SWIFT v. PANDEY et al
OPINION. Signed by Magistrate Judge Joseph A. Dickson on 10/30/15. (DD, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil Action No. 2:13-cv-650 (JLL) (JAD)
RAMESH PANDEY, BHUWAN PANDEY,
XECHEM (INDIA) PVT LTD.,
JOSEPH A. DICKSON, U.S.M.J.
This matter comes before the Court upon Plaintiff Robert Swift's ("Plaintiff') Motion for
Sanctions against Defendants Ramesh Pandey and Bhuwan Pandey (collectively "Defendants").
(ECF No. 88). Pursuant to Federal Rule of Civil Procedure 78, the Court did not hear oral
argument on Plaintiffs application. Upon careful consideration of the parties' submissions,
(ECF Nos. 88, 90, 91, 92), and for the reasons stated below, Plaintiffs Motion for Sanctions is
Plaintiff filed a Complaint on January 31, 2013, against Ramesh Pandey, Bhuwan
Pandey, and Xechem India. (Compl., ECF No. 1). On May 21, 2015, Plaintiff filed a Motion for
Sanctions pursuant to Federal Rule of Civil Procedure 37, seeking, among other things, that the
Court prohibit Defendants from contesting certain claims and that "Defendants be sanctioned for
non-compliance with Court ordered discovery, not just once, but three times since the Court
Ordered Discovery on November 13, 2014." (Pl. Br., ECF No. 88, at 1, 3).
On November 12, 2014, this Court held an Initial Conference and set a pretrial
scheduling Order. (ECF No. 70). Plaintiff argues that although he has complied this Court's
Orders, Defendants failed, on several occasions, to provide Plaintiff with the discovery he
requested. (Pl. Br., ECF No. 88, at 3). Defendants opposed, arguing that Plaintiffs Motion for
Sanctions is ''nothing but a gross abuse of process oflaw." (Def. Opp. Br., ECF No. 90, at 5).
Federal Rule of Civil Procedure 37(b)(2) provides instances where sanctions may be
sought in the District where the action is pending. Applicable in the instant case, Federal Rule
37(b)(2)(A) provides, in relevant part:
If a party ... fails to obey an order to provide or permit discovery ... the court
where the action is pending may issue further just orders. They may include the
following: (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) striking pleadings in whole or part; (iv) staying further proceedings
until the order is obeyed; (v) dismissing the action or proceeding in whole or in
part; (vi) rendering a default judgment against the disobedient party; or (vii)
treating as contempt of court the failure to obey any order except an order to
submit to a physical or mental examination.
Fed. R. Civ. P. 37(b)(2)(A).
Although this Court has broad discretion in determining whether sanctions are
appropriate under Federal Rule of Civil Procedure 37, D&D Associates, Inc. v. Bd. of Educ. of
N. Plainfield, No. 03-1026 (MLC), 2006 WL 1644742, at *4 (D.N.J. June 8, 2006), "sanctions
are reserved for the most egregious violations." Starland v. Fusari, No. 10-cv-04930 (JLL)
(MAH), 2012 WL 3277084 at *4 (D.N.J. 2012).
Plaintiff requests that this Court impose Rule 37 sanctions on Defendants for their alleged
failure to comply with Plaintiffs discovery requests. (PL Br., ECF No. 88, at 1). The crux of
Plaintiffs argument is that although this Court provided "Defendants three opportunities to
comply with [the] November 13, 2014 [discovery Order]" Defendants failed to comply. (Id. at
7). Due to Defendants' alleged non-compliance, Plaintiff requests that this Court:
1. [Prohibit] Defendants from opposing Plaintiffs allegations that Defendants
are alter egos ofXechem (Pvt.) India ("Xechem") for purposes of this case;
2. [Prohibit] Defendants from opposing diversity jurisdiction over this case;
3. [Prohibit] Defendants from contesting venue in this case;
4. [Prohibit] Defendants from contesting the statute of limitations and time bar
of this case;
5. [Order] that facts alleged in Plaintiffs complaints shall be taken to be
established for the purposes of this case;
6. [Prohibit] Defendants from opposing Plaintiff's claims of quantum meruit and
7. [Prohibit] Defendants from introducing evidence that Defendants are not alter
egos ofXechem (Pvt.) India for purposes of this case;
8. [Prohibit] Defendants from introducing evidence that there was a contract for
the loan between Xechem India and Xechem for purposes of this case;
9. [Prohibit] Defendants from introducing evidence that Plaintiff is not entitled
to 66-2/3% ofXechem India for purposes of this case;
10. [Prohibit] Defendants from introducing evidence that Plaintiff is not entitled
to repayment of the loan for $977,385 plus interest of 22% made to Xechem
India by Xechem for purposes of this case;
11. [Order] that Defendants are personally responsible for repayment of the loan
for $977,385 plus interest of 22% made to Xechem India by Xechem for
purposes of this case;
12. [Order] the striking out of all pleadings of Defendants, including their Motion
to Dismiss dated May 12, 2015 with prejudice;
13. [Render] a judgment of default against the Defendants for purpose[ s] of this
(Id. at 1).
