt. (ECF No.
85.) The undersigned referred the motion to Judge Tafoya for a recommendation.
Judge Tafoya recommended holding Plaintiff, Plaintiff’s counsel, and LitMan in
contempt of court for failure to comply with her prior orders. She also recommended
imposing sanctions on Plaintiff, Plaintiff’s counsel, and LitMan. Judge Tafoya also
certified facts supporting a finding of contempt pursuant to 28 U.S.C. § 636(e)(6). The
Recommendation is incorporated herein by reference. See 28 U.S.C. § 636(b)(1)(B);
Fed. R. Civ. P. 72(b). Specifically, Judge Tafoya found that LitMan was “obviously
controlling the litigation nominally brought by [Plaintiff]” and was in the best position to
provide the discovery requested. (ECF No. 88 at 11.) Judge Tafoya recommended the
following sanctions:
1.
Hold Plaintiff, Plaintiff’s counsel, and LitMan in contempt for their “clear
defiance” of the October 3, 2017 and October 30, 2017 orders directing
Plaintiff to respond to discovery requests;
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2.
Impose a coercive fine and compensatory monetary award of all fees and
costs incurred by Defendant not already awarded;
3.
Ban the filing of any and all cases associated with LitMan without prior
approval of the Court;
4.
Refer Plaintiff’s counsel to the Court’s Committee on Conduct; and
5.
Dismiss the action with prejudice.
(Id. at 13–17.)
The Recommendation advised the parties that specific written objections were
due within fourteen days after being served a copy of the Recommendation. (ECF No.
88 at 17–18.) Despite this advisement, no objections to the Recommendation have
been received to date. In accordance with ECF No. 89, on May 29, 2018, Defendant
submitted a bill of fees and costs incurred in this action that the Court had not
previously awarded. (ECF No. 90.) Plaintiff did not file a response or objection to
Defendant’s proposed bill of costs.
The Court reviewed the Recommendation and determined that it was appropriate
to issue a written Order to Show Cause to both Plaintiff and LitMan in lieu of an
evidentiary hearing. (ECF Nos. 91, 93.) The Court directed Plaintiff and Litman to
address any evidence that they would introduce at a hearing to refute the factual
findings set forth by Judge Tafoya in her certification of facts. LitMan failed to respond,
and Plaintiff advised the Court that LitMan was unlikely to respond. (ECF No. 94 at 2.)
Plaintiff responded to the Order to Show Cause on August 17, 2018. (ECF No.
92.) Plaintiff’s response addresses some of the facts in Judge Tafoya’s
recommendation, and incorporated above where appropriate. It also contained a mea
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culpa from Plaintiff’s counsel admitting to mistakes in litigating this case, but expressing
a dedication to helping the disabled and a desire to gain experience in federal court.
(Id. at 14.) Plaintiff’s counsel states that neither he nor Plaintiff has any intention of
filing any further disability discrimination lawsuits before this Court. (Id.) The response
further explains the personal ramifications for Plaintiff as a result of the negative media
coverage, including leaving his job, resigning from the board of a local non-profit,
having difficulty finding new employment, and having to borrow money from his church,
family, and friends to meet basic living expenses. (Id. at 14–15.)
II. LEGAL STANDARD
Under 28 U.S.C. § 636(e)(6), a district judge reviewing a magistrate judge’s
certification of facts must conduct an independent review to determine whether the
facts certified constitute contempt and, if so, what sanctions are appropriate. Kellar v.
U.S. Dep’t of Veteran’s Affairs, 2009 WL 1364878, at *2 (D. Colo. May 12, 2009).
In a motion for civil contempt, the moving party has the “burden of proving, by
clear and convincing evidence, that a valid court order existed, that the defendant had
knowledge of the order, and that the defendant disobeyed the order.” United States v.
Ford, 514 F.3d 1047, 1051 (10th Cir. 2008).
III. ANALYSIS
A.
