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
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