United States of America v. Gorokhovsky et al

Filing 88

ORDER signed by Chief Judge Pamela Pepper on 12/3/2019. 78 Plaintiff's motion to strike defendant Ocheretner's answer and enter default judgment DENIED without prejudice. 78 Plaintiff's alternative motion to compel discovery respo nses GRANTED; defendant Ocheretner shall respond to plaintiff's discovery requests within 30 days. 82 Plaintiff and Wisconsin Dept. of Revenue's joint motion for judgment GRANTED. 83 Plaintiff's second motion for default judgment as to Guthrie & Frey GRANTED. 75 Plaintiff's motion for referral to magistrate judge GRANTED. 69 Defendant Gorokhovsky's motion for protective order DENIED as moot. (cc: all counsel) (cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

UNITED STATES OF AMERICA,
Plaintiff,
Case No. 18-cv-590-pp
v.
VLADIMIR M. GOROKHOVSKY,
LARISSA OCHERETNER,
GOROKHOVSY IMPORTS AND INVESTMENT GROUP LLC,
WELLS FARGO BANK NA,
STATE OF WISCONSIN, and
GUTHRIE & FREY WATER CONDITIONING LLC,
Defendants.
ORDER DENYING PLAINTIFF’S MOTION TO STRIKE DEFENDANT
OCHERENTNER’S ANSWER AND ENTER DEFAULT JUDGMENT (DKT. NO.
78) AND GRANTING PLAINTIFF’S ALTERNATIVE MOTION TO COMPEL
OCHERENTER’S DISCOVERY RESPONSES (DKT. NO. 78), GRANTING
JOINT MOTION FOR JUDGMENT (DKT. NO. 82), GRANTING SECOND
MOTION FOR DEFAULT JUDGMENT AS TO GUTHRIE & FREY (DKT. NO.
83), GRANTING PLAINTIFF’S MOTION FOR REFERRAL OF PENDING
DISCOVERY MOTIONS AND FUTURE NONDISPOSITIVE PRETRIAL
MATTERS TO MAGISTRATE JUDGE (DKT. NO. 75) AND DENYING AS
MOOT DEFENDANT GOROKHVOSKY’S MOTION FOR PROTECTIVE ORDER
(DKT. NO. 69)

The plaintiff filed this case to reduce to judgment federal income tax
assessments against defendant Vladimir Gorokhovsky and to enforce its federal
tax liens against two real properties located in Mequon and Brown Deer. Dkt.
No. 1. Wells Fargo Bank, Larissa Ocheretner, Vladimir M. Gorokhovsky and
Gorokhovsky Imports and Investment Group LLC filed answers. Dkt. Nos. 7,
16, 24. This court granted default judgment as to the Office of Lawyer
Regulation and Leonard J. Kutchera, denied without prejudice the motion for
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default judgment as to Guthrie & Frey, and granted Attorney Kyle Jesinki’s
motion to withdraw from his representation of Ocheretner. Dkt. No. 65. After
the plaintiff moved to compel, dkt. no. 66, and defendant Gorokhovsky filed a
motion (and an amended motion) for a protective order, dkt. nos. 69, 74, the
plaintiff asked the court to refer all discovery and non-dispositive motions to a
magistrate judge, dkt. no. 75. The plaintiff also has filed a motion to strike
Ocheretner’s answer (or alternatively compel), dkt. no. 78, a joint motion for
consent judgment with the Wisconsin Department of Revenue, dkt. no. 82, and
a second motion for default against Guthrie & Frey, dkt. no. 83. This order
addresses potentially dispositive issues and refers the case to a magistrate
judge to handle the two pending discovery motions and future nondispositive
pretrial motions.
I.

Plaintiff’s Motion to Strike Defendant Larissa Ocheretner’s Answer
and Enter Default Judgment Pursuant to Rule 37(d), or in the
Alternative, Compel Ocheretner’s Discovery Responses (Dkt. No. 78)
On September 12, 2019, the plaintiff filed a motion under Rule 37(d),

