Blanton v. Newton Associates, Inc., a/k/a Richmond Enterprises, Inc., d/b/a Pizza Hut

Filing 27

ORDER REJECTING REPORT AND RECOMMENDATIONS for 24 Report and Recommendations; Defendants are ORDERED to fully supplement their responses to Plaintiffs discovery requests. In addition, Defendants are ORDERED to pay a further $3000 in reasonable fees to Plaintiff on or before October 31, 2013. Signed by Judge Xavier Rodriguez. (rg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
JAMEL BLANTON
Plaintiff,
v.
NEWTON ASSOCIATES, INC., a/k/a
RICHAMOND ENTERPRISES, INC. d/b/a
PIZZA HUT

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Civil Action No. SA-12-CV-1103

Defendants.
ORDER
On this date, the Court considered the U.S. Magistrate Judge’s Report and
Recommendation on a motion to enforce discovery sanctions. After careful consideration, the
Court DECLINES to adopt the Report and Recommendation.
BACKGROUND
This lawsuit arises from Plaintiff Jamel Blanton’s employment at Pizza Hut. Mr.
Blanton alleges that during the course of his employment he was subjected to sexual
harassment and racial discrimination. On November 12, 2012, Mr. Blanton filed an original
complaint in this Court, alleging violations of 42 U.S.C. § 1981 and the Texas Commission on
Human Rights Act (“TCHRA”).
On May 10, 2013, Mr. Blanton filed a motion to compel based upon Defendants’
failure to respond to Plaintiff’s First Set of Interrogatories and First Request for Production.
Doc. No. 16. The Magistrate Judge granted the motion to compel and instructed Defendants
to produce its responses by June 24, 2013.

When Defendants failed to do so, Mr. Blanton

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filed a motion for sanctions. Doc. No. 20. The Magistrate Judge again granted the motion, and
ordered Defendants to produce the responses within 10 days and pay Plaintiff $1000 in
reasonable costs on or before July 31, 2013. Doc. No. 21. In its order, the Magistrate Judge
advised Defendants that failure to cooperate could lead the Court to strike the answer and enter
a default judgment. Id. Nevertheless, Defendants again failed to comply. On September 11,
2013, Mr. Blanton filed this motion to enforce. Doc. No. 23.
On October 10, 2013, the Magistrate Judge issued its Report and Recommendation.
Doc. No. 24. The Magistrate Judge recommends striking the answer and entering default
judgment against Defendants under Rule 37 of the Federal Rules of Civil Procedure. Id. On
October 11, 2013, Defendants filed a combined response to Plaintiff’s motion for sanctions
and objections to the Magistrate Judge’s Report and Recommendation. Doc. No. 25. These
objections allege that Defendants provided supplemental responses to Plaintiff’s
interrogatories on September 23, 2013. Id. In addition, Defendants paid $1000 in sanctions on
October 11, 2013. Id.
LEGAL STANDARD
Any Report or Recommendation that receives an objection requires de novo review.
28 U.S.C. § 636(b)(1) (“A judge of the court shall make a de novo determination of those
portions of the report or specified proposed findings and recommendations to which objection
is made”). When conducting a de novo review, the Court will examine the entire record and
will make an independent assessment of the law.

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DISCUSSION
On the basis of Defendants’ repeated failure to comply with discovery orders, the
Magistrate Judge recommended that the Court strike the answer and enter a default judgment
against Defendants. Doc. No. 25.

As the Magistrate Judge notes, such a sanction is

“authorized only when the failure to comply with the court’s order results from willfulness or
bad faith… (and) where the deterrent value of Rule 37 cannot be substantially achieved by the
use of less drastic sanctions.” KeyBank Nat. Ass'n v. Perkins Rowe Associates, L.L.C., 1230998, 2013 WL 4446820 (5th Cir. Aug. 21, 2013) (quoting Smith v. Smith, 145 F.3d 335, 344
(5th Cir. 1998). “The reviewing court may also consider whether the discovery violation
prejudiced the opposing party's preparation for trial, and whether the client was blameless in
the violation.” United States v. $49,000 Currency, 330 F.3d 371, 376 (5th Cir. 2003).
The Court largely agrees with the Magistrate Judge that Defendants’ repeated failure to
comply with discovery orders in this case constitutes sufficiently willful misconduct to
warrant entry of a default judgment. However, the Magistrate Judge’s recommendation was
made under the assumption that Defendants had still totally failed to supplement their
responses to Plaintiffs’ interrogatories. While the Magistrate Judge had the motion to enforce
under advisement, Defendants apparently attempted to comply by supplementing their
responses to Plaintiff’s discovery requests as required by the Magistrate Judge’s prior orders.
Doc. No. 25. Defendants did not inform the Court of their attempted compliance until filing
their written objections to the Magistrate Judge’s Report and Recommendation. In addition,
Defendants have complied with the order to pay Plaintiff $1000, although this occurred over
two months after the deadline had passed. Plaintiff claims that some of the responses are still

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deficient.1 Doc. No. 26. However, the Court declines to strike the answer and enter a default
judgment in circumstances where a party has at least attempted to put itself into compliance.
Defendants’ attempt to supplement their responses, although tardy and potentially incomplete,
indicates that less drastic sanctions may achieve compliance. Moreover, there is no evidence
that the client is to blame for counsel’s misfeasance.
The Court does agree with the Magistrate Judge that further sanctions are appropriate
in this case. While the Court is aware that discovery can be burdensome and that counsel may
have other matters, there is a line between justifiable delay and deliberate sand-bagging. This
case is set for trial on December 16, 2013. Mr. Blanton and his counsel have diligently been
attempting to collect discovery since February, 2013. Plaintiff should not need to have to file
three motions to get Defendants to comply with basic discovery requests.

In addition,

Defendants’ persistent non-compliance has required a U.S. Magistrate Judge to issue three
written orders in this case. Defendants offer no excuse for their conduct in their written
objections, other than to claim that they were “in no way attempting to disobey the Court’s
order.” Doc. No. 25 at 2. Whatever their intentions, Defendants’ behavior in this case has
been unacceptable. Defendants are ORDERED to fully supplement their responses and pay
Plaintiff additional reasonable expenses in the amount of $3000.2 Failure to do both within 10
days of this order will lead the Court to strike Defendants’ answer and enter a default
judgment.

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Specifically, Plaintiff alleges that Defendants’ responses to two interrogatories remain incomplete.
To be clear, this figure is in addition to the $1000 already paid.

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CONCLUSION:
Defendants are ORDERED to fully supplement their responses to Plaintiff’s discovery
requests. In addition, Defendants are ORDERED to pay a further $3000 in reasonable fees to
Plaintiff on or before October 31, 2013. Defendants must file an advisory indicating that they
have met this obligation in a timely fashion. Defendants are advised that any failure to comply
will result in the Court striking their answer and entering a default judgment against them.

SIGNED this 21st day of October, 2013.

XAVIER RODRIGUEZ
UNITED STATES DISTRICT JUDGE

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