Kartman v. Markle et al

Filing 375

MEMORANDUM OPINION AND ORDER DENYING PLAINTIFF'S 345 MOTION FOR SANCTIONS UNDER RULE 37(c). Signed by Senior Judge Frederick P. Stamp, Jr. on 8/28/15. (copy to Pro Se Plaintiff via CM/rrr; counsel via CM/ECF; former counsel via email)(lmm) (Additional attachment(s) added on 8/28/2015: # 1 Certified Mail Return Receipt) (lmm).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
RICHARD E. KARTMAN,
Plaintiff,
v.

Civil Action No. 5:10CV106
(STAMP)

SHANNON MARKLE,
Defendant.
MEMORANDUM OPINION AND ORDER
DENYING PLAINTIFF’S MOTION FOR SANCTIONS UNDER RULE 37(c)
I.

Background

Pending before this Court is the plaintiff’s motion for
sanctions against the defendant, which is filed pursuant to Rule
37(c) of the Federal Rules of Civil Procedure (“Rule 37(c)”).1
No. 345.

ECF

Previously, this Court conducted a supplemental pretrial

conference

on

commencement

July
of

the

27,

2015,

trial

in

which
this

was
civil

the

day

action.

before
At

the
that

conference, counsel for the defendant proffered several “offender
non-association lists,” which the parties refer to as “keep-away
lists.”

The complete keep-away lists allegedly were not provided

to either counsel for the plaintiff or this Court, and were
supplied in their entirety for the first time at the supplemental
pretrial conference.

In light of the tardiness in disclosing such

evidence, this Court limited the admissibility of the keep-away

1

For a more thorough background of this civil action, see ECF
Nos. 155, 188, and 314.

lists.
wherein

The plaintiff then filed the current motion for sanctions,
he

argues

that

the

defendant

“had

been

withholding

additional keep-aways and/or information regarding additional keepaways for nearly five years when Defendant produced complete keepaway lists for the first time.”

ECF No. 345.

Because counsel for

the defendant allegedly failed to timely disclose such evidence,
the plaintiff requested that this Court impose a default judgment
against the defendant. In the alternative, the plaintiff requested
that this Court (1) provide a limiting instruction to the jury
regarding the keep-away lists, (2) prohibit testimony of those
lists, and (3) award reasonable attorney’s fees and expenses to the
plaintiff.
The defendant then filed both a response to the plaintiff’s
motion and a cross-motion for sanctions.

ECF No. 350.

As to the

plaintiff’s motion, the defendant asserts that the keep-away lists
were immaterial to the primary issues in this civil action.
Further, the defendant contends that those lists were subject to
neither a document request by the plaintiff nor a court order
compelling their production.

Because no evidence of sanctionable

conduct exists by the defendant, and because this Court already
limited the admissibility of the keep-away lists, the defendant
believes that the plaintiff’s motion should be denied as moot.

As

to the defendant’s cross-motion for sanctions, the defendant later
withdrew his motion.

ECF No. 368.

2

In addition, the plaintiff, who is now proceeding pro se2,
filed a reply.

ECF No. 372.

Previously, this Court granted

counsel for the plaintiff’s motion to withdraw as counsel for the
plaintiff at a hearing on that motion.
respectively.

ECF Nos. 368 and 364,

Further, this Court extended the time in which the

plaintiff, who is now proceeding pro se, could file a reply to his
motion for sanctions. In that reply, the plaintiff argues that the
keep-away lists were part of specific discovery requests that the
defendant disregarded. The plaintiff then asserts that his current
reply has been timely filed, and that the defendant’s conduct
regarding the keep-away lists amounts to sanctionable conduct.
For the reasons set forth below, the plaintiff’s motion is
denied.
II.

Applicable Law

Rule 37 generally authorizes a party to move for an “order
compelling disclosure or discovery.”

Fed. R. Civ. P. 37(a)(1).

The purpose of that rule is to prevent surprise and prejudice to an
opposing party.
(1st Cir. 1992).

See Thibeault v. Square D Co., 960 F.2d 239, 246
More specifically, Rule 37(c)(1) states that

“[i]f a party fails to provide information . . . as required by
Rule 26(a) [of the Federal Rules of Civil Procedure] or (3), the
party is not allowed to use that information . . . on a motion, at

2

“Pro se” describes a person who represents himself in a court
proceeding without the assistance of a lawyer.
Black’s Law
Dictionary 1416 (10th ed. 2014).
3

a hearing, or at a trial unless the failure was substantially
justified or is harmless.”

In addition to prohibiting the use of

such information, the court may impose further sanctions, including
but not limited to the “payment of reasonable expenses, including
attorney’s fees caused by the failure” and “rendering a default
judgment against the disobedient party.”

See id. at (b)(2)(A)(i)-

(vi); (c)(1)(A)-(C).
In determining whether a failure to disclose information was
substantially justified or harmless, the United States Court of
Appeals for the Fourth Circuit has found that a district court
possesses “broad discretion to determine whether a nondisclosure of
evidence is substantially justified or harmless for purposes of
Rule 37(c)(1) exclusion analysis.”

