Center for Individual Rights v. Chevaldina

Filing 264

ORDER granting in part and denying in part 235 Plaintiff's Motion for Default Judgment. Signed by Magistrate Judge Edwin G. Torres on 8/22/2018. See attached document for full details. (js02)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 16-20905-Civ-KING/TORRES
CENTER FOR INDIVIDUAL RIGHTS,
Plaintiff,
v.
IRINA CHEVALDINA,
Defendant.
___________________________________________/
ORDER ON PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT
This matter is before the Court on the Center for Individual Rights’
(“Plaintiff” or “CIR”) motion for default judgment against Irina Chevaldina
(“Defendant” or “Chevaldina”). [D.E. 235]. Chevaldina responded on July 9, 2018
[D.E. 242] to which Plaintiff replied on July 16, 2018.

[D.E. 245].

Therefore,

Plaintiff’s motion is now ripe for disposition. After careful review of the motion,
response, reply, relevant authorities, and for the reasons discussed below, Plaintiff’s
motion for default judgment is DENIED.
I. BACKGROUND
This is an action for breach of contract. The complaint – filed on March 11,
2016 [D.E. 1] – alleges that Plaintiff represented Chevaldina pro bono in an appeal
before the 11th Circuit in Katz v. Google, Appeal No. 14-14525, in which the
Eleventh Circuit affirmed summary judgment in favor of Chevaldina in a copyright

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infringement action.1 See Katz v. Google, Inc., 802 F.3d 1178 (11th Cir. 2015), aff’g,
Katz v. Chevaldina, 12-cv-22211, 2014 WL 5385690 (S.D. Fla. Sept. 5, 2014).
Plaintiff alleges that Chevaldina had few financial obligations under the retainer
agreement in that case and that Plaintiff paid the out of pocket expenses of the suit.
Plaintiff contends that it only asked Chevaldina for (1) reasonable attorney fees and
expenses as permitted under law, and (2) that Chevaldina provide Plaintiff with
any fees or expenses that were attributable to Plaintiff’s expenditures and/or the
work of its attorneys. If Chevaldina decided to settle the case, Plaintiff alleges that
Chevaldina was also obligated to provide Plaintiff with a reasonable amount in
attorney’s fees and expenses.
In December 2015 – while being represented by another attorney –
Defendant settled all the remaining claims in the Katz case. In the settlement,
Plaintiff claims that Defendant obtained only $10,000 in attorneys’ fees for the work
of Plaintiff’s attorneys as well as both taxable and non-taxable costs.

Shortly

thereafter, Plaintiff sought to challenge the fee award in the Eleventh Circuit, but
Defendant allegedly instructed Plaintiff to withdraw its motion and Plaintiff
reluctantly complied. Therefore, Plaintiff suggests that Defendant did not obtain a
reasonable amount in attorneys’ fees for the work of Plaintiff’s attorneys and that
Defendant breached the retainer agreement.

In exchange for the low sum of

$10,000 in attorneys’ fees, Plaintiff alleges that Chevaldina agreed with Katz to
drop a substantial claim against Chevaldina in excess of $100,000.

Because

Plaintiff is a public interest law firm organized under the laws of the District
of Columbia.
1

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Plaintiff alleges that it has been deprived of a reasonable attorney fee award,
Plaintiff seeks judgment against Chevaldina in an amount of no less than $105,000
– including reasonable costs and expenses in accordance with 28 U.S.C. § 1920.
II. ANALYSIS
Plaintiff’s motion seeks default judgment against Chevaldina on CIR’s breach
of contract claim for her repeated disobedience of the Court’s discovery orders.2
Plaintiff’s motion relates back to November 30, 2017, when CIR served its second
request for the production of documents.

In this request, CIR sought (1) all

cancelled checks or other evidence of payment to Gelbert, Schacter, and Greenberg,
P.A. (“GSG”), and (2) all bills from GSG for its representation of Chevaldina in state
court. Chevaldina objected to these requests and did not produce any documents.
[D.E. 205]. While Chevaldina conceded that GSG was the law firm that previously
represented her, she claimed that the items requested were protected under the
attorney-client privilege and that she did not have any non-privileged responsive
documents to produce. As such, CIR filed a motion to compel.
On May 30, 2018, we granted CIR’s motion to compel and ordered Chevaldina
to provide a better response within fourteen days.

We determined that

Chevaldina’s objections were boilerplate in nature and that “Plaintiff’s theory of
how and why Chevaldina breached the retainer agreement is reasonable given the
facts presented.” [D.E. 205]. Chevaldina served her amended responses on June
13, 2018.

