Cooke v. Mercedes-Benz USA, LLC
ORDER: See attached ruling on defendant's motion 39 for discovery sanctions. Signed by Judge Donna F. Martinez on 5/16/14. (Constantine, A.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
MERCEDES-BENZ USA, LLC,
CASE NO. 3:13cv1048(RNC)
RULING ON DEFENDANT'S MOTION
The plaintiff, Denise Cooke, brings this negligence action
against the defendant, Mercedes-Benz, alleging that she was injured
when her vehicle's head safety restraint spontaneously deployed.
Pending before the court is the defendant's motion for discovery
sanctions. (Doc. #39.) The defendant argues that the plaintiff is
in violation of the court's January 14, 2014 discovery order.
court heard oral argument on May 8, 2014.
The plaintiff owns a 2005 Mercedes Benz.
While she was
driving in 2012, the driver's side head restraint system deployed.
Plaintiff alleges that she was injured and "forced to call out from
work over the course of multiple days and cancel important media
and publicity obligations." (Compl. ¶8.) The plaintiff filed suit
in state court.
In July 2013, the defendant removed on grounds of
On September 13, 2013, the defendant served interrogatories
and requests for production.
the thirty day deadline.
The plaintiff did not respond within
See Fed. R. Civ. P. 33(b)(2), Fed. R.
Civ. P. 34(b)(2)(A).
On November 14, 2013, almost a month after
the responses were due, the plaintiff served an unverified1 "draft"
response to some of the interrogatories.
Plaintiff produced no
documents nor did she serve a written response to the document
On December 20, 2013, the defendant filed a motion to compel.
Among other things, the defendant complained that the
responses (which it enumerated) were insufficient.
did not file any response to the defendant's motion nor did she
attempt to address the deficiencies.
On January 14, 2014, the
court granted the defendant's motion insofar as it sought an order
compelling responses to its discovery.
The court ordered the
plaintiff to provide "full and complete answers" to interrogatories
and requests for production within 14 days of the court's order
pursuant to D. Conn. L. Civ. R. 37(d).
The court warned the
plaintiff that "[a] party who flouts [discovery] orders does so at
his peril," Update Art, Inc. v. Modiin Publ'g, Ltd., 843 F.2d 67,
73 (2d Cir. 1988), and that failure to comply with a court order
Federal Rule of Civil Procedure 33 requires that "[e]ach
interrogatory must, to the extent it is not objected to, be
answered separately and fully in writing under oath" and that
"[t]he person who makes the answers must sign them, and the
attorney who objects must sign any objections." Fed. R. Civ. P.
33(b)(3),(5). "Rule 33, requiring verification and signature, is
among the simplest of all the Rules of Procedure . . . ." Saria v.
Massachusetts Mut. Life Ins. Co., 228 F.R.D. 536, 539 (S.D.W.Va.
might result in the imposition of sanctions, including dismissal.2
Defendant informs the court that plaintiff's counsel produced
discovery responses on February 4, 2014, but that the responses
defendant filed the instant motion contending that the plaintiff
has not complied with the court's January 2014 order and seeking
pursuant to Rule 37(b)(2)(A).3
The court denied without prejudice the defendant's request to
"immediate[ly] dismiss" the plaintiff's complaint if the plaintiff
served "anything less than full and complete discovery responses."
Rule 37(b) provides in pertinent part:
(b) Failure to Comply with a Court Order.
(2) Sanctions Sought in the District Where the Action Is
(A) For Not Obeying a Discovery Order. If a party or a
party's officer, director, or managing agent . . . fails
to obey an order to provide or permit discovery,
including an order under Rule 26(f), 35, or 37(a), the
court where the action is pending may issue further just
orders. They may include the following:
(i) directing that the matters embraced in the order or
other designated facts be taken as established for
purposes of the action, as the prevailing party claims;
(ii) prohibiting the disobedient party from supporting or
opposing designated claims or defenses, or from
introducing designated matters in evidence;
(iii) striking pleadings in whole or in part;
interrogatory responses are nearly identical to her earlier version
and remain incomplete.
