Deitrick v. Costa et al
Filing
669
MEMORANDUM OPINION - Defendant Thomas Yoncuski's Motion for Sanctions (Doc. 657) (Order to follow as separate docket entry). Signed by Magistrate Judge William I. Arbuckle on 12/10/2019. (caw)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
DONNA DEITRICK,
Plaintiff
v.
MARK COSTA, et al.,
Defendants
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)
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)
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CIVIL ACTION NO. 4:06-cv-1556
(ARBUCKLE, M.J.)
MEMORANDUM OPINION
Defendant Thomas Yoncuski’s Motion for Sanctions (Doc. 657)
I.
INTRODUCTION
During the life of this case, several motions for sanctions were filed and
were denied without prejudice to renewing the motion after trial. One such motion,
seeking to recover attorney’s fees expended to obtain discovery that was
unreasonably delayed, was filed by Defendant Thomas Yoncuski in September of
2016. (Doc. 453). Trial in this case concluded in October 2019. Presently before
the Court is Defendant Thomas Yoncuski’s renewed motion for discovery
sanctions under Rule 37(b)(2) for failure to obey a discovery order, or in the
alternative under Rule 37(c)(1) for failure to provide information as required by
Rule 26(a). (Doc. 657).
For the reasons stated herein, Defendant Thomas Yoncuski’s renewed
motion for discovery sanctions (Doc. 657) is GRANTED as follows:
Page 1 of 13
(1)
II.
Plaintiff Donna Deitrick is required to tender reasonable attorneys
fees and costs in the amount of $1,250.00 to Defendant Thomas
Yoncuski’s counsel—Michael B Scheib on or before January 10,
2020, pursuant to Fed. R. Civ. P. 37(b)(2)(C).
BACKGROUND & PROCEDURAL HISTORY
Plaintiff’s Complaint concerns two incidents that transpired in August of
2004: (1) the alleged taking of a safe and jewelry contained within the safe; and (2)
an alleged assault that took place between Plaintiff, Vanessa Yoncuski and Robert
Yoncuski shortly after the theft. The allegations against Defendant Thomas
Yoncuski, the brother of Plaintiff’s now ex-husband Robert Yoncuski, are limited
to the aftermath of the first incident.
Given the convoluted factual underpinning of this case, a series of discovery
disputes arose. The one relevant to Defendant Thomas Yoncuski’s Motion
originated during Donna Deitrick’s (“Plaintiff”) July 22, 2015 deposition. During
that deposition, Plaintiff’s counsel agreed to produce, or at least look for and
consider producing certain items. In his Original Motion, Defendant Thomas
Yoncuski identified the following categories of documents, and whether any of the
documents were produced:
a.
“Blue chew” book (not produced);
b.
Records from Asbestos Removal Control, Inc. (“ARC”),
transferred at the finalization of the divorce (various records
produced with June 8, 2016, email, but unknown if all such
records in the control or possession of Plaintiff were produced);
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c.
Any other tablet/booklet records of flea markets besides the
“blue chew” book; information referenced as being written in at
flea market on tablet, and then transferred to the blue chew
book (no responsive documents produced);
d.
Any other documents utilized in connection with flea market
business, either given to the tax preparer or used to supply
information to the tax preparer for the flea market business (no
responsive documents produced);
e.
Records of assets of ARC sold or otherwise disposed of by
Plaintiff with respect to the following assets:
1)
2)
Office trailer (no responsive documents produced);
3)
Cargo trailer (no responsive documents produced); and
4)
f.
Pick-up truck (no responsive documents produced);
Any other ARC assets which were scrapped, disposed of,
sold, or traded by Plaintiff (no responsive documents
produced);
Records regarding any transfers of property of ARC to Plaintiff
with respect to the following:
1)
Transfers of ARC real estate to Plaintiff (Deeds and other
documentation were produced); and
2)
Transfers of ARC personalty/personal property to
Plaintiff (no responsive documents produced);
g.
Plaintiff was to mark her July 22, 2015, Deposition Exhibit No.
11 (54 pages of receipts) to indicate whether items referenced
therein were sold for scrap or retained by her. Plaintiff was also
to provide an Affidavit to verify that she accurately marked the
Exhibit No. 11 pursuant to this request. (Neither an Affidavit
nor a marked up Exhibit No. 11 were produced);
h.
