Bosheers et al v. Transco Logistics Co. et al

Filing 38

REPORT AND RECOMMENDATION re 36 MOTION to Strike 11 Answer to Complaint filed by Jamie Bosheers. Pending before the Court is a Motion to Strike the Answer of Transco Logistics Co. (Transco) and for default judgment filed by the Plaintiff s in this matter. Docket No. 36. They have also filed a supporting memorandum of law. Docket No. 37. Transco has not responded to the Motion. For the reasons stated herein, the undersigned recommends that default judgment be entered against Defend ant Transco and that the Motion to Strike the Answer be DENIED, as moot. Signed by Magistrate Judge Jeffery S. Frensley on 12/31/2019. (xc:Pro se party by regular mail. ) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(am)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
COLUMBIA DIVISION
WESLEY BOSHEERS AND
JAMIE BOSHEERS
Plaintiffs
v.
TRANSCO LOGISTICS CO. AND
CHARLES RODRIGUEZ
Defendants.

)
)
)
)
)
)
)
)
)

Case No: 1:18-cv-00023
Judge Campbell/Frensley

REPORT AND RECOMMENDATION
Pending before the Court is a Motion to Strike the Answer of Transco Logistics Co.
(“Transco”) and for default judgment filed by the Plaintiffs in this matter. Docket No. 36. They
have also filed a supporting memorandum of law. Docket No. 37. Transco has not responded to
the Motion. For the reasons stated herein, the undersigned recommends that default judgment be
entered against Defendant Transco and that the Motion to Strike the Answer be DENIED, as moot.
RELEVANT FACTS
This is a personal injury action brought by Plaintiffs against the Defendants arising out of
an automobile accident that occurred on February 6, 2017. Docket No. 1-2. The action was
originally filed in state court and removed to this Court by Transco. Docket No. 1. Transco was
represented by counsel and filed an Answer to the Complaint on April 20, 2018. Docket No. 11.
On April 18, 2019, counsel for Transco filed a Motion to Withdraw. Docket No. 27. The Court
granted the motion and advised Transco, because it is a corporate entity, it may not proceed pro
se. Docket No. 28. The Court ordered Transco to retain new counsel and enter an appearance in
this action within 60 days of the entry of the Order. The Court warned Transco that failure to retain
counsel “will be grounds for entry of default.” Id. No attorney entered an appearance for Transco

by the Court’s deadlines or in the 6 months after that deadline.
On November 15, 2019, Plaintiffs filed a motion to strike Transco’s Answer and for default
judgment as the sanction for failing to comply with this court’s order regarding obtaining new
counsel. Docket No. 36. Transco did not respond to the Motion. To this date, no attorney has
entered an appearance for Transco in this action since prior counsel was relieved.
LAW AND ANALYSIS
It is well settled law that a corporation may appear in federal court only through licensed
counsel and not through the pro se representation of some individual officer of the corporation.
NLRB v. Consolidated Food Services, Inc., 81 Fed. Appx. 13, 14, n. 1. (6th Cir. 2003).
Rule 37 of the Federal Rules of Civil Procedure gives courts the authority to impose
sanctions when parties fail to cooperate with a court order, including discovery orders and other
orders under Rule 26(f), 35, or 37(a). Specifically, Rule 37(b)(2)(A)(vi) provides that these
sanctions may include “rendering a default judgment against the disobedient party.” Such an
action is a severe sanction, and The Court of Appeals for the Sixth Circuit has stated that
“[d]ismissal of an action for failure to cooperate in discovery is a sanction of last resort. . . . ”
Regional Refuse Sys., Inc. v. Inland Reclamation Co., 842 F.2d 150, 153 (6th Cir. 1988) (internal
citation omitted). The Supreme Court has justified these harsh sanctions by acknowledging their
value as both a specific and general deterrent:
[A]s in other areas of the law, the most severe in the spectrum of
sanctions provided by statute or rule must be available to the district
court in appropriate cases, not merely to penalize those whose
conduct may be deemed to warrant such a sanction, but to deter
those who might be tempted to such conduct in the absence of such
a deterrent.
National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 643, 96 S. Ct. 2778
(1976).

2

The Sixth Circuit has articulated four factors that should be considered when evaluating a
motion for default judgment under Rule 37: (1) whether the party’s failure to cooperate in
discovery is due to willfulness, bad faith, or fault; (2) whether the adversary was prejudiced by the
dismissed party’s failure to cooperate in discovery; (3) whether the dismissed party was warned
that failure to cooperate could lead to dismissal; and (4) whether less dramatic sanctions were
imposed or considered before dismissal was ordered. Regional Refuse, 842 F.2d at 155.
“Although no one factor is dispositive, dismissal is proper if the record demonstrates delay
or contumacious conduct.” United States v. Reyes, 307 F.3d 451, 458 (6th Cir. 2002). Such
conduct is that which is “perverse in resisting authority” and “stubbornly disobedient.” Schafer v.
City of Defiance Police Dep’t, 529 F.3d 731, 737 (6th Cir. 2008), quoting Webster’s Third New
International Dictionary 497 (1986).
In this case, the first and third factors, willfulness and prior notice, strongly support default
judgment as a sanction for Transco’s continued failure to retain counsel. Transco retained counsel
who actually removed the case to this court and who continued to actively litigate this action for
over a year from March 19, 2018 through filing the Motion to Withdraw on April 18, 2019. In
granting the Motion to Withdraw, the Court allowed Transco 60 days to obtain new counsel.
Docket No. 28. Apart from not obtaining counsel within the time allowed by the Court, Transco
has failed to obtain counsel in the more than 6 months after the deadline established by the Court.
Likewise, Transco has failed to respond to Plaintiffs’ Motion to Strike or otherwise participate in
this litigation. This Court expressly warned Transco that failure to retain counsel in the time
permitted, “will be grounds for an entry of default.” Docket No. 28.
The second and fourth factors also support default judgment as a sanction in this case.
Transco’s failure to retain counsel caused Plaintiffs to waste time, money and effort for filing the

3

Motion to Strike and supporting memorandum. Further, this failure has necessarily impacted the
ability of Plaintiffs to conduct discovery in the case and comply with the Court’s scheduling orders
for the orderly progression of this matter. As for the fourth factor, Transco’s complete failure over
such an extended period of time despite being previously warned of the consequences of its failure
suggests no lesser sanction would be appropriate in this case. Transco’s complete failure to comply
with this Court’s orders or participate in this litigation likewise suggest that no other potential
sanction is likely to induce Transco’s compliance with this Court’s orders.
Considering all four factors, entry of default judgment against Transco’s on Plaintiffs’
claims is appropriate. In light of the recommendation that the Court enter a default judgment
against Transco, the undersigned recommends that Plaintiffs’ Motion to Strike Transco’s Answer
be DENIED as moot.
Under Rule 72(b) of the Federal Rules of Civil Procedure, any party has fourteen (14) days
from receipt of this Report and Recommendation in which to file any written objections to this
Recommendation with the District Court. Any party opposing said objections shall have fourteen
(14) days from receipt of any objections filed in this Report in which to file any response to said
objections. Failure to file specific objections within fourteen (14) days of receipt of this Report
and Recommendation can constitute a waiver of further appeal of this Recommendation. Thomas
v. Arn, 474 U.S. 140, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985), reh’g denied, 474 U.S. 1111 (1986).

JEFFERY S. FRENSLEY
United States Magistrate Judge

4