Tibbs et al v. Vaughn et al

Filing 186

MEMORANDUM DECISION AND ORDER granting 178 Motion to Strike 14 Answer to complaint; granting 178 Motion for Default Judgment; granting 179 Motion to Strike 14 Answer to complaint; granting 179 Motion for Default Judgme nt; finding as moot 168 Motion to Deny Sanctions; finding as moot 169 Motion to Deny Sanctions; finding as moot 174 Motion for Partial Summary Judgment. Plaintiffs are to submit evidence of damages, including affidavits, appropriate for a judgment against the Vaughns by no later than 9/27/13. Signed by Judge Tena Campbell on 8/28/13 (alt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH - CENTRAL DIVISION

TOM TIBBS, et al.,

MEMORANDUM DECISION
AND ORDER

Plaintiffs,
Case No. 2:08-cv-787-TC-PMW
v.
JASON K. VAUGHN, et al.,
Defendants.

District Judge Tena Campbell
Magistrate Judge Paul M. Warner

Before the court are Tom Tibbs, Peggy Tibbs, and Home Advantage, LLC’s (collectively,
“Plaintiffs”) motions to strike Melanie F. Vaughn’s (“Melanie”) and Jason K. Vaughn’s
(“Jason”) (collectively, “Defendants”) pleadings and enter default judgment against each of
them.1 The court has carefully reviewed the written memoranda submitted by the parties.
Pursuant to civil rule 7-1(f) of the Rules of Practice for the United States District Court for the
District of Utah, the court has concluded that oral argument is not necessary. See DUCivR
7-1(f). Accordingly, the court will rule on the motions on the basis of the written memoranda
submitted. See id.
At the outset, the court notes that Defendants are proceeding pro se in this case.
Consequently, the court will construe their pleadings and other submissions liberally. See, e.g.,
Ledbetter v. City of Topeka, 318 F.3d 1183, 1187 (10th Cir. 2003).

1

See docket nos. 178, 179.

RELEVANT BACKGROUND
In October 2008, Plaintiffs brought this lawsuit against Defendants, and others, for,
among other things, violations of various provisions of the Securities Act of 1933 and the Utah
Securities Act, fraud, breach of contract, and conversion. Defendants and their wholly owned
companies—Freestyle Holdings, LLC (“Freestyle”); Medley Enterprises, LLC (“Medley”); and
Butterfly Properties, LLC (“Butterfly”)—were affiliates and business acquaintances of Rick
Koerber, Founders Capital, and FranklinSquires (collectively, “Koerber Defendants”). Medley is
the sole member manager of Freestyle and Defendants are the sole member managers of Medley.
Plaintiffs contend that through Freestyle and/or Medley, Defendants issued securities to
various investors, including Plaintiffs, in the form of demand promissory notes with promised
monthly returns of 3, 4, and/or 5 percent. Plaintiffs assert that Defendants told some prospective
investors that the funds would be advanced to the Koerber Defendants and invested in real estate
related transactions.
Plaintiffs invested a total of $606,463.49 with Freestyle, which issued promissory notes
providing for a 3 percent per month return of investment. Defendants were able to cover the 3
percent per month returns to investors because Freestyle was receiving 5 percent per month in
returns from the Koerber Defendants.
On August 20, 2007, Plaintiffs sent a demand letter for repayment of their investment
capital. Plaintiffs contend that none of the invested funds have been repaid.
On February 3, 2011, Plaintiffs served Defendants with separate Interrogatories, Requests
for Production of Documents, and Requests for Admissions by regular mail, as well as by e-mail.
2

On February 5, 2011, Defendants replied to the e-mail and requested that all postal
correspondence was now to be sent to an address on Main Street. Thus, on February 7, 2011,
Plaintiffs’ counsel mailed the discovery requests to that Main Street address.
On March 22, 2011, Jason responded to Plaintiffs’ discovery requests by merely
identifying documents he had earlier produced to the Federal Bureau of Investigation in a
criminal case against Rick Koerber (“Koerber criminal case”), another defendant in this civil
case. Jason did not, however, provide any of the requested documents to Plaintiffs. On March
23, 2011, Melanie responded to Plaintiffs’ discovery requests asserting that she did not have any
documents in her possession that would be responsive to the requests.
On February 22, 2011, Plaintiffs’ counsel noticed depositions of Defendants for March
29, 2011, and sent the notice to both Jason’s e-mail address, as well as the Main Street address.
Between February 22 and March 28, Plaintiffs’ counsel and Defendants exchanged several
e-mails. Plaintiffs’ counsel repeatedly reminded Defendants of the upcoming depositions.
However, Defendants failed to appear for their depositions on March 29, 2011.
On April 11, 2011, Plaintiffs filed a motion to compel discovery, to which Defendants
failed to respond. On May 11, 2011, the court granted Plaintiffs’ motion to compel and ordered
Defendants to provide the requested discovery within thirty days of the date of that order (“First
Order”).2 Instead, on May 17, 2011, Jason filed a motion to stay and for a protective order.
Jason asserted that because he was likely under criminal investigation for the activities related to