Provide last name of “Tony” who rented flea market spaces
from Plaintiff (not provided);
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i.
Copy of Plaintiff’s 2014 tax return (Copy of Plaintiff’s 2014 tax
return was not produced. Plaintiff produced only a Tax Return
Transcript for 2014);
j.
Records regarding any jewelry scrapped or sold to Gary Smith
or Adamstown (no responsive documents produced); and,
k.
Records of receipts for spaces rented at flea market (Penns
Cave rental spaces) (no responsive documents produced).
(Doc. 454, pp. 3-5).
On October 22, 2015, Defendant Thomas Yoncuski’s counsel sent a letter to
Plaintiff’s counsel requesting an update as to when the document might be
produced. (Doc. 657-2, p. 2). He sent additional letters on January 8, 2016, and
May 12, 2016. (Doc. 657-2, pp. 3-4).
On June 8, 2016, Plaintiff’s counsel produced discovery in response to the
requests for “business records, real estate documents and photos.” (Doc. 657-3).
This response did not include all the records requested. No affidavit regarding the
completeness of the records, deficiencies in Plaintiff’s discovery responses, or the
reason for those deficiencies was provided at that time.
On June 9, 2016, a telephone status conference was held before me.
Following that call, I issued an Order noting that “Plaintiff’s counsel promised to
promptly provide an affidavit from Plaintiff establishing the completeness or
deficiencies in her discovery responses.” (Doc. 450, pp. 1-2). I ordered that the
affidavit be filed via ECF and served on all parties. Id.
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As of September 9, 2016, no affidavit had been filed via ECF. On that date,
Defendant Thomas Yoncuski filed a Motion for Sanctions. (Doc. 453). Along with
his Motion, Defendant Thomas Yoncuski filed a Brief in Support. (Doc. 454).
Therein, he requested the following relief:
a. Plaintiff shall be precluded from testifying or presenting evidence
regarding damages or value with respect to any item which was allegedly
purchased or obtained at a flea market, store, or elsewhere by Plaintiff.
b. Plaintiff shall be precluded from testifying or presenting evidence
regarding any item of damages which is related to the documentation and
records which she failed to produce.
c. Plaintiff shall be precluded from testifying or presenting evidence
regarding the value of items based upon alleged receipts, appraisals, or
any other documents which have been requested in discovery and not
produced by Plaintiff.
d. The jury will be instructed that Plaintiff failed to cooperate with
discovery and failed to produce the requested documentation without a
satisfactory explanation and, therefore, the jury may find that this
evidence would have been unfavorable to Plaintiff’s claims with respect
to items being stolen, items not being returned, the condition of the items
returned to her, and the values of the items which were allegedly stolen
(after being returned to her) or allegedly not returned to her.
e. The jury will be instructed that Plaintiff failed to cooperate with
discovery and failed to produce the requested documentation without a
satisfactory explanation and, therefore the jury may find this evidence
would have shown that Plaintiff falsified her tax returned by failed to
report income earned for all tax years referenced in discovery requests for
which the above referenced records were not produced.
f. Plaintiff shall pay reasonable attorney fees in the amount of $750.00 to
Moving Defendant’s counsel for the various letters and communications
as well as the preparation of this Motion and supporting Brief, in order to
obtain Plaintiff’s compliance with the June 10, 2016, Order and
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cooperation with providing records and other documents requested in
discovery.
(Doc. 454, pp. 11-12).
On October 10, 2016, Plaintiff filed a Brief in Opposition. (Doc. 455). In her
brief, Plaintiff admitted that certain items could and should be excluded from trial,
and urged the Court to delay making that decision until the time of trial. Id.
On March 30, 2018, the Court issued an Order scheduling a hearing to
resolve the Motion and the remaining discovery dispute about the completeness or
deficiencies of the records at issue and to decide how Plaintiff’s failure to turn over
these documents should be treated at trial. (Doc. 467).
On June 19, 2018, a hearing was held. (Doc. 477). Plaintiff was the only
witness. Id. She testified about her efforts to locate the specific items requested.
Unfortunately, it did little to lessen the confusion. As explained in the Court’s
Opinion following the hearing:
The first time she was asked to look at a document during her
testimony she announced that she forgot her glasses and could not
read well without them. She testified frequently that she “did not
know” and “could not remember” when asked about specific items of
discovery. Her answers about the steps she took to search for missing
items after her July 22, 2015 deposition were either vague or
confusing, or both.
