Green v. City of Ruston

Filing 36

ORDER granting in part 27 Motion for Sanctions. Plaintiff and/or his counsel, shall remit the sum of $500 to defendants, via their counsel, within the next 14 days. They shall file proof of payment in the record within 7 days thereafter. IT IS FURTHER ORDERED that the motion is otherwise DENIED. Signed by Magistrate Judge Karen L Hayes on 3/12/15. (crt,Crawford, A)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
MONROE DIVISION
WILLIAM BENARD GREEN

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CIVIL ACTION NO. 13-0408

VERSUS

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JUDGE JAMES T. TRIMBLE, JR.

CITY OF RUSTON, ET AL.

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MAG. JUDGE KAREN L. HAYES

MEMORANDUM ORDER
Before the undersigned Magistrate Judge, on reference from the District Court, is a
motion for sanctions [doc. # 27] filed by defendants City of Ruston, et al. The motion is
opposed. For reasons assigned below, the motion is GRANTED IN PART and DENIED IN
PART.1
Background
In October-November 2014, plaintiff William Green and defendants City of Ruston, et al.
filed cross-discovery motions regarding plaintiff’s invocation of the Fifth Amendment privilege
against self-incrimination in response to defendants’ discovery requests and efforts to depose
him. See Motion for Protective Order and Motion to Compel [doc. #s 20 & 23]. In a December
16, 2014, Memorandum Order addressing the motions, the court stated that “plaintiff should be
required to respond to the outstanding written discovery requests. Review of the proposed
discovery uncovers few, if any, areas of inquiry that will require plaintiff to invoke his privilege

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As this motion is not one of the motions excepted in 28 U.S.C. § 636(b)(1)(A), nor
dispositive of any claim on the merits within the meaning of Rule 72 of the Federal Rules of
Civil Procedure, this ruling is issued under the authority thereof, and in accordance with the
standing order of this court. Any appeal must be made to the district judge in accordance with
Rule 72(a) and L.R. 74.1(W).

against self-incrimination.” (Dec. 16, 2014, Mem. Order [doc. # 26]) (emphasis added). The
undersigned added that “[i]If plaintiff finds that he must invoke privilege as to certain
interrogatories or requests, then he is free to do so as to that specific discovery request, and
supplement his response/answer immediately following the conclusion of his criminal trial.”
Id. (emphasis added).2 In the end, the court granted-in-part defendants’ motion to compel and
ordered plaintiff to answer defendants’ November 15, 2013, discovery requests within 21 days
from the date of the order. Id.
On January 7, 2015, – 22 days after the date the order was signed and filed (but 21 days
after it was docketed/entered), plaintiff served defendants with his responses to the written
discovery. (Pl. Ans. and Responses; M/Sanctions, Exh. B). For each and every interrogatory and
request for production, plaintiff asserted his Fifth Amendment privilege against selfincrimination, and “reserved the right to supplement the response no later than 10 days prior to
trial.” Id. Despite these qualifiers, plaintiff managed to provide some substantive, but
perfunctory, answers/responses to a number of the inquiries.
On January 29, 2015, defense counsel wrote to plaintiff’s counsel and outlined the
shortcomings that he perceived with her answers/responses. (Jan. 29, 2015, Letter from K.
Mascagni to C. Lexing; M/Sanctions, Exh. “C”). Defense counsel asked plaintiff’s counsel to
supplement her prior responses or else he would be compelled to petition the court for relief,
including a request for costs and fees. Id.
After receiving no response to the January 29 letter, defendants filed the instant motion
for sanctions on February 20, 2015, – exactly one business day before plaintiff’s criminal trial
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In addition, the court noted that because both the discovery and dispositive motion
deadlines were rapidly approaching, the parties could petition the court for an extension, if they
both agreed that it was necessary. Id.
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was scheduled to begin. In their motion, defendants cited plaintiff’s failure to comply with the
court’s December 16, 2014, order, and sought sanctions pursuant to Rule 37(b) consisting of
dismissal, exclusion of evidence related to the unanswered discovery, and an award of costs and
fees associated with filing the motion.
On February 26, 2015, at the request of plaintiff’s counsel, the undersigned held a
telephone status conference to address pending deadlines and defendants’ motion. Pursuant to
the conference, the court, among other things, ordered plaintiff’s counsel to supplement her
responses to defendants’ discovery requests by March 6, 2015,3 and to file, by March 2, 2015, her
opposition to the motion for sanctions to address the request for fees and costs. See Minutes
[doc. # 31] and Notice of Motion Setting [doc. # 29].4
On March 2, 2015, plaintiff filed his opposition memorandum. On March 4, defendants
filed their reply. Thus, the matter is ripe.
Law
Rule 37 of the Federal Rules of Civil Procedure specifies that,
[i]f a party or a party's officer, director, or managing agent . . . 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:
(i) directing that the matters embraced in the order or other designated
facts be taken as established for purposes of the action, as the prevailing
party claims;
(ii) prohibiting the disobedient party from supporting or opposing

