Quarrie v. Wells et al
Filing
253
ORDER by Magistrate Judge Gregory B. Wormuth granting in part and denying in part 233 Motion for Contempt of Court and Sanctions Under Rule 37(b). (ts)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
LINDSAY O’BRIEN QUARRIE,
Plaintiff,
v.
STEPHEN WELLS, et al.,
Defendants.
Civ. No. 17‐350 MV/GBW
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION
FOR CONTEMPT OF COURT AND SANCTIONS
THIS MATTER comes before the Court on Plaintiff’s Motion for Contempt of
Court and Sanctions Under Rule 37(b). Doc. 233. For the reasons explained below, the
Court will GRANT Plaintiff an award of expenses in bringing this Motion. However,
the Court will DENY Plaintiff’s other requested sanctions, including contempt.
I.
LEGAL STANDARDS
Under Federal Rule of Civil Procedure 37(a), a party may move for an order
compelling the opposing party to respond to discovery requests. If the Court grants a
motion to compel, Local Rule 37.2 provides that responses must be served within the
time specified by the Court or, if the Court does not specify a time, within the time
allowed for responses to the original request. D.N.M.LR‐Civ. 37.2. A party must
respond to interrogatories and requests for admissions within 30 days of being
served. Fed. R. Civ. P. 33(b)(2), 36(a)(3).
If a party fails to obey an order under Rule 37(a), the Court may impose
sanctions in its discretion to serve the interests of justice. Fed. R. Civ. P. 37(b)(2)(A);
Olcott v. Del. Flood Co., 76 F.3d 1538, 1555 (10th Cir. 1996). Such sanctions may include
taking matters embraced by the Court’s order as established as the prevailing party
claims or treating the party’s failure as contempt of court. Fed. R. Civ. P. 37(b)(2)(A).
Instead of or in addition to these sanctions, the court must
require the party failing to act, the attorney advising that
party, or both to pay the reasonable expenses, including
attorney’s fees, caused by the failure, unless the failure was
substantially justified or other circumstances make an award
of expenses unjust.
Fed. R. Civ. P. 37(d)(3); see also Fed R. Civ. P. 37(b)(2)(C).
If a party fails to timely respond to a request for admission, the matter is deemed
admitted. Fed. R. Civ. P. 36(a)(3). The party who failed to respond will be bound by
the admission, although the practical effect of an admission may be limited. Dixon v.
Kirkpatrick, 553 F.3d 1294, 1303 (10th Cir. 2009). A matter admitted by operation of Rule
36 may be withdrawn or amended, on a party’s motion, “if it would promote the
presentation of the merits of the action and if the court is not persuaded that it would
prejudice the requesting party in maintaining or defending the action on the merits.”
Fed. R. Civ. P. 36(b). When a party moves to withdraw an admission, “more than a
failure to meet deadlines is required to deny a party relief from an admission.” Raiser v.
Utah Cty., 409 F.3d 1243, 1247 (10th Cir. 2005).
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II.
FACTUAL BACKGROUND
On December 19, 2019, this Court issued an order (hereinafter, “December 19
Order”) addressing two Motions to Compel filed by Plaintiff. Doc. 214. The first
motion addressed objections to particular interrogatories in Plaintiff’s First Set of
Interrogatories to Defendant Wells. Doc. 193. The Court partially granted Plaintiff’s
motion, compelling Defendant Wells to respond to Plaintiff’s Interrogatories Nos. 4, 6,
7, 8, 9, and 10. Doc. 214 at 5–18. The second motion concerned Defendants’ objection to
several discovery requests1 on the grounds that Plaintiff had exceeded his allotted
twenty‐five interrogatories and twenty‐five requests for admission. Doc. 197. The
Court granted Plaintiff’s motion, ruling that each Defendant counts as a separate party
for discovery purposes and permitting Plaintiff to address twenty‐five discovery
requests to each of them. Doc. 214 at 1–5. The Court did not specify a time for
Defendants to respond to the subject discovery requests. Therefore, pursuant to Local
Rule 37.2, Defendants were required to respond within 30 days.
While Plaintiff’s motions were pending before this Court, Plaintiff sent
additional discovery requests to Defendants.2 See doc. 203. Defendants objected to these
These discovery requests are as follows: Plaintiff’s First Set of Requests for Admission to Defendant
Wells; Plaintiff’s Second Set of Requests for Admission to Defendant Wells; Plaintiff’s Third Set of
Requests for Admission to Defendant Wells; and Plaintiff’s First Set of Interrogatories to Defendant El‐
Osery. See doc. 197 at 1–2. For purposes of clarity, these requests, as well as Plaintiff’s First Set of
Interrogatories to Defendant Wells, shall be hereinafter referred to as the “First Set” of discovery requests.