2

See docket no. 120.
3

this civil matter and the Koerber criminal case, requiring him to defend himself here could
implicate his Fifth Amendment right against self-incrimination in the investigation.
On June 14, 2011, counsel for Plaintiffs sent an e-mail and letter to Melanie informing
her that she was in violation of the court’s order and stating she was subject to sanctions,
including the striking of her pleadings and entry of judgment against her. On June 23, 2011,
Melanie responded to Plaintiffs’ Interrogatories with one sentence: “Melanie F. Vaughn is
without knowledge sufficient to answer any of the interrogatories.”3
On June 27, 2011, Plaintiffs filed a motion for sanctions against Melanie for failing to
obey the court’s order compelling her to respond to discovery. On November 17, 2011, this
court issued a memorandum decision and order on (1) Jason’s motion to stay and for a protective
order and (2) Plaintiffs’ motion for sanctions against Melanie (“Second Order”).4 The court
denied Jason’s motion to stay and for a protective order and granted Plaintiffs’ motion for
monetary sanctions against Melanie.
From the date of the Second Order until January 6, 2012, Melanie failed to produce a
single additional document as requested in Plaintiffs’ Requests for Production of Documents. In
that time frame, Melanie’s only written answer to any of Plaintiffs’ Interrogatories was a single
paragraph that did not directly respond to the Interrogatories individually. Since the date of the
Second Order, Jason has not produced a single document as requested in Plaintiffs’ Requests for

3

Docket no. 153 at 8.

4

See docket no. 143.
4

Production of Documents and has failed to provide any written answers to Plaintiffs’
Interrogatories.
In an order issued on January 6, 2012, which ruled on the proper amount of the sanction
award against Melanie, the court noted that the discovery deadline was approaching and
encouraged Defendants to participate in discovery and to appear for their depositions scheduled
for January 20, 2012 (“Third Order”).5
While Defendants both appeared for their depositions, they failed to produce a single
document in response to Plaintiffs’ Requests for Production of Documents, despite being ordered
to do so in the Third Order. Jason failed to provide any written answers to Plaintiffs’
Interrogatories, and Melanie provided only a single sentence and a single paragraph response
stating that she was unable to answer any of Plaintiffs’ Interrogatories or provide documents.
When asked about Defendants’ delinquent discovery responses at Melanie’s deposition, Melanie
stated, “I’ll get to it when I can. I’m very busy.”6
On February 7, 2012, Plaintiffs filed a motion to enter sanctions against Defendants and
strike their pleadings.7 Neither Jason nor Melanie filed any response to that motion.
On April 27, 2012, the court issued an order to show cause why Plaintiffs’ motion to
strike Defendants’ pleadings should not be granted and default judgment entered against them

5

See docket no. 149.

6

Docket no. 153, Exhibit H, at 25.

7

See docket no. 152.
5

(“Fourth Order”).8 In the Fourth Order, the court warned Defendants that their failure to respond
to it could result in their pleadings being stricken and default judgment being entered against
them.
Defendants filed a timely response to the Fourth Order on May 18, 2012. In their
response, Defendants argued that they were “innocent of the fraud and securities violations”
alleged against them in this matter and that they believed that a jury would agree with them if
they were allowed to present a defense.9 Defendants further asserted that they had been unable to
retain counsel. While Defendants argued that they have done their best to respond to orders of
the court and the discovery requests of Plaintiffs, they indicated their belief that the whole
process had been very difficult and confusing especially given that Jason had been indicted on
two counts of Wire Fraud, one count of Money Laundering, and one court of Interstate
Transportation of Money Obtained by Fraud.10 Defendants concluded by requesting a
continuance of sixty days in which to “sort out” their concerns.11
Exactly sixty-one days later, Defendants filed additional motions to stay this case pending
the resolution of Jason’s criminal case.12 On September 28, 2012, the court issued a

8

See docket no. 157.

