United States District Court, W.D. Virginia, Roanoke Division
RACHAEL L. COOK, Plaintiff,
SCOTT MCQUATE, THE OHIO COMPANY, and JOHN RICHARD BLAZER, Defendants.
S. Ballou United States Magistrate Judge.
before the court are plaintiff Rachael L. Cook's motions
for default judgment against defendant Scott McQuate and for
partial summary judgment against defendants McQuate and The
Ohio Company. Dkt. No. 75. I heard oral argument on these
motions on July 5, 2017. I find that while default judgment is
not an appropriate sanction at this stage of the proceedings,
McQuate should be required by court order to attend a
rescheduled deposition. I further find that Cook's motion
for partial summary judgment should be taken under
advisement, pending completion of additional discovery.
amended complaint asserts claims for actual fraud,
conspiracy, conversion, and breach of fiduciary
duty. Dkt. No. 16. Generally, Cook contends that
the defendants participated in a scheme to defraud her, in
which defendants McQuate and John Richard
Blazer convinced Cook to invest $25, 000 in
Heritage Acquisition Group, Inc. (“Heritage”) by
using The Ohio Company as the primary investment vehicle.
However, Cook alleges that, instead of investing her $25, 000
in Heritage, defendants divided it among themselves.
Motion for Default Judgment against Defendant
McQuate failed to attend his deposition scheduled for May 25,
2017, on June 1, 2017 Cook filed a motion under Federal Rule
of Civil Procedure 37(b)(2)(A)(vi), asking for the sanction
of default judgment. In support of her motion, Cook argues
that McQuate was both aware of the deposition and properly
served with notice. Cook's Mem. in Supp. at 2, Ex. A, B,
and C, Dkt. No. 75.
37(d) gives the district court wide discretion to impose
sanctions for a party's failure to appear for his
deposition. See Fed.R.Civ.P. 37(d)(1)(A)(i) and
37(d)(3); See also Mutual Fed. Sav. & Loan
Ass'n v. Richards & Assocs., Inc., 872 F.2d 88,
92 (4th Cir.1989). However, when the sanction imposed is a
default judgment, “the range of discretion is more
narrow than when a court imposes less severe
sanctions.” Hatchcock v. Navistar Int'l Transp.
Corp., 53 F.3d 36, 40 (4th Cir.1995) (internal quotation
marks omitted) quoting Wilson v. Volkswagen of Am.,
561 F.2d 494, 503 (4th Cir.1977), cert. denied, 434
U.S. 1020 (1978). Further, the Fourth Circuit has established
four factors that a court must consider before imposing
default judgment as a sanction:
(1) whether the noncomplying party acted in bad faith; (2)
the amount of prejudice his noncompliance caused his
adversary, which necessarily includes an inquiry into the
materiality of the evidence he failed to produce; (3) the
need for deterrence of the particular sort of noncompliance;
and (4) the effectiveness of less drastic sanctions.
Mutual Federal Savings & Loan Ass'n, 872
F.2d at 92 (noting that the purpose of such an evaluation is
to ensure that only the most flagrant cases of noncompliance
will result in judgment by default); See also
Wilson, 561 F.2d at 503-06 (4th Cir.1977) (When deciding
a Rule 37(d) default judgment motion, a district court must
weigh the competing interests of the court's desire to
enforce its discovery orders against the party's right to
a trial by jury and a fair day in court by applying a four
brief, Cook does not make any arguments relating to the four
factors a court should consider, including bad faith,
prejudice, the need for deterrence, or the effectiveness of
less drastic sanctions. I have moved the trial to January
2018, so adequate time exists for a deposition of McQuate.
Further, the court has not previously entered any order
requiring McQuate to appear for a deposition and I conclude
that a sanction less drastic than default judgment is
appropriate at this juncture. Accordingly, McQuate is ordered
to attend a rescheduled deposition. Should defendant McQuate
fail to appear at the rescheduled deposition, such failure
will result in default judgment. See Nat'l Hockey
League v. Metro. Hockey Club, Inc., 427 U.S. 639, 643
(1976) (noting that the most severe sanction of default
judgment “must be available to the district court in
appropriate cases, not merely to penalize those whose conduct
may be deemed to warrant such a sanction, but to deter those
who might be tempted to such conduct in the absence of such a
discussed and agreed during oral argument, the deposition of
McQuate will be rescheduled to August 31, 2017 at 10 a.m., in
an office location near McQuate's home in Mount Vernon,
Ohio to be arranged by Cook's counsel.
Motion for Partial Summary Judgment
also moved for partial summary judgment against defendants
McQuate and The Ohio Company on the grounds that neither
defendant timely served any objections or responses to
Cook's discovery requests, including first requests for
admissions, interrogatories, and requests for production of
documents. Thus, Cook contends the requests are deemed
admitted. Cook argues that “absent counter affidavits
there are no material issues in dispute” and asks the
court to grant partial summary judgment finding McQuate and
The Ohio Company liable for fraud (count one) and conversion
(count three). Pl.'s Br. at 8-9, Dkt. No. 75.
However, Cook is not asking for summary judgment on the
remaining counts of her amended complaint: conspiracy (count
two) and breach of fiduciary duty (count four).
governs requests for admission, providing that “[a]
matter is admitted unless, within 30 days after being served,
the party to whom the request is directed serves on the
requesting party a written answer or objection addressed to
the matter and signed by the party or its attorney.”
Fed.R.Civ.P. 36(a)(3). Unanswered requests for admission can
serve as the basis for summary judgment. See Vales v.
Preciado,809 F.Supp.2d 422, 426 (D.Md.2011) (quoting
Donovan v. Porter, 584 F.Supp. 202, 207-08
(D.Md.1984))); See also Batson v. Porter, 154 F.2d
566, 568 (4th Cir.1946) (holding that unanswered requests for
admissions are admitted and may support summary judgment,
“unless a sworn statement is filed in which they are
specifically denied or specific reasons are given why they
cannot be truthfully admitted or denied”). Here, Cook
served the discovery at issue by e-mail on March 24, 2017.
See Certificate of Service, Dkt. No. 75-7 at 13.
Thus, responses would have been due by April 24, 2017. ...