United States District Court, E.D. Virginia, Alexandria Division
JOSEPH O. FASUSI, Plaintiff,
WASHINGTON MOTORCARS, INC., Defendant.
PROPOSED FINDINGS OF FACT AND
R. Anderson, Judge
matter is before the court on plaintiff Joseph O.
Fasusi's ('"plaintiff) motion to reopen the case
and renewed motion for Federal Rule of Civil Procedure 37
sanctions. (Docket no. 40). Since plaintiffs motion seeks
relief that would be dispositive of this matter, it is being
considered in accordance with 28 U.S.C. § 636(b)(1)(B).
Pursuant to 28 U.S.C. § 636(b)(1)(C), the undersigned
magistrate judge is riling with the court his proposed
findings of fact and recommendations, a copy of which will be
provided to all interested parties.
alleged in the Complaint (Docket no. 1) ("Compl."),
on March 24, 2017, plaintiff purchased a 2012 Audi S4 from
defendant Washington Motorcars, Inc. ("defendant"
or "Washington Motorcars"), and financed it through
defendant. (Compl. ¶ 7). Defendant placed an Internet
advertisement representing that the vehicle came with a 2
year/24, 000 mile Bumper-to-Bumper warranty. (Compl. ¶
9). Notwithstanding this advertisement, defendant charged
plaintiff $5, 680 for an after market warranty/service
contract. (Compl. ¶ 10). At the time of the sale,
defendant, by and through its sales agent, Aaquib Faruqui,
told plaintiff he had been approved for financing, and
presented him with a completed Retail Installment Sales
Contract. (Compl. ¶¶ 12, 16). Relying on
Faruqui's representation, plaintiff traded in his
vehicle, paid the $6, 000 down payment, and left with the
Audi S4. (Compl. ¶¶ 17-18). Defendant neither
notified the Department of Motor Vehicles about the sale, nor
signed the title of the vehicle over to plaintiff. (Compl.
April 14, 2017, plaintiff received a telephone call from
defendant advising him for the first time that Capital One
had rejected the assignment of the financing, and that
plaintiff needed to sign new documents for Capital One to
agree to finance the transaction. (Compl. ¶ 27).
Defendant presented plaintiff with a new Buyers Order and
represented that Capital One had committed to accepting the
assignment of financing. (Compl. ¶ 30). The first set of
tags on the vehicle expired on April 23, 2017, and the second
set of tags expired on May 23, 2017. (Compl. ¶¶
32-33). Defendant refused to renew the temporary tags or
provide permanent tags after May 23, 2017, threatening to
have plaintiff arrested if he did not sign a new set of sale
documents. (Compl. ¶¶ 34, 36). On June 12, 2017,
plaintiff signed a new set of sale documents which increased
the service charge from $599 to $4, 250, increased the Annual
Percentage Rate from 16.99% to 24.09%, eliminated the
Extended Service Contract, and changed the sale from one with
warranty to an "AS IS" transaction. (Compl.
18, 2017, plaintiff initiated this action against defendant,
alleging a violation of the Truth in Lending Act (Count I), a
violation of the Equal Credit Opportunity Act (Count II), a
violation of the Fair Credit Reporting Act (Count III), fraud
(Count IV), breach of fiduciary duty (Count V), and a
violation of the Virginia Consumer Protection Act (Count VI).
(Compl. ¶¶ 50-110). A Scheduling Order was entered
on September 6, 2017, setting discovery due by January 12,
2018. (Docket no. 6). Plaintiff mailed his First Set of
Interrogatories and Requests for Production of Documents to
defendant on September 12, 2017. (Docket no. 25 at 3).
Defendant did not serve any objections or responses to
plaintiffs discovery requests. (Id.). On October 24,
2017, plaintiff filed a motion to compel responses to his
discovery requests. (Docket no. 10). On November 3, 2017,
defendant filed a motion to continue plaintiffs motion,
representing that the owner of Washington Motorcars, AJ
Faruqui, was medically unable to respond to discovery for the
next two weeks. (Docket no. 13 at 3). On November 14, 2017,
this court entered the parties' consent motion to compel,
which required defendant to file "full and complete
responses to discovery, without objection, no later than
November 27, 2017." (Docket no. 19). Defendant filed
belated responses on December 6, 2017, which plaintiff
contends were woefully inadequate and failed to meaningfully
respond to the discovery requests. (Docket nos. 25-3, 25-4).
