Kirk v. Schaeffler Group USA, Inc. et al

Filing 569

ORDER granting in part 552 motion to reconsider sanctions. Section IV of the Court's June 15, 2015, Order imposing sanctions is vacated. Briefing due 6/30/16; reply briefs due 7/21/16. On or before 6/16/16, Plaintiff's counsel shall file a list of any previous instances where they have been sanctioned for a discovery violation. Signed on 6/2/16 by Chief District Judge Greg Kays. (Francis, Alexandra)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
SOUTHWESTERN DIVISION
JODELLE L. KIRK,

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Plaintiff,
v.
SCHAEFFLER GROUP USA, INC.,
FAG HOLDING, LLC, and
FAG BEARINGS, LLC,
Defendants.

No. 3:13-cv-5032-DGK

ORDER GRANTING IN PART MOTION TO RECONSIDER SANCTIONS
On June 15, 2015, the Court granted Defendants’ Rule 37(c) motion for sanctions
because Plaintiff “patently violated Rule 26(e) by failing to identify additional theories of
exposure and nineteen specific locations of exposure until after the close of discovery.” Order
(Doc. 231) at 11. Observing that normally it was counsel’s responsibility to ensure the client’s
compliance with discovery, the Court ordered Plaintiff’s counsel to pay the sanction. Id. at 18.
Now before the Court is Plaintiff’s Motion to Reconsider (Doc. 552). For the following
reasons, the motion is GRANTED IN PART.
Discussion
Plaintiff argues the Court should reconsider imposing sanctions on Plaintiff’s counsel
because neither Plaintiff nor Plaintiff’s counsel were given notice that the Court was considering
imposing monetary sanctions against counsel. She argues a court cannot sanction attorneys
under Rule 37(c), and that counsel did not violate Rule 37(c). Plaintiff does not argue that there
was no Rule 26(e) violation here, only that the Court should not impose monetary sanctions on
counsel.

Defendants oppose the motion. They argue the Court provided adequate notice and
several opportunities to be heard, and the Court did not err in finding Plaintiff and her counsel
committed unjustified discovery violations warranting sanctions. They also note the Court could
have sanctioned Plaintiff’s counsel under Rule 26(g) or under its inherent authority to discipline
the attorneys who appear before it.
The Court agrees with Plaintiff that her counsel did not have adequate notice that
sanctions could be imposed on them. Two months after the Court issued the sanctions order, the
Eighth Circuit handed down its decision in Security National Bank of Sioux City, IA v. Jones
Day, 800 F.3d 936 (8th Cir. 2015) (holding the district court’s failure to give particularized
notice of unusual nature of sanctions it was contemplating imposing on counsel required vacatur
of sanctions). Although not factually analogous to the present case, Jones Day is relevant
because it reiterates the importance of giving notice and an opportunity to be heard before
imposing sanctions on an attorney. Id. at 944.
In the present case, Defendants’ Motion for Sanctions (Doc. 85) unquestionably gave
both Plaintiff and her counsel notice of the alleged Rule 26(e) violation and an opportunity to be
heard. The Motion also gave Plaintiff notice that the Court could impose a variety of sanctions
for failing to provide timely supplementary disclosures, including precluding her from
“contending or introducing any evidence that she was exposed to TCE anywhere but through the
water supply at her childhood residence,” ordering her to reimburse Defendants’ “reasonable
attorneys’ fees and expenses associated with bringing this motion,” and imposing “other
appropriate sanctions, including any of the orders listed in Rule 37(b)(2)(A)(i)-(vi).” Mot. at 1;
Fed. R. Civ. P. 37(c)(1)(C). The Motion did not, however, explicitly give Plaintiff’s counsel

