Laborers Local Union 158 et al v. Fred Shaffer Concrete et al

Filing 23

ORDER - IT IS ORDERED that the Pltf's 21 Motion for Sanctions is GRANTED IN PART, and Dfts Fred Shaffer and Fred Shaffer Concrete SHALL pay the amount of $1060, the reasonable expenses incurred by Pltf's in connection with Dfts' failure to respond to Pltfs' post-judgment interrogatories, within 30 days of the date of this order. Signed by Chief Judge Yvette Kane on Feb. 6, 2012. (sc)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
LABORERS LOCAL UNION 158, et al.,
Plaintiffs
v.
FRED SHAFFER CONCRETE, et al.,
Defendants

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Civil Action No. 1:10-cv-01524
(Chief Judge Kane)

MEMORANDUM ORDER
Presently pending before the Court is Plaintiffs’ motion for sanctions. (Doc. No. 21.) As
Defendants have yet to appear or defend in this action, no opposition to the motion has been
filed. For the reasons that follow, the Court will grant Plaintiffs’ motion in part.
I.

BACKGROUND
On July 22, 2010, Plaintiffs brought this action pursuant to §§ 502 and 515 of the

Employee Retirement Income Security Act of 1974, 29 U.S.C. §§ 1132, 1145, and the
Pennsylvania Wage Payment and Collection Law, 43 P.S. § 260, et seq. (Doc. No. 1.) After
Defendants, who were properly served with the summons, complaint, and other pertinent
documents, (Doc. No. 6), did not appear, move, or otherwise respond to the pleading, the Clerk
of Court entered default against Defendants. (Doc. No. 11). On April 13, 2011, the Court
granted Plaintiffs’ motion for default judgment against Defendants in the amount of $10,248.76,
with post-judgment interest in accordance with 28 U.S.C. § 1961(a). (Doc. No. 16 at 6.)
On or about May 3, 2011, Plaintiffs served upon Defendants post-judgment
interrogatories in aid of execution. (Doc. No. 18 ¶ 2.) After receiving no response, Plaintiffs
sent a letter to Defendants on June 8, 2011, requesting a response to the interrogatories. (Id. ¶ 3.)
On July 28, 2011, Plaintiffs filed a motion to compel Defendants to answer the post-judgment
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interrogatories. (Doc. No. 18.) The Court granted Plaintiffs’ motion on August 3, 2011,
ordering Defendants to provide responses to Plaintiffs’ interrogatories within thirty days or risk
further sanctions of the Court. (Doc. No. 20.) To date, Plaintiffs have failed to provide
responses.
II.

DISCUSSION
“It is well established that the scope and conduct of discovery are within the sound

discretion of the trial court.” Borden Co. v. Sylk, 410 F.2d 843, 845 (3d Cir. 1969). In an action
to aid the execution of a money judgment, a judgment creditor may take discovery “from any
person – including the judgment debtor” as the Federal Rules of Civil Procedure allow “or by the
procedure of the state where the court is located.” Fed. R. Civ. P. 69(b). Rule 33 allows a party
to serve interrogatories, and Rule 37(d)(1)(A)(ii) provides that “the court where the action is
pending may, on motion, order sanctions if . . . a party, after being properly served with
interrogatories under Rule 33 . . . fails to serve its answers, objections, or written response.” The
imposition of sanctions, including attorney’s fees, under Rule 37 is phrased in mandatory
language “unless the failure was substantially justified or other circumstances make an award of
expenses unjust.” Fed. R. Civ. P. 37(d)(3); see also Newman v. GHS Osteopathic, Inc. v.
Parkview Hosp. Div., 60 F.3d 153, 156 (3d Cir. 1995). Discovery sanctions, however, must
reflect the “reasonable expenses” incurred by Plaintiffs, and the Court has discretion to impose
an “appropriate sanction.” Fed. R. Civ. P. 37(a)(5)(A); see also Martin v. Brown, 63 F.3d 1252,
1263 n.15 (3d Cir. 1995) (“Although Rule 37 authorizes both punitive and compensatory
damages, it requires the amount of any monetary damages to be specifically related to expenses
incurred by the violations.”).

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Plaintiffs seek an award of $1,300 in attorney’s fees for 6.5 hours of attorney time at a
rate of $200 per hour. (Doc. No. 21 at 6; Doc. No. 21-2.) Defendants have responded neither to
Plaintiffs’ request for post-judgment interrogatories nor to the Court’s August 3, 2011 order
directing Defendants to answer the interrogatories within thirty days or risk further sanctions. In
support of their motion for sanctions, Plaintiffs have submitted time records, stating that 4.3
hours of attorney time was devoted to work relating to the motion to compel and the instant
motion for sanctions. (Doc. No. 21-2.) The Court finds that Defendants’ failure to respond to
Plaintiffs’ post-judgment interrogatories is specifically related to this amount of time, and that
this amount of time was reasonable. Therefore, the Court will order Defendants to pay Plaintiffs
$860 in attorney’s fees, representing 4.3 hours of attorney time at a rate of $200 per hour.
Plaintiffs also request that they be awarded attorney’s fees for 2.2 hours of attorney time
from June 2011, which was spent: (1) reviewing the file (0.2 hours); (2) reviewing email,
researching, and preparing and reviewing responses to interrogatories served on First Keystone
National Bank (one hour); and (3) reviewing the file, researching, conferring with the client, and
preparing the June 8, 2011 letter to Defendants, requesting responses to the post-judgment
interrogatories (one hour). (Id.) The Court finds that the only tasks specifically related to
Defendants’ failure to answer the post-judgment interrogatories were the ones taken in relation
to the drafting of the June 8, 2011 letter to Defendants, and that the one hour of attorney time
spent doing so was reasonable. Therefore, the Court will order Defendants to pay Plaintiffs $200
in attorney’s fees, representing one hour of attorney time at a rate of $200 per hour.
ACCORDINGLY, on this 6th day of February 2012, IT IS HEREBY ORDERED that
Plaintiffs’ motion for sanctions (Doc. No. 21) is GRANTED IN PART, and Defendants Fred

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Shaffer and Fred Shaffer Concrete SHALL pay the amount of $1,060, the reasonable expenses
incurred by Plaintiffs in connection with Defendants’ failure to respond to Plaintiffs’ postjudgment interrogatories, within thirty days of the date of this order.

S/ Yvette Kane
Yvette Kane, Chief Judge
United States District Court
Middle District of Pennsylvania

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