9

Docket no. 159 at 1.

10

See USA v. Vaughn, Case No. 2:12-cr-219.

11

Docket no. 159 at 2.

12

See docket no. 160, 161.
6

memorandum decision and order denying those motions to stay.13 The same day, the court issued
a separate order requiring Defendants to fully respond to all outstanding discovery requests no
later than October 31, 2012 (“Fifth Order”).14 Defendants were also each ordered to participate
in an additional deposition. Defendants were warned that their failure to fully respond to the
discovery requests or to cooperate in the scheduling of or participation in their depositions could
result in a their pleadings being stricken and default judgment being entered against them.
On November 8, 2012, Plaintiffs served a subpoena to produce documents on both Jason
and Melanie. Plaintiffs also served a notice of deposition on both Jason and Melanie.
Since the entry of the Fifth Order, Jason has failed to produce a single document or
provide any responses to Plaintiffs’ Requests for Production of Documents, failed to provide any
written responses to Plaintiffs’ Interrogatories, and refused to testify at his properly noticed
deposition set for November 26, 2012. Although Melanie did appear for her deposition on
November 26, 2012, she did not participate in the deposition in any meaningful way. Further,
she consistently disclaimed any responsibility for providing documents from Freestyle, Medley
and Butterfly, even though she admitted she is a 50% owner and a manager of each of those
entities.
On January 18, 2013, Plaintiffs filed the motions currently before the court, which seek to
strike the pleadings of both Jason and Melanie and have default judgment entered against each of
them.

13

See docket no. 165.

14

See docket no. 166.
7

ANALYSIS
In their motions, Plaintiffs assert that Defendants’ pleadings should be stricken and
default judgment should be entered against each of them based upon Defendants’ failure to obey
multiple court orders compelling them to cooperate in discovery. Specifically, Plaintiffs allege
that they have repeatedly attempted to obtain responses to their discovery requests (both with and
without court intervention) to no avail and that striking Defendants’ pleadings and entering
default judgment against each of them is now the appropriate sanction.
Rule 37 of the Federal Rules of Civil Procedure provides, in relevant part, that when “a
party . . . fails to obey an order to provide or permit discovery . . . the court . . . may . . . strik[e]
pleadings in whole or in part . . . [or] render[] a default judgment against the disobedient party.”
Fed. R. Civ. P. 37(b)(2)(A)(iii), (vi). Before imposing such sanctions, the Tenth Circuit has
identified five factors a court should consider:
(1) the degree of actual prejudice . . . ; (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 [default judgment] would be a likely sanction for
noncompliance; and (5) the efficacy of lesser sanctions.
Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir. 1992) (quotations and citations omitted)
(second alteration in original).15 “[S]ome of these factors will take on more importance than
15

The Ehrenhaus court analyzed these factors in determining whether dismissal was an
appropriate sanction under rule 37. See Fed. R. Civ. P. 37(b)(2)(A)(v); Ehrenhaus, 965 F.2d at
920-921. District courts in the Tenth Circuit have analyzed the same factors in considering
whether entry of default judgment is an appropriate sanction. See, e.g., Solis-Marrufo v. Bd. of
Comm’rs for Bernalillo, No. CIV 11-0107 JB/KBM, 2013 U.S. Dist. LEXIS 55068, at *104-106
(D. N.M. Apr. 4, 2013); Atlas Res., Inc. v. Liberty Mut. Ins. Co., No. CIV 09-1113 WJ/KBM,
2013 U.S. Dist. LEXIS 45187, at *15-18, 38-46 (D. N.M. Mar. 28, 2013); Mitchell v. Manzer,
No. 12-cv-00780-WJM-MJW, 2013 U.S. Dist. LEXIS 62326, at *5-13 (D. Colo. Mar. 4, 2013).
8