2 These requests are as follows: Plaintiff’s Fourth Set of Interrogatories to Defendant New Mexico Institute
of Mining and Technology (“NMT”); Plaintiff’s Second Set of Interrogatories to Defendant Wells;
Plaintiff’s Third Set of Requests for Admission to NMT; Plaintiff’s Fourth Set of Requests for Admission
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discovery requests on the basis of the numerosity issue at the center of Plaintiffʹs second
motion. Id. at 2. Given that the numerosity issue was then pending before the Court,
Plaintiff sought an extension of the time to file a motion to compel. Id. On January 6,
2020, the Court issued an order (hereinafter, “January 6 Order”) denying Plaintiff’s
Motion to Extend the D.N.M.LR‐Civ. 26.2 Deadline as moot. Doc. 223. With respect to
the pending additional discovery requests, the Court explained that “[b]ased on the
Courtʹs unfavorable ruling as to numerosity, Defendants are now obligated to provide
updated responses. Should Defendants object to Plaintiff’s requests on other grounds,
the twenty‐one‐day period for Plaintiff to file a motion will begin anew.” Id. at 2.
As of January 22, 2020, Defendants failed to provide responses or renew any non‐
numerosity objections to Plaintiff’s discovery requests. According to Plaintiff, upon
being notified of their failure, Defendants informed Plaintiff that their responses “were
not due by Court Order on January 21, 2020, or otherwise.” Doc. 233 at 5. When
Plaintiff pointed out to Defendants that Local Rule 37.2 requires responses within 30
days, Defendants asked Plaintiff for an extension until January 31, 2020. Id. at
6. Plaintiff refused this request and filed the present motion, asking the Court to hold
Defendants in contempt, order immediate responses, and impose further sanctions for
“having prejudiced Plaintiff by their willful failure” to respond. Id. at 7–8.
to Defendant Wells; Plaintiff’s Second Set of Interrogatories to Defendant El‐Osery; and Plaintiff’s First
Set of Requests for Admission to Defendant El‐Osery. See doc. 203 at 2. For purposes of clarity, these
requests shall be hereinafter referred to as the “Second Set” of discovery requests.
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On February 6, 2020, Defendants provided supplemental responses to the First
Set of discovery requests. Doc. 244 at 3. On February 21, 2020, Defendants provided
supplemental responses to the Second Set. Doc. 251.
III.
ANALYSIS
The parties now agree that Defendants were required to respond to Plaintiff’s
First Set of discovery requests by January 21, 2020. Doc. 233 at 4; doc. 244 at 1.
Defendants contend that their failure to provide timely responses was due to ʺthe
intervening holiday and a calendaring error.ʺ Doc. 244 at 2. They do not clarify the
nature of the calendaring error,3 nor do they address the email exchange related by
Plaintiff in which they apparently asserted they were under no deadline at all.
Additionally, while Defendants initially sought an extension until January 31, 2020,
they ultimately sent the responses on February 6, 2020. Notably, Defendants’ response
to this motion was due the next day. From the available evidence, it is not clear that
Defendants would have ever responded to the First Set of discovery requests were it not
for Plaintiff’s filing the present motion.
Had Defendants sought an extension from this Court on the time to serve their responses, the principal
question would be whether the calendaring error constitutes excusable neglect. See Fed. R. Civ. P.
6(b)(1)(B). This question largely depends on the nature of the error. “Generally, courts are more
forgiving of missed deadlines caused by clerical calendaring errors, mathematical miscalculations of
deadlines and mishandling of documents, but are less forgiving when deadlines are missed due to
lawyering mishaps, such as where counsel misconstrues or misinterprets the rules or makes poor tactical
decisions.” Scott v. Raudin McCormick, Inc., 2010 WL 3125955, at *2 (D. Kan. Aug. 6, 2010) (footnotes
omitted). In the absence of a detailed explanation of the calendaring error, the Court is unable to
determine whether it was the sort of clerical error that might have been excused.