(Doc. 477, p. 9). Ultimately, the Court denied sanctions a, d, e, and f above, but
granted the motion to the extent that Plaintiff would not be permitted to testify or
present evidence regarding any item of damages related to the documentation or
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records which Plaintiff failed to produce. (Doc. 478). Although financial sanctions
were denied at that time, Defendant Thomas Yoncuski was given leave to renew
his request for monetary sanctions after the trial. Id.
The trial in this case was bifurcated. The first trial took place in September
2019, the second took place in October 2019. On November 6, 2019, the Court
issued an Order requiring that any party wishing to renew a motion for sanctions
should do so by November 20, 2019. (Doc. 655). On November 20, 2019,
Defendant Thomas Yoncuski renewed his initial request for monetary sanctions.
(Doc. 657). Along with his Renewed Motion for Sanctions, Defendant Thomas
Yoncuski filed a Brief in Support. (Doc. 658). In his Renewed Motion, Defendant
Thomas Yoncuski asks for a modest monetary sanction of $1250.00. Sevenhundred and fifty dollars to reimburse attorneys fees expended to obtain the
discovery he was promised, and five-hundred dollars to compensate him for the
fees expended to prepare the instant motion for sanctions.
On December 4, 2019, Plaintiff filed a Brief in Opposition. (Doc. 661).
Although oral argument is scheduled to address other pending motions for
sanctions, no argument is necessary to resolve this motion.
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III.
LEGAL STANDARD
A.
SANCTIONS UNDER FED. R. CIV. P. 37(B)
Rule 37(b)(2) of the Federal Rules of Civil Procedure authorizes the
imposition of sanctions against a party who fails to comply with a discovery order.
DiGregorio v. First Rediscount Corp., 506 F.2d 781, 788 (3d Cir. 1974). It
provides, in relevant part that:
(A) For Not Obeying a Discovery Order. If a party or party’s officer,
director, or managing agent . . . fails to obey an order to provide
or permit discovery, including an order under Rule 26(f), 35, or
37(a), the court where the action is pending may issue further
just orders. They may include the following:
(i)
directing that the matters embraced in the order or other
designated facts be taken as established for purposes of
the action, as the prevailing party claims;
(ii)
prohibiting the disobedient party from supporting or
opposing designated claims or defenses, or from
introducing designated matters in evidence;
(iii)
striking pleadings in whole or in part;
(iv)
staying further proceedings until the order is obeyed;
(v)
dismissing the action or proceeding in whole or in part;
(vi)
rendering a default judgment against the disobedient
party; or
(vii) treating as contempt of court the failure to obey any order
except an order to submit to a physical or mental
examination.
....
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(C)
Payment of Expenses. Instead of or in addition to the orders
above, the court must order the disobedient party, 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(b)(2).
B.
SANCTIONS UNDER FED R. CIV. P. 37(C)(1)
Rule 37(c)(1) provides in relevant part:
If a party fails to provide information or identify a witness as required
by Rule 26(a) or (e), the party is not allowed to use that information or
witness to supply evidence on a motion, at a hearing, or at a trial,
unless the failure was substantially justified or is harmless. In addition
to or instead of this sanction, the court, on motion and after giving an
opportunity to be heard:
(A)
may order payment of the reasonable expenses, including attorney's
fees, caused by the failure;
(B)
may inform the jury of the party's failure; and
(C)
may impose other appropriate sanctions, including any of the orders
listed in Rule 37(b)(2)(A)(i)-(vi).
The non-producing party shoulders the burden of proving substantial justification
for its conduct or that the failure to produce was harmless. See Stallworth v. E–Z
Serve Convenience Stores, 199 F.R.D. 366, 368 (M.D. Ala. 2001).
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IV.
ANALYSIS
For the reasons explained below, I find that imposing a sanction for
reasonable attorneys fees related to Defendant Thomas Yoncuski’s efforts to obtain
business records and an affidavit from Plaintiff would be appropriate under both
Fed. R. Civ. P. 37(b)(2) and Fed. R. Civ. P. 37(c).
A.
