Great Plains Theatre Foundation, Inc. et al v. Ward Manufacturing, Inc.

Filing 47

MEMORANDUM AND ORDER denying 41 Motion for Discovery Sanctions. See Order for details. Signed by Magistrate Judge Gwynne E. Birzer on 4/3/18. (rel)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

GREAT PLAINS THEATRE
FOUNDATION, INC. and GREAT
PLAINS THEATRE FESTIVALS
COMPANY,
Plaintiffs,

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v.
WARD MANUFACTURING, LLC
Defendant.

Case No. 16-1028-JTM-GEB

MEMORANDUM AND ORDER
This matter is before the Court on Plaintiffs’ Motion for Discovery Sanctions
(Motion) (ECF No. 41). Defendant responded to Plaintiffs’ Motion on March 21, 2018.
(ECF No. 44). On March 27, 2018, at the request of Defendant, the Court convened the
parties to address the Motion. Plaintiffs appeared through counsel, Marc A. Powell.
Defendant appeared through counsel, Mark A. Katz. After consideration of both the
arguments of counsel and the parties’ briefing, the Court DENIED Plaintiffs’ Motion. (See
Order, ECF No. 46). The previously-announced ruling of the Court is now memorialized
below.

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I.

Background1

This case arises out of a 2014 fire that substantially destroyed the Great Plains Theatre
in Abilene, Kansas. (ECF No. 4, ¶ 5). The Great Plains Theatre building and its contents
were owned by Plaintiffs. (Id. at ¶ 6). Plaintiffs assert their building was destroyed when
Defendant’s product, Wardflex, was perforated by lightening, resulting in the escape of
natural gas and the subsequent fire. (ECF No. 44, p.1). Wardflex is corrugated stainless
steel tubing (CSST) that can be used to convey natural gas (among other things) from one
point to another in a structure. (Id.). Plaintiffs’ causes of action against Defendant are
strict product liability, breach of express and implied warranties, and negligence. (ECF
No. 4, ¶¶ 12-28). Defendant denies liability. (ECF No. 5).
Plaintiffs filed their Complaint on January 30, 2016 (ECF No. 1) and amended it on
February 27, 2016 (ECF No. 4), to which Defendant timely answered (ECF No. 5). On
April 28, 2016, the Court held a scheduling conference and entered a Scheduling Order
setting discovery and other deadlines. (ECF No. 10). From April 28, 2016 to the present,
the Court has revised the Scheduling Order four times, due to circumstances beyond the
control of the parties, but largely due to issues with Plaintiffs’ experts. (See ECF Nos. 23,
30, 35, 36, and 40).

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The information recited in this section is taken from various pleadings and orders in this case.
This background information should not be construed as judicial findings or factual determinations
unless specifically stated.

2

On February 28, 2018, Plaintiffs filed the present Motion. (ECF No. 41). Defendant
responded on March 21, 2018 (ECF No. 44) and requested a conference with the Court to
discuss the same. The Court accordingly convened the parties on March 27, 2018.
II.

Plaintiffs’ Motion for Discovery Sanctions
Plaintiffs’ Motion centers around Defendant’s failure to: (1) respond to Plaintiffs’

ten discovery requests, which have been pending for approximately one year and (2) pay
Plaintiffs’ expert witnesses’ outstanding deposition invoices, totaling in excess of
$10,000.00. Citing Fed. R. Civ. P. 37(b)(2), Plaintiffs ask the Court to impose the
following sanctions: (1) direct the opinions of Plaintiffs’ experts on the origin and cause
of the fire to be taken as established facts; (2) prohibit Defendant from using any of its
expert witnesses at trial; (3) strike Defendant’s pleadings pertaining to its defenses on the
cause of the fire; (4) double the amount of funds owed to Plaintiffs for their outstanding
expert witness fees; and (5) award attorney fees to Plaintiffs’ counsel for bringing this
Motion.
Defendant argues since Plaintiffs’ Motion was filed, all experts have been paid.
Defendant also advises the Court of several challenges in responding to Plaintiffs’
discovery requests, including technical difficulties in converting electronically stored
information (ESI) into a usable format. Nevertheless, Defendant committed to providing
complete discovery responses no later than April 27, 2018. (See Order, ECF No. 46).

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A.

