United States District Court, D. Massachusetts
MEMORANDUM AND ORDER RE PLAINTIFF'S MOTION FOR
FINAL JUDGMENT (DOCKET ENTRY # 85)
MARIANNE B. BOWLER UNITED STATES MAGISTRATE JUDGE.
Corey Hinds (“plaintiff”), a pro se inmate, seeks
a final judgment due to a failure of defendant John L. Dean
(“defendant”) to comply with an October 3, 2016
Order to respond to a request for production of documents and
interrogatories on or before November 3, 2016. (Docket Entry #
85). Defendant opposes the motion and points out, correctly,
that he responded to the discovery a short time after the
November 3, 2016 deadline. (Docket Entry # 87).
2016, a few days after the discovery deadline in effect at
the time, plaintiff filed a motion requesting that defendant
provide him with documents responsive to three requests for
production included in the motion. (Docket Entry # 73).
Plaintiff thus served defendant with the document requests at
the time he served defendant with the motion. (Docket Entry #
73). Plaintiff also filed a set of interrogatories but did
not request that this court compel defendant to answer the
interrogatories. (Docket Entry ## 70, 70-2). The certificate
of service indicates that plaintiff served defendant with the
interrogatories by mail on July 5, 2016. (Docket Entry ## 70,
70-2). On October 3, 2016, this court extended the June 30,
2016 discovery deadline to November 7, 2016 and, in ruling on
the above motion (Docket Entry # 73), ordered defendant to
answer certain portions of the document requests on or before
November 3, 2016.
did not provide plaintiff with the requested documents on or
before November 3, 2016 or the answers to the interrogatories
“within 30 days after being served.” Fed.R.Civ.P.
33(b)(2). Rather, according to plaintiff, defendant's
“counsel issued correspondence to plaintiff on November
3, 2016” indicating the discovery “will be
provided by November 14, 2016.” (Docket Entry # 85). On
November 10, 2016, defendant served plaintiff by hand with
the answers to the interrogatories. (Docket Entry # 87-1, p.
10). On November 15, 2016, defendant served plaintiff by mail
with the response to the request for production of documents.
(Docket Entry # 87-2, p. 3).
seeks the draconian sanction of a final judgment because
defendant did not comply with the October 3, 2016 Order to
respond to the document requests and interrogatories by the
November 3, 2016 deadline. Defendant contends that a final
judgment is not appropriate because he provided plaintiff
with the discovery.
Fed.R.Civ.P. Rule 37(b) (“Rule 37(b)”), a court
may render a default judgment against a defendant who fails
to comply with a discovery order. Fed.R.Civ.P.
37(b)(2)(A)(vi); Ramirez v. T&H Lemont, Inc.,
845 F.3d 772, 779 (7th Cir. 2016) (“Rule 37(b)(2)(A)(v)
and (vi) authorizes both the dismissal of the action and the
entry of a default judgment against the offending plaintiff
or defendant”). In order to invoke Rule 37(b)
sanctions, the recalcitrant party must fail “‘to
obey an order to provide or permit discovery.'”
Melendez-Garcia v. Sanchez, 629 F.3d 25, 33-34
(1st Cir. 2010) (quoting Rule 37(b)(2)(A) with
internal brackets omitted). Because the October 3, 2016 Order
required defendant to respond to the document requests by a
set deadline, it constitutes a discovery order within the
meaning of Rule 37(b)(2). See id. at 34 n.6;
R.W. Intern. Corp. v. Welch Foods, Inc., 937 F.2d
11, 16 (1stCir. 1991). Defendant violated the
Order by not responding to the document requests on or before
the November 3, 2016 deadline.
the Order did not require defendant to answer the
interrogatories, however, it cannot serve as the basis for
sanctions under Rule 37(b) due to defendant's belated
response to the interrogatories. Simply stated,
defendant's belated answers to the interrogatories did
not violate the October 3, 2016 Order.
“assessing the appropriateness of a discovery
sanction” for the violation of the October 3, 2016
Order vis-à-vis the document requests, this court
examines “[t]he totality of the circumstances.”
Mulero-Abreu v. Puerto Rico Police Dept., 675 F.3d
88, 93 (1st Cir. 2012); Moulton Bane v.
Moulton, 2015 WL 12990224, at *3 (D.N.H. Nov. 10, 2015)
(whether to enter default under Rule 37(b)(2) “depends
on the totality of the circumstances”). Relevant
factors to consider “include ‘the severity of the
violation, the legitimacy of the party's excuse,
repetition of violations, the deliberateness vel non of the
misconduct, mitigating excuses, prejudice to the other side
and to the operations of the court, and the adequacy of
lesser sanctions.'” Vallejo v.
Santini-Padilla, 607 F.3d 1, 8 (1st Cir.
2010) (quoting Robson v. Hallenbeck, 81 F.3d 1, 2
(1st Cir. 1996)). Here, the violation was minor as
opposed to severe. Defendant's counsel communicated with
plaintiff regarding the belated production and, accordingly,
there is no evidence that defendant acted deliberately.
Defendant has not engaged in repeated violations of court
orders and there is no showing of any prejudice to plaintiff
caused by the estimated two-week delay in receiving the
response to the document requests. Weighing and balancing all
of the relevant facts, a sanction of entering a final
judgment under Rule 37(b)(2) is not warranted.
the inherent power of this court may also provide a basis to
impose sanctions due to the belated production of the answers
to interrogatories and the response to the document requests.
Federal courts have “certain ‘inherent powers,
' not conferred by rule or statute, ‘to manage
their own affairs so as to achieve the orderly and
expeditious disposition of cases.'” Goodyear
Tire & Rubber Co. v. Haeger, 2017 WL 1377379, at *5
(U.S. Apr. 18, 2017) (quoting Link v. Wabash R. Co.,
370 U.S. 626, 630-631 (1962)); accord
Vázquez-Rijos v. Anhang, 654 F.3d 122, 127 (1st
Cir. 2011) (“to operate effectively and administer
justice properly, courts must have the leeway ‘to
establish orderly processes and manage their own
affairs'”). This “authority includes
‘the ability to fashion an appropriate sanction for
conduct which abuses the judicial process.'”
Id. (quoting Chambers v. NASCO, Inc., 501
U.S. 32, 44-45 (1991)); see Young v. Gordon, 330
F.3d 76, 81 (1st Cir. 2003). Pursuant to this authority, this
court has the power to enter a default judgment against
defendant for discovery abuses. See Secrease v. W. &
S. Life Ins. Co., 800 F.3d 397, 401 (7th Cir. 2015);
Brockton Savings Bank v. Peat, Marwick, Mitchell &
Co., 771 F.2d 5, 11-12 (1st Cir.1985) (inherent power
allows entry of default judgment for abuse of discovery
process). Defendant's conduct of belatedly answering the
interrogatories, see Fed.R.Civ.P.33(b)(2), and
violating the October 3, 2016 Order by not providing the
response to the document requests by November 3, 2016,
however, falls well below the kind of conduct that permits
the entry of a judgment under the inherent powers of this
additionally argues that a denial of the motion is
appropriate because plaintiff failed to comply with Rule
37(a)(1) by certifying he “‘has in good faith
conferred or attempted to confer with the person or party
failing to make disclosure or discovery in an effort to
obtain it without court action.'” (Docket Entry #
87) (quoting Rule 37(a)(1)). In light of the denial based on
the nature of the conduct, it is not necessary to address
accordance with the foregoing discussion, the motion for a