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On February 23, 2015, plaintiff resolved the criminal proceedings against him by
pleading guilty to a misdemeanor.
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The court also continued the trial date and associated deadlines, and set some dates to
depose witnesses. Id.
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designated claims or defenses, or from introducing designated matters in
evidence;
(iii) striking pleadings in whole or in part;
(iv) staying further proceedings until the order is obeyed;
(v) dismissing the action or proceeding in whole or in part;
(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).
Furthermore,
[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.
Fed.R.Civ.P. 37(b)(2)(C).
Discussion
In his memorandum, plaintiff advances several reasons why sanctions should not be
imposed. For example, plaintiff’s counsel contends that she did not have an opportunity to
respond to defense counsel’s objections to her responses because she was a panelist at a Judicial
Conference on February 19, 2015, and also busy preparing a defense for plaintiff’s criminal trial.
This rationale, however, fails to explain why plaintiff’s counsel was unable to respond to defense
counsel’s January 29, 2015, letter during the intervening 21 day period.
Plaintiff’s counsel also faults defense counsel for purportedly refusing to join in a motion
to extend the discovery and dispositive motion deadlines. This argument misses the mark. The
court previously ordered plaintiff to respond to the written discovery, and, for those “few, if any”
instances where he asserted privilege, supplement those response immediately following the
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conclusion of his criminal trial.
Upon review, it is manifest that plaintiff’s efforts to comply with the court order were, at
best, half-hearted. As recounted earlier, plaintiff asserted privilege as to every interrogatory and
request for production. In addition, plaintiff inexplicably extended his obligation to supplement
his responses until ten days before trial.
Furthermore, for those discovery requests that plaintiff purported to answer, his responses
often were incomplete or misleading. For instance, in response to Interrogatory No. 9, plaintiff
represented that he had not obtained written or recorded statements from anyone. (Pl. Ans. and
Responses; M/Sanctions, Exh. B). In his opposition memorandum, however, plaintiff
inconsistently reported that, in 2013, he had permitted defendants to meet “with the witness who
had a recording of the incident.” (Pl. Opp. Memo., pg. 3). Also, in response to defendants’
Interrogatory No. 16 seeking the names of anyone other than the named defendants that caused or
contributed to his injury, plaintiff replied, “[n]o other named Defendants.” (Pl. Ans. and
Responses; M/Sanctions, Exh. B). Whether this response is the product of an inadvertent, yet
material grammatical error, or instead, an intentional obfuscation, is not known. Either way, the
response is insufficient, as written, and defendants sought clarification from plaintiff to no avail.
In addition, for most, if not all, of the discovery requests that plaintiff declined to provide
a substantive response to at all on the basis of Fifth Amendment privilege, the court finds that he
failed to establish applicability of the privilege. Upon assertion of the Fifth Amendment
privilege,
the court must engage in a two pronged analysis. First, [it] must determine
whether the summoned information is incriminating in nature, either on its face or
in the context of the circumstances that the information is requested. Second, if
the information is found to be incriminating, then the court must then determine
whether the proponent's asserted apprehension of criminal prosecution is
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reasonable under the circumstances.
United States v. Redhead, 194 F. App'x 234, 236 (5th Cir. 2006) (citations omitted).
Moreover, “the proponent must establish more than speculative or generalized allegations of the
potential for self-incrimination.” Id. (citation omitted).
Here, other than the bare invocation of privilege, plaintiff makes no effort to demonstrate
its applicability. For instance, plaintiff provides no explanation to establish how defendants’
discovery requests for eyewitnesses, trial witnesses, and trial exhibits are privileged. See Interr.
Nos. 8, 10, & 11 and Req. for Prod. No. 11.5 Moreover, the fact that plaintiff purportedly
included this information in his initial disclosures belies the notion that this discovery was
subject to privilege. See Pl. Opp. Memo., pg. 3.
By way of further example, plaintiff invoked privilege in response to defendants’
Interrogatory and Request for Production No. 17, which sought a complete itemization of
plaintiff’s damages claimed, both special and general. Plaintiff proffers no rationale to establish
how this information could subject him to incrimination.
The court need not address applicability of the Fifth Amendment privilege as to each
discovery request because the court already has ordered plaintiff to supplement her responses.
See Minutes [doc. # 31]. The foregoing sample of plaintiff’s discovery responses simply serves
to establish that plaintiff’s efforts to comply with the court’s order were half-hearted,
perfunctory, and not undertaken in good faith. Although the court is not persuaded that

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The Fifth Amendment provides that “No person . . . shall be compelled in any criminal
case to be a witness against himself.” U.S. CONST . AMEND . V. “The Fifth Amendment's
protection applies only when the accused is compelled to make a testimonial communication that
is incriminating.” Baltimore City Dep't of Soc. Servs. v. Bouknight, 493 U.S. 549, 554-55, 110 S.
Ct. 900, 904 (1990) (citations and internal quotation marks omitted).

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plaintiff’s conduct merits the more draconian remedies available under Rule 37(b)(2)(A), a just
and targeted sanction remains in order. See Compaq Computer Corp. v. Ergonome Inc., 387
F.3d 403, 413 (5th Cir. 2004) (citation omitted). Accordingly, the court finds that the appropriate
sanction in this instance is to require plaintiff and/or his counsel to partially defray the costs and
reasonable attorney’s fees expended by defendants in filing the instant motion for sanctions,
which effectively served as a successive motion to compel. This sum is set at $500.6
Conclusion
For the above-assigned reasons,
IT IS ORDERED that defendants’ motion for sanctions [doc. # 27] is hereby GRANTED
IN PART, to the following extent,
IT IS ORDERED that, within 14 days from the date of this order, plaintiff William
Benard Green and/or his counsel, shall remit the sum of $500 to defendants, City of Ruston, et.
al., via their counsel, and to file proof of said payment in the record of these proceedings within 7
days thereafter.
IT IS FURTHER ORDERED that the motion [doc. # 27] otherwise is DENIED.
In Chambers, at Monroe, Louisiana, this 12th day of March 2015.

__________________________________
KAREN L. HAYES
UNITED STATES MAGISTRATE JUDGE

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In deriving this sum, the court is cognizant that, in all likelihood, the cost to file the
motion and reply memorandum exceed this amount.
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