Beza Consulting , Inc. et al v. Muluneh Mhirate Yadeta et al
Filing
65
MEMORANDUM OPINION - Given the minimalist responses to some interrogatories, the lack of response to others, and the lack of production of documents, the discovery responses defendants now seek to introduce are still inadequate for the purposes of this litigation. Therefore, the instant motion, essentially a motion for reconsideration, is hereby DENIED. Signed by Magistrate Judge Theresa Carroll Buchanan on 02/26/2015. (dvanm, )
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division
BEZA CONSULTING, INC., et al.,
Plaintiffs,
v.
MULUNEH MIHIRATE YADETA,
et al.
Defendants.
)
)
)
) Civil Action No. 1:14cv881
)
)
)
)
)
MEMORANDUM OPINION
THIS MATTER comes before the Court on Defendants’ Motion to
Amend Scheduling Order and for Continuance of the Trial and
Memorandum in Support Thereof (Dkt. 58).
This motion
essentially asks that this Court change its previous
recommendation that default be entered against defendant, and
instead continue a trial date allowing defendant yet another
chance to participate in discovery.
Therefore, this Court is
treating the instant motion as a Motion for Reconsideration.
That motion is DENIED for the reasons stated below.
I.
Procedural History
The record in this case is replete with defendants’
failures to appropriately participate in discovery and follow
Court orders.
The Scheduling Order, entered by Judge Trenga on
September 5, 2014, set the initial pretrial conference for
October 1, 2014 and the date for the close of discovery for
January 9, 2015.
(Dkt. 7.)
Plaintiffs’ initial discovery
1
requests were served on October 16, 2014 and October 22, 2014,
objections to those requests were due October 31, 2014 and
November 6, 2014, and substantive responses were due November
17, 2014 and November 21, 2014.
(Plaintiffs’ Opposition to
Motion (“Plaintiffs’ Opp.”)(Dkt. 61) at 4.)
When defendants
failed to respond to any of plaintiffs’ discovery requests,
plaintiffs filed a Motion for Sanctions on November 26, 2014.
(Dkt. 13.)
Also on November 26, 2014, defendants’ attorney, Ricardo
Narvaiz, filed a Motion to Withdraw as Attorney.
(Dkt. 16.)
In
support of his motion, Mr. Narvaiz stated that his reason for
withdrawing was that defendants had not communicated with him
since October 1, 2014 which made it impossible for him to
represent them in this proceeding.
(Dkt. 16 at ¶ 1.)
He
repeated this statement in his response to the Motion for
Sanctions.
(Dkt. 18.)
Additionally, before Mr. Narvaiz was
granted leave to withdraw, his client began filing on behalf of
both himself and his corporation pro se.
(See dkts. 20-24.)
On December 8, 2015, this Court entered an order granting
Mr. Narvaiz’s Motion to Withdraw as Attorney.
(Dkt. 27.)
This
Court also entered an order which compelled defendants to
completely respond to all discovery requests by Monday, December
15, 2014.
(Dkt. 26 (“the December 8th Order”).)
The December
8th Order also ordered that corporate defendant, Beza
2
Consulting, Inc., a Maryland corporation, retain counsel and
have them file an appearance within 10 days of that order.
(Id.)
On December 13, 2014, defendants served incomplete and
sometimes inaccurate responses to the Plaintiffs’ requests for
documents and failed to produce a single document. (Plaintiffs’
Opp. ¶ 9.)
Two days after the December 15 extended deadline,
defendant Yadeta served incomplete interrogatory responses on
behalf of his corporation.
(Id.)
Plaintiffs filed a Renewed
Motion for Sanctions on December 19, 2014 as well as a Motion to
Strike and/or Dismiss the Defendants’ Counterclaim and ThirdParty Complaint (which had been filed by individual defendant
Yadeta on behalf of himself and his corporation).
30.)
(Dkts. 28 and
As the corporate defendant did not hire an attorney in
accordance with the December 8th Order, on December 22, 2014
this Court issued a Rule to Show Cause why default judgment
should not be entered against the corporate defendant for
failure to comply with that December 8th Order.
(Dkts. 34-35.)
On January 2, 2015, defendant Yadeta filed a “Motion for
Hearing” where for the first time it was disclosed to the Court
that the Maryland Corporation, Beza Consulting, Inc., had no
revenue.
(Dkt. 40.)