Having reviewed them, the court rules as
security number, is granted.
The plaintiff shall provide this
plaintiff's loss of income. For the first time since the defendant
requested this discovery in September 2013, the plaintiff states
that she no longer asserts a claim for lost income and therefore,
"should not be required to produce such information." (Doc. #41 at
2.) The day after oral argument, the plaintiff filed a stipulation
to this effect.
See doc. #44.
In view of the plaintiff's
(iv) staying further proceedings until the order is
(v) dismissing the action or proceeding in whole or in
* * *
(C) Payment of Expenses. Instead of or in addition to the
orders above, the court must order the disobedient party,
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
Plaintiff may provide this information
protective order or confidentiality agreement.
interrogatories 2 and 4.
Interrogatory 6 and Request for Production 16 seek medical
interrogatory 65 to seek the identity of physicians, hospitals or
other health care providers who rendered the plaintiff medical
advice, treatment, or services concerning (1) any orthopedic and/or
muscular problems and (2) treatment or counseling for any addiction
or psychological condition up to 10 years before the subject
Interrogatory 6, as modified by the defendant, and
production request 16, which seeks the corresponding records6, are
Interrogatory 7 is granted.
The plaintiff shall identify
"every person who has had possession of the vehicle."
Interrogatory 14 is granted.
The plaintiff shall specify
(1) the date of each communication; (2) the substance of each
communication; (3) the identity of the person(s) who were a party
The plaintiff did not interpose an objection to the initial
request in interrogatory 16, which was far more broad. See Fed. R.
Civ. P. 33(b)(4)("Any ground not stated in a timely objection is
waived unless the court, for good cause, excuses the failure.")
She did not provide a response at all to Request for Production 16.
The plaintiff said that she is amenable to executing releases
for the documents rather than obtaining the documents herself. In
addition, during oral argument, the plaintiff specifically agreed
to execute the "Yale" release sought by the defendant.
communications were written or oral; and (5) the name and address
of each person or entity in possession of any communication that
has been reduced to writing or recorded.
Interrogatory 16 is granted.
The plaintiff shall specify
(1) the date(s) of each such examination, inspection, analysis,
analysis, viewing, testing or appraisal; and (3) the name and
address of the person(s) currently in possession of any such
These are contention interrogatories,
which are permitted by Federal Rule of Civil Procedure 33(a)(2) and
serve "to discover the theory of the responding party's case."
1020742, *1 (D. Conn. Apr. 2, 2007). Such interrogatories "may ask
another party to indicate what it contends, to state all the facts
on which it bases its contentions, to state all the evidence on
which it bases its contentions, or to explain how the law applies
to the facts." Strauss v. Credit Lyonnais, S.A., 242 F.R.D. 199,
233 (E.D.N.Y. 2007).
Contention interrogatories can be a useful
Vidimos, Inc. v. Laser Lab Ltd., 99 F.3d
217, 222 (7th Cir. 1996).
The interrogatories are granted.
Interrogatory 25, which seeks various information about the
plaintiff's proposed expert(s), is granted.7
Plaintiff's answer to interrogatory 26 is responsive.
The plaintiff must provide her answers to each interrogatory
"separately and fully in writing under oath."
Requests for Production
Production requests 8, 12 and 13 are withdrawn by the moving
party in light of the fact that the plaintiff is no longer
asserting a claim for lost income.
Production requests 19 - 21: The plaintiff shall list the
documents she has produced to date and indicate whether she has
produced all responsive documents.
See also Fed. R. Civ. P.
26(e)(parties have an on-going duty to supplement or correct
disclosures or responses).
A district court may sanction a party who fails to comply with
a discovery order of that court, including dismissing the action in
whole or in part. See Fed. R. Civ. P. 37(b)(2)(A)(v).
