Advance Financial Corp. v. Utsey

2001 WL 102484 (S.D. Ala. Jan. 24, 2001)



On notice to other parties and all affected persons, a party may move for an order compelling disclosure or discovery. If a party fails to obey an order to provide or permit discovery, including an order under Rule 26(f), the court where the action is pending may issue further just orders.


Plaintiff company filed a lawsuit against Defendants in federal district court. A magistrate judge set deadlines for: (1) the written report required by Federal Rule of Civil Procedure (FRCP) 26(f), (2) the production of initial disclosures pursuant to FRCP 26(a)(1), and (3) the completion of discovery. When the parties failed to submit the Rule 26(f) report on time, the court ordered them to file it or show cause why they could not do so. After the deadline for initial disclosures passed without any production by the defendants, plaintiff moved for sanctions. Upon the defendants’ request, the court extended the deadline for initial disclosures. The defendants again failed to timely produce, and plaintiff filed a second motion for sanctions. By that point, the defendants had also failed to produce documents in response to a deposition notice duces tecum. Plaintiff was compelled to cancel depositions as a result of the defendants’ noncompliance. The court then ordered the defendants to show cause why sanctions should not be imposed. The defendants never responded to the court order, and plaintiff moved for sanctions a third time. At an oral hearing, counsel for the defendants explained that the noncompliance was due to medical issues resulting in his undergoing eye surgery the week prior.


Were sanctions  appropriate for violations of the discovery order?




Defendants offered no reasonable justification for their failure to submit the Rule 26(f) report, their failure to produce their initial disclosures, their failure to produce documents associated with the scheduled depositions, and their failure to respond to the court's show cause order. It is noted that counsel's eye surgery occurred only recently and does not appear to be the cause of Defendants' failure to comply with the orders. Given the nature of Defendants' actions and failure to act, and given Defendants' failure to proffer any substantial justification for these failures, and after reviewing the sanctions available pursuant to Fed.R.Civ.P. 37(b) and (c), the court found that the sanction of judgment by default is appropriate under these circumstances. Plaintiff's motion for sanctions granted, and judgment by default entered against the Defendants.

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