LIMU Company, LLC v. Burling et al

Filing 45

ORDER granting 41 Motion to Compel; Defendants prohibited from supporting affirmative defenses. Signed by Magistrate Judge Thomas B. Smith on 6/28/2013. (KHH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
LIMU COMPANY, LLC,
Plaintiff,
v.

Case No: 6:12-cv-347-Orl-TBS

ANDREW BURLING and NANCY
BURLING,
Defendants.
ORDER
Pending before the Court is Plaintiff, LIMU Company, LLC’s, Motion to Compel for
Sanctions and for Contempt against Defendants. (Doc. 41).
Plaintiff propounded interrogatories and requests for production to Defendants who
did not provide a response. The discovery was directed in part, to Defendants’ affirmative
defenses including Requests for Production 4 and 7 (First Affirmative Defense); Request
for Production 10 and Interrogatories 7 and 8 (Second, Third, Fourth and Fifth Affirmative
Defenses).
Defendants also cancelled the deposition of Andrew Burling without providing any
explanation and the deposition of Nancy Burling with minimal explanation. Defendants
have not cooperated in the rescheduling of their depositions. Plaintiff filed a motion to
compel (Doc. 28), which this Court granted (Doc. 33). In its Order, the Court required
Defendants to answer the interrogatories in full and produce the requested documents
within 14 days. It also ordered Defendants to make themselves available for deposition
within 30 days from the rendition of the Order. Defendants did not obey the Court’s

Order. Plaintiff have now filed a second motion to compel (Doc. 41), to which Defendants
did not serve a response.
On June 25, 2013, the Court held a hearing and made findings on the record which
are incorporated into this Order. Defendants’ lawyer admitted that his clients had not
complied with the discovery rules or the Court’s order compelling discovery. The Court
inquired and was informed that Defendants had no explanation or excuse for their
conduct. Defendants did not claim ignorance of the law or the Court’s Order; they did not
claim there had been any misunderstanding; and they did not claim that they were unable
to comply with the discovery rules or the Court’s Order. The only explanation offered by
Defendants’ lawyer was that perhaps his clients did not appreciate the importance of
obeying the discovery rules and the Court’s Order.
At the hearing, counsel for Plaintiff asked the Court to strike Defendants’
affirmative defenses. The Court reserved on this issue to review case law and decide
whether striking Defendants’ affirmative defenses is appropriate under these
circumstances.
If a party does not comply with a court order, Rule 37(b)(2)(A) of the Federal Rules
of Civil Procedure provides that courts can issue sanctions, including:
(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;

(iv)

staying further proceedings until the order is obeyed;

(v)

dismissing the action or proceeding in whole or in part;

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(vi)

rendering a default judgment against the disobedient party; or

(vii)

treating as contempt of court the failure to obey any order except an order to
submit to a physical or mental examination.

To impose sanctions as extreme as striking a pleading or rendering a default
judgment, the Court must find willfulness, bad faith, or fault. See Broadcast Music, Inc. v.
Bourbon Street Station, Inc., 3:09-cv-468-J-25-MCR, 2010 WL 1141584 (M.D. Fla. Mar.
23, 2010). Simple negligence, misunderstanding, or inability to comply does not justify
imposing severe sanctions. Malautea v. Suzuki Motor Co., 987 F.2d 1536, 1542 (11th
Cir. 1993). It is not clear error for the Court to impose a severe sanction if the offending
party can provide no credible explanation for why the party did not comply with the
Court’s Order. United States v. One 32’ Scorpion Go-Fast Vessel, 339 F. App’x. 903, 905
(11th Cir. 2009) (citing Malautea, 987 F.2d at 1543).
Defendants have not provided any reasonable or legitimate explanation for their
conduct. Still, while the question is a close one, after due consideration, the Court finds
that striking Defendants’ affirmative defenses on this record would be too harsh a
sanction. Instead, the Court finds that Rule 37(b)(2)(A)(ii) provides the appropriate
sanction in this case. Accordingly, it is ORDERED that Defendants are prohibited from
supporting any of their affirmative defenses. This includes a prohibition against
Defendants introducing any evidence in support of their affirmative defenses.
DONE and ORDERED in Orlando, Florida on June 28, 2013.

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Copies furnished to Counsel of Record

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