S. States Rack and Fixture,

Inc. v. Sherwin-Williams Co., 318 F.3d 592, 597 (4th Cir. 2003).
However, “[Rule 37(c)] does not require a finding of bad faith or
callous disregard of the discovery rules” before a court may limit
or exclude such information.
courts

in

the

Fourth

As to additional sanctions, district

Circuit

must

use

a

four-part

test

for

determining what sanctions should be imposed, if any, under Rule
37(c).
party

“The court must determine (1) whether the non-complying
acted

in

bad

faith,

(2)

the

amount

of

prejudice

that

noncompliance caused the adversary, (3) the need for deterrence of
the particular sort of non-compliance, and (4) whether less drastic
sanctions would have been effective.”

4

Anderson v. Foundation for

Advancement, Educ. and Employment of American Indians, 155 F.3d
500, 504 (4th Cir. 1998).
Although a district court has the discretion and authority “to
impose a default sanction for insufficient compliance with a
discovery order” or procedure, that district court should “[warn]
a defendant about the possibility of default before entering such
a harsh sanction.”

Hathcock v. Navistar Intern. Transp. Corp., 53

F.3d 36, 40 (4th Cir. 1995). Indeed, a district court’s discretion
and authority to impose a default sanction in the context of Rule
37(c) “is not . . . a discretion without bounds or limits,” and is
more narrow.
Cir. 1977).

Wilson v. Volkswagen of Am., 561 F.2d 494, 503 (4th
As the Fourth Circuit stated in Wilson, “the sanction

of a default judgment . . . represents an infringement upon a
party’s right to trial by jury under the [S]eventh [A]mendment and
runs counter to sound public policy of deciding cases on their
merits and against depriving a party of his fair day in court.”
Id. at 503-04 (internal citations and quotations omitted).

Based

on those considerations, “the exercise of the power should be
confined to the flagrant case in which it is demonstrated that the
failure to produce materially affects the substantial rights of the
adverse party and is prejudicial to the presentation of his case.”
Id. at 504 (internal citations and quotations omitted).

Finally,

as to attorney’s fees and expenses, “Rule 37 supports only the
reimbursement of fees resulting from the discovery violation.”

5

Maynard v. Nygren, 332 F.3d 462, 471 (7th Cir. 2003) (citing Fed.
R. Civ. P. 37(c)(1) (allowing courts to require “payment of
reasonable expenses, including attorney’s fees, caused by the
failure”) (emphasis added))).
III.

Discussion

As stated earlier, the plaintiff seeks sanctions against the
defendant for failing to disclose the allegedly complete keep-away
lists.

The plaintiff requests that this Court impose a default

judgment against the defendant.

In the alternative, the plaintiff

desires that this Court limit the admissibility of certain keepaway lists to those that were previously provided during discovery,
instruct the jury as such, and award the plaintiff reasonable
expenses including attorney’s fees.
The sanctions that the plaintiff requests all fall within the
discretion and authority possessed by this Court, pursuant to Rule
37.

However, based on the case law discussed above, an entry of

default judgment is unwarranted.

An entry of default judgment

under Rule 37(c) is reserved for parties that display “flagrant bad
faith and callous disregard” of the party’s discovery obligations.
Wilson, 561 F.2d at 504.

Here, it is unclear why the keep-away

lists were not produced earlier during discovery.

Although the

plaintiff alleges that counsel for the defendant acted in bad
faith, no evidence exists to explicitly justify that allegation.
Even though this Court may impose sanctions under Rule 37(c)

6

without a finding of bad faith, the failure to produce the keepaway lists does not warrant such a severe sanction as default
judgment.

Neither the current incident at issue nor the record

before the Court demonstrates a history of flagrant bad faith by
the defendant regarding discovery.
at 500.

See, e.g., Anderson, 155 F.3d

Even if instances of repeated bad faith existed, the

defendant never received a fair warning “about the possibility of
default before entering such a harsh sanction.”

Hathcock, 53 F.3d

at 40.
In addition to the lack of notice to the defendant, the
factors under Anderson dissuade this Court from imposing a default
judgment.

First, it is unclear if the defendant acted in bad

faith. Second, the amount of prejudice caused by the noncompliance
of the defendant was insignificant.

Although the parties believed

that only a certain amount of keep-away lists existed or were
relevant, this Court sufficiently excluded the use of the newly
provided keep-away lists.

More specifically, this Court not only

excluded their use, but also informed counsel of its willingness to
provide a limiting instruction to the jury if needed.

Third,

although parties should comply with discovery under Rule 26,
counsel for the defendant did not, for example, violate a specific
order

of

this

Court

as

to

providing

those

keep-away

lists.

Therefore, the sanction already imposed by this Court, which were
excluding the use of those keep-away lists, is sufficient to deter

7

future noncompliance.

Fourth, less effective sanctions, such as

exclusion, are arguably more effective than imposing a default
judgment against the defendant.