This Motion was struck as it was filed on
behalf of a corporation but not by counsel.
(Dkt. 42.)
On January 9, 2015, this Court held a Show Cause hearing.
3
Defendant Yadeta did appear.
No counsel appeared on behalf of
corporate defendant Beza, Consulting Inc., a Maryland
Corporation.
(Dkt. 44.)
This Court, finding that the discovery
responses which had previously been provided were inadequate,
once again allowed a small extension of time for defendants to
participate appropriately in this case.
Defendant Yadeta was
instructed to submit all documents responsive to document
requests to plaintiffs by January 14, 2015 at 12:00 p.m. and to
have counsel enter an appearance on behalf of the corporate
defendant before the continued Show Cause Hearing scheduled for
January 16, 2015.
(Id.)
On January 15, 2015, the day before
the continued show cause hearing, Mr. Narvaiz once again noticed
an appearance on behalf of defendants.
(Dkt. 48.)
Mr. Narvaiz
attended the Final Pretrial Conference where parties were
instructed to schedule a Settlement Conference with the
undersigned.
(Dkt. 49.)
On January 16, 2015, the undersigned heard oral argument
from both parties on the Motion for Renewed Sanctions as well as
the Rule to Show Cause.
(Dkt. 52.)
At that time, defendants
still had not submitted documents responsive to plaintiff’s
initial requests.
This Court granted the Motion for Sanctions
and stated its intention to issue a Report and Recommendation
regarding the Show Cause Hearing.
(Dkts. 52-53.)
At that
hearing, defendants verbally requested an extension of the
4
discovery period, which the undersigned denied.
Hearing Transcript (Dkt. 61-5) at 4-5, 8.)
(January 16
On January 20, 2015,
the undersigned entered a Report and Recommendation recommending
that default be entered against all defendants for their
continued failure to obey a pretrial order.
(Dkt. 54 at 3.)
Defendants filed an Objection to the Report and Recommendation
on February 6, 2015 and this Motion to Amend Scheduling Order
and for Continuance of Trial on February 14, 2015.
(Dkts. 57
and 58.)
II.
Analysis
Fed. R. Civ. P. Rule 6(b)(1)(B) allows that the court may,
for good cause, extend time “on motion made after the time has
expired if the party failed to act because of excusable
neglect.”
Here, defendants have failed to show any good cause
or excusable neglect.
The Fourth Circuit has stated that “excusable neglect is
not easily demonstrated, nor was it intended to be.”
Thompson
v. E.I. DuPont de Nemours & Co., Inc., 76 F.3d 530, 533 (4th
Cir. 1996).
Furthermore, the Fourth Circuit has held that “a
party that fails to act with diligence will be unable to
establish that [her] conduct constituted excusable neglect.”
Robinson v. Wix Filtration Corp., LLC, 599 F.3d 403, 413 (4th
Cir. 2010).
Defendants argue for the first time during these
proceedings that defendants’ “financial incapacity” constitutes
5
“excusable neglect.”
Financial incapacity was not presented as
a reason previously for why defendants failed to participate in
this case diligently.
Defense counsel initially withdrew
because defendants did not communicate with him.
(Dkt. 16.)
Defendant Yadeta has also previously sworn in an affidavit that
he did not answer to the discovery plan and complaint in this
lawsuit because he lives in Zambia.
(Dkt. 20-1.)
These
previous pleadings show that defendants intentionally decided to
not participate in discovery.
Indeed, there is no indication
until the instant motion and the objection to the Report and
Recommendation that financial hardship was the reason defendants
failed to participate in this case.
This Court fails to see how
any financial incapacity excuses “neglect” by defendants,
especially when defendants were still able to engage an attorney
for most of the proceedings.
Neither that attorney nor pro se
defendant Yadeta acted with any amount of diligence throughout
this case and cannot now claim excusable neglect.
There is also no showing of good cause in this case.
Defendants have given no excuse beyond “financial incapacity”
for their inadequate production and failure to respond to
several court orders to disclose this information.
Defendants
have already received two extensions for submitting their
responses to plaintiffs’ first discovery requests.
They did not
provide any discovery responses until after the initial
6
deadline, and the responses since have been found inadequate by
this court.
The responses to document requests served December
13, 2014 were incomplete and no documents were actually
produced.
Defendant Yadeta has never served any responses to
interrogatories individually.
