United States District Court, E.D. Virginia, Alexandria Division
TANYA M. JOHNSON, MD, Plaintiff,
ROBERT SHIELDS INTERIORS, INC., Defendant.
THERESA CARROLL BUCHANAN, UNITED STATES
THIS MATTER came before the Court on defendant’s failure to retain new counsel and note its appearance within 14 days as ordered by the Court on November 4, 2015, defendant’s failure to attend the final pretrial conference on December 17, 2015, defendant’s failure to appear at the Show Cause hearing on December 18, 2015, and plaintiff’s Motion for Sanctions. (Dkts. 25, 33-35). Following the hearing on plaintiff’s Motion for Sanctions, the undersigned Magistrate Judge took the matter under advisement to issue this Memorandum Opinion.
I. PROCEDURAL HISTORY
Plaintiff Tanya M. Johnson filed a Complaint in this action on June 26, 2015, claiming breach of contract, violation of the Virginia Consumer Protection Act of 1977 (“VCPA”), Va. Code Ann. §§ 59.1-196 et seq., and trespass. (Dkt. 1.) Plaintiff alleges that defendant Robert Shields Interiors, Inc. did not perform in accordance with the parties’ September 2014 agreement for defendant to provide professional interior design, space planning, and decorating services for plaintiff’s home. (Dkt. 1 at ¶¶ 7-10.) Specifically, plaintiff alleges that defendant did not meet deadlines, made unauthorized charges, made purchases in violation of the VCPA, and entered onto plaintiff’s property without permission. (Dkt. 1 at ¶¶ 10-14.) On August 5, 2015, defendant filed an Answer to the Complaint and a Counterclaim seeking outstanding payments allegedly owed to defendant pursuant to the agreement between the parties. (Dkts. 4 and 5.)
That same day, the Honorable Anthony J. Trenga issued a Scheduling Order setting the initial pretrial conference for August 26, 2015 and the final pretrial conference for December 17, 2015. (Dkt. 6.) On August 19, 2015, the parties filed a Rule 26(f) Joint Proposed Discovery Plan, which was adopted by the Court’s Rule 16(b) Scheduling Order. (Dkts. 8 and 9.) Plaintiff filed an Answer to defendant’s Counterclaim on August 25, 2015, and discovery proceeded. (Dkt. 11.) The following day, plaintiff served defendant with plaintiff’s First Request for Production of Documents and First Interrogatories. (Dkt. 13.)
Shortly thereafter, in accordance with 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73, the parties filed a Consent to the Exercise of Jurisdiction by a United States Magistrate Judge. (Dkt. 16.) On September 3, 2015, Judge Trenga ordered that the case be reassigned to the undersigned Magistrate Judge to conduct any and all proceedings in the case, including trial, ordering the entry of final judgment, and all post-judgment proceedings. (Dkt. 17.)
On November 4, 2015, defendant filed a Consent Motion to Withdraw Appearance, asking the Court to permit counsel for defendant to withdraw from representation in the case. (Dkt. 24.) That same day, the Court granted the motion and further ordered that defendant retain new counsel and note its appearance within 14 days. (Dkt. 25.)
In accordance with Federal Rules of Civil Procedure 33 and 34, defendant’s responses to plaintiff’s First Request for Production of Documents and First Interrogatories were due on September 25, 2015. Thereafter, defendant requested until October 8, 2015, to respond to the discovery requests, to which plaintiff consented. (Dkt. 27-1 at 2.) However, without any excuse or further extension of time granted by plaintiff, defendant failed to respond. As such, plaintiff filed a Motion to Compel Discovery on November 13, 2015. (Dkt. 27.) That motion came before the Court for hearing on December 4, 2015. Defendant filed no response to the motion and did not appear at the hearing. (Dkt. 31.) The Court thereafter granted plaintiff’s Motion to Compel. (Dkt. 32.)
At the December 4, 2015 hearing, it further came to the Court’s attention that defendant had not retained new counsel as required by the Court’s Order of November 4, 2015. The Court thus issued a Rule to Show Cause, ordering defendant to appear on Friday, December 18, 2015 to show cause why it should not be held in contempt for failure to retain counsel. (Dkt. 33.) Defendant then did not appear for the final pretrial conference on December 17, 2015, nor did defendant appear at the Show Cause hearing the following day. (Dkts. 33-34.)
Pursuant to Local Civil Rule 37(C) and the Court’s December 4, 2015 Order granting plaintiff’s Motion to Compel Discovery, defendant’s responses to plaintiff’s First Request for Production of Documents and First Interrogatories were due by December 15, 2015. Defendant again failed to comply. (Dkt. 35-1 at 4.) Consequently, on December 23, 2015, plaintiff filed a Motion for Sanctions. (Dkt. 35.) That motion came before the Court for hearing on January 8, 2016. Defendant filed no response to the motion and did not appear at the hearing. (Dkt. 37.) The undersigned thus took the matter under advisement.
