Metron Nutraceuticals, LLC v. Cook, et al.
Opinion and Order: For the reasons in the order accompanying this entry, the Court GRANTS IN PART Plaintiff's motion for civil contempt and sanctions (ECF No. 99 ). Specifically, the Court DENIES the motion to the extent i t seeks a finding of contempt, but GRANTS Plaintiff's motion for discovery sanctions under Rule 37(b)(2)(A). The Court ORDERS Defendant Thomas to pay Plaintiff's reasonable expenses, including attorney's fees. The parti es should refer to the attached order for further instructions regarding the determination of attorneys' fees to be paid as a discovery sanction. Further, the Court DENIES Plaintiff's motion to disqualify (ECF No. 101 ). Judge J. Philip Calabrese on 7/14/2021.(Y,A)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
CHRISTINA RAHM COOK, et al.,
Case No. 1:20-cv-01803
Judge J. Philip Calabrese
Magistrate Judge David A. Ruiz
OPINION AND ORDER
Plaintiff Metron Nutraceuticals, LLC moved for civil contempt and sanctions
against Clayton Thomas (ECF No. 99) and to disqualify attorney Kline Preston (ECF
No. 101). The Court will rule on both, starting with Plaintiff’s motion for contempt
Contempt and Sanctions (ECF No. 99)
On May 11, 2021, after his counsel withdrew, the Court ordered Mr. Thomas,
among other Defendants, to secure new counsel by May 25, 2021.
explained that if new counsel failed to appear by that date, it would treat Mr. Thomas
as proceeding pro se. If proceeding pro se, the Court further ordered Mr. Thomas to
provide discovery responses to Plaintiff no later than May 25, 2021. (Order, May 11,
2021.) By then, responses to the discovery requests Plaintiff served had been many
The order regarding production of discovery was issued in
connection with a second order that included directives meant to facilitate discovery.
(Minute Order, May 11, 2021.)
The parties agree and the record shows that new counsel did not appear for
Mr. Thomas by May 25, 2021 and that he did not serve discovery responses until June
23, 2021 (ECF No. 108, PageID #3181; ECF No. 103, PageID #3039). On May 28,
2021, Plaintiff moved for civil contempt and sanctions against Mr. Thomas for
violating the Court’s order and failing to produce discovery.
(ECF No. 99.)
Mr. Thomas attributes the delayed production to his “struggle to answer all of the
discovery timely.” (Id., PageID #1308.) The Court addresses Plaintiff’s request for
civil contempt first, with which Plaintiff leads in its motion.
“A litigant may be held in contempt if his adversary shows by clear and
convincing evidence that ‘he [violated] a definite and specific order of the court
requiring him to perform or refrain from performing a particular act or acts with
knowledge of the court’s order.’” NLRB v. Cincinnati Bronze, Inc., 829 F.2d 585, 591
(6th Cir. 1987) (quoting SEC v. First Fin. Grp. of Tex., Inc., 659 F.2d 660, 669 (5th
Cir. 1981)). In the Sixth Circuit, to determine whether a party should be held in civil
contempt, the court must consider whether the party “took all reasonable steps within
[his] power to comply with the court’s order,” not whether the party acted in good
Glover v. Johnson, 934 F.2d 703, 708 (6th Cir. 1991) (citations omitted).
Therefore, good faith is not a defense, but impossibility is. Id. The party to be held
in contempt has the burden of proving impossibility. Id. Further, willfulness or
intent to disobey are not required to hold a party in civil contempt. Rolex Watch
U.S.A., Inc. v. Crowley, 74 F.3d 716, 720 (6th Cir. 1996). “A decision on a contempt
petition is within the sound discretion of the trial court,” and “the power ‘to punish
for contempts’ should not be used lightly . . . .” Electric Workers Pension Tr. Fund of
Local Union #58 v. Gary’s Elec. Serv. Co., 340 F.3d 373, 387 (6th Cir. 2003) (quoting
Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 450 (1911)). This discretion
includes the power to frame sanctions so that they fit the violation in question. Adcor
Indus. v. Bevcorp, LLC, 411 F. Supp. 2d 778, 794 (N.D. Ohio 2005) (citing Electric
Workers Pension Tr. Fund, 340 F.3d at 385).
On the facts and circumstances presented, the Court determines that an order
of civil contempt is not appropriate. Although Mr. Thomas did not serve his discovery
responses by the Court’s deadline, and therefore did not strictly comply with the
Court’s order, the intent of the Court’s order was to move the case along and make
progress in discovery toward a resolution on the merits—not create a path to
contempt, a default, or some other sanction. Essentially, the Court’s Order was a
discovery order and a case management order. Although a citation for contempt may,
in some circumstances, be appropriate for violation of such orders, in the Court’s
judgment, this is not such a circumstance given the nature of the order and the stage
of the proceedings.
Accordingly, the Court DENIES Plaintiff’s motion for civil
Plaintiff also seeks discovery sanctions under Rule 37(b)(2)(A), which
authorizes the imposition of sanctions for failure to comply with a court’s discovery
order. Fed. R. Civ. P. 37(b)(2)(A). “The purpose of imposing sanctions is to assure
both future compliance with the discovery rules and to punish past discovery failures,
as well as to compensate a party for expenses incurred due to another party’s failure
to properly allow discovery.” Jackson v. Nissan Motor Corp., 888 F.2d 1391 (6th Cir.
1989) (quotation omitted).