Plaintiff claims that these responses were inadequate because the

Alternatively, CIR moves for any other appropriate sanction under Rule 37
and the opportunity to subpoena GSG and any bank whose checks Chevaldina used
to pay GSG.
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discovery order required Chevaldina to provide a better response in relation to the
state court litigation – not the federal copyright case. Because Chevaldina stated
that she has no responsive documents for GSG’s representation of Chevaldina in the
federal

copyright

case,

Plaintiff

concludes

that

Chevaldina’s

response

is

meaningless and that her conduct should be sanctioned under Rule 37.
In response to Plaintiff’s attempt to confer, Chevaldina replied that she does
“not have any responsive documents in [her] possession and control other than
[what has] already [been] produced in response to CIR’s request 1-2.” [D.E. 235-2].
Plaintiff claims that this is obviously false because Chevaldina has never stated
that she does not have any responsive documents to CIR’s actual request (which
relates to the state court litigation), but that she has no documents related to the
federal copyright litigation. Plaintiff also argues that Chevaldina has total control
over the documents requested and that they would be produced if she would merely
direct GSG to release them. Despite Plaintiff’s attempts to confer and explain to
Chevaldina that the documents sought relate to the state court case, CIR claims
that Chevaldina continues to assert that she has no documents in relation to the
federal copyright case. Plaintiff speculates that Chevaldina is deliberately engaging
in gamesmanship to avoid producing the items requested and that she is
intentionally disobeying a Court order.

As such, Plaintiff concludes that

Chevaldina should be sanctioned for her failure to produce any documents in
response to requests 1-2.

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A District Court has broad discretion under Rule 37 to impose sanctions for
failing to comply with a Court order. See Dorey v. Dorey, 609 F.2d 1128, 1135 (5th
Cir. 1980); 8 C. Wright & A. Miller, Federal Practice and Procedure § 2283 (1970).
This discretion, however, is not without limits.

It should be exercised

discreetly, and the sanctions imposed should be “no more drastic than those
actually required to protect the rights of other parties . . . .” Diaz v. Southern
Drilling Corp., 427 F.2d 1118, 1126 (5th Cir. 1971). To impose sanctions under Rule
37, the Court need only find that the misconduct was not substantially justified or
that sanctions would be unjust.
Unlike sanctions against an attorney through 28 U.S.C. § 1927 or the Court’s
inherent power, in which the court must make a finding of “bad faith,” see Amlong
& Amlong, P.A. v. Denny's, Inc., 500 F.3d 1230, 1260 (11th Cir. 2006); Thomas v.
Tenneco Packaging Co., 293 F.3d 1306, 1320 (11th Cir. 2002), Rule 37 has no such
requirement. See Devaney v. Continental American Ins. Co., 989 F.2d 1154 (111th
Cir. 1993) (rejecting the argument “that Rule 37 requires the court to make a
finding of bad faith before it may impose sanctions upon an attorney”). Instead,
“the 1970 amendments [to Rule 37] were specifically enacted to eliminate the
possibility that a bad faith requirement would be read into the rule, and they
contain no suggestion that bad faith should remain a prerequisite when an
attorney, as opposed to a client, is subjected to sanctions.”

Id. at 1162; see

also Carlson

Cir.

v.

Bosem,

2007

WL

1841067,

at

*2

(11th

June

28,

2007) (“Defendants’ contention that the district court was required to find that Dr.

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Bosem and his lawyer had acted in bad faith before ordering sanctions against them
is also without merit.”) (citing Devaney, 89 F.2d at 1162); Jones v. Int'l Riding
Helmets, Ltd., 49 F.3d 692, 695 (11th Cir. 1995) (“If the attorney failed to make a
reasonable inquiry, then [under Rule 11] the court must impose sanctions despite
the attorney’s good faith belief that the claims were sound.”).
“[T]he decision to enter a default judgment[] ought to be a last resort-ordered
only if noncompliance with discovery orders is due to willful or bad faith disregard
for those orders.” Cox v. Am. Cast Iron Pipe Co., 784 F.2d 1546, 1556 (11th Cir.
1986) (alteration added); Malautea v. Suzuki Motor Co. Ltd., 987 F.2d 1536, 1542
(11th Cir. 1993).

“Violation of a discovery order caused by simple negligence,

misunderstanding,

or

inability

to

comply

will

not

justify

a

Rule

37 default judgment or dismissal.” Malautea, 987 F.2d at 1542. Moreover, as a
sanction, default judgment is appropriate only “‘when less drastic sanctions would
not ensure compliance with the court’s orders.’” In re Sunshine Jr. Stores, Inc., 456
F.3d

1291,

1306

(11th

Cir.

