Kippen v. Pack et al
MEMORANDUM DECISION AND ORDER denying 43 Motion for Sanctions. Signed by Judge Ted Stewart on 5/12/2011. (las)
IN THE UNITED STATES COURT FOR THE DISTRICT OF UTAH
STANLEY JOHN KIPPEN,
MEMORANDUM DECISION AND
ORDER DENYING PLAINTIFF’S
MOTION FOR SANCTIONS
STEVEN PACK, PRESIDENT OF ALLIED
MATERIALS & EQUIPMENT CO., INC.,
Case No. 1:10-CV-119 TS
This matter is before the Court on Plaintiff’s Motion for Sanctions. For the reasons
discussed below, the Court will deny the Motion for Sanctions.
Pursuant to the Scheduling Order entered in this case, the parties were required to
exchange their initial disclosures required by Fed.R.Civ.P. 26(a)(1) no later February 28, 2011.
Plaintiff, proceeding pro se, timely provided his initial disclosures. Defendant did not. Rather,
Defendant provided his initial disclosures on March 10, 2011, after Plaintiff notified the Court of
Defendant’s failure.1 Counsel for Defendant initially indicated to the Court that he notified
Plaintiff in advance of the February 28, 2011 deadline that he would be unable to meet the
deadline and would need a few additional days to provide the initial disclosures.2 Plaintiff
disputed this characterization and counsel for Defendant has now admitted that no such advance
notice given to Plaintiff. Rather, counsel for Defendant now admits that he did not inform
Plaintiff until March 3, 2011—after the deadline for initial disclosures had passed—that he
would be unable to meet the deadline put in place by the Court.3
Plaintiff moves for sanctions because of Defendant’s delay in providing the required
Fed.R.Civ.P. 16(f)(1)(c) provides that a court “may issue any just orders, including those
authorized by Rule 37(b)(2)(A)(ii)-(vii), if a party or its attorney . . . fails to obey a scheduling or
other pretrial order.”4 Rule 37(b)(2)(A) provides for certain sanctions when a party does not
obey a discovery order, including:
(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
Docket No. 37.
Docket No. 44.
Docket No. 46.
(vii) treating as contempt of court the failure to obey any order except an order to
submit to a physical or mental examination.5
When determining the proper sanction the Court is to consider a number of factors,
including: (1) the degree of actual prejudice to the plaintiff; (2) the amount of interference with
the judicial process; (3) the culpability of the litigant; (4) whether the court warned the party in
advance that dismissal of the action would be a likely sanction for noncompliance; and (5) the
efficacy of lesser sanctions.6
Considering these factors, the Court finds that sanctions are not warranted at this time.
First, the Court notes that Plaintiff has identified no prejudice as a result of Defendant’s late
disclosures and it is unlikely that any such prejudice exists. The Court recognizes Plaintiff’s
frustration due to counsel’s failures, but such frustration does not warrant sanctions at this time.
Second, the Court finds a minimal amount of interference with the judicial process. As stated,
Defendant’s initial disclosures were ultimately provided to Plaintiff and there is no indication
that the late disclosure has interfered with the prosecution of this matter. Third, the Court finds
that Defendant is highly culpable. Defendant has admitted he made untimely disclosures, but has
provided no reason why the disclosures were untimely or why a modification of the Scheduling
Order was not sought. The Court is also concerned with the inaccurate statements made by
counsel in the Memorandum in Opposition that were only later corrected after Plaintiff pointed
out the inaccuracy. Fourth, the Court has not previously warned Defendant of the possibility of
Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir. 1992).
sanctions, but will now caution that future violations may result in sanctions, including
terminating sanctions. Finally, the Court finds that sanctions are unnecessary at this time to
effectuate compliance with this Court’s discovery orders.
It is therefore
ORDERED that Plaintiff’s Motion for Sanctions (Docket No. 43) is DENIED.
DATED May 12, 2011.
BY THE COURT:
United States District Judge
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