Barlow et al v. Realty Income Properties 17, LLC et al

Filing 14

ORDERED that 11 Motion for Sanctions is GRANTED and that an award of reasonable expenses, including attorneys fees, against the Plaintiffs Heather and Edward Barlow pursuant to Federal Rule of Civil Procedure 37(d). FURTHER ORDERED that Defendant, Dolgencorp, LLC., shall file a motion to fix attorneys fees into the record by 4/23/2014 as stated herein. Any opposition to the fee application shall be filed no later than 4/30/2014. Signed by Magistrate Judge Karen Wells Roby. (cml)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
HEATHER BARLOW, ET AL.

CIVIL ACTION

VERSUS

NO: 13-6325

REALTY INCOME PROPERTIES 17, LLC., ET AL.
ORDER

SECTION: “F” (4)

Before the Court is a Motion for Sanctions (R. Doc. 11), filed by Defendant, Dolgencorp.,
LLC., (“Defendant”), seeking an order from this Court sanctioning Plaintiffs, Heather Barlow and
Edward Barlow, (collectively “Plaintiffs”) for failing to respond to its Interrogatories and Requests
for Production of Documents after being ordered to do so by this Court on March 17, 2014. See R.
Doc. 9 & 11. The motion is unopposed. It was heard on the briefs on April 16, 2014.
I.

Background
This action was removed to the Eastern District of Louisiana on November 1, 2013, based

on 28 U.S.C. § 1332. See R. Doc. 1, p. 3, ¶ 9. Plaintiff originally filed the instant lawsuit against
Defendants in the Thirty-Fourth Judicial District Court for the Parish of St. Bernard on September
4, 2013, for personal injury damages sustained from an alleged slip and fall accident that occurred
on September 5, 2012, on the premises of a Dollar General Store, #11511, owned by Defendant,
Realty Income Properties 17, LLC. See R. Doc. 1-2, p. 1-2, ¶ III-IV.
On February 14, 2014, Defendant contends that counsel for Plaintiffs represented that he has
been unable to contact his clients for some time. See R. Doc. 11-1, p. 1. Thus, Defendant filed a

motion to compel discovery. Id. On March 17, 2014, this Court granted Defendant’s Unopposed
Motion to Compel (R. Doc. 6), requiring Plaintiffs to provide full and complete discovery responses
to Defendant’s discovery requests no later than ten days from the issuance of that Order. See R. Doc.
9. Plaintiffs responses were due no later than March 28, 2014. See R. Doc. 11-1, p. 1. However,
Plaintiffs failed to timely respond.
As such, Defendant filed the instant motion seeking sanctions, pursuant to Fed. R. Civ. P.
37(b)(2)(A), in the form of either dismissal of the instant action, or a sanction that would “among
other things, a) deter the Plaintiff from engaging in this behavior in the future; and b) ensure
Defendant’s ability to have timely discovery.” Id. at p. 3.
II.

Standards of Review

Fed.R.Civ.P. 37(b) empowers the courts to impose sanctions for failures to obey discovery
orders. In addition to a broad range of sanctions, including contempt, Fed.R.Civ.P. 37(b)(2)
authorizes the court to impose a concurrent sanction of reasonable expenses, including attorney's
fees, caused by the failure to obey a discovery order. Smith & Fuller, P.A. v. Cooper Tire & Rubber
Co., 685 F.3d 486, 488-89 (5th Cir. 2012); Falstaff Brewing Corp. v. Miller Brewing Co., 702 F.2d
770, 784 (9th Cir.1983).
The district court “has broad discretion under Rule 37(b) to fashion remedies suited to the
misconduct.” Pressey v. Patterson, 898 F.2d 1018, 1021 (5th Cir.1990). This discretion, however,
is limited. “[U]sually, ... a finding of bad faith or willful misconduct [is required] to support the
severest remedies under Rule 37(b) striking pleadings or dismissal of a case.” Smith, 685 F.3d at
488; citing Pressey, 898 F.2d at1021. However, lesser sanctions do not require a finding of
willfulness. Smith, at 488-89; Chilcutt v. United States, 4 F.3d 1313, 1323 n. 23 (5th Cir.1993)

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(stating that district courts “have authority to grant a broad spectrum of sanctions” under Rule 37(b),
to appropriately respond to and deal with parties which have disobeyed discovery orders and
“neither this Court nor the Supreme Court has ever determined that the lack of willful,
contumacious, or prolonged misconduct prohibits all sanctions”). However, a district court’s
discretion in fashioning “appropriate sanctions for parties who disobey their orders is quite broad,
though not unlimited.” Chilcutt, 4 F.3d at 1391-20. Furthermore, 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.” See Fed.R.Civ.P. 37(b)(2)(C); Fed.R.Civ.P.
37(d)(1)(A)(ii), (c)(1).
III.

Analysis
On March 17, 2014, this Court granted Defendant’s Unopposed Motion to Compel (R. Doc.