Contempt
The Court agrees with the Recommendation to hold Plaintiff, Plaintiff’s counsel,
and LitMan in contempt. Plaintiff manifestly failed to comply with Judge Tafoya’s orders
to produce documents. Regardless of potential litigation strategy and insistence that
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Defendant similarly failed to comply, Plaintiff was plainly subject to a court order to
produce certain documents. (ECF Nos. 54; 66; 71.) These documents were not
produced. Plaintiff’s deposition revealed that other communications subject to
production were also not produced. (ECF No. 82-1 at 7, 35.) Plaintif f (through his
counsel) had knowledge of Judge Tafoya’s order. Plaintiff’s counsel attended the
hearings at which Judge Tafoya issued oral orders, and should have received written
notice of the corresponding Minute Orders through CM/ECF. (ECF Nos. 54; 66.)
Plaintiff’s discovery responses produced to comply with those orders plainly did not
comply. They were late and incomplete. The Court therefore holds Plaintiff and his
counsel in contempt for violating the October 3, 2017 and October 31, 2017 orders.
The Court also holds LitMan in contempt for different reasons stated in the
Recommendation. Though it seems clear that LitMan was controlling the litigation,
LitMan is not a party to the litigation and was not subject to the October 3, 2017 or
October 30, 2017 orders. Therefore, it is a stretch to hold LitMan accountable as
having knowledge of an order in a case to which it is not a party. However, LitMan did
ignore other Court orders. Namely, LitMan failed to appear for a deposition or respond
to a subpoena. (ECF No. 85.) These were duly issued, and LitMan did not make any
attempt to modify or quash the subpoena. Further, the Court issued an order to show
cause as to why LitMan should not be held in contempt for violating the subpoena.
(ECF No. 92.) Plaintiff’s counsel submitted a notice of service on LitMan. (ECF No.
94.) LitMan cavalierly ignored the Court’s Order and wholly failed to respond. Thus,
there was a valid order of which LitMan had knowledge, and disobeyed. See Ford, 514
F.3d at 1051. The Court therefore holds LitMan in contempt for violating the subpoena,
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failing to appear at the 30(b)(6) deposition, and f ailing to produce documents.
B.
Sanctions
1.
Monetary Penalty
“A district court has broad discretion in using its contempt powers to require
adherence to court orders.” Cook v. Rockwell Int’l Corp., 907 F. Supp. 1460, 1463 (D.
Colo. 1995). Contempt sanctions “may only be employed for either or both of two
distinct remedial purposes: (1) to compel or coerce obedience to a court order; and
(2) to compensate the contemnor’s adversary for injuries resulting from the contemnor’s
noncompliance.” O’Connor v. Midwest Pipe Fabrications, Inc., 972 F.2d 1204, 1211
(10th Cir. 1992) (internal quotation marks omitted; alterations incorporated).
To levy a coercive sanction, “the court must consider the character and
magnitude of the harm threatened by continued contumacy, and the probable
effectiveness of any suggested sanction in bringing about the result desired. . . .
[C]oercive civil sanctions may only continue until terminated by compliance.” Id. This
language plainly assumes that contempt is ongoing. A compensatory fine must be
based on complainant’s actual losses. Id. It is well established that “ complainant may
recover attorneys’ fees and expenses incurred in prosecuting a contempt.” Premium
Nutritional Prod., Inc. v. Ducote, 571 F. Supp. 2d 1216, 1220 (D. Kan. 2008); see also
In re Aramark Sports & Entm’t Servs., LLC, 725 F. Supp. 2d 1309, 1318 (D. Utah 2010)
(awarding fees); Bad Ass Coffee Co. of Hawaii v. Bad Ass Coffee Ltd. P’ship, 95 F.
Supp. 2d 1252, 1257 (D. Utah 2000) (awarding fees as well as costs associated with
gathering evidence of contempt).
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Plaintiff does not intend to further litigate this case, so a coercive civil sanction to
compel Plaintiff or LitMan to comply with discovery requirements is futile. (See ECF
No. 72 (seeking to dismiss claims against Defendant).) The Court is therefore left
solely with the possibility of compensatory sanctions.
As to Plaintiff and Plaintiff’s counsel, a compensatory fine is appropriate for the
failure to adequately respond to Defendant’s requests for discovery and the orders to
produce said discovery. Though Plaintiff may have had a litigation strategy that
involved playing hardball in response to Defendant’s allegedly delayed productions,
only Plaintiff was under a Court order to produce documents. And his failure to do so
timely and adequately resulted in numerous hearings before Judge Tafoya and a
finding of contempt. The Court is mindful of the revelations at Plaintiff’s deposition that
Plaintiff was unaware of the discovery requests and perhaps even Judge Tafoya’s
orders. (ECF No. 82-1 at 8, 34.) However, filing federal litigation is a serious matter,
and Plaintiff had a responsibility to communicate with his counsel about the status of
the litigation.
