Opinion
Case No. 1:18-cv-0228 (Erie)
06-01-2020
David V. Jordan, Plaintiff v. Lieutenant Murin, et al., Defendants
SUSAN PARDISE BAXTER UNITED STATES DISTRICT JUDGE REPORT AND RECOMMENDATION ON PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT ECF NO. 117
ECF NO. 119 I. Recommendation.
Plaintiff David V. Jordan (Jordan) has filed two motions seeking an entry of default judgment against Defendant Craig Griffin (Griffin). It is respectfully recommended that the motions at ECF No. 117 and ECF No. 119 be GRANTED. II. Introduction
Jordan seeks an entry of default against Griffin as a result of Griffin's repeated failures to comply with discovery requests and an order of this Court compelling his compliance. Specifically, Jordan asserts that Griffin failed to respond to his written discovery requests, ignored his repeated demands that he do so, and then defied this Court's order of December 16, 2019, compelling Griffin to respond to the discovery requests by January 10, 2020. See ECF No. 98. Griffin's noncompliance ultimately prompted Jordan to file two motions for default judgment: ECF No. 117 on March 5, 2020, and ECF No. 119 on March 17, 2020. The Court then conducted a hearing on Jordan's motions. See ECF No. 128. Upon consideration of the record in its entirety, it is recommended that the motions be GRANTED. III. Factual and Procedural Background
Jordan filed this civil rights action on August 22, 2018. ECF No. 3. He has sued employees of the Pennsylvania Department of Corrections (DOC) and outside medical providers based on alleged violations of his rights under the Eighth Amendment. The Complaint identifies Griffin as a corrections officer employed by the DOC at the State Correctional Institution at Forest (SCI-Forest) and alleges that he harassed Jordan in retaliation for his filing of grievances of lawsuits and failed to intervene when other corrections personnel allegedly assaulted him. Id. at ¶¶ 11, 21-44. Griffin is the sole subject of Jordan's motions and this Report and Recommendation.
On November 28, 2018, the Pennsylvania Attorney General's Office entered an appearance on Griffin's behalf. ECF No. 33. Once all parties had been served, the Court issued an initial case management order specifying December 23, 2019 as the deadline for the completion of discovery. ECF No. 76. The docket reflects that the discovery period was somewhat contentious, with Jordan filing several motions to compel. See, e.g., ECF Nos., 79, 80, 83, 84, and 85. On motion, the Court extended the discovery period to January 22, 2020. ECF No. 96. On December 16, 2019, the Court granted Jordan's motion to compel Griffin to respond to Jordan's written discovery requests by January 10, 2020. ECF No. 98. The Court cautioned Griffin and the other defendants that if presented with any further failure to "properly to respond to Plaintiff's discovery by this date, the Court intends to enter sanctions against them, which may include the entry of a default judgment against them, pursuant to Rule 37 of the Federal Rules of Civil Procedure." Id. Griffin failed to comply with that order and Jordan then filed the instant motions for default. IV. Federal Rule of Civil Procedure 37
Federal Rule of Civil Procedure 37 authorizes a court to impose sanctions against a party who fails to comply with a court order. Fed. R. Civ. P. 37. Griffin's conduct in this matter implicates subsection (b)(2) of the Rule, which provides, in relevant part:
(b)(2) Sanctions Sought in the District Where the Action is Pending.
(A) For Not Obeying a Discovery Order. If a party or a party's officer, director, or managing agent - or witness designated under Rule 30(b)(6) or 31(a)(4) - fails to obey an order to provide or permit discovery, including an order under Rule 26(f), 35 or 37(a), the court where the action is pending may issue further just orders. They may include the following:
Fed. R. Civ. P. 37(b)(2)(A)(i)-(vii). Jordan specifically asks for the entry of default against Griffin pursuant to Fed. R. Civ. P. 37(b)(2)(A)(vi). See generally, ECF No. 117, 119. Federal district courts have very broad discretion to use sanctions to ensure compliance with court orders. Miller v. Thompson-Walk, 2019 WL 2150660, at *9 (W.D. Pa. May 17, 2019). Rule 37(b) provides courts with a "veritable arsenal of sanctions" to use to deter and rectify discovery violations. Id. "The ultimate decision to impose sanctions under Rule 37 and any determination as to what sanctions are appropriate are matters entrusted to the discretion of the district court." Pelino v. Gilmore, 2020 WL 2572361, at *4 (W.D. Pa. May 21, 2020) (quoting Dufala v. Primanti Bros., 2015 U.S. Dist. LEXIS 132964, at *2 (W.D. Pa. Sept. 30, 2015) (citing Bowers v. Nat'l College Athletic Ass'n, 475 F.3d 524, 538 (3d Cir. 2007)).(i) directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims;
(ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence:
(iii) striking pleadings in whole or in part;
(iv) staying further proceedings until the order is obeyed;
(v) dismissing the action or proceeding in whole or in part;
(vi) rendering a default judgment against the disobedient party; or
(vii) treating as contempt of court the failure to obey any order except an order to submit to a physical or mental examination.