Defendants responded to Plaintiffs Motion for Rule 37 Sanctions, arguing (1) that "the
entire complaint of Swift is liable to be dismissed on the ground of territorial jurisdiction and
limitation"; (2) that "defendants have already filed their response to the document requests and
interrogatories"; and (3) that "Defendant asserts General Objection to each and every
interrogatory . . . [because] Plaintiff has sought irrelevant and unreasonable information, not
connected with the case in any way, thus putting uncalled for and unnecessary burden on
defendants." (Def. Br., ECF No. 90, at 6-7).
Plaintiff replied, arguing that "Plaintiff has requested documents and interrogatories from
Defendants that are relevant to Defendants' relationship to Xechem India and the issue of alter
(Pl. Rep. Br., ECF No. 91, at 1).
Furthermore, Plaintiff argues that Defendants'
allegations that Plaintiff "has all of the documents in his possession that were requested in
discovery," and that Plaintiffs discovery demands are "irrelevant," "is false." (Id.). To the
contrary, Plaintiff alleges that the information sought is "central to the issues" of this litigation.
In short, Defendants, for the most part, argued for dismissal, which is wholly improper
for several reasons, 1 rather than responding to Plaintiffs claim regarding their failure to answer
discovery. Furthermore, this Court will lend no credence to Defendants' bald assertions, without
specific argument, that they either wholly object to Plaintiffs discovery requests or, apparently
in the alternative, they have fully answered Plaintiffs requests. Defendants have not provided
For instance, the Honorable Jose L. Linares, U.S.D.J. already denied Defendants' Motion to
Dismiss on September 8, 2015. (ECF Nos. 93, 94).
this Court with any proof that they have in fact answered Plaintiffs discovery requests.
Defendants have also failed to provide any information to allow this Court to conclude that
Plaintiffs discovery demands are irrelevant.
Courts have continuously exercised lenient standards with pro se parties.
Robinson v. Burlington Cnty. Bd. of Soc. Servs., No. 07-2717 (NLH), 2008 WL 4371765, at *2
(D.N.J. Sept. 18, 2008) ("since plaintiff is proceeding pro se, a more lenient standard is applied
in determining whether the complaint states a claim that would entitle him to relief."). This
leniency, however, should not be abused by prose litigants. "[A]ll litigants, including proses,
have an obligation to comply with Court orders." Creeden v. Home Depot, No. 06-3669 (JAG),
2007 WL 1521439, at *2 (D.N.J. May 23, 2007) (internal citation omitted). Nevertheless,
issuing sanctions is entirely within this Court's discretion. See Fed. R. Civ. P. 37.
This Court notes the unique situation presented here in which all parties, up until
recently, 2 were pro se. Defendants' complete lack of response, however, cannot be tolerated.
Defendants filed an Answer and Counterclaims against Plaintiff on October 28, 2015, (ECF No.
107), in compliance with this Court's Order on October 16, 2015. (ECF No. 100). Accordingly,
this Court shall suppress Defendants' defenses and strike their Answer and Counterclaims. (ECF
This Court has scheduled an in-person status conference with Plaintiff and
Defendants' new counsel for February 17, 2016. (ECF No. 108). The Court will, in a properly
filed Motion, returnable no later than February 17, 2016, entertain Defendants' counsel's
Vijaysen Reddy Yellareddigari, Esq. entered an appearance on behalf of Bhuwan Pandey, and
Ramesh Pandey on October 8, 2015. (ECF No. 97).
application to reinstate Defendants' Answer and Counterclaims, (ECF No. 107), upon proof of a
full and complete response to Plaintiffs discovery requests. 3
For the foregoing reasons, Plaintiffs Motion for Sanctions, (ECF No. 88), 1s
GRANTED. An appropriate form of Order accompanies this Opinion.
Honorable Jose L. Linares, U.S.D.J.
A full and complete response, may of course, include proper objections and assertions of
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