KCI Auto Auction, INC. v. Anderson et al

Filing 194

ORDER entered by Judge Nanette K. Laughrey. Plaintiff's motion to compel and for sanctions, Doc. 188 , is granted. Barry Ristick, David Ephrem, Danny Ephrem, Tom Ephrem and Angelo Jefferson, on behalf of himself and on behalf of Quality Used Cars, LLC, are ordered to respond to KCI's post-judgment interrogatories and requests for production within 14 days of this Order. Additionally, KCI is permitted to submit documentation regarding costs and expenses to the Court. The Clerk' s Office will mail a copy of this Order to each of the pro se defendants. Signed on 6/6/2019 by District Judge Nanette K. Laughrey. (Jackson, Rachel) Modified on 6/6/2019 to reflect Order was mailed to all pro se defendants.(Matthes Mitra, Renea). Modified on 6/6/2019: Order was mailed to all pro se defendants on 6/6/2019. (Melvin, Greg)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MISSOURI
ST. JOSEPH DIVISION
KCI AUTO AUCTION, INC,
Plaintiff,
v.
ALONZO D. ANDERSON, et al.,
Defendants.

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Case No. 5:17-cv-06086-NKL

ORDER
Pending before the Court is Plaintiff KCI Auto Auction, Inc.’s motion to compel discovery
and for sanctions. Doc. 188. For the following reasons, the motion is granted.
I.

Background
This case began when a purchasing account used to purchase vehicles at KCI became

delinquent. KCI initiated this case against 11 defendants, and in January 2018, the Court entered
a consent judgment pursuant to a settlement agreement in the amount of $300,000 against
defendants Angelo Jefferson, Barry Ristick, David Ephrem, Danny Ephrem, Tom Ephrem and
Quality Used Cars, LLC, an entity managed by defendant Jefferson.1 Doc. 94-2 (Settlement
Agreement); Doc. 97 (Consent Judgment). Pursuant to the settlement agreement, these defendants
agreed to make monthly payments to KCI, and in exchange, KCI agree to forbear enforcing and
executing the Consent Judgment. Doc. 94-2. After defendants stopped making payments in
December 2018, KCI sent notices of default and notified the defendants of KCI’s intent to execute

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KCI voluntarily dismissed two defendants, Default Judgment was entered against another two,
and Summary Judgment was entered against the last defendant. Doc. 100; Doc. 102; Doc. 103;
Doc. 115.
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on the Consent Judgment. Doc. 171-2 (January 16, 2019 Letters); Doc. 171-3 (February 22, 2019
Letters); Doc. 171-4 (February 23, 2019 Letters).
The issue before the Court pertains to KCI’s post-judgment discovery requests, which were
mailed to defendants on February 28, 2019. Doc. 147 (Certificate of Service). Tracking numbers
show that the requests were delivered by March 6, 2019, id., and KCI followed up with each
defendant on April 5, 2019, Doc. 188-7 (Discovery Letters), yet none of the defendants have
responded to KCI’s requests. KCI and defendants’ former attorney have both left voicemails for
Tom Ephrem regarding the case and KCI’s discovery requests, but neither has received a return
call. See Doc. 188 (Suggestions in Support of Motion to Compel), p. 5; Doc. 186. To date, Angelo
Jefferson, Barry Ristick, David Ephrem, Danny Ephrem, Tom Ephrem and Quality Used Cars,
LLC have all failed to comply with KCI’s discovery requests.
KCI seeks an order to compel discovery. KCI also requests that the Court award reasonable
expenses caused by the Defendants’ failure to respond and deem any potential objections to the
discovery requests waived.
II.

Discussion
A court can issue an order to compel an answer to interrogatories and the production of

documents if the movant has included the appropriate certification that the party first attempted to
resolve the dispute, Fed. R. Civ. P. 37(a)(3)(B), and pursuant to local rule 37.1(a)(2), arranged for
a teleconference with the Court. Both requirements have been met. Prior to submitting a written
motion to compel or requesting a teleconference with the Court, KCI mailed each defendant
follow-up letters. See Doc. 188-7. KCI then requested and participated in teleconferences
regarding discovery compliance with the Court. Doc. 183; Doc. 184; Doc. 186. Although
defendants’ former counsel left messages regarding the teleconference, none of the defendants

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participated.2 Doc. 186. Each defendant was mailed a copy of the KCI’s motion to compel, Doc.
188, p. 11, but none of the defendants have responded to the motion or to KCI’s discovery requests.
Therefore, the Court grants KCI’s motion to compel and orders Defendants Barry Ristick,
David Ephrem, Danny Ephrem, Tom Ephrem and Angelo Jefferson, on behalf of himself and on
behalf of Quality Used Cars, LLC, to answer KCI’s post-judgment interrogatories and requests for
production within 14 days of this Order. Because these defendants did not timely respond to KCI’s
discovery requests or to KCI’s motion to compel, and these defendants did not appear at the phone
conference, defendants have waived any objections to the discovery.
A court may also order sanctions when a party, “after being properly served with
interrogatories under Rule 33 . . . fails to serve its answers, objections or written responses.” Fed.
R. Civ. P. 37(d)(1)(A)(ii). Although the Court is authorized to order an array of sanctions, the
Court “must require the party failing to act . . . to pay the reasonable expenses, including attorney’s
fees, caused by the failure, unless the failure was substantially justified or other circumstance make
an award of expenses unjust.” Fed. R. Civ. P. 37(d)(3). The noncompliant party bears the burden
of establishing that the failure to comply was justified or that an award would be unjust. See First
Am. State Bank v. Cont'l Ins. Co., 897 F.2d 319, 331 (8th Cir. 1990) (considering sanctions
pursuant to Rule 37(b)(2) for failure to comply with a court order).
None of these defendants have put forth any reason as why the failure to comply with
discovery was substantially justified or why an award of expenses would be unjust, nor has any
defendant responded to KCI’s motion to compel in any way. Therefore, the Court finds it
appropriate to order defendants to pay the reasonable expenses, including attorney fees, incurred
by KCI to compel discovery.

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Defendants’ attorney of record was permitted to withdraw on May 1, 2019. Doc. 186.
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III.

Conclusion
For the reasons set forth above, Plaintiff’s motion to compel and for sanctions, Doc. 188,

is granted. Barry Ristick, David Ephrem, Danny Ephrem, Tom Ephrem and Angelo Jefferson, on
behalf of himself and on behalf of Quality Used Cars, LLC, are ordered to respond to KCI’s postjudgment interrogatories and requests for production within 14 days of this Order. Additionally,
KCI is permitted to submit documentation regarding costs and expenses to the Court.

s/ Nanette K. Laughrey
NANETTE K. LAUGHREY
United States District Judge
Dated: June 6, 2019
Jefferson City, Missouri

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