Disciplinary sanctions under Rule 37 are intended to
'ensure that a party will not benefit from its own
failure to comply,' to obtain specific compliance and 'to
Unless otherwise ordered, a party intending to call an expert
witness must disclose a report signed by the witness containing the
information required to be disclosed by Fed. R. Civ. P. 26(a)(2)(B)
or (a)(2)(C), whichever applies.
According to the operative
scheduling order, plaintiff's experts must be disclosed by August
1, 2014, and be deposed on or before September 15, 2014. (Doc.
serve a general deterrent effect on the case at hand and
on other litigation.' Southern New England Telephone Co.
v. Global NAPs Inc., 624 F.3d 123, 149 (2d Cir. 2010). In
exercising its discretion to impose Rule 37 sanctions,
the court is guided by the following factors: (1) the
willfulness of the noncompliance; (2) the efficacy of
lesser sanctions; (3) the duration of the noncompliance;
and (4) whether the noncompliant party was warned that
further noncompliance could result in sanctions. Id. at
Dismissal under Rule 37 may be justified by a showing of
'willfulness, bad faith, or fault on the part of the
sanctioned party,' including 'gross negligence' in
following discovery orders. Southern New England
Telephone Co. v. Global NAPs, Inc., 251 F.R.D. 82, 90 (D.
Conn. 2008), aff'd, 624 F.3d 123 (2d Cir. 2010). 'While
a showing of prejudice to the moving party is not a
requirement for a dismissal under Rule 37, a court may
consider it in weighing the appropriateness of the
sanction.' Id. Dismissal is a drastic remedy generally
to be used only when the court has considered lesser
alternatives.' Southern New England Telephone Co., 624
F.3d at 144.
Kellogg v. J.C. Penney Corp., Inc., No. 3:11CV733(RNC)(DFM), 2013
WL 308985, at *2 (D. Conn. Jan. 25, 2013).
decision to impose sanctions . . . is uniquely within the province
of a district court, . . . any such decision [must be] made with
restraint and discretion." Mantell v. Chassman, Nos. 11–4799(L),
12–1101(con), 2013 WL 616379, at *1 (2d Cir. Feb. 20, 2013) (citing
Salovaara v. Eckert, 222 F.3d 19, 27 (2d Cir. 2000)).
The plaintiff's responses to the discovery requests were
As noted, the plaintiff's initial responses were both
defendant's first motion to compel and made no effort to supplement
her responses after the defendant filed the instant motion for
To make matters worse, the plaintiff then failed to
comply with the court's order.
During oral argument, plaintiff's
counsel did not attempt to muster a legal argument against the
The plaintiff's conduct has resulted in
unnecessary delay and expense.
That said, the extreme sanction of dismissal is not warranted.
Although the plaintiff's noncompliance has been protracted and
continued after counsel was warned that further noncompliance might
result in sanctions, it does not appear that either plaintiff or
her counsel acted willfully or in bad faith.
Plaintiff and her
counsel are now well aware of the precarious position in which
their noncompliance has placed the case.
Lesser sanctions should
determination of this action. See Fed. R. Civ. P. 1.
Pursuant to Rule 37(b)(2)(C), "the court must order the
disobedient party, 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."
plaintiff has failed to show substantial justification for her
actions or that imposing sanctions would be otherwise unjust, the
defendant is awarded its reasonable expenses, including attorney's
appropriate amount of fees to be imposed.
On or before May 30, 2014, plaintiff's counsel shall serve
All other deadlines remain in effect.
Plaintiff is cautioned that further noncompliance with any
court order may result in dismissal of her case with prejudice.
Fed. R. Civ. P. 37(b)(2)(A)(v), 41(b); Agiwal v. Mid Island Mortg.
Corp., 555 F.3d 298, 302 (2d Cir. 2009).
Plaintiff's counsel shall mail a copy of this ruling to his
SO ORDERED at Hartford, Connecticut this 16th day of May,
Donna F. Martinez
United States Magistrate Judge
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