WHETHER SANCTIONS ARE WARRANTED UNDER RULE 37(B)(2)
Defendant Thomas Yoncuski argues that Plaintiff violated an Order issued
on June 10, 2016 (Doc. 450) directing Plaintiff to promptly provide an affidavit . . .
establishing the completeness or deficiencies in her discovery responses,” to the
documents she agreed to produce during her 2015 deposition. (Doc. 658, p. 6).
In his Brief in Opposition, Plaintiff does not make any argument as to why
she was substantially justified in failing to produce the required affidavit, or why
the imposition of sanctions for failing to comply with this Order would be unjust.
Because she failed to meet this burden, the award of reasonable attorneys fees
under Fed. R. Civ. P. 37(b)(2)(C) is appropriate.
I also find that the fees requested by Defendant Thomas Yoncuski—$750.00
in fees accrued attempting obtain the affidavit ordered, plus $500.00 for
preparation of a Motion for Sanctions—are reasonable.
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B.
WHETHER SANCTIONS ARE WARRANTED UNDER RULE 37(C)
Defendant Thomas Yoncuski also argues that he is entitled to fees under
Fed. R. Civ. P. 37(c)(1) for failing to supplement her initial disclosures by
providing the business records requested.
In her Brief in Opposition, Plaintiff does not appear to dispute that she failed
to supplement her disclosures as required under Fed. R. Civ. P. 26(e). Instead,
Plaintiff argues that her failure to supplement was harmless. Specifically, she
asserts:
It is worth noting that, at the time of trial, Thomas never questioned
Donna about any of her failures to produce documents. Similarly,
Thomas never offered any defense relating to theories of undeclared
income or the sale of safe jewelry at flee [sic] markets. Thomas could
well have done so with the many documents produced and by
questioning about Donna’s failure to produce documents which she, at
her deposition, claimed to possess.
Additionally, Thomas did not request any jury instructions regarding
Donna’s failure to produce documents or the inferences to be drawn
from that failure. At this point, Thomas renews a request for monetary
sanctions when he effectively has abandoned all other avenues for
sanctions that were potentially left open to him by the Court’s
memorandum. (Doc. 477).
From these facts, the Court may conclude that Thomas was not
prejudiced by any failure to produce documents by Donna. The entire
round of discovery which gave rise to this dispute focused on Donna’s
financial activity long after the second taking of the jewelry by
persons unknown to this day. It would appear that this line of inquiry
was not actually relevant to the claims and defenses brought to trial.
(Doc. 661, p. 2).
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I disagree with Plaintiff’s position that her failure to supplement her
disclosures to include the business records at issue is harmless. As explained in
Tolerico v. Home Depot:
A party’s misconduct is harmless if it involves an honest mistake,
coupled with sufficient knowledge by the other party of the material
that has not been produced.” Stallworth, 199 F.R.D. at 369. This
connotation of the term “harmless” is derived from the Committee
Note to the 1993 amendments to Rule 37(c), which offers as examples
of “harmless” violations of Rule 26(a), the inadvertent failure to
disclose the name of a potential witness known to all parties or
the failure to list as a trial witness a person listed by another party.
205 F.R.D. 169, 176 (M.D. Pa. 2002).
Plaintiff does not suggest that her failure to disclose certain records was an
“honest mistake” or inadvertent. Furthermore, Plaintiff does not suggest that
Defendant Thomas Yoncuski had any knowledge of the information withheld.
Under this standard, Plaintiff’s failure to produce the records promised at the 2015
deposition, or provide an affidavit identifying what of those records was not
produced and why, was not harmless. Accordingly, sanctions would also be
appropriate under Fed. R. Civ. P. 37(c)(1). However, because Defendant Thomas
Yoncuski is only entitled to recover his fees once, I decline to impose sanctions
under Rule 37(c)(1).
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V.
CONCLUSION
Defendant Thomas Yoncuski’s renewed motion for discovery sanctions
(Doc. 657) is GRANTED as follows:
(1)
Plaintiff Donna Deitrick is required to tender reasonable attorneys
fees and costs in the amount of $1,250.00 to Defendant Thomas
Yoncuski’s counsel—Michael B Scheib on or before January 10,
2020, pursuant to Fed. R. Civ. P. 37(b)(2)(C).
(2)
An appropriate order will follow.
Date: December 10, 2019
BY THE COURT
s/William I. Arbuckle
William I. Arbuckle
U.S. Magistrate Judge
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