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notice that monetary sanctions might be imposed on them under Rule 37 for their failure to
ensure compliance with the rules of discovery.
Accordingly, out of abundance of caution and to ensure that both Plaintiff and Plaintiff’s
counsel receive due process, the Court vacates Section IV of its Order wherein it discussed the
appropriate sanction and who should be sanctioned. The Court will consider anew several issues
that the parties are now directed to brief:
First, what is an appropriate sanction for the Rule 26(e) violation here. Since the Court is
re-starting its analysis from the beginning, the entire range of potential sanctions is on the table.
Second, the Court will consider who should be sanctioned—Plaintiff, her counsel, or
both.
Third, the Court will decide the source of any sanction. Rule 37(c) is not the only
authority under which the Court might sanction Plaintiff or her counsel for the discovery
violation here. The Court could also sanction Plaintiff’s counsel under Rule 26(g), and it could
sanction Plaintiff or her counsel under the Court’s inherent power to discipline those who appear
before it.

The parties thus must brief whether Plaintiff, her counsel, or both, should be

sanctioned under Rule 26(g) or the Court’s inherent authority, and if so, what that sanction
should be.
Finally, to assist the Court’s determination whether Plaintiff’s counsel should be
sanctioned, and if so, what any sanction should be, the Court would like to know if Plaintiff’s
counsel have been sanctioned for discovery violations previously. If Plaintiff’s counsel have not
engaged in such behavior before, no sanction or a lesser sanction may be warranted. On the
other hand, if Plaintiff’s counsel have been sanctioned previously for the same or similar

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violations, it might indicate a pattern of engaging in such conduct which could merit a stiffer
sanction.
Plaintiff’s counsel shall file a list of every instance in which any of the attorneys who
have entered an appearance on Plaintiff’s behalf in this case have been sanctioned by a court for
any discovery violation. For each such violation, Plaintiff’s counsel shall identify the court, the
case name, the case number, the name(s) of the attorney(s) sanctioned, the reason the court gave
for sanctioning the attorney(s), and the sanction imposed. For purposes of this list, a simple
admonishment counts as a sanction. This list shall be filed on or before June 16, 2016.
In preparing this list, Plaintiff’s counsel should err on the side of disclosure. Plaintiff’s
counsel do not need to disclose any instance where a court found a discovery violation but did
not impose a sanction or where it imposed sanctions for reasons unrelated to discovery.
The balance of the Order, including the Background section and parts II and III of the
Discussion section,1 is unchanged. Hence, the parties should not re-brief the issue of whether
there was a Rule 26(e) violation here or whether this violation was substantially justified or
harmless.
Conclusion
For the foregoing reasons, Plaintiff’s motion to reconsider is GRANTED IN PART.
Section IV of the Court’s June 15, 2015, Order imposing sanctions is hereby VACATED.
Starting anew, after receiving briefing from the parties, the Court will determine an appropriate
sanction for the Rule 26(e) violation identified in the Court’s Order and who should be

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The Background section sets out the history of discovery in the case. Section II found that timely supplementary
disclosures were not provided as required by Rule 26(e). Section III held this Rule 26(e) violation was neither
substantially justified or harmless. These sections are unchanged because Plaintiff and her counsel had notice of and
were heard on these issues before the Court rendered its decision.

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sanctioned. The parties’ briefing shall also address whether sanctions should be imposed under
Rule 26(g) or the Court’s inherent authority, and if so, what any sanction should be.
The parties’ initial briefs shall be filed on or before June 30, 2016, and shall not exceed
fifteen pages.

The parties may not incorporate any argument by reference; all argument shall be

contained in the four corners of the brief. Any Reply brief shall be filed on or before July 21,
2016, and shall not exceed twelve pages. A reply brief shall not advance any new arguments; it
shall be limited to replying to the argument and authority raised in the other party’s initial brief.
No additional briefing will be permitted.
Finally, on or before June 16, 2016, Plaintiff’s counsel shall also file a list of any
previous instances where they have been sanctioned for a discovery violation.
IT IS SO ORDERED.
Date: June 2, 2016

/s/ Greg Kays
GREG KAYS, CHIEF JUDGE
UNITED STATES DISTRICT COURT

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