United States Of America v. JEAN

Filing 24

ORDER AND OPINION GRANTING MOTION TO STRIKE ANSWERgranting 22 Motion to Strike ; denying as moot 23 Motion for Extension of Time. Signed by Judge Kenneth A. Marra on 2/25/2016.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO.: 15-80492-CIV-MARRA/MATTHEWMAN
UNITED STATES OF AMERICA,
Plaintiff,
v.
PAUL JEAN, individually
and doing business as
WHIZ TAX, LLC, and REJOICE
SERVICES & TAX, INC.,
Defendants.
__________________________/
ORDER AND OPINION GRANTING MOTION TO STRIKE ANSWER
THIS CAUSE is before the Court upon the United States’ Motion to Strike
Answer and Application for Entry of Default [DE 22] filed on January 8, 2016, and
Motion to Extend Summary Judgment Deadline [DE 23] filed on February 2, 2016. The
Court has carefully considered the motions and is otherwise fully advised in the
premises. Defendant Paul Jean has not responded to either motion and the time for
doing so has expired.
Background
On October 21, 2015, the United States filed a motion to compel defendant
Paul Jean to serve initial disclosures and respond to discovery requests. DE 17.
Shortly afterward, the Court granted the United States’ motion and ordered the
defendant to serve his initial disclosures and respond to the discovery requests at
issue on or before November 12, 2015. DE 19. The United States provided Mr. Jean

with a copy of the order and an additional copy of the discovery requests by e-mail
on November 4, but defendant failed to serve either his initial disclosures or
discovery responses. On November 9, counsel for the government then conferred
with defendant by telephone regarding the Court’s order and his discovery
obligations. At that time, Mr. Jean asked the United States to send him documents
that would allow him to stipulate to a permanent injunction. Counsel for the United
States sent the proposed documents on November 10, but the defendant has not
responded or provided any additional communication.
Discussion
Under Federal Rule of Civil Procedure 37(d)(1)(A)(ii), a Court may award
sanctions when “a party, after being properly served with interrogatories under Rule
33 ... fails to serve its answers, objections, or written response.”• The type of
sanctions available include any of the orders listed in Rule 37(b)(2)(A)(i)-(vi).1 Under
Rule 37(b)(2)(A)(iii) and (vi), the Court may strike a pleading and render a default
judgment against the disobedient party. While the Rule gives the Court broad
discretion to fashion appropriate remedies, the severe sanctions sought by the
government require a finding of willful or bad faith failure to comply with discovery

1

Instead of or in addition to these sanctions, the court must require the party
failing to act, 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. Fed.
R. Civ. P. 37(d)(3).
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requests as well as a finding that lesser sanctions are insufficient to deter the
complained of conduct. Malautea v. Suzuki Motor Co., Ltd., 987 F.2d 1536, 1542
(11th Cir. 1993); Rasmussen v. Central Florida Council Boy Scouts of America, Inc.,
412 F.App’x 230, 232 (11th Cir. 2011). Further, striking pleadings and entering
default judgment is not an appropriate discovery sanction in “the absence of either a
motion to compel ... or an order of the court compelling discovery.”• U.S. v. Certain
Real Property Located at Route 1, Bryant, Ala., 126 F.3d 1314, 1318 (11th Cir. 1997).
As stated above, a motion to compel was granted in this matter.
While courts have noted that “the severe sanction of dismiss or default
judgment is appropriate only as a last resort,” Malautea v. Suzuki Motor Co., Ltd.,
987 F.2d 1536, 1542 (11th Cir. 1993) (citing Navarro v. Cohan, 856 F.2d 141, 142 (11th
Cir. 1988)), such sanctions are warranted here where Mr. Jean has willfully failed to
respond to discovery, even though ordered by the Court to do so. Moreover, Mr. Jean
clearly expressed his desire to abandon his defense of this case in his most recent
discussion with the United States. In view of Mr. Jean’s willful, intentional and
contemptuous conduct, no lesser sanction would suffice.
Accordingly, the United States’ request that the defendant’s Answer be
stricken and that default be entered against him by the clerk pursuant to Rule 55(a)
of the Federal Rules of Civil Procedure [DE 22] is granted. The Clerk is directed to
strike defendant’s Answers at DE 8 and 9 and enter a Clerk’s default against Paul
Jean. The United States has 60 days from the date of this Order to move for a
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default judgment and entry of permanent injunction. As to the government’s request
that the summary judgment deadline be extended to a date to be set after the final
resolution of the currently pending Motion to Strike Answer and application for entry
of default, that motion is denied as moot [DE 23].
DONE AND ORDERED in Chambers at West Palm Beach, Palm Beach County,
Florida, this 25th day of February, 2016.

_________________________
KENNETH A. MARRA
United States District Judge

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