asking the court to strike Ocheretner’s answer and to enter default judgment
because she failed to respond to the plaintiff’s interrogatories and requests for
production of documents. Dkt. No. 78. Ocheretner, who is defendant Vladimir
Gorokhovsky’s ex-wife, holds the title to the Mequon property at issue in the
suit. Id. at 2. The plaintiff served its first set of requests for production of
documents on May 21, 2019, seeking documents about the ownership of the
real property at issue. It included interrogatories regarding Gorokhvosky’s
spending and finances during his marriage to Ocheretner. Id. Ocheretner failed
to respond by June 20, 2019, id. at 3; discovery closed September 13, 2019—
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the day after the plaintiff filed this motion. Along with the motion, the plaintiff
filed a declaration to which it attached the discovery requests, emails from
Ocheretner, and a summary of Ocheretner’s statements in a phone
conversation with plaintiff’s counsel during which she said she had no plans to
respond and believed it would be “useless” to participate in this lawsuit. Dkt.
No. 79 at 2.
Ocheretner has not responded to the plaintiff’s motion. Despite not being
its target, Gorokhovsky did respond, asking the court to deny the motion and
to “set up an evidentiary telephonic hearing on all legal and factual issues.”
Dkt. No. 80. He claims that Ocheretner is not represented by counsel and “not
fully capable of understanding and comprehending legal English drafting and
does not possess any skills required to prepare and to file any legal document
with this court.” Id. at 1. Gorokhovsky indicated that while he is a lawyer, he
was not filing the response as counsel for Ocheretner, but “as the Friend of this
Court in order to advise this Honorable Court of complexity of situation, which
is not being fully disclosed to this Court by plaintiff’s counsel, Atty. Nygaard.”
Id. at 2.
No party—even one who does not have a lawyer—may ignore the rules.
McNeil v. United States, 508 U.S. 106, 113 (1993) (“[W]e have never suggested
that procedural rules in ordinary civil litigation should be interpreted so as to
excuse mistakes by those who proceed without counsel.”). Ocheretner is a party
to this case. The rules require that she must respond to discovery requests
unless the court has ordered otherwise.
That said, striking the answer and entering default is a drastic sanction
in this case. Rule 12(f) of the Federal Rules of Civil Procedure allows the court
to strike from a pleading any redundant, immaterial, impertinent or
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scandalous matter. Fed. R. Civ. P. 12(f). It does not vest the court with the
power to strike an answer in its entirety. Agstar Financial Services, PCA v.
Union Go–Dairy, LLC, No. 1:10-cv-00145-SEB-MJD, 2011 WL 772754, *1 (S.D.
Ind. Feb. 25, 2011). The court’s authority to strike an answer arises from “the
control necessarily vested in courts to manage their own affairs so as to achieve
the orderly and expeditious disposition of cases.” Link v. Wabash R. Co., 370
U.S. 626, 630–31 (1962).
The court did not terminate counsel’s representation of Ocheretner until
July 8, 2019. Dkt. No. 65. Although it appears from the declaration filed by
plaintiff’s counsel that Ocheretner does not intend to participate in the case,
Ocheretner has not said as much to this court, or on the record. The court will
order Ocheretner to respond to the discovery requests in 30 days. If Ocheretner
fails to respond or comply with the rules, the plaintiff may renew its motion for
sanctions.
II.

Plaintiff and Wisconsin Department of Revenue’s Joint Motion for
Judgment (Dkt. No. 82)
On October 4, 2019, the plaintiff and the Wisconsin Department of

Revenue filed a motion for entry of consent judgment. Dkt. No. 82. They have
resolved the claims in Counts Two and Three and argue there is no just reason
for delay under Rule 54(b). Id. at 1.
Rule 54(b) allows the court to direct entry of a final judgment as to one or
more of the parties only if there is no just reason for delay. Fed. R. Civ. P.
54(b). The court finds no just reason for delay and will enter the consent
judgment.

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III.

Plaintiff’s Second Motion for Default Judgment as to Guthrie & Frey
(Dkt. No. 83)
The court denied without prejudice the plaintiff’s first motion for default

judgment against Guthrie & Frey because the court could not determine
whether service was proper. Dkt. No. 65. The plaintiff has filed a second motion
for default judgment as to Guthrie & Frey, along with the declaration of Robert
Frey and a proposed judgment. Dkt. Nos. 83, 84.
A.

Entry of Default

Robert Frey, the owner and registered agent of Guthrie & Frey Water
Conditioning LLC, confirms in the declaration that Office Manager Jean
Klemmons is authorized to receive service on behalf of Guthrie & Frey and was
served on June 14, 2018. Dkt. No. 84 at 2. The declaration says that Guthrie &
Frey declined to answer or otherwise respond to the complaint by July 5, 2018,
and that it does not intend to answer or respond. Id. The clerk of court properly
entered default under Rule 55(a).
B.