6), requiring Plaintiffs to provide full and complete discovery responses to Defendant’s discovery
requests no later than ten days from the issuance of that Order. See R. Doc. 9. Plaintiffs responses
were due no later than March 28, 2014. See R. Doc. 11-1, p. 1. Defendant contends that as of yet,
Plaintiffs have yet to respond to its discovery requests.
As a result, Defendant seeks sanctions, pursuant to Fed. R. Civ. P. 37(b)(2)(A), in the form
of either dismissal of the instant action, or a sanction that would “among other things, a) deter the
Plaintiff from engaging in this behavior in the future; and b) ensure Defendant’s ability to have
timely discovery.” Id. at p. 3.
Although a Court may, pursuant to Rule 37(b), dismiss an action for a party’s failure to
comply with a Court Order, “dismissal is proper only in situations where the deterrent value of Rule
37 cannot be substantially achieved by the use of less drastic sanctions.” Smith, 685 F.3d at 490;
citing Bluitt v. Arco Chem. Co., 777 F.2d 188, 190 (5th Cir.1985); Marshall v. Segona, 621 F.2d
763, 768 (5th Cir.1980) (same). This Circuit has held that “dismissal is authorized only when the
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failure to comply with the court's order results from willfulness or bad faith, and not from the
inability to comply.” Bluitt, 777 F.2d at 190-91; citing Nat’l Hockey League v. Metro. Hockey Club,
Inc., 427 U.S. 639, 640 (1976); see also Marshall, 621 F.2d at 767 n. 8. “Another consideration is
whether the other party's preparation for trial was substantially prejudiced.” Id. However, “dismissal
may be inappropriate when neglect is plainly attributable to an attorney rather than a blameless
client, or when a party's simple negligence is grounded in confusion or sincere misunderstanding
of the court's orders.” Bluitt, 777 F.2d at 190-91; citing Marshall, 621 F.2d at 768; Silas v. Sears,
Roebuck & Co., 586 F.2d 382, 385 (5th Cir.1978).
Here, the Court does not find that dismissal of this action is appropriate, as there is no
evidence that the failure to comply with this Court’s Order results from “willfulness or bad faith”
on the part of counsel for plaintiffs, as counsel for Defendant indicated that counsel for Plaintiffs
had been unable to contact his clients. See supra. Having found no willful misconduct here, the
Court finds that dismissal, one of the most severe sanctions, is inappropriate at this time.
However, the Court finds that because it is authorized, pursuant to Rule 37(b) “to impose
sanctions against parties or counsel, ‘including attorney's fees,’ caused by the failure to comply with
discovery orders,” a more appropriate sanction in this case is to award attorney fees to Defendant.
Smith, 685 F.3d at 490; citing Roadway Express, Inc. v. Piper, 447 U.S. 752, 763 (1980). See also
Adolph Coors Co. v. Movement Against Racism and the Klan, 777 F.2d 1538, 1542 (11th Cir.1985)
(referencing the “primary purpose of Rule 37 sanctions is to deter future abuse of discovery”) (citing
Nat'l Hockey League, 427 U.S. at 643; Batson v. Neal Spelce Assocs., Inc., 765 F.2d 511, 514 (5th
Cir.1985) (holding that under Rule 37(b)(2), “dismissal is proper only in situations where the
deterrent value of Rule 37 cannot be substantially achieved by the use of less drastic sanctions”).
As such, this Court finds that an appropriate sanction, in accordance with Fed. R. Civ. P.
37(d), is to order Plaintiffs, not their counsel, to pay the reasonable expenses, including attorney’s
fees incurred with the filing of the instant motion, caused by his failure to satisfy the financial
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obligation previously ordered by this Court.

See Fed.R.Civ.P. 37(b)(2)(C); Fed.R.Civ.P.

37(d)(1)(A)(ii), (c)(1). Therefore, pursuant to Rule 37(d), reasonable costs, including attorney’s fees,
in association with the instant motion are granted.
IV.

Conclusion
Accordingly,
IT IS ORDERED that Defendant, Dolgencorp., LLC.’s Motion for Sanctions (R. Doc. 11)

is GRANTED, and that an award of reasonable expenses, including attorney’s fees, against the
Plaintiffs Heather and Edward Barlow pursuant to Federal Rule of Civil Procedure 37(d).
IT IS FURTHER ORDERED that Defendant, Dolgencorp, LLC., shall file a motion to fix
attorney’s fees into the record by April 23, 2014 along with: (1) an affidavit attesting to its
attorney’s education, background, skills, and experience; (2) sufficient evidence of rates charged in
similar cases by other local attorneys with similar experience, skill and reputation; and (3) the
documentation required by Local Rule 54.2. Any opposition to the fee application shall be filed no
later than Wednesday, April 30, 2014. Defendant shall notice the motion to fix attorney’s fees for
submission on Wednesday, May 7, 2014, and the motion shall be heard on that date without oral
argument.
New Orleans, Louisiana, this 16th day of April 2014.

KAREN WELLS ROBY
UNITED STATES MAGISTRATE JUDGE