Enpac, LLC v. Lucas et al

Filing 131

ORDER granting 125 Motion for Sanctions by Judge Benjamin H Settle. Defendant to show cause by 7/27/2012. (TG; cc mailed to defendant)

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1 2 3 4 5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 6 7 8 ENPAC, LLC, 9 Plaintiff, 10 v. 11 CHASSIDY F. LUCAS, individually and d/b/a CB Stormwater, a Washington sole 12 proprietorship, 13 CASE NO. C11-37 BHS ORDER GRANTING PLAINTIFF’S MOTION FOR SANCTIONS AND ORDERING DEFENDANT TO SHOW CAUSE Defendant. 14 15 This matter comes before the Court on Enpac, LLC’s, (“Enpac”) motion to compel 16 (Dkt. 114) and motion for sanctions (Dkt. 125). The Court has considered the pleadings 17 filed in support of and in opposition to the motions and the remainder of the file and 18 hereby grants the motion for sanctions for the reasons stated herein. I. PROCEDURAL HISTORY 19 20 On January 7, 2011, Enpac filed a complaint against Defendants Chassidy Lucas 21 (“Defendant”) and a limited liability corporation, which Defendant has dissolved and 22 now operates as a sole proprietorship. Dkt. 1. Enpac asserted three causes of action: (1) ORDER - 1 1 request for declaratory judgment that Enpac’s products do not infringe U.S. Pat. No. 2 7,771,591 (hereinafter “the ‘591 patent”), which was issued to Defendant; (2) request for 3 declaratory judgment that the ‘591 patent is invalid and/or unenforceable; and (3) 4 violations of the Lanham Act, 15 U.S.C. § 1051, et seq. Id. 5 On May 3, 2012, Enpac filed a motion to compel discovery. Dkt. 114. Defendant 6 did not file a timely response. On May 18, 2012, Enpac replied. Dkt. 117. On May 30, 7 2012, Defendant filed a response. Dkt. 120. On May 31, 2012, Enpac objected to 8 Defendant’s late response (Dkt. 121), and Defendant responded to Enpac’s objection 9 (Dkt. 122). 10 On June 21, 2012, Enpac filed a motion for sanctions. Dkt. 125. On July 2, 2012, 11 Defendant responded. Dkt. 127. On July 5, 2012, Enpac replied. Dkt. 129. On July 7, 12 2012, Defendant filed another response. Dkt. 130. 13 14 II. FACTUAL BACKGROUND On February 10, 2012, Enpac served Enpac’s First Set of Interrogatories, Enpac’s 15 First Requests for Production and Enpac’s First Requests for Admission on Defendants 16 by mailing the same via First Class U.S. Mail to the mailing address that, at the time, 17 Defendants had most recently provided to the Court for service. Dkt. 115, Fifth 18 Declaration of Randolph Digges, ¶ 3. On March 8 and 9, 2012, after Defendant informed 19 Enpac’s counsel that these discovery requests were not received, Enpac provided 20 electronic versions of the requests. Id., ¶¶ 5, 6. 21 Defendant responded to the requests by email and attached four documents. Id., 22 Exhs. 2–5. Enpac informed Defendant that the responses were inadequate. After ORDER - 2 1 Defendant’s repeated refusal to confer and threats of suing (id., Exhs. 7 & 8), Enpac filed 2 its motion to compel. 3 On June 4, 2012, Enpac’s attorney, Randolph Digges, sent Defendant an email 4 indicating that the previously discussed deposition of Defendant would commence at 5 10:00 a.m. on June 15, 2012 at Capitol Pacific Reporting, Inc., 901 South I Street, Suite 6 202, Tacoma, Washington 98405. Dkt. 126, Sixth Declaration of Randolph Digges, ¶ 5. 7 Attached to the email was a Notice of Deposition subpoena. Id., Exh. 4. 8 On June 15, 2012, Defendant did not attend the deposition. Id., ¶ 16. 9 III. DISCUSSION 10 If a party fails to respond to discovery requests, the opposing party may file a 11 motion to compel production. Fed. R. Civ. P. 37. Evasive or incomplete disclosure must 12 be treated as a failure to respond. Id. If a party fails to attend its own deposition, then, 13 upon motion, the Court may impose sanctions up to and including entry of default 14 judgment against the party who failed to attend the deposition. Fed. R. Civ. P. 37. 15 In this case, there is no dispute that Defendant both failed to respond to discovery 16 requests and did not attend the scheduled deposition. 1 Therefore, the Court grants 17 Enpac’s motions and will impose sanctions. The Court is considering entering the 18 sanction of an entry of default judgment for Enpac. The Court finds that Defendant has 19 asserted no legitimate reason for the discovery violations and that the imposition of less 20 21 1 In fact, Defendant used the scheduled deposition to serve opposing attorneys with a new lawsuit, which has been found to be frivolous and dismissed sua sponte. See Lucas v. Bomsztyk, 22 Western District of Washington Cause No. 3:12-cv-05487-BHS (2012). ORDER - 3 1 drastic sanctions will not result in resolution of this action on the merits. For example, 2 requiring Enpac’s counsel to attend another deposition may only give Defendant the 3 opportunity to serve them with another frivolous lawsuit. In light of the severity of the 4 Court’s proposed sanction, the Court will allow Defendant an opportunity to show cause 5 why the failure to respond to discovery or to attend the deposition was not willful 6 disobedience. Depending on Defendant’s response, the Court may order the entry of 7 default judgment against Defendant. If Defendant fails to respond, the Court will order 8 the entry of default judgment against Defendant. 9 10 IV. ORDER Therefore, it is hereby ORDERED that Enpac’s motion for sanctions is 11 GRANTED. Defendant must show cause as requested herein no later than July 27, 12 2012. If the Court does not enter default judgment, the Court will issue a ruling on the 13 motion to compel. 14 Dated this 20th day of July, 2012. A 15 16 BENJAMIN H. SETTLE United States District Judge 17 18 19 20 21 22 ORDER - 4

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