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Defendants dispute that they were required to respond to the Second Set of
discovery requests by January 21, 2020, asserting that these requests were “not
addressed in [Plaintiff’s] prior briefing or encompassed in this Court’s Order.” Doc. 244
at 2. Although not specifically referenced in Plaintiff’s motion to compel, they were the
subject of Plaintiff’s Motion to Extend the D.N.M.LR‐Civ. 26.2 Deadline. Doc.
223. Defendants responded to each and every interrogatory and request for admission
in the Second Set with the numerosity objection that this Court ultimately rejected in its
December 19 Order. See doc. 233‐1 at 43–82. Even if Defendants initially failed to realize
the effect of the December 19 Order, the Court made clear in its January 6 Order that
Defendants were obligated to provide new responses to the Second Set. Doc. 223 at 2.
Because Defendants were on notice of this obligation by January 6, 2020 at the latest,
they were required under Local Rule 37.2 to provide new responses no later than
February 5, 2020. Therefore, their February 21 responses were unjustifiably late.
For their failure to provide timely responses, Plaintiff asks the Court to hold
Defendants in contempt and to impose additional unspecified sanctions. The sanction
of civil contempt is primarily remedial rather than punitive. Ager v. Jane C. Stormont
Hosp. & Training Sch. for Nurses, 622 F.2d 496, 500 (10th Cir. 1980). Civil contempt may
be imposed “to compel or coerce obedience to a court order” or “to compensate the
contemnor’s adversary for injuries resulting from the contemnor’s noncompliance.”
Acosta v. Paragon Contractors Corp., 884 F.3d 1225, 1238 (10th Cir. 2018) (quoting
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O’Connor v. Midwest Pipe Fabrications, Inc., 972 F.2d 1204, 1211 (10th Cir. 1992)).
Coercive sanctions “remain only until the contemnor complies with the order.” Id. at
1239. Compensatory sanctions are limited to the amount of “actual losses sustained as a
result of the contumacy.” Id. at 1240 (quoting O’Connor, 972 F.2d at 1211). Because
Defendants have now provided responses to the discovery requests at issue (albeit
belatedly), the Court considers contempt an improper sanction. The Court has no need
to coerce Defendants’ compliance, and a compensatory sanction is already available
under Rule 37.
The Court must award expenses under Rule 37 unless the disobedient party’s
failure to act was substantially justified or the award of expenses would be unjust. Fed
R. Civ. P. 37(b)(2)(C).4 Defendants’ failure to provide timely responses was not
substantially justified, and the Court sees no reason why an award of expenses would
be unjust. Therefore, the Court finds it proper to award Plaintiff his reasonable
expenses, including attorney’s fees, in briefing this motion.
Defendants’ counsel asks that any sanction entered by the Court be against
counsel alone. Doc. 244 at 7. Rule 37 allows the Court to require a party, a party’s
attorney, or both to pay the other party’s expenses. Fed R. Civ. P. 37(b)(2)(C). There is
Of course, the party must be given an opportunity to be heard as well. This requirement is met where,
as here, the opposing party seeks sanctions in its briefing and the sanctioned party has an opportunity to
respond thereafter. See e.g., McCoo v. Denny’s Inc., 192 F.R.D. 675, 697 (D. Kan. 2000).
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no indication that Defendants were responsible for the lateness of the responses.
Therefore, the Court will require only Defendant’s counsel to pay Plaintiff’s expenses.
Finally, Defendants raise a concern that “entering an order deeming the
admissions admitted would be akin to entering a default judgment as to all or portions
of the Defendants’ defenses.” Doc. 244 at 6. Plaintiff has not asked the Court to enter
such an order. Doc. 248 at 8. As Rule 36 provides, Defendants may file a motion to
have admissions withdrawn or amended. The practical effect of these admissions and
the propriety of withdrawing them are matters not properly before the Court at present,
thus the Court expresses no opinion on them.
IV.
CONCLUSION
For the reasons stated above, Plaintiff’s Motion for Contempt of Court and
Sanctions Under Rule 37(b) (doc. 233) is GRANTED in part and DENIED in part.
IT IS ORDERED that Defendants’ counsel shall be required to pay Plaintiff’s
reasonable expenses, including attorney’s fees, in bringing this Motion.
IT IS FURTHER ORDERED that, within ten (10) days of the filing of this Order,
Plaintiff shall submit an affidavit detailing the reasonable attorney’s fees and costs
expended in briefing this Motion. Defendants’ objections to the amounts claimed, if
any, shall be filed within ten (10) days of the filing of the affidavit.
_____________________________________
GREGORY B. WORMUTH
UNITED STATES MAGISTRATE JUDGE
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