2006) (quoting Malautea, 987

F.2d

at

1542). Nevertheless, “a default sanction may be proper even when not preceded by
the imposition of lesser sanctions. When lesser sanctions would be ineffective, Rule
37 does not require the vain gesture of first imposing those ineffective lesser
sanctions.” Malautea, 987 F.2d at 1544.
After a thorough review of the arguments presented, we are unpersuaded
that Plaintiff is entitled to default judgment on its breach of contract claim. The
Eleventh Circuit has consistently found that Rule 37 sanctions – such as dismissal

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or entry of default judgment – are only appropriate “where the party’s conduct
amounts

to

flagrant

disregard

and

willful

disobedience of

discovery

orders.” Buchanan v. Bowman, 820 F.2d 359, 361 (11th Cir. 1987) (internal
quotation marks omitted); see also Wouters v. Martin Cty., Fla., 9 F.3d 924, 933
(11th Cir. 1993) (“We have consistently held that while district courts have broad
powers under the rules to impose sanctions for a party's failure to abide by court
orders, dismissal is justified only in extreme circumstances and as a last resort.”)
(emphasis added); Cox v. Am. Cast Iron Pipe Co., 784 F.2d 1546, 1556 (11th Cir.
1986) (“The decision to dismiss a claim, like the decision to enter default judgment,
ought to be a last resort—ordered only if noncompliance with discovery orders is due
to willful or bad faith disregard for those orders.”) (emphasis added); Adolph Coors
Co.

v.

Movement

Against

Racism, 777

F.2d

1538,

1542

(11th

Cir.

1985) (same); Malautea, 987 F.2d at 1542 (“[A] default judgment sanction requires a
willful or bad faith failure to obey a discovery order . . . Violation of a discovery
order caused by simple negligence, misunderstanding, or inability to comply will not
justify

a Rule 37 default judgment or

dismissal.”)

(emphasis

added)

(citation

omitted).
While Plaintiff suggests that Chevaldina meets this standard, that
contention relies on nothing more than speculation of Chevaldina’s refusal to
produce documents. If anything, the most reasonable inference is that Chevaldina,
as a pro se defendant, misunderstood the discovery request at the time she
responded to Plaintiff’s requests for production.

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As such, Plaintiff’s motion for

default judgment is DENIED because there is little to no support for a sanction of
that magnitude.
As for Plaintiff’s request for an appropriate lesser sanction, we find that this
request is also unavailing. During their conferral emails, Chevaldina responded to
Plaintiff on June 15, 2018 to make clear that she does not have any responsive
documents in her possession and control other than the items already produced.
[D.E. 242]. Chevaldina also sent a second email a few hours later to clarify that
“she does not have [the] requested documents in her possession, custody, or control.”
Id. And both emails were sent after Plaintiff explained the nature of the documents
requested.3 Therefore, Plaintiff’s motion for a lesser sanction is also DENIED.
Although Chevaldina does not have any documents in her possession or
control, the items Plaintiff seeks should certainly be within the custody and control
of GSG. And it is well settled that the billing and fee information that Plaintiff
seeks is not privileged. See Gold Coast Prop. Mgmt., Inc. v. Valley Forge Ins. Co.,
2010 WL 9871643, at *5 (S.D. Fla. Jan. 26, 2010) (“Billing and fee payment
There is nothing improper about a discovery response that asserts that a
document does not exist and courts have uniformly adhered to this position. See
Tequila Centinela, S.A. de C.V. v. Bacardi & Co., 242 F.R.D. 1, 12 (D.D.C. 2007)
(declining to compel production where party objected “on the basis that it believes
no [responsive] document to exist [and] . . . [i]f a document is not in the possession,
custody or control of a party, then it clearly cannot be turned over.”); Bank of N.Y. v.
Meridien BIAO Bank Tanzania Ltd., 171 F.R.D. 135, 152 (S.D.N.Y. 1997) (“Under
ordinary circumstances, a . . . good faith averment that the items sought simply do
not exist, or are not in his possession, custody or control, should resolve the issue of
failure of production . . . .”) (citation omitted); 4 Wright & Miller, Federal Practice &
Procedure: Civ. 2d § 2213 (2d ed. 1994) (noting that nothing more is required in
responding to discovery request than response “saying that a particular document is
not in existence or that it is not in the responding party's possession, custody, or
control”).
3

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information is likewise not protected.”) (citing Universal City Dev. Partners, Ltd. v.
Ride & Show Eng’g, Inc., 230 F.R.D. 688, 691 (M.D. Fla. 2005); Finol v. Finol, 869
So. 2d 666 (Fla. 4th DCA 2004) (finding that billing information that does not reveal
mental impressions and opinions of counsel is not privileged); P. & B. Marina, Ltd.
P’ship v. Logrande, 136 F.R.D. 50, 55 (E.D.N.Y.1991) (finding that request to pay
fees and attached statement of fees was not privileged)). Therefore, GSG, as an
agent of Chevaldina, is directed to produce all the items requested during the
relevant period within seven (7) days from the date of this Order.4 To this extent,
Plaintiff’s motion is GRANTED, and in all other respects the motion is DENIED.
III. CONCLUSION
For the foregoing reasons, Plaintiff’s motion for default judgment, or any
other sanction under Rule 37 is GRANTED in part and DENIED in part as set
forth above. [D.E. 235].
DONE AND ORDERED in Chambers at Miami, Florida, this 22nd day of
August, 2018.
/s/ Edwin G. Torres
EDWIN G. TORRES
United States Magistrate Judge

Plaintiff shall serve this Order on GSG and confer on the items requested
prior to any production. To the extent that any of the documents have not already
been produced, GSG shall comply with this Order.
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