The Court has reviewed Defendant’s billing records and finds that Defendant’s
incurred approximately $5,300 in reviewing Plaintiff’s deficient discovery responses,
preparing notices for the Court regarding the inadequate discovery, and preparing for
and attending hearings before Judge Tafoya regarding the same. (ECF No. 90-2 at
5–7.) The Court therefore imposes a joint and several $5,300 compensatory fine on
Plaintiff and Plaintiff’s counsel to be paid to Defendant for failure to comply with the
Court’s orders on discovery.
As to LitMan, a compensatory fine for LitMan’s failure to respond on any level to
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the subpoena or deposition request is appropriate. Defendant incurred costs in drafting
the documents, preparing the deposition, and filing a motion to compel. The Court has
reviewed Defendant’s counsel’s billing records and finds that Defendant’s incurred
$3,300 in reasonable attorney’s fees and costs. (ECF No. 90-2 at 7–10.) The Court
therefore imposes a $3,300 a compensatory fine on LitMan to be paid to Defendant for
LitMan’s total failure to respond to discovery requests.
2.
Filing Ban on LitMan
Judge Tafoya also recommended banning filing of any and all cases associated
with LitMan absent prior approval of this court. Federal courts have inherent power
under 28 U.S.C. § 1651(a) to regulate the activities of abusive litigants by imposing
restrictions under the appropriate circumstances. Tripati v. Beaman, 878 F.3d 351, 352
(10th Cir. 1989). “[I]njunctions are proper where the litigant’s abusive and lengthy
history is properly set forth.” Id. at 353 (citing cases). “There is strong precedent
establishing the inherent power of federal courts to regulate the activities of abusive
litigants by imposing carefully tailored restrictions under the appropriate circumstances.”
Cotner v. Hopkins, 795 F.2d 900, 902 (10th Cir. 1986).
Here, LitMan is not a party before the court, nor has LitMan itself filed any cases
in the District of Colorado. Therefore, there is no record of LitMan itself abusing the
Court’s processes, though it appears LitMan seeks unwitting plaintiffs to do so on their
behalf. The Court is also aware of the practical difficulties should it concur with the
Recommendation given the requirement that the Court craft “carefully tailored
restrictions.” Cotner, 795 F.2d at 902. The Court would be forced to police whether a
particular plaintiff or plaintiff’s counsel had a contract with LitMan or a related entity in
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all ADA litigation filed in this district. Such a restriction would pose an impractical
burden on the Court. Therefore, the Court declines to impose such a restriction on the
current record.
3.
Referral of Plaintiff’s Counsel to the Committee on Conduct
Judge Tafoya has much greater knowledge and understanding of Plaintiff’s
counsel’s conduct during the pendency of the litigation. The Court therefore finds it
appropriate that Judge Tafoya should be the judicial officer who in the first instance files
a complaint concerning Plaintiff’s counsel’s conduct in this litigation to this Court’s
Committee on Conduct pursuant to D.C.COLO.LAttyR 7(a).
4.
Dismissal with Prejudice
The court has “discretion to sanction a party for failing to prosecute or defend a
case, or for failing to comply with local or federal procedural rules.” Reed v. Bennett,
312 F.3d 1190, 1195 (10th Cir. 2002). T his includes failure to comply with a discovery
order. Orbit Irr. Prod. v. Sunhills Int’l, 2014 WL 1329526, at *6 (D. Utah Apr. 2, 2014)
(reviewing available sanctions under Fed. R. Civ. P. 37(b) for failure to comply with a
discovery order). A sanction may include dismissing a case with prejudice or entering
judgment against a party. Reed, 312 F.3d at 1195; see Fed. R. Civ. P. 37(b)(2)(A).
Dismissal is a severe sanction “reserved for the extreme case, and is only appropriate
where a lesser sanction would not serve the ends of justice.” Reed, 312 F.3d at 1195
(citation omitted). When considering dismissal as a sanction, a court considers the
degree of prejudice to the movant, amount of interference with the judicial process,
culpability of the litigant, whether the court warned of dismissal as a likely sanction, and
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the efficacy of lesser sanctions. Ehrenhaus v. Reynolds, 965 F.3d 916 (10th Cir. 1992).