December 7, 2017, plaintiff filed a motion for sanctions for
failure to comply with a court order. (Docket no. 24).
Defendant failed to appear at the motion hearing on December
22, 2017, and this court again ordered defendant to provide
full and complete responses to plaintiffs discovery requests
by December 28, 2017, or face the entry of a default. (Docket
no. 32). On December 29, 2017, plaintiff filed a renewed
motion for sanctions, asserting that defendant had not filed
the discovery supplementation required by this court's
December 22. 2017 order, set for a hearing at 9:45 a.m. on
January 5, 2018. (Docket nos. 33, 34). On January 4, 2018,
defendant filed a suggestion of bankruptcy (Docket no. 36),
at which point the motion hearing was cancelled (Docket no.
37), and the litigation was stayed (Docket no. 38).
April 20, 2018, plaintiff filed the instant motion to reopen
the case and enter an order for sanctions under Federal Rule
of Civil Procedure 37. (Docket no. 40). On April 23, 2018,
the court vacated the order staying the case and directed the
parties to provide a status report regarding the litigation.
(Docket no. 42). On April 27, 2018, plaintiff filed a status
report representing that defendant's counsel had not
provided any further discovery responses or other
supplementation as required by this court's order.
(Docket no. 43). On May 29, 2018, the court directed
defendant to provide a response to the instant motion by 5:00
p.m. on Thursday, May 31, 2018. (Docket no. 44). Defendant
failed to file a response to the motion, at which point the
court cancelled the hearing set for 10:00 a.m. on June 8,
2018 and took the matter under advisement. (Docket no. 45).
Findings and Recommendations
instant motion, plaintiff seeks to reopen the case and enter
an order for sanctions under Federal Rule of Civil Procedure
37. (Docket no. 40). On April 23, 2018, the court reopened
the matter, thereby partially granting the requested relief.
(Docket no. 42). Accordingly, the undersigned is now
considering the request for an order for sanctions, as stated
in the motion and memorandum previously filed and heard on
December 22, 2017. (Docket nos. 24, 25, 31). Plaintiff
alleges that defendant failed to comply with two of this
court's orders requiring full and complete discovery
responses to plaintiffs discovery requests. (Docket nos. 19,
32). In the status report submitted on April 27, 2018,
plaintiff represented that defendant had still not provided
any further discovery responses or other supplementation as
required by the court's order on December 22, 2017.
(Docket no. 43). As explained in more detail below, it is
recommended that there be a finding that defendant failed to
comply with both court orders.
November 14, 2017, this court granted the parties'
consent motion to compel, directing defendant to file
"full and complete responses to discovery, without
objection, no later than November 27, 2017." (Docket no.
19). Defendant not only failed to provide responses by the
November 27, 2017 deadline, but produced anemic responses
which did not fully address plaintiffs discovery requests.
When this court gave defendant a second chance to provide
full and complete responses to plaintiffs discovery requests
on December 22. 2017 (Docket no. 32), defendant failed to
comply with that order as well (Docket no. 33), instead
filing a suggestion of bankruptcy the day before the hearing
on plaintiffs renewed motion for sanctions (Docket no. 36).
After the bankruptcy proceeding was resolved and this matter
was reopened, defendant again failed to provide full and
complete responses as required by the December 22, 2017
order. (Docket no. 43). Finally, the court provided defendant
with another opportunity to respond to the instant motion
(Docket no. 44), which defendant failed to do. Each of these
orders gave explicit directions to defendant with which it
failed to comply.
seeks a default judgment against defendant as well as an
award of attorney's fees and reasonable expenses for
bringing the motion to compel. As explained in more detail
below, it is recommended that an entry of default be entered
against defendant on the ...