A. Default Judgment on Plaintiff’s Complaint
Federal Rule of Civil Procedure 37(b)(2)(A) permits the Court to order sanctions against a party for failure to obey a discovery order. Such an order may include rendering default judgment against the disobedient party. Fed.R.Civ.P. 37(b)(2)(A)(vi). Similarly, Rule 16(f)(1) permits the Court-on motion or on its own-to issue any just order if a party or its attorney fails to appear at a scheduling or other pretrial conference or fails to obey a scheduling order or other pretrial order. See Fed.R.Civ.P. 16(f)(1)(A), (C). In such a case, orders permitted by the Court include those authorized by Rule 37(b)(2)(A)(ii)-(vii). See Fed.R.Civ.P. 16(f)(1).
In the instant case, the undersigned finds that defendant has (1) failed to retain counsel as required by the Court’s Order of November 4, 2015, (2) failed to appear at the final pretrial conference on December 17, 2015, (3) failed to appear at the Show Cause hearing on December 18, 2015 and otherwise failed to respond to the Court’s Rule to Show Cause, (4) failed to respond to plaintiff’s First Request for Production of Documents and First Interrogatories, (5) failed to respond to plaintiff’s Motion to Compel Discovery and failed to appear at the hearing on that motion, (6) failed to comply with the Court’s Order granting plaintiff’s Motion to Compel Discovery, and (7) failed to respond to plaintiff’s Motion for Sanctions and failed to appear at the hearing on that motion. (Dkts. 6, 25, 27, 31-35, and 37.)
In light of defendant’s numerous failures to comply with the orders of this Court, default judgment will be entered against defendant as to plaintiff’s Complaint.
When determining sanctions under Rule 37(b), courts in this Circuit apply a four-part test: “(1) whether the non-complying party 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.” Anderson v. Found. for Advancement, Educ. & Emp’t of Am. Indians, 155 F.3d 500, 504 (4th Cir. 1998) (citing Wilson v. Volkswagen of Am., Inc., 561 F.2d 494, 503-05 (4th Cir. 1977)).
Here, in light of those four factors, default judgment is the most appropriate sanction. First, defendant has on numerous occasions failed to appear in court when required, failed to respond to plaintiff’s discovery requests as required, and failed to comply with the orders of this Court. Defendant’s failure to retain new counsel, as ordered by this Court, is particularly troublesome given that “[i]t has been the law for the better part of two centuries . . . that a corporation may appear in the federal courts only through licensed counsel.” Rowland v. Cal. Men's Colony, 506 U.S. 194, 201-02 (1993). Thus the undersigned finds that defendant has acted in bad faith.
Second, defendant’s noncompliance has prejudiced plaintiff by delaying the prosecution of this case and forcing plaintiff to incur the additional expense of filing a Motion to Compel Discovery and a Motion for Sanctions. Additionally, plaintiff’s time was wasted by appearing for the final pretrial conference and the Show Cause hearing, both of which defendant failed to attend. Furthermore, defendant’s failure to retain new counsel has left plaintiff unable to contact defendant and unable to proceed in any manner with this litigation. Thus defendant’s conduct has clearly prejudiced plaintiff.
Third, there is a clear need for this Court to deter the sort of noncompliance engaged in by defendant. Defendant has frequently flouted the authority of this Court by failing to obey the Court’s express orders to retain new counsel, to appear at the final pretrial conference, to appear at the Show Cause hearing, and to respond to plaintiff’s discovery requests. Defendant has similarly ignored its obligations as a party to this litigation in failing for months now to respond to plaintiff’s discovery requests-despite an extension, a Motion to Compel Discovery, and an Order granting that Motion-as well as failing to respond to or appear at the hearings for the Motion to Compel Discovery and the Motion for Sanctions. Therefore, sanctions are necessary to deter this type of conduct in the future and to teach defendant that obeying Court orders and complying with its obligations as a party to a lawsuit are not optional.
Fourth, in light of defendant’s extensive noncompliance in this case, less drastic sanctions are not likely to be effective. This Court has twice warned defendant that failure to comply with the orders of the Court may result in default or summary judgment being entered against defendant. (Dkts. 32 and 33.) Nonetheless, defendant has taken no action to comply with these Orders or to otherwise participate in this litigation. Furthermore, plaintiff’s Motion for Sanctions, which asks for default judgment against defendant and for an award of reasonable attorneys’ fees, has ...