These factors are not a rigid test, but criteria for the district court to consider. Id.
Each of the Ehrenhaus factors here weighs in favor of dismissal with prejudice.
Defendant was repeatedly prejudiced by its inability to obtain discovery relevant to its
theory of the case. Defendant believed that the litigation was meritless and a scheme
controlled by a non-party seeking a quick settlement. (ECF No. 88 at 2.) Plaintiff’s
eventual deposition seemed to support Defendant’s theory, and showed that additional
documents had not been collected from Plaintiff much less produced. (ECF No. 82-1 at
7, 10, 18, 35.) Defendant had to expend time and money filing motions to compel and
notify the Court of Plaintiff’s continued failures to produce discovery.
The Court finds that Plaintiff interfered with the judicial process by failing to
comply with multiple court orders to produce documents and interrogatory responses.
Plaintiff’s recalcitrance interfered with normal progress of this litigation and prevent
Defendant from developing their theory of the case. Plaintiff’s incomplete and untimely
responses sparked additional notices, hearings, and orders, further delaying resolution
of the merits of the claim. Plaintiff (through his counsel) is responsible for the delays in
this case. Plaintiff and his counsel could have contacted Defendant when they realized
LitMan’s interest in the litigation diverged from their own. Instead, they chose to
continue this lawsuit, at the expense of Defendant and this Court’s resources.
Plaintiff has had ample warning of the potential for this litigation to be dismissed.
The Recommendation, to which Plaintiff did not object, first suggested dismissal with
prejudice as a sanction in April 2018. (ECF No. 88 at 14–17.) T he undersigned then
issued an order to show cause as to why Plaintiff should not be adjudged in contempt.
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(ECF No. 92.) Dismissal has not been far from Plaintiff’s mind; indeed, he filed a
motion to dismiss, albeit without prejudice, indicating that he no longer wished to pursue
the litigation. (ECF No. 72.)
For the foregoing reasons, the Court finds that a sanction of dismissal with
prejudice is an appropriate sanction for Plaintiff’s violations of the Judge Tafoya’s
orders in this case. Because the Court dismisses with prejudice, Plaintiff’s motion to
dismiss without prejudice (ECF No. 72) is denied as moot.
IV. CONCLUSION
In accordance with the foregoing, the Court ORDERS as follows:
1.
The Magistrate Judge’s Certification of Facts pursuant to 28 U.S.C. § 636(e)(6)
and Recommendation (ECF No. 88) is ADOPTED IN PART;
2.
Defendant’s Motion for Order to Show Cause: Contempt Against Litigation
Management & Financial Services, LLC (ECF No. 85) is GRANTED IN PART;
3.
Plaintiff and Plaintiff’s counsel Jeffery Emberton are ORDERED to pay
Defendant $5,300 for reasonable attorneys’ fees and costs incurred by
Defendant in defending this matter. Plaintiff and Plaintiff’s counsel shall be
jointly and severally liable for the payment of this monetary sanction;
4.
Litigation Management & Financial Services, LLC, is ORDERED to pay
Defendant $3,300 for reasonable attorney’s fees and costs incurred in
connection with Defendant’s attempted discovery;
5.
Judge Tafoya, in her discretion, may file a complaint against Plaintiff’s counsel
Jeffery Emberton with the Court’s Committee on Conduct;
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6.
Plaintiff’s counsel SHALL SERVE a copy of this order on Plaintiff, as the Court
presumes is his standard practice, as well as on LitMan, and by no later than
October 3, 2018 he shall file with the Court a certificate of service evidencing
same;
7.
Plaintiffs’ claims are DISMISSED WITH PREJUDICE as a sanction of Plaintiff’s
violations of the Court’s orders;
8.
Plaintiffs’ Motion to Dismiss Without Prejudice (ECF No. 72) is DENIED AS
MOOT; and
9.
The Clerk SHALL ENTER judgment in favor of Defendant and against Plaintiff,
and SHALL TERMINATE this case. Except as set forth above, the parties shall
bear their own attorney’s fees and costs.
Dated this 26th day of September, 2018.
BY THE COURT:
__________________________
William J. Martínez
United States District Judge
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