Johnson v. Peters
MEMORANDUM AND ORDER granting in part and denying in part 48 Motion to Hold Defendant and Defendant's Counsel in Contempt. The Court finds entering default judgment against Defendant to be a more appropriate sanction. The Court will have a h earing, to subsequently be set, determining the damages that Plaintiff is to be awarded. The parties are also advised that this case has been set for a telephone status conference; the parties will receive an additional notice regarding that telephone conference. Signed by Magistrate Judge Kenneth G. Gale on 7/16/21. (df)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
Case No. 20-1192-KGG
MEMORANDUM & ORDER GRANTING MOTION FOR ATTORNEY
FEES AND ENTERING DEFAULT JUDGMENT AGAINST DEFENDANT
Now before the Court is Plaintiff’s Motion to Hold Defendant and
Defendant’s Counsel in Contempt. (Doc. 48) Having reviewed the submissions of
the parties, this Court GRANTS in part and DENIES in part Plaintiff’s Motion.
Pursuant to Fed.R.Civ.P. 37(b)(2)(A), the Court finds entering default judgment
against the Defendant to be a more appropriate sanction. The Court will have a
hearing to determine the damages that Plaintiff is to be awarded.
Plaintiff Jayden Johnson brings this claim against Defendant Abraham
Peters asserting claims for breach of contract and fraud regarding the sale of a
2007 Peterbilt 397 truck (“Truck”). (See generally Doc 1.) This instant motion
arises from Defendant’s repeated failure to comply with Plaintiff’s discovery
requests and this Court’s Orders. Plaintiff sought from Defendant: (i) a response to
Plaintiff’s Interrogatories, (ii) Requests for Production, and (iii) Defendant’s tax
Plaintiff’s Interrogatories sought information regarding where the truck was
purchased, all repairs made to the truck, and all email addresses and phone
numbers Defendant has had since February 1, 2020. ( Doc. 48, Ex. 1 at 4.)
Plaintiff’s Requests for Production sought all documents regarding the purchase of
the truck, the history of the truck, any inspections or repairs performed on the
truck, and all texts, emails, or messages sent to or received from Defendant’s son
regarding the truck. (Id.)
Defendant did not respond by the December 21, 2020 deadline, and on
December 30, 2020 Plaintiff filed a motion to compel. (Doc. 19) On January 22,
2021, the Court entered an Order granting Plaintiff’s Motion to Compel. (Doc. 23)
Defendant did not comply with the Court’s January 22, 2021 Order, and on
February 22, 2021 Plaintiff filed a Notice of Non-Compliance with Order. (Doc.
Defendant’s non-compliance was discussed at the April 13, 2021 Pretrial
Conference. Following the Pretrial Conference, the Court entered an Agreed Order
IT IS THEREFORE ORDERED that Defendant,
Abraham Peters, shall serve written responses on
Plaintiff’s counsel that fully respond to Plaintiff’s
Interrogatories and Requests for Production, without
objection, pursuant to all applicable Federal Rules of
Civil Procedure no later than May 20, 2021.
IT IS FURTHER ORDERED that Defendant, Abraham
Peters, shall produce all documents responsive to
Plaintiff’s Requests for Production that are in his
possession, custody or control no later than May 20,
IT IS FURTHER ORDERED that Defendant’s counsel of
record shall provide Plaintiff with a detailed certification
regarding the methods and efforts utilized by Defendant
to identify, locate and obtain all documents responsive to
Plaintiff’s Requests for Production no later than May 20,
(Doc. 45) Defendant failed to comply with the Agreed Order, and as a result,
Plaintiff has not received the requested discovery responses from Defendant.
(Doc. 48, at 3.)
Fed.R.Civ.P. 37(b) provides, in pertinent part, that
[I]f a party or a party’s officer, director, or managing
agent—or a witness designated under Rule 30(b)(6) or
31(a)(4)—fails to obey an order to provide or permit
discovery, including an order under Rule 26(f), 35, or
37(a), the court where the action is pending may issue
further just orders. They may include the following:
(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.