Legal Standard

While Rule 37(b)(2) authorizes sanctions, the Court has discretion in deciding to
impose them.2 The Court’s discretion, however, is limited in that any sanction “must be in
the interests of justice and proportional to the specific violation of the rules.” 3 Sanctions
under Rule 37 are intended to ensure a party does not benefit from its failure to comply,
and to deter others from similar conduct in the absence of such a deterrent.4
B.

Discussion Regarding Imposing Sanctions

Imposing the first three of Plaintiffs’ requested sanctions would amount to a default
judgment against Defendant. The Court should refrain from imposing harsh sanctions,
such as dismissal or its equivalence, for a discovery violation, except when the violation is
“predicated upon ‘willfulness, bad faith, or [some] fault . . . rather than inability to
comply.”5 After reviewing the briefings and based on Defendant’s arguments justifying
the delay in responding to the discovery requests, the Court does not believe Defendant or

See, e.g., Kiely v. Shores Grp., Inc., 160 F.R.D. 159, 160 (D. Kan. 1995) (“Whether or not to
impose sanctions lies within the discretion of the court.”) (citing National Hockey League v.
Metropolitan Hockey Club, 427 U.S. 639, 642, 96 S.Ct 2778, 49 L.Ed.2d 747 (1976)).
3
Cardenas v. Dorel Juvenile Grp., Inc., No. CV.A.04-2478 KHV-DJW, 2006 WL 1537394, at *5
(D. Kan. June 1, 2006) (quoting Olcott v. Delaware Flood Co., 76 F.3d 1538, 1557 (10th
Cir.1996)).
4
Kindergartners Count, Inc. v. DeMoulin, 209 F.R.D. 466, 468 (D. Kan. 2002).
5
Starlight Int'l Inc. v. Herlihy, 186 F.R.D. 626, 647 (D. Kan. 1999) (quoting Archibeque v.
Atchison, Topeka & Santa Fe Rwy., 70 F.3d 1172, 1174 (10th Cir.1995) (quoting National Hockey
League, 427 U.S. at 640)). See also Am. Contractors Indemn. Co. v. Atamian, No. CIV.A. 082586JWLGLR, 2010 WL 3862034, at *4 (D. Kan. Aug. 6, 2010) (“The Tenth Circuit has stated
that it does not favor default judgments because the court's power is used to enter and enforce
judgments regardless of the merits of the case.”) (citing Ruplinger v. Rains, 946 F.2d 731, 733
(10th Cir.1991)).
2

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its counsel acted willfully or in bad faith, and will decline to impose these sanctions.6
However, the Court reminds Defendant and its counsel that failure to fully answer
Plaintiff’s outstanding discovery requests by April 27, 2018 will be considered a direct
violation of the Court’s orders and imposition of sanctions will be re-examined. The Court
also declines to impose the fourth requested sanction because Defendant has paid the
outstanding expert invoices.
Similarly, the Court declines to award attorney fees to Plaintiffs’ counsel for this
Motion. Rule 37(b)(2)(C) states in addition to or instead of ordering sanctions, 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.”7 The
Court, based on Defendant’s explanations of the ESI and other issues in responding to
Plaintiff’s discovery, finds substantial justification exists, making an award of fees unjust.8
Additionally, Defendant has committed to providing complete discovery responses by
April 27, 2018, which will not further substantially delay the case or prejudice Plaintiffs.
The Court also notes deadlines in the case were previously revised on several occasions to

6

See, e.g., Cardenas, 2006 WL 1537394, at *6 (refusing to impose sanctions amounting to a default
judgment because failure to produce discovery was not the result of willfulness or bad faith).
7
See also id. at *5 (“An award of fees and expenses is mandatory unless the court finds that the
noncompliance was substantially justified or that other circumstances would make an award of
expenses unjust.”).
8
See, e.g., Mora v. Dobler, No. 04-2477 JWLDLW, 2006 WL 3021120, at *3 (D. Kan. Oct. 23,
2006) (denying request for attorney fees and expenses where defendant had excusable issues
preventing it from responding to outstanding discovery requests).

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accommodate Plaintiffs when unexpected circumstances arose, including health issues of
one of their experts.
IT IS THEREFORE ORDERED that Plaintiffs’ Motion for Discovery Sanctions
(ECF No. 41) is DENIED. Parties and their counsel are further directed to comply with
the deadlines outlined in the Court’s March 27, 2018 Order (ECF No. 46).
IT IS SO ORDERED.
Dated at Wichita, Kansas this 3rd day of April, 2018.

s/ Gwynne E. Birzer
GWYNNE E. BIRZER
United States Magistrate Judge

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