It should also be noted that the

failure to produce the keep-away lists did not “materially affect[]
the

substantial

rights”

of

the

plaintiff

prejudicial to presenting his case.

or

prove

unduly

Wilson, 561 F.2d at 504.

Those newly disclosed keep-away lists were not material to the
issues of this civil action, which were whether the plaintiff filed
grievances, whether the defendant received those grievances, and
whether

the

defendant

was

deliberately

indifferent

to

the

plaintiff’s safety despite receiving those grievances. See ECF No.
231.

For those reasons, the plaintiff’s request for a sanction of

default judgment against the defendant cannot be granted.
The same applies to the plaintiff’s desire for alternative
sanctions. As already discussed above, this Court excluded the use
of the newly disclosed keep-away lists.

Regarding the plaintiff’s

request for attorney’s fees and expenses, this Court finds that
such a request is also unwarranted.

Rule 37 permits a district

court to award attorney’s fees and expenses, with or without a
finding of bad faith or willful misconduct.

See, e.g., Devaney v.

Continental Am. Ins. Co., 989 F.2d 1154, 1162 (11th Cir. 1993);
Merrit v. Int’l Bhd. of Boilermakers, 649 F.2d 1013, 1018-19 (5th
Cir. 1981); Green v. Baca, 225 F.R.D. 612, 614 (C.D. Cal. 2005);
LeGrande v. Adecco, 233 F.R.D. 253 (N.D.N.Y. 2005); Boulos v. Cato,

8

1988 WL 70292, at *2 (S.D.N.Y. June 30, 1988).

However, awarding

such fees and expenses often occurs in situations where a party
repeatedly defies discovery orders by a court or discovery requests
by a party.

See, e.g., Comiskey v. JFTJ Corp., 989 F.2d 1007,

1011-1012 (8th Cir. 1993); Tourmaline Partners, LLC v. Monaco, 2014
WL 4810253, at *8 (D. Conn. Sept. 23, 2014); Russo v. Network
Solutions, Inc., 2008 WL 114908, at *1 (N.D. Cal. Jan. 10, 2008);
Monaghan v. SZS 33 Assocs., L.P., 154 F.R.D. 78, 86 (S.D.N.Y.
1994). Furthermore, Rule 37(c)(1) “supports only the reimbursement
of fees resulting from the discovery violation.” Maynard, 332 F.3d
at 471.

As the Court in Maynard pointed out, the reasonable

expenses discussed under Rule 37(c)(1) must be incurred because of
the discovery violation.

Id. (“As long as the suit as a whole is

not frivolous, . . . the remaining attorney’s fees would have been
incurred even without the discovery violation; thus, the causality
requirement was not met.”).

Moreover, Rule 37(c) provides that

even if a party fails to properly provide information under Rule
26(a),

sanctions

“substantially
37(c)(1).

may

justified

be
or

avoided
is

where

harmless.”

that
Fed.

failure
R.

Civ.

was
P.

As to determining whether a violation of Rule 26(a) is

harmless, the district court “is entrusted . . . with broad
discretion.”

Hirpa v. IHC Hospitals, Inc., 50 F. App’x 928, 932

(10th Cir. 2002) (citing Woodworker’s Supply, Inc. v. Principal

9

Mut. Life Ins. Co., 170 F.3d 985, 993 (10th Cir. 1999)) (internal
quotations omitted).
Regarding the plaintiff’s request for attorney’s fees and
expenses under Rule 37, the Court is not inclined to grant such a
request for several reasons.

First, neither the plaintiff nor the

record shows that the defendant acted in bad faith.

Further, the

record does not reflect a repeated disregard of discovery orders or
requests, such that a sanction of attorney’s fees and costs should
be imposed.

Second, the nature of the error is arguably harmless.

The issues in this civil action did not primarily revolve around
whether certain keep-away lists existed.

Therefore, in light of

the issues and the record, the failure of the defendant to produce
the remaining keep-away lists, though troublesome, was probably
harmless.

Third, lesser sanctions are available, and have been

imposed at the supplemental pretrial conference, which sufficiently
addressed the issue.
those

keep-away

limiting

jury

inadvertently

As indicated earlier, this Court excluded

lists,

and

instruction
offered

or

offered
if

to

those

admitted.

provide

an

keep-away

Therefore,

additional
lists

excluding

were
the

subject evidence amounted to a sufficient sanction against the
defendant for failing to disclose the remaining keep-away lists.
Thus,

in

light

of

the

law

and

record

discussed

above,

plaintiff’s motion for sanctions under Rule 37 is denied.

10

the

IV.

Conclusion

For the reasons set forth above, the plaintiff’s motion for
sanctions (ECF No. 345) is DENIED.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order by certified mail to the pro se plaintiff, to
counsel of record herein, and to the plaintiff’s former counsel of
record, Katherine N. Dean, Bradley K. Shafer, and P. Joseph
Craycraft of the firm of Swartz Campbell LLC.
DATED:

August 28, 2015

/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE

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