Simmons v. Simmons

Filing 71

ORDER - Simmons shall have twenty-one (21) days from date of entry of this order to bring himself into compliance with the court's order dated March 23, 2011, and to file with the court the entirety of his responses in discovery. Simmons is caut ioned that if issues do remain, the court will consider all sanctions available pursuant to Rule 37(b)(2), including default judgment. The court holds in abeyance plaintiff's motion for fees 56 pending Simmons's response to this order. Th e court DENIES without prejudice to renewal plaintiff's request for a discovery hearing 68 . Finally, in light of this order, the court DENIES plaintiff's motion to request enforcement 69 . Signed by District Judge Louise Wood Flanagan on 10/27/2011. (Baker, C.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No.5:08-CV-00517-FL
GEOFFREY H. SIMMONS, JR.,
Plaintiff,
v.
GEOFFREY H. SIMMONS, SR.; and
SIMMONS LAW FIRM,

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ORDER

Defendants.

This matter comes before the court on plaintiffs motion to recover fees and expenses
(DE # 56), motion for sanctions (DE # 66), motion to request enforcement (DE # 69), and request
for a discovery hearing (DE # 68). The issues raised are ripe for ruling.
BACKGROUND
Plaintiff, a federal inmate, initiated this action on October 15,2008. The pro se complaint
states claims for malpractice and fraud against Geoffrey Simmons, Sr. ("Simmons"), who is
plaintiffs father and an attorney. Plaintiffs claims arise out of Simmons's representation ofplaintiff
in the federal criminal prosecution that resulted in plaintiffs incarceration. This case has been
fraught with discovery issues from the start. In the court's best estimation, Simmons has been
stonewalling plaintiff s attempts to conduct discovery since at least September oflast year, if not
earlier.
After months of unsuccessfully seeking Simmons's compliance, plaintiffultimately filed
motion to compel, which the court granted by order dated March 23, 2011. Therein, the court

ordered Simmons to comply with certain discovery requests by plaintiff, to which the court
determined Simmons had responded inadequately, if at all. Further, the court directed plaintiff to
submit a schedule offees and expenses incurred in making his motion to compel, giving opportunity
also to Simmons to show cause as to why fees and expenses should not be awarded. Finally, in the
same order, the court granted plaintiffs motion for leave to amend the complaint to add Simmons
Law Firm ("the Firm") as a defendant.
On March 23, 2011, plaintiff filed amended complaint, joining the Firm as a defendant.
Simmons and the firm answered on April 13,2011.
On April 6, 2011, plaintifffiled his motion to recover from Simmons the fees and expenses
incurred in making the motion to compel. Plaintiffs motion is supported by declaration and a
schedule of expenses. Simmons filed a bare bones response in opposition, to which plaintiff replied.
On June 20, 2011, plaintiff filed motion for sanctions pursuant to Rule 37(b)(2)(A) for failure to
comply with the court's discovery order. No response was filed to plaintiffs motion for sanctions.
Finally, on August 23, 2011, plaintiff requested a telephonic hearing with this court regarding
discovery.

DISCUSSION
A.

Motion for Sanctions
In granting plaintiffs motion to compel, the court ordered Simmons to cure specific

deficiencies in his discovery responses. More particularly, Simmons first was ordered to make the
initial disclosures required by Federal Rule ofCiviJ Procedure 26(a). Additionally, where Simmons
in his first response had inadequately or evasively answered certain of plaintiffs interrogatories,
Simmons was also ordered to submit complete, clear, and sufficient responses. Further, the court

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determined that Simmons's responses to plaintiffs request for admissions were inadequate in that
he failed to state specifically why certain requests could not be answered, as required by Federal Rule
of Civil Procedure 36(a)(4). Finally, where Simmons refused to produce any document requested
by plaintiff (responding to each request either with "do not have any" or "objection to relevance"),
such responses were deemed insufficient to satisfy Simmons's obligations in discovery.
Plaintiffs motion for sanctions raises issue as to whether Simmons has complied with the
terms of the court's order. I Simmons shall have twenty-one (21) days from date of entry of this
order within which to bring himself into compliance. 2 This deadline shall be strictly observed.
Simmons shall file by this date with the court the entirety ofhis responses in discovery, as previously
ordered, and as ordered yet again. 3 Thereafter, the court will take up and decide the motion for
sanctions together with the motion for fees and expenses.
Simmons is admonished that, should issues then remain, the court will heartily exercise
its wide discretion to impose sanctions for defendant's failure to comply with discovery orders. See
Mut Fed. Sav. and Loan Ass'n v. Richards & Assoc., Inc., 872 F.2d 88, 92 (4th Cir. 1989).
Reference is made to Federal Rule of Civil Procedure 37(b)(2), which provides that the court may
impose sanctions in many forms, including specifically by rendering default judgment against the

I Plaintiffs motion requests that the court "render appropriate sanctions upon Defendant[s]" pursuant to Rule
37(b)(2)(A) for failure to obey the court's discovery order. This reference to multiple defendants is perhaps inadvertent,
as throughout the memorandum in support, plaintiff clearly refers only to Simmons. Plaintiffs motion to compel and
the court's resulting discovery order were limited to Simmons and did not extend to the Firm. The court may not impose
sanctions under Rule 37(b) unless it has already issued a discovery order with which a party has failed to comply. See
Fed.R.Civ.P.37(b)(2)(A).

2 With respect to the making of disclosures, the court's prior reference in order lodged on the docket at entry
number 52 extends to initial disclosures required by Rule 26(a)(l) (emphasis added).

] Simmons is reminded of opportunity to file under seal any discovery that is potentially confidential.
Reference is made to Local Civil Rule 79.2 for specific requirements and procedures.

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disobedient party. Fed.R.Civ.P.37(b)(2)(A)(vi). Without doubt, the court will consider the entire
spectrum of sanctions available, including, if appropriate, default judgment. See Hathcock v.
Navistar Infl Trans. Corp., 53 F.3d 36, 40 (4th Cir. 1995) (observing that district court must make
threat of entry of default judgment clear).
B.

Plaintiffs Additional Motions
In light ofthe court's ruling on plaintiffs motion for sanctions, the court holds in abeyance

plaintiffs motion for fees and expenses pending Simmons's response to this order. Further, the
court denies without prejudice to renewal plaintiffs request for discovery hearing and denies
plaintiff s motion to request enforcement.
CONCLUSION
Simmons shall have twenty-one (21) days from date ofentry ofthis order to bring himself
into compliance with the court's order dated March 23, 2011, and to file with the court the entirety
of his responses in discovery. Simmons is cautioned that if issues do remain, the court will consider
all sanctions available pursuant to Rule 37(b)(2), including default judgment.
The court holds in abeyance plaintiffs motion for fees (DE # 56) pending Simmons's
response to this order. The court DENIES without prejudice to renewal plaintiffs request for a
discovery hearing (DE # 68). Finally, in light of this order, the court DENIES plaintiffs motion to
request enforcement (DE # 69).
L

SO ORDERED, this thee21- day of October, 2011.

au~

L ISE W. FLANA~
United States District Judge

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