Pocasangre v. Escoba, Inc. et al

Filing 23

MEMORANDUM and ORDER GRANTING IN PART and DENYING IN PART 22 motion for sanctions and DIRECTING Defendants to provide complete responses to the requests propounded by Plaintiff by no later than December 4, 2017 (c/m to Defendants 11/13/17 sat). Signed by Judge Deborah K. Chasanow on 11/13/2017. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
MORENA POCASANGRE
:
v.

:

Civil Action No. DKC 16-3022

:
ESCOBA, INC., et al.
:
MEMORANDUM OPINION AND ORDER
Plaintiff filed this action against Escoba, Inc. d/b/a El
Triunfo Restaurant and against Vidal Escobar, Alexander Rivera,
and Rosario Rivera on August 30, 2016, alleging violations of
federal

and

state

labor

law.

(ECF

No.

1).

Plaintiff

and

Defendants entered into settlement negotiations which apparently
fell apart when the corporate defendant went out of business.
(ECF

No.

11).

On

April

14,

requests to Defendants.
Defendants’

counsel

2017,

Plaintiff

(ECF No. 21-4).

moved

to

withdraw

sent

discovery

On July 18, 2017,

from

the

case

because

Defendants had failed to maintain communication with him.
No.

14).

The

motion

was

granted

as

to

the

(ECF

individual

defendants, and the corporate defendant, Escoba, Inc., was given
notice that it needed to obtain new counsel within 30 days or it
would be ordered to show cause why a default should not be
entered against it.
an

appearance

on

(ECF No. 15).
behalf

of

When counsel did not enter

Defendant

Escoba

within

the

timeframe, the show cause order was issued, and, when Defendant
Escoba failed to respond to the order, a default was entered
against it.
On
report

(ECF Nos. 19, 20).

October

4,

2017,

that

the

remaining

Defendants

had

Plaintiff’s

discovery

requests.

(ECF

stating

responded

to

Plaintiff’s

counsel

filed

a

status

still
No.

not
21).

Plaintiff moved for sanctions requesting a default judgment be
entered against Defendants pursuant to Fed.R.Civ.P. 37.
alternative,
respond

to

Plaintiff
Plaintiffs’

moved

that

discovery

Defendants
requests.

be

In the

ordered

(ECF

No.

to
22).

Although the motion was mailed to Defendants, no response has
been received.
Default judgment is a possible sanction for a failure to
participate in the discovery process before a default judgment
is entered.
of

this

However, defendants are “entitled to be made aware

drastic

conditions[.]”

consequence

of

failing

to

meet

the

court’s

Choice Hotels Int’l, Inc. v. Goodwin and Boone,

11 F.3d 469, 471 (4th Cir. 1993).

Moreover, courts will only

enter a default judgment when a less severe sanction would not
“be a reasonable alternative[.]”

Wilson v. Volkswagen of Am.,

Inc., 561 F.2d 494, 505 (4th Cir. 1977).

Here, the parties have

not received an order to comply with discovery and have not been
warned about the possible consequences of failing to comply.
Therefore, a default judgment is premature.
2

Defendants are warned that they are obligated to respond to
the discovery requests in a timely fashion. Defendants will be
given

twenty-one

(21)

days

to

provide

full

and

responses or risk sanctions including a default judgment.
Fed.R.Civ.P. 37(d)(1)(A) provides:
The court where the action is pending may,
on motion, order sanctions if: (i) a party
or a party’s officer, director, or managing
agent – or a person designated under Rule
30(b)(6) or 31(a)(4) – fails, after being
served with proper notice, to appear for
that person’s deposition; or (ii) a party,
after
being
properly
served
with
interrogatories under Rule 33 or a request
for inspection under Rule 34, fails to serve
its
answers,
objections,
or
written
response.
The possible sanctions include:
(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 designated claims or
defenses, or from introducing designated
matters in evidence;
(iii)
part;

striking

pleadings

in

whole

or

in

(iv) staying further proceedings until the
order is obeyed;
(v) dismissing the action or proceeding in
whole or in part; [or]
(vi) rendering a default
the disobedient party[.]

3

judgment

against

complete

Fed.R.Civ.P. 37(b)(2)(A).

In addition, “the court must require

the party failing to act, the attorney advising that party, or
both to pay the reasonable expenses, including attorney’s fees,
caused by the failure[.]”

Fed.R.Civ.P. 37(d)(3).

Accordingly it is this 13th day of November, 2017 by the
United

States

District

Court

for

the

District

of

Maryland,

ORDERED that:
1.

Plaintiff’s motion for sanctions (ECF No. 22) BE, and

the same hereby IS, GRANTED IN PART AND DENIED IN PART; as
follows
a.

The

request

for

default

judgment

against

Defendants BE, and the same hereby IS, DENIED;
b.

The request to order Defendants to comply with
Plaintiff’s discovery requests BE, and the same
hereby IS, GRANTED;

2.
to

the

December

Defendants are directed to provide complete responses
requests
4,

propounded

2017,

or

be

by

Plaintiff

subject

to

by

no

sanctions,

later

than

including

a

default judgment; and
3.

The

clerk

will

transmit

copies

of

this

Memorandum

Opinion and Order to Defendants and counsel for Plaintiff.

/s/
DEBORAH K. CHASANOW
United States District Judge
4