Ross et al v. Choice Hotels International, Inc. et al

Filing 44

OPINION AND ORDER granting in part and denying in part 25 Motion for Sanctions and 33 Motion for Sanctions. Signed by Magistrate Judge Norah McCann King on 12/20/11. (rew)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

CANDICE ROSS, et al.,
Plaintiffs,
Civil Action 2:10-CV-1098
Judge Frost
Magistrate Judge King

vs.
CHOICE HOTELS INTERNATIONAL,
INC., et al.,
Defendants.
OPINION AND ORDER

This is a civil rights action in which

plaintiffs, who are African-American, claim that defendants Choice
Hotels International, Inc. [hereinafter “Choice Hotels”], a
franchisor, and GNA Properties LLC [hereinafter “GNA”], the franchisee
of a hotel in Columbus, Ohio, discriminated against plaintiffs on
account of their race in violation of 42 U.S.C. §1981 and O.R.C.
§4112.02(G), and acted in breach of the parties’ contract for the
rental of a room.

The Complaint specifically alleges that defendant

GNA “acted as the actual or apparent agent of” defendant Choice
Hotels.

Id. ¶9.

This matter is now before the Court on motions for

sanctions against defendant GNA filed by plaintiffs, Plaintiffs’
Motion to Enforce the Court’s Order and for Sanctions against
Defendant GNA Properties LLC, Doc. No. 25 [hereinafter “Plaintiffs’
Motion for Sanctions”], and by defendant Choice Hotels, Motion of
Defendant, Choice Hotels International, Inc. to Enforce the Court’s
Order and for Sanctions against Defendant GNA Properties LLC, Doc. No.
33 [hereinafter “Choice Hotels’ Motion for Sanctions”].
no response to the motions.
Background

GNA has made

Following the Rule 16 conference on March 16, 2011, the Court
directed that all parties make their Rule 26(a)(1) disclosures no
later than April 30, 2011.
1.

Preliminary Pretrial Order, Doc. No 10, p.

That date was extended, upon the request of Choice Hotels, to May

27, 2011.

Order, Doc. No. 14; Order, Doc. No. 16.

At a June 27, 2011 status conference with the Court, it was
reported that GNA had not made its Rule 26(a)(1) disclosures, nor had
it responded to written discovery requests propounded upon it by
plaintiffs and Choice Hotels.

See Order, Doc. No. 20.

The Court

expressly ordered GNA to make its Rule 26(a)(1) disclosures and to
respond to all outstanding discovery requests no later than July 1,
2011.

Id.

The Court went on to advise GNA that “[i]ts failure to do

so will result in the imposition of sanctions, including possible
default and dismissal of its counterclaims.”

Id. p. 1.

On July 19, 2011, plaintiffs filed their motion for sanctions,
representing that GNA had failed to comply with the Court’s order.
Plaintiffs’ Motion for Sanctions.

In that motion, plaintiffs request

an award of attorney’s fees and costs as well as “coercive sanctions
until the disclosures and discovery responses are served.”
As noted supra, GNA made no response to that motion.

Id. p. 1.

However, Choice

Hotels, although not disputing GNA’s discovery defaults, asked that
GNA not be sanctioned in such a way as to impair the ability of Choice
Hotels to present a full defense to plaintiffs’ claims.

Memorandum

contra of Defendant Choice Hotels International, Inc. to Plaintiffs’
Motion to Enforce the Court’s Order, etc., Doc. No. 28.
On September 29, 2011, Choice Hotels filed its own motion for

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sanctions against GNA.

Choice Hotels’ Motion for Sanctions.

As did

plaintiffs, Choice Hotels seeks an award of attorney’s fees and costs
and “coercive sanctions designed to compel Defendant GNA Properties,
LLC to make Rules 26(a)(1) disclosures and discovery responses.”
p. 1.1

There has been no response to that motion.

Id.

However, in the

motion to cancel the December 2011 Settlement Week mediation, in which
all parties joined, it was represented that GNA had committed to
“deliver all outstanding discovery to counsel on Monday, December 5,
2011.”

