Weichert v. E-Finance Call Center Support, LLC. et al

Filing 62

MEMORANDUM AND ORDER granting 22 Motion for Sanctions. Signed by Magistrate Judge Kenneth G. Gale on 11/14/14. (df)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MARGARET WEICHERT,

)
)
Plaintiff,
)
)
E-FINANCE CALL CENTER SUPPORT, )
LLC, et al.,
)
)
Defendants.
)
___________________________________ )

Case No. 13-2493-KHV-KGG

MEMORANDUM AND ORDER
GRANTING MOTION FOR SANCTIONS
Before the Court is Plaintiff’s motion to impose sanctions (Doc. 22) against
Defendants for failure to comply with this Court’s prior discovery Order (Doc. 15)
on Plaintiff’s underlying motion to compel (Doc. 13). Because Defendants failed
to comply with the Court’s Order, and because the failure was not substantially
justified, the Court finds that the imposition of sanctions is required.
Federal Rule of Civil Procedure 37(b)(2) addresses the imposition of
sanctions for failure to comply with a discovery order. Rule (37)(b)(2)(A) permits
the Court to select from a menu of sanctions for failure to comply with an order
compelling discovery under Rule 37(a). Rule 37(b)(2)(C) requires the Court to
impose reasonable expenses, including fees, on the “disobedient party” “unless the
failure was substantially justified or other circumstances make an award of

expenses unjustified.” As a result of the filing of the current motion, followed by
significant efforts by the Court and counsel, the substantive discovery defects have
been, or are being, resolved. The facts, however, require the Court to impose
sanctions against Defendants.
On September 5, 2014, this Court granted Plaintiff’s Motion to Compel
(Doc. 15). That motion requested the Court order compliance with discovery
requests which were overdue or for which responses were inadequate or
incomplete. Notably, Defendants did not file a response to that motion.
Notwithstanding that failure, the Court addressed the substance of the requests and
ordered specific relief. The Court ordered compliance within 30 days, or by
October 5, 2014. Defendants did not file any motions requesting additional time to
comply with that Order.
Plaintiff filed the present motion on October 9, 2014, claiming that the
Defendants had failed to comply with the underlying discovery Order. Plaintiff
requested various sanctions, including a contempt finding, an order compelling
Defendants to comply with the previous Order, extending the period allowed for
follow-up discovery, precluding Defendants from filing a Summary Judgment
Motion, and awarding specified fees. In response (Doc. 35), Defendants argued,
irrelevantly, that the Plaintiff’s case is without merit. Defendants asserted that
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various information had already been provided, or was being provided, and made
excuses for delays or failures to produce information.1 Plaintiff’s reply asserted
that additional discovery was provided after the filing of the motion for sanctions,
but that other discovery remained outstanding.
As a result of this dispute and the need to complete depositions, the parties
filed a joint motion to amend the Scheduling Order on October 22 (Doc. 41) ,
which was granted (Doc. 45) extending the discovery period approximately a
month. This resulted in the continuance of the trial date.
The Court held conferences or hearings on this matter on October 24,
October 27 and November 13, 2014. On October 27, the Court ordered counsel to
meet personally to resolve additional discovery issues, and file supplemental
reports, which the parties did on October 31 (Doc. 54) and November 4 (Doc. 56).
In her status report, Plaintiff continues to contend that some discovery has not been
provided. In the last conference with counsel, it now appears that the remaining
discovery has been, or will be, provided.
Plaintiff is not requesting additional orders compelling discovery, but does
request the imposition of fees as a sanction. As discussed in Plaintiff’s motion,

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Notwithstanding Defendants’ assertion that remaining issues should have been resolved
by conference before the motion was filed, the Court finds that the Plaintiff has met this Court’s
“meet and confer” requirements under D. Kan. Rule 37.2.
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Rule 37(b)(2) provides that if a party fails to obey an
order to provide discovery under Rule 37(a), the Court
‘may make such orders in regard to the failure as are
just . . . .’ Rule 37(b)(2) sets forth possible sanctions,
including orders that certain facts be taken as established
or evidence excluded, that claims or defenses be
unopposed or pleadings struck, that reasonable expenses
caused by the recalcitrant party be paid, and that the party
be held in contempt.
In determining which sanctions should be imposed, the
Court must consider the purposes to be served by the
imposition of sanctions. In White v. General Motors
Corp., 908 F.2d 675, 683 (10th Cir. 1990), cert. denied,
498 U.S. 1069, 111 S. Ct.788, 112 L.Ed.2d 850 (1991),
the Tenth Circuit outlined those purposes as including (1)
deterring future litigation abuse, (2) punishing present
litigation abuse, (3) compensating victims of litigation
abuse, and (4) streamlining court dockets and facilitating
case management. The primary goal of sanctions is to
deter misconduct.
Law v. National Collegiate Athletic Ass'n, 167 F.R.D. 464, 478 (D. Kan. 1996).
Notwithstanding Defendants’ protestations, it is clear from what has been
presented to the Court that Defendants made an inadequate effort to comply with
either the original requests or this Court’s Order until the present motion for
sanctions was filed. Since that date, the parties have worked together, but Plaintiff
has been forced to pry each response from Defendants, with and without this
Court’s assistance. Defendants have faced some challenges in providing certain
information in a timely manner, but have not filed an appropriate motion
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requesting additional time. A great deal of time and effort has been spent
achieving a result which should have been accomplished even before the initial
uncontested motion to compel. Under these facts, the Court’s imposition of
expenses under Rule 37 is mandatory.
In her motion, Plaintiff requested an award of attorney fees in the amount of
$4,800, representing the time spent on Plaintiff’s motion to compel and the current
motion for sanctions. The amount or basis of this claim is not contested by
Defendants. Additionally, the Court notes that Plaintiff has not updated her
demand to include time spent on this matter after the filing of the present motion.
Under these circumstances, the Court finds the requested amount reasonable and
appropriate.
The Plaintiff’s Motion (Doc. 22) is GRANTED. Plaintiff is awarded
judgment for attorney fees against Defendants in the amount of $4,800.
IT IS THEREFORE ORDERED that Plaintiff’s Motion for Sanctions
(Doc. 22) is GRANTED.
IT IS SO ORDERED.
Dated at Wichita, Kansas, on this 14th day of November, 2014.
S/ KENNETH G. GALE

KENNETH G. GALE
United States Magistrate Judge
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