At the January 9 hearing, the
Court found that those initial responses were inadequate; the
undersigned gave a second extension of time for defendants to
reply until January 14, 2015.
documents.
Again, defendants provided no
At the January 16, 2015 hearing, defense counsel
requested a third extension of time to submit discovery
responses.
This Court denied that request then, and sees no
reason to change its decision now, less than a week before the
scheduled trial date when there is no good cause shown by the
defendants.
Furthermore, even if this Court were to reopen discovery to
allow defendants to serve their February 6, 2015 Discovery
Responses, those responses are inadequate.
Defendants’ February
6 Responses were submitted with their Objection to the
undersigned’s Report and Recommendation and e-mailed to
plaintiffs on February 6, 2015.
(Dkt. 57-1.)
Copies were also
submitted as exhibits to this motion.
Defendant Yadeta swears in his affidavit that “there are no
marketing or promotional materials, no financial or tax
documents, no contracts, no documents at all relating to Beza of
7
Maryland.”
Ex. 2.)
(Affidavit of Muluneh Mihirate Yadeta, Dkt. 58-2,
Thus, in response to the 38 document requests by
plaintiff, defendants have disclosed just one six-page document
showing that the name of Beza Consulting, Inc., was changed to
Millennium Consulting Engineers, Inc.
(Defendants’ Responses to
Plaintiffs’ First Set of Requests for Production of Documents,
Dkt. 58-2, Ex. 5.)
Part of that document includes an Articles
of Revival, signed by defendant Yadeta, which states that the
corporation had paid all fees required by law, filed all annual
reports, and paid all state and local taxes.
(Id.)
Yet, when
asked for any supporting documents related to the corporate
structure or finances of the company, defendants responded they
had no documents responsive to the request.
26.)
(Request Nos. 2,
Defendant Yadeta also identified himself as the last
acting President of the corporation on the Articles of Revival
form, but was not listed in response to an interrogatory asking
for this same information.
(Interrogatory No. 10.)
It is
difficult to believe that a company incorporated in Maryland
would have absolutely no governing documents, no corporate
charter, no documents related to the formation or operation of
the corporation, and no documents responsive to requests of
plaintiffs.
Furthermore, plaintiffs asked for documents of defendant
Yadeta in his individual capacity.
8
For example, plaintiffs
asked for “all documents and communications reflecting the
providing of engineering consultancy services by Mr. Yadeta.”
(Request No. 6.)
This is Mr. Yadeta’s profession, and yet he
has produced no documents responsive to this request.
Similarly, he has produced no contracts or agreements to which
he is a party related to engineering consultancy services, no
documents reflecting experience with any engineering consultancy
services, nor his own federal and state tax returns.
Nos. 6, 12, 26.)
(Request
Even if the corporation is completely non-
operative, defendant Yadeta must have some documents relating to
his own personal work and finances.
Finally, for the interrogatories which defendants did
provide an answer, their answers are inadequate.
Interrogatory
No. 14 asks that defendants describe all facts relating to
defendants’ allegation that defendant Yadeta “owns the right to
use the names of BCI and/or BCE in Zambia.”
Defendants’
response states:
Defendant Yadeta first registered a company
that had not previously existed in Zambia,
which had the name, “Beza Consulting
Engineers.” Accordingly, in Zambia,
Defendant Yadeta owns the right to use the
name “Beza Consulting Engineers.”
Responses of Defendant Beza Consulting Inc., of Maryland to
Plaintiffs’ First Set of Interrogatories, Dkt. 58-2, Ex. 4.
This response is inadequate.
There is no indication of when the
9
company was registered, how defendants knew it was the first
registered, the registration process in Zambia, and who
currently owns the registration for Beza Consulting Engineers.
This answer does not provide plaintiffs with the type of
information they would need to prepare a response to defendants’
allegations in their Answer.
These paltry sentences are
illustrative of defendants’ unwillingness to provide full and
complete responses to plaintiffs’ requests for discovery.
Given
the minimalist responses to some interrogatories, the lack of
response to others, and the lack of production of documents, the
discovery responses defendants now seek to introduce are still
inadequate for the purposes of this litigation.
Therefore, the instant motion, essentially a motion for
reconsideration, is hereby DENIED.
ENTERED this
26th_ day of February, 2015.
/s/
THERESA CARROLL BUCHANAN
UNITED STATES MAGISTRATE JUDGE
Alexandria, Virginia
10
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?