Rule 37(b)(2)(A) provides discretionary sanctions if a party fails to obey a
discovery order. See Fed. R. Civ. P. 37(b)(2)(A)(i)–(vii). Instead of or in addition to
the discretionary sanctions of Rule 37(b)(2)(A), under Rule 37(b)(2)(C), a court must
order a disobedient party to “pay the reasonable expenses, including attorney’s fees,
caused by the failure” to comply with discovery orders “unless the failure was
substantially justified or other circumstances make an award of expenses unjust.”
Fed. R. Civ. P. 37(b)(2)(C).
Based on the record before the Court, and the parties’ respective briefing and
arguments, the Court finds Clayton Thomas failed to comply with the Court’s
discovery order of May 11, 2021 and has not provided substantial justification for his
failure. Because Mr. Thomas did, belatedly, provide discovery responses, the Court
declines to issue the specific discretionary sanctions set forth in Rule 37(b)(2)(A),
which include default, striking defenses, and the like. Plaintiff did not offer another
sanction that the Court considers an appropriate response to Mr. Thomas’s failure.
Under the circumstances, however, the Court finds that Rule 37(b)(2)(C) requires an
award of expenses, including attorneys’ fees, directly tied to Mr. Thomas’s late
discovery responses and failure to comply with the Court’s Order of May 11, 2021.
Accordingly, the Court GRANTS Plaintiff’s motion for sanctions under
Rule 37. With respect to expenses, including attorneys’ fees, the Court ORDERS
Plaintiff to file affidavits or declarations from counsel who worked to secure
compliance with the Court’s Order that include: (1) their hourly rates, the number of
hours each worked, and the dollar value of that time; (2) an itemization of expenses;
and (3) detailed time records substantiating those expenses and fees. Plaintiff may
file the third of these items with redactions to protect work product and privileged
matters, but must contemporaneously submit an unredacted version to chambers for
review. Upon review, if the Court determines that any matter redacted in a public
filing does not merit protection under the work-product doctrine or a claim of
privilege, the Court will order the filing of a new version without the redaction at
issue to comply with Shane Group, Inc. v. Blue Cross Blue Shield of Michigan, 825
F.3d 299 (6th Cir. 2016), and its progeny. The Court ORDERS Plaintiff to file these
materials no later than August 9, 2021. Mr. Thomas may respond to that submission
no later than August 23, 2021. The Court will then issue a subsequent order directing
Mr. Thomas to pay those expenses, including attorneys’ fees, by a date certain.
Disqualification (ECF No. 101)
Also before the Court is Plaintiff’s motion to disqualify attorney Kline Preston.
(ECF No. 101.) Rule 3.7 of the Ohio Rules of Professional Conduct prohibits a lawyer
from acting as an advocate at a proceeding at which the lawyer or another lawyer
from his or her firm is likely to be a necessary witness. Subsection (a) of the Rule
requires disqualification where the lawyer is likely to be a “necessary witness.” Ohio
Prof. Cond. Rule 3.7(a). “A necessary witness is not simply one who provides relevant
or even highly useful testimony. Rather, a necessary witness is one who provides
testimony that is material and relevant to the issues being litigated and that the
evidence is unobtainable elsewhere.” Whitacre v. Nations Lending Corp., No. 5:19CV-809, 2019 WL 3458470, at *2 (N.D. Ohio July 30, 2019) (citations omitted). “The
burden of proof is on the party seeking to demonstrate that disqualification is
necessary.” Glazer v. Reimer, No. 1:09CV1262, 2015 U.S. Dist. LEXIS 194464, at *10
(N.D. Ohio Nov. 2, 2015).
Plaintiff has not carried its burden of demonstrating that Mr. Preston is likely
to be a necessary witness at the trial of this matter. That is, Plaintiff has not shown
that testimony from Mr. Preston would be material to its case and unobtainable
His personal knowledge relevant to some issues or aspects of this
litigation does not make him a necessary witness. (ECF No. 101, PageID #2984.) As
a result, the Court finds that disqualifying Mr. Preston would be inappropriate at
this stage in the proceedings and, therefore, DENIES Plaintiff’s motion for
disqualification. However, the Court that disqualification may be appropriate or
necessary at a later date depending on how the case and evidence evolve in discovery.
See United States v. Poulsen, No. CR2-06-129, 2006 WL 2619852, at *13 (S.D. Ohio
Sept. 12, 2006) (denying motion for disqualification of counsel but noting the
possibility of reconsideration). Should disqualification be appropriate later, the Court
notifies counsel and parties that disqualification will not be considered good cause to
delay any scheduled deadlines or proceedings, including a trial date.
For the foregoing reasons, the Court GRANTS IN PART Plaintiff’s motion for
civil contempt and sanctions (ECF No. 99). Specifically, the Court DENIES the
motion to the extent it seeks a finding of contempt, but GRANTS Plaintiff’s motion
for discovery sanctions under Rule 37(b)(2)(A). The Court finds that Defendant
Clayton Thomas failed to comply with the Order dated May 11, 2021 and, pursuant
to Rule 37(b)(2)(C), ORDERS Defendant Clayton Thomas to pay Plaintiff’s
reasonable expenses, including attorneys’ fees in an amount to be determined
according to the procedure outlined above in a separate, forthcoming Order. Further,
the Court DENIES Plaintiff’s motion for disqualification.
Dated: July 14, 2021
J. Philip Calabrese
United States District Judge
Northern District of Ohio
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