Free Motion for Sanctions - District Court of Colorado - Colorado

Case 1:03-cv-02528-WDM-OES

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Filed 11/09/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-cv-2528-WDM-OES DANNY O. DANIELS, Plaintiff, v. CITY AND COUNTY OF DENVER, a municipal corporation, Defendant. DEFENDANT'S MOTION FOR SANCTIONS Defendant, City and County of Denver (hereinafter "City"), a municipal corporation, by and through counsel, hereby moves pursuant to Fed. R. Civ. P. 37(b)(2)(d) for sanctions for Plaintiff's failure to comply with the Court's Orders, failure to cooperate in discovery and failure to serve answers to interrogatories, and in support thereof states as follows: FACTS AND PROCEDURAL HISTORY 1. The Magistrate Judge assigned to this case entered a recommendation for

dismissal of this matter on or about December 14, 2004, citing as the basis therefor that dismissal was warranted as a sanction pursuant to Fed. R. Civ. P. 37(b)(2) for Plaintiff's refusal and/or failure to cooperate with the City's efforts to conduct discovery. Among the discovery violations cited by the Magistrate Judge in his recommendation for dismissal were Plaintiff's failure to

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respond to the City's initial set of interrogatories submitted on April 22, 2004;1 his failure to respond to supplemental interrogatories submitted July 8, 2004; his refusal to sign various releases for information; and his failure to comply with Orders of the Court entered on September 21 and October 14, 2004. (Recommendation for Dismissal, pp. 2 ­ 5). 2. By Order dated July 22, 2005, this Court rejected the Magistrate Judge's

Recommendation for Dismissal and denied the City's Motion to Dismiss Without Prejudice, but stated "However, I agree with Magistrate Judge Schlatter's general analysis and determination that Daniels' conduct warrants sanctions, and therefore will deny the motion without prejudice to Denver moving for other appropriate sanctions." (Order on Recommendations of Magistrate Judge, p. 5) (emphasis added). The primary basis for the Court's ruling that dismissal was not warranted appeared to be that Plaintiff, who had previously been proceeding pro se, had since secured pro bono legal counsel who was giving immediate attention to the case. (Id.) 3. Following the denial of the recommendation for dismissal, on September 7, 2005,

the Magistrate Judge granted Plaintiff's Motion for Status/Scheduling Conference and to Reset Discovery Deadlines, and ordered that discovery be reopened until December 1, 2005. Prior to the entry of that Order, the initial discovery deadline of October 29, 2004 had long since passed and Plaintiff had taken no depositions, submitted no interrogatories, and submitted an untimely set of requests for production of documents that have since been withdrawn. 4. As of the date of this motion, Plaintiff has still never executed the releases for

employment and other information submitted to him by the City with its initial discovery
Rather than respond to the separate interrogatories, Plaintiff submitted a handwritten statement to the effect that his family had requested that investigations be conducted by one or more City Agencies and, as a result, that he would not be responding to interrogatories until those investigations were completed. (Recommendation for
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requests on April 22, 2004; and which were resubmitted to him on May 11, 2004 and again during his deposition on May 24, 2004. 5. The City now moves for imposition of sanctions in the form of an order

prohibiting Plaintiff from supporting his claims for lost wages and/or such other sanctions and relief as the Court deems proper. ARGUMENT 6. This Court has the authority under Fed. R. Civ. P. 37(b)(2) to impose a variety of

sanctions for discovery violations other than dismissal, including: a. b. An order that certain matters or designated facts be taken as established for purposes of the action; An order refusing to allow Plaintiff to support or oppose designated claims, or prohibiting him from introducing designated matters in evidence; An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed; An order treating Plaintiff's failure to obey orders as a contempt of court; and Either in lieu of or in addition to the foregoing, an order that the party pay the reasonable expenses, including attorney's fees caused by the failure.

c. d. e. 7.

A trial court's discretion in imposing an appropriate sanction is limited only to the

requirement that the sanction "be both `just' and `related to the particular claim which was at issue.'" Knowlton v. Teltrust Phones, Inc., 189 F.3d 1177, 1182 (10th Cir. 1999) citing, Ehrenhaus v. Reynolds, 965 F.2d 916, 920-21 (10th Cir. 1992) (internal citation omitted). 8.
Dismissal, p. 3).

The sanction requested by the City meets both of these requirements. Refusing to

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allow Plaintiff to support his claim for lost wages would be a just sanction for his contumacious disregard for the orders and rules of this Court whereas, to date, not only has Plaintiff yet to suffer a single consequence but, in effect, he has benefited from his dilatory and obstructive tactics by being allowed to reopen discovery and to now conduct that discovery with the advantage of legal counsel. Further, such a sanction does not necessarily prevent Plaintiff from gaining relief if he is successful at trial, as he would still potentially be entitled to recover monetary damages for emotional distress, expenses and attorneys fees, and would potentially still have available the equitable remedy of reinstatement. 9. While monetary sanctions would also be a significant consequence and would at

least partly compensate the City for the valuable time and efforts its attorneys were required to expend to enforce the orders and rules of this Court, given Plaintiff's financial status as set forth in prior pleadings, it is exceedingly doubtful that Plaintiff could pay any monetary sanctions that the Court might impose. Thus, such a sanction would likely not be "just" from the City's standpoint. Under the circumstances, the only effective sanction appears to be one that takes away a possible right of recovery, but not all such rights. 10. The sanction requested by the City is also directly related to Plaintiff's

obstructive conduct. While Plaintiff, through counsel, has recently provided the City with responses to its discovery requests, he has yet to provide signed releases of employment information that the City has been repeatedly requesting since early April 2004. Those releases relate directly to Plaintiff's claim for lost wages and are likely to be of little value to the City at this late date, with discovery expiring in approximately three (3) weeks. 11. Therefore, the City respectfully moves for sanctions in the form of an order
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prohibiting Plaintiff from supporting his claims for lost wages, and/or for such other sanctions and relief as the Court deems proper. Certificate of Compliance with D.C.COLO.LCivR 7.1(A) Undersigned counsel hereby certifies that she has conferred with Marci Gilligan, one of the attorneys for Plaintiff, Danny Daniels, regarding this motion and has been advised that Plaintiff opposes the motion. Respectfully submitted this 9th day of November, 2005. KARLA J. PIERCE Assistant City Attorney By: s/Karla J. Pierce Karla J. Pierce Assistant City Attorney Denver City Attorney's Office Litigation Section 201 W. Colfax Ave., Dept. 1108 Denver, CO 80202-5332 Telephone: (720) 913-3100 FAX: (720) 913-3190 E-mail: [email protected] Attorney for Defendant

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CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on the 9th day of November, 2005, I electronically filed the foregoing DEFENDANT'S MOTION FOR SANCTIONS with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: John Preston Baker [email protected] [email protected] Marci A. Gilligan [email protected] [email protected] John D. Phillips, Jr [email protected] [email protected] I hereby certify that I have mailed the document to the following non CM/ECF participants in the manner indicated by the non-participant's name: Via Interoffice Mail to: Vicki Braunagel Turner West Acting Co-Managers of the Department of Aviation Airport Office Building s/Marilyn Montoya Marilyn Montoya, Legal Secretary Office of the Denver City Attorney

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