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Overton v. Ameriquest Mortgage Co.

August 28, 2006

MARY OVERTON, PLAINTIFF,
v.
AMERIQUEST MORTGAGE CO., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Matsumoto, United States Magistrate Judge

MEMORANDUM & ORDER

Pending before the Court is plaintiff's motion for sanctions against defendants Julio Suarez and Suarez Carpentry, Inc. (collectively, the "Suarez defendants"), for the Suarez defendants' failure to provide complete responses to plaintiff's discovery requests in a timely manner. (See Doc. No. 73, Letter from L. Anthony Pellegrino, Esq. dated June 16, 2006 ("Pl. June 16 Letter").) For the reasons set forth below, plaintiff's motion is granted. The Suarez defendants shall reimburse plaintiff $1,750 in attorneys' fees within 30 days of the date of this order.

I. BACKGROUND

Plaintiff served her discovery requests on the Suarez defendants on January 23, 2006 (see Doc. No. 61, Letter from Meghan Faux, Esq. dated May 19, 2006), thus requiring the Suarez defendants to serve their responses thereto on or before February 22, 2006. See Fed. R. Civ. P. 33(b) and 34(b). The Court learned, at a conference on March 15, 2006, that the Suarez defendants had not served responses to plaintiff's discovery demands. Thus, the Court directed the Suarez defendants to provide plaintiff with complete responses to her discovery requests by March 20, 2006. (See Doc. No. 32, Minute Entry for Mar. 15, 2006.)

According to plaintiff, although the Suarez defendants served responses to plaintiff's discovery demands on March 20, 2006, some of the Suarez defendants' responses were incomplete. (Id.) Following a failed attempt to obtain complete responses to her discovery requests, plaintiff advised the Court, at the May 2, 2006 status conference, of the Suarez defendants' failure to provide complete discovery responses. Accordingly, the Court again ordered that the Suarez defendants provide responses to plaintiff's outstanding discovery requests by May 16, 2006.

By letter dated May 19, 2006, plaintiff complained of the Suarez defendants' failure to provide complete responses on May 16, and requested this Court's "assistance in securing complete responses to her discovery requests . . . ." (Id.) By order dated May 19, 2006, the Court ordered the Suarez defendants to "file a response to plaintiff's May 19, 2006 letter" on or before May 24, 2006.

Instead of responding to plaintiff's May 19 letter by, for example, explaining why they allegedly failed to comply with this Court's orders, the Suarez defendants filed an untimely motion for an additional 10 days "to provide plaintiff with amplification of various interrogatories." (Doc. No. 62, Letter from Stuart R. Berg, Esq. dated May 22, 2006.) Notwithstanding the above failures of the Suarez defendants to comply with court orders, by order dated May 23, 2006 (doc. no. 63), the Court granted the Suarez defendants' requested extension of 10 days, or until June 2, 2006, to provide plaintiff with complete responses to all of her outstanding discovery requests.

Additionally, in the Court's order dated May 23, 2006, the Suarez defendants were directed to show cause, in writing, on or before June 2, 2006, why they should not reimburse plaintiff for the fees and costs incurred relative to her repeated applications seeking full compliance with her discovery requests. In turn, on or before June 9, 2006, plaintiff was directed to advise the Court, in writing, whether: (i) the Suarez defendants have fully complied with her discovery requests; and (ii) plaintiff could seek to recover the fees and costs incurred relative to obtaining complete discovery responses from the Suarez defendants.

Counsel for the Suarez defendants, Stuart R. Berg, Esq., filed a declaration on June 9, 2006, seven days after the deadline for responding to the Court's show cause order. Counsel claimed that "[f]or some unexplained reason [he] had never seen document No. 63 which is the Order of this Court setting June 2, 2006 as the time this document was to be submitted." He further denied any "intent to avoid the Court's timetable," or any "intent to ignore a Court order that your undersigned missed the date of June 2, 2006." (Doc. No. 67, Declaration of Stuart Berg, Esq. dated June 8, 2006 ("Berg Decl.").) Mr. Berg therein requested that the Court extend the Suarez defendants' time to respond to the order to show cause.

Mr. Berg further explained that shortly after the commencement of this lawsuit, defendant Suarez Carpentry, Inc. ceased doing business and engaged in litigation with the landlord of its business premises where some of its corporate records were kept. (Berg Decl. ¶¶ 9-10.) Apparently, certain records were placed in storage, others were left with the office manager, and some records remained "at the business premises that was abandoned by Suarez." (Id. ¶ 10.) Mr. Berg stated that certain documents responsive to plaintiff's document requests did not exist, while documents that did exist were provided to plaintiff. (Id. ¶¶ 11-12.) Mr. Berg also stated that he held a telephone conference with counsel for plaintiff to discuss the Suarez defendants' responses to plaintiff's discovery requests, and to ascertain whether plaintiff wanted further information or clarification. (Id. ¶ 13.)

To the extent plaintiff required further information, Mr. Berg apparently attempted to contact defendant Julio Suarez, in writing and by phone, to request his cooperation in responding to plaintiff's discovery demands. Mr. Berg states that at this point his attorney-client relationship with Mr. Suarez "became non-responsive." (Id. ¶ 16.) Plaintiff contends that the Suarez defendants' "failure to produce [the requested] discovery cannot be fully excused by the lack of cooperation from Mr. Berg's clients, as much of this discovery simply required Mr. Berg to clarify certain answers to the discovery requests, and to put other answers in writing." (Pl. June 16 Letter.)

On June 14, 2006, Mr. Berg moved to withdraw as counsel to the Suarez defendants. The Court held a conference on July 12, 2006 to address Mr. Berg's motion to withdraw. Defendant Julio Suarez appeared in person, along with Mr. Berg and incoming counsel to the Suarez defendants, Neil Flaum, Esq. At that conference, Mr. Berg reiterated his position that the Suarez defendants were uncooperative in responding to plaintiff's discovery demands. Mr. Berg conceded, however, that he advised plaintiff's counsel of the Suarez defendants' responses to certain discovery requests orally, rather than memorialize them in a verified statement as prescribed by the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 33(b) and 34(b).

Following the July 12 conference, by letter dated July 20, 2006, Mr. Berg reported that all outstanding discovery from the Suarez defendants was sent to plaintiff's counsel on July 19, 2006, via overnight mail. Mr. Berg requested that this Court "reconsider any thoughts relative to sanctioning Mr. Suarez and/or my firm in that my firm's lack of responsiveness was not purposeful, nor designed to frustrate discovery, but rather based upon the lack of communication from the client which was admitted to during or [sic] in-court conference of July 12, 2006." (Doc. No. 91.)

In turn, by order dated July 21, 2006, the Court directed plaintiff to indicate, in writing, whether she still seeks sanctions against the Suarez defendants or their counsel, or both. Plaintiff responded by letter dated July 25, 2006 (doc. no. 93, "Pl. July 25 Letter"), indicating that, in view of the fact that discovery responses were delayed due to the Suarez defendants' lack of responsiveness to their counsel, plaintiff continued to seek sanctions against the Suarez defendants and not their counsel. Plaintiff explained that although the Suarez defendants "were required to serve their discovery responses on or about February 22, 2006[,]" and "despite numerous ...


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