Country Mutual Insurance Company v. Omicron Capital, LLC et al

Filing 40

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Plaintiff's Second Motion for Sanctions (Doc. 36) is DENIED WITHOUT PREJUDICE. IT IS FURTHER ORDERED that this Court's prior order setting a hearing on Plaintiff's motion (Doc. 39) is VACATED.. Signed by Magistrate Judge Shirley P. Mensah on 9/11/14. (LGK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
COUNTRY MUTUAL
INSURANCE COMPANY,
Plaintiff,

v.
OMICRON CAPITAL, LLC,
et al.,
Defendant.

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Case No. 4:13-cv-1476-SPM

MEMORANDUM AND ORDER
This case is before the Court on Plaintiff Country Mutual Insurance Company’s
(“Plaintiff’s”) Second Motion for Sanctions. (Doc. 36). Plaintiff asks the Court to strike
Defendants’ pleadings, dismiss Defendants’ Counterclaims, and enter a default judgment against
Defendants and in favor of Plaintiff. Defendants have not responded to the motion. On
September 5, 2014, the Court entered an order setting the motion for hearing on September 24,
2014. (Doc. 39). Upon further review of Plaintiff’s motion and for the reasons stated below, the
Court finds that the Plaintiff’s motion should be denied without prejudice and the order setting a
hearing should be vacated.
I.

FACTUAL AND PROCEDURAL BACKGROUND

On February 5, 2014, this Court issued its original Case Management Order, under which
the parties’ Rule 26(a)(1) disclosures were due by March 21, 2014. (Doc. 16). On April 29, 2014,
after Defendants’ attorney was given leave to withdraw and Defendants requested extensions of
the deadlines in the Case Management Order, the Court issued an Amended Case Management
Order stating that the parties’ Rule 26(a)(1) disclosures were due by May 16, 2014. (Doc. 25).

On June 5, 2014, Plaintiff filed a motion to compel, stating that Defendants had produced no
Rule 26(a)(1) disclosures and had failed to respond to requests for production. (Docs. 26 & 27).
On June 17, 2014, the Court granted the motion in part and ordered Defendants to provide Rule
26(a)(1) Disclosures within fourteen days of the order. (Doc. 30).
Plaintiff states in the instant motion that on June 27, 2014, Defendant Richard Saddler
emailed to Plaintiff three audio recordings and a set of emails. Plaintiff states that Defendants did
not provide any written Rule 26(a)(1) disclosures and that in particular, Defendants failed to
provide a list of people who may have discoverable information or a calculation of Defendants’
damages. Plaintiff did not, however, attach to its motion the materials Defendant Saddler sent to
Plaintiff. On July 8, 2014, Plaintiff’s counsel sent an email to Mr. Saddler stating that his Rule
26(a)(1) disclosures were overdue and that if Plaintiff’s counsel did not receive them within a
few days, he would file a motion for sanctions. (Doc. 31-1). Plaintiff states that Defendants have
not responded to this email. Mr. Saddler is currently incarcerated pursuant to a plea agreement
with the United States government.
II.

DISCUSSION

Under Rule 37(b)(2), where a party fails to obey an order to provide discovery, the court
may issue “further just orders” including striking pleadings in whole or in part, dismissing the
action or proceeding in whole or in part, and rendering a default judgment against the
disobedient party. Fed. R. Civ. P. 37(b)(2)(A). “Striking one party’s pleadings is a severe
sanction that may ineluctably lead to judgment for the other side. This sanction thus should be
applied only where there is an order compelling discovery, a willful violation of that order, and
prejudice to the other party. A court should impose the sanction of dismissal only after finding
that the sanctioned party acted willfully and in bad faith.” St. Louis Produce Market v. Hughes,

735 F.3d 829, 831-32 (8th Cir. 2013). Unless the party being sanctioned acted deliberately or
with bad faith, the court “must investigate whether a sanction less extreme than dismissal would
suffice.” Bergstrom v. Frascone, 744 F.3d 571, 576 (8th Cir. 2014) (quotation marks omitted).
The record currently before the Court is not sufficient to justify striking Defendants’
pleadings, dismissing their counterclaims, or entering default judgment against them. First, the
record does not establish whether Defendants acted willfully, deliberately, or in bad faith in
failing to comply with the Court’s order compelling Rule 26(a)(1) disclosures. As Plaintiff
acknowledges, after the Court issued its order, Defendant Saddler (who is proceeding pro se)
sent Plaintiff’s counsel a set of emails and audio records. Because those materials were not
attached to Plaintiff’s motion, it is impossible for the Court to determine what information was in
them or whether they constituted a good-faith attempt to comply with the Court’s order. Second,
without knowing what information Defendants did provide to Plaintiff, it is impossible for the
Court to determine what prejudice Plaintiff has suffered. The Court also notes that Plaintiff does
not explain how it was prejudiced by Defendants’ actions. Finally, Plaintiff does not explain why
a lesser sanction, such as exclusion of the non-disclosed evidence and witnesses, would not
suffice as a sanction for Defendants’ conduct.
III.

CONCLUSION

For all of the reasons stated above, Plaintiff’s motion for sanctions must be denied at this
time.
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s Second Motion for Sanctions (Doc. 36) is
DENIED WITHOUT PREJUDICE.

IT IS FURTHER ORDERED that this Court’s prior order setting a hearing on
Plaintiff’s motion (Doc. 39) is VACATED.

Dated this 11th day of September, 2014.
/s/Shirley Padmore Mensah
SHIRLEY PADMORE MENSAH
UNITED STATES MAGISTRATE JUDGE