Fed.R.Civ.P. 37(b)(2)(A)(vi)-(vii). If a party fails to comply with discovery
requests, then the court may issue further just orders. Duarte v. PPG Indus., Inc.,
No. 09-1366-JTM, 2011 WL 1097799, at *1 (D. Kan. 2011). Simply put, a party
must comply with the discovery process to avoid sanctions. Am. Power Chassis,
Inc. v. Jones, No. 13-4134-KHV, 2018 WL 4409434, at *8 (D. Kan. 2018)
(holding that “[r]epeated failures to answer discovery requests . . . or obey court
orders justify default judgment as a sanction under Rule 37(b)(2) and (d), Fed. R.
Civ. P.”) The Court will review five factors before imposing default judgment as a
sanction under Fed.R.Civ.P. 37(b):
The degree of actual prejudice to plaintiff;
The amount of interference with the judicial
The culpability of the litigant;
Whether the Court warned defendant in advance
that default judgment would be a likely sanction
for non-compliance; and
The efficacy of lesser sanctions.
Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir. 1992) (citations omitted).
Federal Rule of Civil Procedure 37(b)(2)(C) governs when attorney’s fees
can be awarded and provides that:
[I]nstead of or in addition to the orders above, 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.
Plaintiff requests that this Court hold Defendant and Defendant’s counsel in
contempt. Plaintiff argues that this sanction is just because “[P]laintiff’s rights
[have been] substantially prejudiced by the failures of Defendant and Defendant’s
counsel to comply with this Court’s Orders.” (Doc. 48, at 1.) Plaintiff claims
Defendant has failed to answer Plaintiff’s Interrogatories and has failed to comply
with the deadlines set by this court regarding the Motion to Compel and the
Agreed Order. (Id., at 2-3.)
Plaintiff asserts that Defendant should not be rewarded by his complete
refusal to cooperate in discovery. (Id., at 3.) Plaintiff states that contempt is
appropriate because it would punish Defendant and his counsel and discourage
discovery abuse. (Id., at 7.)
Defendant responds that he believes he has fully answered Plaintiff’s
Interrogatories. (Doc. 59, at 2.) Defendant acknowledges that the Request for
Admissions have been deemed admitted and that Defendant has not fully answered
the Requests for Production of Documents. (Id.) Defendant’s counsel asserts that
he has requested those documents from his client and is hopeful that they will be
delivered soon. (Id.) However, this assertion is contrary to this Court’s previous
Order. Defendant argues that Plaintiff has not been prejudiced by the missed
requests for production of documents because “[t]here are simply none or very few
to be delivered . . . that materially affect this case.” (Id., at 3.)
Under Fed.R.Civ.P. 37(b), the Court may impose sanctions against a party
who does not obey a Court order or does not provide discovery. In this case,
holding Defendant or his counsel in contempt would be an ineffective sanction. As
such, the Court will analyze each of the five factors to determine if entering default
judgment would be appropriate.
The first factor, the degree of actual prejudice, weighs in favor of default
judgment as a sanction against Defendant. Plaintiff has been prejudiced by
Defendant’s failure to provide answers to Plaintiff’s Interrogatories, to comply
with Court Orders, and to provide Defendant’s tax information. Federal Deposit
Ins. Corp. v. Renda, 126 F.R.D. 70, 73 (D. Kan. 1989) (holding that a plaintiff’s
ability to prepare for trial is prejudiced by a defendant’s failure to produce
The second factor, the amount of interference with the judicial process,
weighs in favor of default judgment as a sanction against Defendant. Defendant’s
failure to comply with the Court’s Orders, his abuse of the discovery process, and
the significant delay that he has caused in this case warrants default judgment as a
sanction against Defendant. Ehrenhaus, 965 F.2d at 921 (10th Cir. 1992) (holding
that the district court cannot administer orderly justice if “[[t]he] [parties] could
ignore court orders . . . without suffering the consequences. . . .”)