Judgment

When the court determines that a defendant is in default, the court
accepts as true the well-pleaded allegations in the complaint. e360 Insight v.
The Spamhaus Project, 500 F.3d 594, 602 (7th Cir. 2007). “A default judgment
establishes, as a matter of law, that defendants are liable to plaintiff on each
cause of action in the complaint.” Id. The plaintiff here does not seek damages,
but a judgment stating that the real properties identified in Counts Two and
Three of the complaint should be sold free and clear of any rights, claims or
interest that Guthrie & Frey might have had. No party has opposed the motion
and the court finds that it is properly supported. The court will grant the
plaintiff’s motion for default judgment and enter judgment against Guthrie &
Frey.
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IV.

Rule 7(h) Expedited Non-Dispositive Motion for Referral of Pending
Discovery Motions and Future Nondispositive Pretrial Matters to a
Magistrate Judge (Dkt. No. 75)
On August 30, 2019, the plaintiff asked the court to refer all pending

discovery motions and future nondispositive pretrial matters to a magistrate
judge for resolution. The plaintiff notes that it would remove the parties
“current and future disputes in this contentious case” from the court’s busy
docket and facilitate the resolution of the discovery motions. Dkt. No. 75.
The plaintiff alleges that defendants Gorokhovsky and Ocheretner have
failed to participate meaningfully in discovery, and that Gorokhovsky has
stopped paying the mortgage on his properties, causing continued losses. Dkt.
Nos. 75 at 5; 76 at 2. Gorokhovsky filed a brief in opposition to the motion
because he “strenuously objected” to referral to a magistrate judge at the
beginning of the case and sees any referral now as an attempt to circumvent
his prior objection. Dkt. No. 77 at 2. He also accuses the plaintiff of using
“strong hand” litigation tactics. Id.
It is time for this case to move forward in the most expeditious way
possible. The court’s trial calendar does not permit a hearing in the near
future. The court has the authority to refer non-dispositive pretrial motions to
the magistrate judge without the consent of the parties. See 28 U.S.C.
§636(b)(1)(A). Gorokhovsky’s concerns are ill-founded; he retains the right to
appeal a magistrate judge’s order or object to any recommendation the
magistrate judge might make on a dispositive motion. The court will refer this
matter to a magistrate judge to address the pending discovery-related motions
and to oversee future nondispositive pretrial matters.

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V.

Defendant’s Motion for Protective Order Limiting Plaintiff’s
Discovery Pursuant to Rule 26(c) of Fed. R. Civ. P. (Dkt. No. 69)
The defendant filed this motion on July 16, 2019, asking the court to

limit the amount of discovery he must produce in response to the plaintiff’s
discovery demands. Dkt. No. 69. He attached forty-one pages of affidavits and
other documents to the motion. Dkt. No. 69-2. The plaintiff filed its opposition
brief on August 6, 2019. Dkt. No. 70. Nine days later, rather than filing a reply,
Gorokhovsky filed an amended motion. Dkt. No. 74. The amended motion
added a certification that Gorokhovsky had conferred with the plaintiff.
The filing of the amended motion moots the original motion, and the
court will dismiss it as moot. The court is referring the amended motion to
Magistrate Judge Duffin.
VI.

Conclusion
The court DENIES WITHOUT PREJUDICE the plaintiff’s motion to strike

defendant Larissa Ocheretner’s answer and enter default judgment. Dkt. No.
78.
The court GRANTS the plaintiff's motion to compel Ocheretner’s
discovery responses. The court ORDERS that Ocheretner shall serve written
responses to the plaintiff’s interrogatories and shall provide documents to its
requests for production within 30 days of receiving this order. The court warns
Ocheretner that failure to provide the requested discovery could result in the
plaintiff requesting, and this court imposing, sanctions, including monetary
sanctions or entry of a money judgment against her.
The court GRANTS the plaintiff and the Wisconsin Department of
Revenue’s joint motion for judgment. Dkt. No. 82. The court will enter
judgment accordingly.

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The court GRANTS the plaintiff’s second motion for default judgment as
to Guthrie & Frey. Dkt. No. 83. The clerk will enter judgment accordingly.
The court GRANTS the plaintiff’s Rule 7(h) expedited non-dispositive
motion for referral of pending discovery motions and future nondispositive
pretrial matters to a magistrate judge. Dkt. No. 75. The court will enter a
separate order REFERRING this case to Magistrate Judge William E. Duffin.
The court DENIES AS MOOT Gorokhovsky’s motion for protective order
limiting the plaintiff’s discovery. Dkt. No. 69.
Dated in Milwaukee, Wisconsin this 3rd day of December, 2019.
BY THE COURT:
_____________________________________
HON. PAMELA PEPPER
Chief United States District Judge

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