Joint Motion to Cancel Mediation Set for December 14, 2011,

Doc. No. 42, p. 1 n. 1.
Standard
Rule 37 of the Federal Rules of Civil Procedure authorizes the
filing of a motion to compel disclosures under Rule 26(a) and
discovery responses.

Fed. R. Civ. P. 37(a)(3)(A), (B).

A court must

ordinarily award the movant’s reasonable expenses incurred in filing
the motion, including attorney’s fees, if the motion to compel is
granted “or if the disclosure or requested discovery is provided after
the motion was filed. . . .”

Rule 37(a)(5)(A).

A court may also

award reasonable expenses including attorney’s fees if a party fails
to make the disclosures required by Rule 26(a). Rule 37(c)(1), (d). A
failure to comply with a court order may also be treated as a contempt
of court.

Rule 37(b)(2)(A)(vii). A court has wide discretion in

determining an appropriate sanction under Rule 37.

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National Hockey

Shortly thereafter, Choice Hotels also moved for default judgment
against GNA on the cross claims asserted against it by Choice Hotels. Motion
for Default Judgment, Doc. No. 34. The fact of GNA’s default on the cross
claims was entered by the Clerk on December 1, 2011. Clerk’s Entry of
Default, Doc. No. 41.

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League v. Metropolitan Hockey Club, 427 U.S. 639 (1976); Regional
Refuse Systems v. Inland Reclamation Co., 842 F.2d 150, 154 (6th Cir.
1988).
Discussion
The record is clear that GNA has failed to comply with this
Court’s orders and has failed to meet its discovery obligations.
Indeed, GNA does not argue to the contrary.
therefore meritorious.

The motions to compel are

Under the express provisions of Rule 37, the

movants are entitled to an award of their expenses, including
attorney’s fees, incurred in connection with the grant of their
motions.
Plaintiffs and Choice Hotels also ask for an award of “coercive
sanctions” to be imposed until GNA makes its required disclosures and
responds to written discovery requests.

Rule 37(b)(2)(A)(vii)

authorizes a finding of contempt for failure to comply with a court’s
discovery order.

A sanction for a civil contempt is remedial and is

intended to accrue to the benefit of the complainant.
Stove & Range Co., 221 U.S. 418, 441 (1911).

Gompers v. Buck

“Broadly, the purpose of

civil contempt is to coerce an individual to perform an act or to
compensate an injured complainant.”

United States v. Bayshore

Associates, Inc., 934 F.2d 1391, 1400 (6th Cir. 1991) (citing United
States v. Mine Workers, 330 U.S. 258, 303-04 (1947); Gompers, 221 U.S.
at 441). See, e.g., United States v. Hendrickson, 2010 WL 2490716, *4
(E.D. Mich. June 10, 2010)(holding a party in contempt and imposing a
daily fine until the party provides responses to discovery requests as
ordered by the court).

A sanction for a civil contempt must be

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conditional, “that is, once the [party] performs the act required by
the court,” the sanction must be lifted.

Bayshore Associates, 934

F.2d at 1400.
In their Joint Motion to Cancel Mediation Set for December 14,
2011, the parties represented that GNA had committed to complying with
its discovery obligations and no party has advised the Court that GNA
has not done so.

It therefore appears that the coercive sanctions

associated with a finding of civil contempt are unnecessary to effect
the relief requested by movants.
WHEREUPON Plaintiffs’ Motion for Sanctions, Doc. No. 25, and
Choice Hotels’ Motion for Sanctions, Doc. No. 33, are GRANTED in part
and DENIED in part.

To the extent that the motions seek an award of

expenses, including attorney’s fees, incurred in connection with the
motions, the motions are GRANTED.

The movants shall promptly submit

to counsel for defendant GNA an itemized statement of expenses,
including attorneys' fees, incurred by them in connection with the
grant of their motions.

To the extent that the motions seek a finding

of civil contempt, the motions are DENIED.

s/ Norah McCann King
Norah McCann King
United States Magistrate Judge
December 20, 2011

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