Desimini v. Durkin et al
Filing
61
ORDER denying 45 Motion for Sanctions; denying 46 Motion for Summary Judgment. If the parties intend to move to reopen discovery on the issue of damages, a joint motion for that purpose shall be filed no later than June 1, 2015. So Ordered by Judge Joseph A. DiClerico, Jr.(gla)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Felicia M. Desimini
v.
Civil No. 14-cv-112-JD
Opinion No. 2015 DNH 097
John F. Durkin, Jr. and
Wilson, Bush, Durkin & Keefe, PC
O R D E R
Felicia M. Desimini brings claims against her former
attorney, John F. Durkin, Jr., and his law firm, Wilson, Bush,
Durkin & Keefe, PC that arose from Durkin’s representation of
Desimini during her divorce proceedings.
The defendants move to
preclude Desimini from presenting evidence of damages as a
sanction for failing to comply with discovery disclosure
requirements.
Desimini objects.
The defendants also move for summary judgment based on
their motion for sanctions.
They contend, based on the
assumption that Desimini is precluded from introducing evidence
of damages, she cannot prove her claims.
For that reason, they
seek summary judgment on all of the claims.
I.
Motion for Sanctions
The defendants contend that Desimini failed to provide a
computation of damages as required by Rule 26(a)(1)(A)(iii),
failed to provide supplemental damages information under Rule
26(e), and did not properly respond to their interrogatories
about damages.
As a result, the defendants argue, Desimini
should be precluded from presenting any evidence of damages.
In
response, Desimini argues that she provided evidence of her
damages, admits that she did not comply specifically with the
requirements of Rule 26(a)(1)(A)(iii), and also contends that
her mistakes are harmless.
A.
Standard of Review
Rule 26(a) requires parties to disclose certain information
without waiting for discovery requests.
Included in the
required initial disclosures is “a computation of each category
of damages claimed by the disclosing party.”
26(a)(1)(A)(iii).
Fed. R. Civ. P.
As the case progresses, the parties are
required to supplement or correct previous discovery responses
and disclosures “in a timely manner if the party learns that in
some material respect the disclosure or response is incomplete
or incorrect, and if the additional or corrective information
has not otherwise been made known to the other parties during
the discovery process or in writing.”
Fed. R. Civ. P. 26(e)(1).
“If a party fails to provide information or identify a witness
as required by Rule 26(a) or (e), the party is not allowed to
use that information or witness to supply evidence on a motion,
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at a hearing, or at a trial, unless the failure was
substantially justified or is harmless.”
Fed. R. Civ. P.
37(c)(1).
B.
Discussion
Desimini was proceeding pro se when the case began and
through much of the discovery process cited in the defendants’
motion.
During that time, she did not provide a computation of
damages as part of her initial disclosures, did not provide
damages information in response to the defendants’
interrogatories, and did not supplement her disclosures.
The
defendants did not move to compel appropriate responses to their
interrogatories.1
Counsel entered an appearance on behalf of Desimini on
October 17, 2014, and Desimini was represented by counsel at her
deposition taken on October 16, 2014.
The defendants
acknowledge, in a footnote, that Desimini provided information
about her damages during her deposition and provided an
itemization of damages after the deposition.
They state that
The parties had substantial difficulties with discovery that
generated a motion by the defendants for a protective order to
require Desimini to be deposed in New Hampshire, which should
have been a motion to compel Desimini to appear in this district
for her deposition, and a motion by Desimini to extend the
discovery deadlines, which was granted.
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the deposition testimony does not excuse her failure to comply
with Rule 26(a) and (e) and that the list is inadequate.
In her objection, Desimini cites her deposition testimony
about money her ex-husband took out of an IRA account and his
failure to pay her pursuant to the terms of their stipulation
and the list of damages that she provided to the defendants.
Desimini also states that the damages in the case have
diminished because Desmini’s ex-husband sold property in
February of 2015 and paid her “a sizeable amount pursuant to the
underlying divorce case.”
She further states that she has
recalculated her damages based on the defendants’ expert’s
testimony given in March of 2015.
In paragraph eleven of her
objection, Desimini lists the damages that she now claims.
Desimini’s deposition testimony coupled with the damages
list provided some information about Desimini’s damages but
appears to fall short of the computation of damages required by
Rule 26(a)(1)(A)(iii).
At least until now, it appears that
neither Desimini nor her counsel provided a complete calculation
of damages.
Desimini argues that to the extent her disclosures
were insufficient, her failure was harmless.
A failure of discovery is harmless if on balance “a
multiplicity of pertinent factors” do not show a negative impact
on fairness to the parties or the court’s docket.
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Gagnon v.
Teledyne Princeton, Inc., 437 F.3d 188, 197 (1st Cir. 2006)
(internal quotation marks omitted).
The pertinent factors
include “the history of the litigation, the proponent’s need for
the challenged evidence, the justification (if any) for the late
disclosure, and the opponent’s ability to overcome its adverse
effects.
Surprise and prejudice are important integers in this
calculation.
So too is an assessment of what the late
disclosure portends for the court’s docket.”
Id. (quoting
Macaulay v. Anas, 321 F.3d 45, 51 (1st Cir. 2003)).
In this case, much of the delay in providing information
about Desimini’s damages occurred while she was proceeding pro
se.
Although her counsel later apparently misunderstood the
discovery burdens with respect to damages, there is no
suggestion of malfeasance or improper tactical maneuvering.
The
defendants also had notice generally of what Desimini claimed
for damages, and the defendants’ expert testified at his
deposition about damages.
Importantly, as represented by Desimini, the landscape for
damages changed significantly in February and March of this
year, resulting in a lower amount.
For that reason, even if
Desimini had timely disclosed her damages calculations, the
calculations would have later changed.
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Significant deadlines, however, have passed in the case.
Discovery is closed, and the deadline for summary judgment
motions is passed.
On the other hand, trial is not scheduled
until December of 2015.
On balance, this is not a situation in which harsh
sanctions would be appropriate.
The sanction the defendants
seek, precluding all evidence of damages, with the result that
summary judgment would be entered against Desimini, is the
harshest sanction available under Rule 37(c).
See Holmes Group,
Inc. v. RPS Prods., Inc., 2010 WL 7867756, at *25 (D. Mass. June
25, 2006) (citing Benitez-Garcia v. Gonzalez-Vega, 468 F.3d 1, 4
(1st Cir. 2006)).
Rule 37(c) offers less onerous sanctions to
avoid unnecessarily harsh penalties, such as when a pro se
litigant misunderstands her discovery obligations.
Garcia v.
Alicare Medical Mgt., 2010 WL 4116611, at *1 (D.N.H. Oct. 19,
2010).
Therefore, Desmini is not precluded at this time from
offering evidence of damages.
To the extent the defendants may
require additional information or discovery on the issue of
damages, that issue may be addressed by a joint motion of the
parties to reopen discovery as needed.
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II.
Motion for Summary Judgment
Because the defendant’s motion for sanctions is denied,
their motion for summary judgment, which is dependent on
sanctions being imposed, is also denied.
Conclusion
For the foregoing reasons, the defendants’ motion for
sanctions (document no. 45) and motion for summary judgment
(document 46) are denied.
If the parties intend to move to reopen discovery on the
issue of damages, a joint motion for that purpose shall be filed
no later than June 1, 2015.
SO ORDERED.
__________________________
Joseph DiClerico, Jr.
United States District Judge
May 12, 2015
cc:
Janet Elizabeth Dutcher, Esq.
Jeffrey H. Karlin, Esq.
Marsha V. Kazarosian, Esq.
Joseph Gardner Mattson, Esq.
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