The third factor, the culpability of the litigant, weighs in favor of default
judgment as a sanction against Defendant. Defendant, even after filing his
response to Plaintiff’s Motion, has not identified why he has not complied with the
Court’s Orders. Defendant has filed several Motions requesting an extension of
time to file a response, (See Doc. 51, 53, 55, and 57) but has still failed to provide
this Court with a substantially justified reason for abusing the discovery process.
Am. Power Chassis, Inc., 2018 WL 4409434, at *9 (this factor weighs in the
movant parties favor when “it is clear that his noncompliance is willful and
deliberate, and that he has no intention of complying with court discovery orders.”)
The fourth factor, whether the Court has warned Defendant in advance that
default judgment would be a likely sanction for non-compliance, weighs in
Defendant’s favor for not imposing default judgment as a sanction, as this Court
has not warned Defendant that default judgment would be a likely sanction for his
non-compliance1. The Court treats these factors as a balancing test, so while the
Tenth Circuit has held that a district court does not have an obligation to warn
a party that default judgment is a possible sanction before entering a default
judgment. Federal Deposit Ins. Corp. v. Daily, 973 F.2d 1525, 1532 (10th Cir.
fourth factor does weigh in Defendant’s favor, the other four factors outweigh the
fourth factor and weigh in Plaintiff’s favor.
The fifth factor, the efficacy of lesser sanctions, factor weighs in favor of
default judgment as a sanction against defendant. The Court has reviewed
Plaintiff’s Motion requesting to hold Defendant and his counsel in contempt and
has considered less severe sanctions that will still punish Defendant for his failure
to cooperate with the discovery process. Additionally, the Court has provided
Defendant several opportunities to provide the requested information by Plaintiff.
(See Doc. 23, 45)
After reviewing these factors, the Court finds that default judgment under
Fed.R.Civ.P. 37(b)(2)(C) is the appropriate sanction. Plaintiff’s Motion to hold
Defendant and his counsel in contempt is DENIED, but this Court will enter
default judgment as a sanction.
Plaintiff requests that this Court award him all fees and costs incurred in
pursuing discovery from Defendant. (Doc. 48, at 7.) Plaintiff states that they have
“[u]nnecessarily incurred attorney’s fees seeking discovery and orders on
discovery in this case which have netted Plaintiff nothing.” (Id., at 6.) Plaintiff
continues that Defendant has failed to comply with the Court’s Order on Motion to
Compel or the Agreed Order. (Id.) Plaintiff asserts that this Court has the inherent
authority to “fashion an appropriate sanction for conduct which abuses the judicial
process.” (Id. (citing Goodyear Tire & Rubber Co. v. Haeger, 137 S. Ct. 1178,
1186 (2017) (citation omitted)).)
Defendant, in its response, did not provide any reason why this Court should
not impose sanctions or award attorney’s fees to Plaintiff. (See generally Doc. 59)
Defendant has not demonstrated that its failure to comply with the Court’s Order
on Motion to Compel or the Agreed Order was in good faith or substantially
justified. Plaintiff’s motion for reasonable fees incurred in bringing its motion
(Doc. 48) is GRANTED.
IT IS THEREFORE ORDERED that Plaintiff’s Motion to Hold
Defendant and Defendant’s Counsel in Contempt is DENIED in part and
GRANTED in part. Plaintiff shall submit to the Court an application for attorney
fees by no later than two weeks from the date of this Order. The parties shall
follow the procedure in D. Kan. Rule 54.2, including the consultation requirement
in Rule 54.2(a).
IT IS FURTHER ORDERED that Judgment of Default is entered on all of
Plaintiff’s claims against the Defendant. The Court will set a teleconference with
counsel to schedule a hearing on the issue of damages.
IT IS FURTHER ORDERED that this case is set for a telephone status
conference to discuss and schedule the pending hearing to determine Plaintiff’s
damages). This telephone status conference will be held on Monday, August 2,
2021, at 2:00 p.m. Counsel are directed to call (888) 363-4749 and, when
prompted, enter access code 5407703 as participants.
IT IS SO ORDERED.
Dated this 16th day of July, 2021, at Wichita, Kansas.
S/ KENNETH G. GALE
HON. KENNETH G. GALE
U.S. MAGISTRATE JUDGE
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