Arlin Geophysical et al v. USA

Filing 356

MEMORANDUM DECISION AND ORDER granting in part and denying in part 316 Motion for Sanctions Against Counterclaim Defendant Stephen G. Homer for Failure to Comply with a Court Order. Signed by Magistrate Judge Evelyn J. Furse on 10/31/12 (alt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
ARLIN GEOPHYSICAL, LAURA OLSON,
Plaintiffs,
v.
UNITED STATES OF AMERICA,
Defendant and
Counterclaim Plaintiff

MEMORANDUM DECISION AND
ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT AND
COUNTERCLAIM PLAINTIFF UNITED
STATES’ MOTION FOR SANCTIONS
FOR FAILURE TO COMPLY WITH A
COURT ORDER REGARDING
DISCOVERY REQUESTS

v.
JOHN E. WORTHEN, ET AL.,
Counterclaim
Defendants.

Case No. 2:08-cv-00414-DN-EJF
District Judge David Nuffer
Magistrate Judge Evelyn J. Furse

District Judge David Nuffer referred this case to Magistrate Judge Evelyn J. Furse
pursuant to 28 U.S.C. section 636(b)(1)(B). (Docket No. 350.) The United States of America
(“United States”) moved for sanctions against Counterclaim Defendant Stephen G. Homer1 for
Failure to Comply with a Court Order (Docket No. 316.) The Court carefully reviewed the
written memoranda submitted by the parties and considered oral arguments at the October 30,
2012 Motion Hearing, see DUCivR 7-1(f). (Docket No. 355.) Based on this information, the
Court STRIKES all of Mr. Homer’s objections to Interrogatory 5 and ORDERS him to provide a
complete response within seven (7) days upon entry of this Order. Failure to respond

1

Mr. Homer is an attorney appearing pro se for himself as the named counterclaim
defendant and counsel of record for counterclaim defendant John F. Green. See Docket No. 216.

completely within seven days will likely result in a recommended striking of his Answer
and entry of default. The Court further ORDERS Mr. Homer to pay the United States’ costs
and fees associated with the motions at Docket Number 265, 283, and 316. For reasons set forth
in more detail below, the Court GRANTS IN PART and DENIES IN PART the Motion for
Sanctions for Failure to Comply with a Court Order. (Docket No. 316.)
The United States requests the Court impose sanctions on counterclaim defendant
Stephen G. Homer for failure to comply with the Court’s Order dated October 20, 2011 (Docket
No. 300). Specifically, the United States requests that the Court strike Mr. Homer’s Answer
(Docket No. 216) and enter default judgment against him and in favor of the United States, and
order Mr. Homer to reimburse the United States for reasonable expenses incurred in bringing the
motion.
Under Federal Rule of Civil Procedure 37(b)(2), a party who fails to obey an order to
provide or permit discovery subjects himself to an array of sanctions, including “striking
pleadings in whole or in part” and “rendering a default judgment against the disobedient party.”
See Fed. R. Civ. P. 37 (b)(2)(A)(ii),(vi). Additionally, the court also must order “the disobedient
party, the attorney advising the party, or both to pay the reasonable expenses 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)(C). The court has discretion to impose any such
sanction that is “just and related to the particular claim which was at issue in the order to provide
discovery.” Ehrenhaus v. Reynolds, 965 F.2d 916, 920 (10th Cir. 1992) (internal citations and
quotations omitted).
On October 20, 2011, United States Magistrate Judge Brooke. C. Wells ordered
Counterclaim Defendant Stephen G. Homer to provide complete responses to the United States’

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first Interrogatories and first Requests for Production of Documents within thirty days from the
date of the order. (Docket No. 300.) At the time the United States filed the motion for sanctions
on January 10, 2012, Mr. Homer had yet to comply with the order. (Docket No. 316.) In an
Order dated February 8, 2012, Magistrate Judge Brooke C. Wells ordered Mr. Homer to show
cause why the Court should not grant the motion for sanctions within fourteen days from the date
of the order.2 (Docket No. 324.) Mr. Homer never responded to the Order. Mr. Homer has not
complied with the October 20, 2011 discovery order. At hearing on the Order, Mr. Homer
offered two lines of argument. First, he failed to realize the Court had ordered him to respond to
the Motion to Compel. Second, he plays a minor role in this litigation and has nothing much to
offer in terms of discovery responses that the United States cannot get elsewhere.
Before imposing sanctions such as striking a party’s answer or rending an entry of default
judgment, the Court considers a number of factors in determining the proper sanction, including:
“(1) the degree of actual prejudice to the defendant; (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. Ehrenhaus, 965 F.2d at 921 (internal citations and quotations
omitted). The factors do not set a rigid test but provide guidance for determining the appropriate
sanction based on the facts. Id. at 920-21.
Mr. Homer’s failure to obey the original court order has delayed this case and required
significant resource expenditure in briefing and argument causing prejudice to the United States.
Failure to obey the Court’s Order compelling discovery and Order to Show Cause interfere with
the judicial process significantly by wasting valuable court resources in obtaining compliance
2

The order to show cause also addressed Docket No. 317, Motion for Sanctions for
Failure to Appear for Deposition.

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from Mr. Homer. The Court gave Mr. Homer ample time and opportunity to comply.
Additionally, Mr. Homer’s reasons do not provide an acceptable excuse. While Mr. Homer
represents himself in this matter, he nonetheless has an obligation to comply with discovery,
respond to motions, and obey court orders. His failure to monitor this case and his opinion of his
significance do not shield him from responding to discovery or obey Court orders. Thus, Mr.
Homer bears complete culpability for his actions. Furthermore, the Court warned Mr. Homer,
through the Orders to Show Cause that he could face sanctions. As to the efficacy of striking the
answer, the posture of this case makes striking the answer a less effective sanction than it
provides in other cases.
With these factors in mind, the Court will not strike Mr. Homer’s answer, but strike all of
Mr. Homer’s objections to Interrogatory 5. He must provide a complete response within seven
(7) days. The United States may use any additional information supplied by Mr. Homer in its
case, but Mr. Homer may not assert that information in his own defense in motions or at trial.
Fed. R. Civ. P. 37 (b)(2)(A)(ii).
The Court warns that failure to respond completely within seven days will likely
result in a recommended striking of Mr. Homer’s Answer and entry of default. The Court
further warns Mr. Homer that he must pay attention to notices from this Court and his opposing
counsel that go to his e-mail account. That Mr. Homer does not carefully monitor his e-mail or
mail or that he does not have voicemail, does not excuse failing to respond to discovery or court
orders.
In addition to costs associated with this motion, (Docket No. 316), the Court GRANTS
costs and fees associated with the United States’ Motion to Compel Discovery Responses from
Counterclaim Defendant Stephen G. Homer, (Docket No. 265), and Amended Motion to Compel

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Discovery Responses from Counterclaim Defendant Stephen G. Homer. (Docket No. 283.) The
Court directs the United States to submit a statement of costs and fees associated with the
motions for the Court’s approval.
The Court DENIES the remainder of the motion requesting Mr. Homer’s Answer stricken
and entry of default judgment.
SO ORDERED this 31st day of October, 2012.
BY THE COURT:

________________________________
EVELYN J. FURSE
United States Magistrate Judge

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