others.” Id. at 922. Although entry of default judgment is a drastic sanction, it is appropriate in
cases of “willful misconduct.” Id. at 920; see also Whatcott v. City of Provo, 231 F.R.D. 627,
630-631 (D. Utah 2005). “Determination of the correct sanction for a discovery violation is a
fact-specific inquiry that the district court is best qualified to make.” Ehrenhaus, 965 F.2d at
920. The court now turns to addressing the Ehrenhaus factors in this case.
I. Prejudice
Defendants’ actions in this case have caused a high degree of prejudice to Plaintiffs.
Defendants’ failure to cooperate in discovery in this case has caused significant delay and forced
Plaintiffs to incur unnecessary attorney fees. The discovery requests at issue were served on
Defendants over two years ago. Plaintiffs have repeatedly attempted to obtain discovery from
Defendants both with and without court assistance. Plaintiffs have been forced to continually
extend discovery deadlines and file discovery related motions. Jason refused to participate in his
scheduled deposition. While Melanie did attend her scheduled deposition, she did not
meaningfully participate in that deposition. All of these actions demonstrate a pattern of conduct
pursued intentionally by Defendants to prevent Plaintiffs from pursuing their case, which has
resulted in significant prejudice.
II. Interference With Judicial Process
Defendants’ actions have caused substantial interference with the judicial process. As
noted above, Defendants have failed to comply with five separate court orders concerning their
participation in the discovery process. Those orders consistently warned Defendants that their
failure to comply with the orders could result in sanctions, including the striking of their
9

pleadings and the entry of default judgment against them. Defendants have failed to heed those
warnings, and their failure to comply with court orders demonstrates a lack of respect for the
court’s authority and the judicial process. As noted by the district judge in Ehernhaus, if a party
can “ignore court orders . . . without suffering the consequences, then the district court cannot
administer orderly justice, and the result would be chaos.” Id. at 921.
III. Culpability
Defendants’ actions in this case are not a result of their lack of familiarity with the
judicial process as pro se litigants. Instead, their course of conduct establishes a high degree of
culpability on their part. The court is not faced with a situation in which Defendants may not
have been aware of their obligations to participate in discovery. Defendants have been aware of
Plaintiffs’ discovery requests for over two years, and Defendants have disobeyed multiple court
orders directing them to respond to those discovery requests and participate in the discovery
process. Again, those actions establish an intentional and willful course of conduct undertaken to
prevent Plaintiffs from pursuing their case.
IV. Advance Warning
Defendants were specifically warned in both the Fourth Order and the Fifth Order that
their failure to fully respond to Plaintiffs’ discovery requests or to cooperate in the scheduling of
or participation in their depositions could result their pleadings being stricken and default

10

judgment being entered against them.16 Defendants were reminded of this warning in an e-mail
sent by Plaintiffs’ counsel to both Jason and Melanie on November 9, 2012.17
Despite those warnings, Jason has failed to produce a single document, provide any
responses to Plaintiffs’ discovery requests, or testify at his properly noticed deposition. Melanie
has likewise failed to participate in discovery. While she did appear for her deposition, she did
not participate in the deposition in any meaningful way. Further, she has not fully responded to
Plaintiffs’ discovery requests.
V. Efficacy of Lesser Sanctions
The history of this case demonstrates that lesser sanctions would not have sufficient
efficacy. Monetary sanctions have previously been imposed, and Defendants have continued to
disobey court orders concerning their participation in discovery.
VI. Conclusion
The court concludes that the five Ehrenhaus factors have been satisfied in this case and
that those factors weigh heavily in favor of striking Defendants’ pleadings and entering default
judgment against them. While the court recognizes that this is a drastic sanction, it is appropriate
in light of Defendants’ willful misconduct in this case, as detailed above.

16

See docket nos. 157, 166.

17

See docket nos. 178, Exhibit 10; 179, Exhibit 9.
11

ORDER
In summary, IT IS HEREBY ORDERED:
1.

Plaintiffs’ motion to strike Melanie’s pleadings and enter default judgment against
her18 is GRANTED.

2.

Plaintiffs’ motion to strike Jason’s pleadings and enter default judgment against
him19 is GRANTED.

3.

All other outstanding motions in this case related to Defendants20 are MOOT.

4.

Given the court’s decision to enter default judgment against Defendants, the court
chooses not to enter a final order imposing monetary sanctions against
Defendants, as indicated in the Fifth Order.

5.

Plaintiffs are directed to submit evidence of damages, including affidavits, that
they feel are appropriate for a judgment against the Vaughns. Such
documentation must be filed with the court no later than September 27, 2013.

SO ORDERED this 28th day of August, 2013.
BY THE COURT:

TENA CAMPBELL
United States District Judge

18

See docket no. 178.

19

See docket no. 179.

20

See docket nos. 168, 169, 174.
12