In considering the imposition of a just sanction, the Court's discretion is limited in two ways: (1) any sanction must be just; and (2) the sanction must be related to the claim that was at issue. Miller, 2019 WL 2150660, at *9; see also Clientron Corp. v. Devon IT, Inc., 894 F.3d 568, 580 (3d Cir. 2018). The district court "must ensure that the sanction is tailored to meet the harm identified." Klein v. Stahl GMBH, 185 F.3d 110-11 (3d Cir. 1999) (quoting Republic of the Philippines v. Westinghouse Elec. Corp., 43 F.3d 65, 73 (3d Cir. 1994)). V. Discussion and Analysis
The Court has little choice but to enter a default judgment against Griffin. Griffin's failure to respond to Jordan's discovery requests was discussed at length during a hearing on April 23, 2020. ECF No. 128. When queried about Griffin's failure to respond, counsel from the Attorney General's Office advised that his office intended to discontinue its representation of Griffin because he had ceased to respond to communications following its entry of appearance and waiver of service on his behalf. Hearing Transcript, 4/23/2020 at p. 5. Counsel advised the Court regarding efforts to communicate with Griffin and obtain his compliance with discovery as follows:
Counsel also stated that the Attorney General's Office "would have to drop our representation of [Griffin] as well, which should have been done on Monday, if not on the docket." Hearing Transcript of 4/23/2020, p. 5. The Court informed counsel that an appropriate motion would have to be filed, but as of today's date, that has not been accomplished. Id.
The Court: Defendant Griffin is still unresponsive, not responding to discovery - is that correct?
Counsel: That's correct, Your Honor. Looking at this - like I said, I spoke with [supervisory counsel]. We have five
different attempts to contact him from our office. We sent a final letter December 11, 2019. We also - I sent an email from my work email, but to him [at an email address] we have on record ... but he has not responded to that either.Id. at pp. 7-8. The Court cautioned counsel that "... under the circumstances, it appears there is no sanction short of a default judgment that's going to be appropriate here." Id. at p. 9. Such a sanction, the Court explained, "... is obviously the most extreme sanction and one that we are reluctant to enter, because it's --- it takes away an evaluation of the merits of the claims against - against the party ... but that's likely where we're going." Id. As of today, no other updates about Griffin's status or whereabouts have been placed on the docket.
And then as late as yesterday, [supervisory counsel] attempted to contact him at a cell phone number, an alternative number, one of two did answer voicemail, the other two, email was not responded to. So he did leave a message on the one voicemail, but other than that, there has been radio silence from his end, Your Honor.
The Court: All right. Are you confident, either through the CLEAR System or other means, that you have a correct address for him? Any reason to believe that he's not receiving your messages and your correspondence?
Counsel: There was a - an original address - he did sign the representation letter, Your Honor, in 2018. There was an address in Brookville, Pennsylvania. And it was Walnut Street, and he had moved. We found that out through CLEAR. We got the new address and we sent everything to that new address, and still no response.
And so from the best that I could tell, and the best that the investigators could tell ... that is what we found. And we know that that second address, he was living there for a period of time.
Here, the Court was referring to Thomson Reuters CLEAR® system, which is described on the company's website as being "powered by billions of data points and leverages cutting-edge public records technology to bring all key content together in a customizable dashboard. Locate hard-to-find information and quickly identify potential concerns associated with people and businesses to determine if further analysis is needed." See https://legal.thomsonreuters.com/en/products/clear-investigation-software (last viewed on May 28, 2020).
District courts must conduct a "Poulis analysis" before imposing sanctions that are tantamount to default judgment because they inevitably lead to liability for one party. See, e.g., Knoll v. City of Allentown, 707 F.3d 406, 409 (3d Cir. 2013). The Poulis factors are: "(1) the extent of the party's personal responsibility; (2) the prejudice to the adversary caused by the failure to meet scheduling orders and respond to discovery; (3) a history of dilatoriness; (4) whether the conduct of the party or the attorney was willful or in bad faith; (5) the effectiveness of sanctions other than dismissal, which entails an analysis of alternative sanctions; and (6) the meritoriousness of the claim or defense." Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984). Consideration of these factors supports entry of a default against Griffin.
Griffin's failure to cooperate in discovery—even with his own attorney—is his personal responsibility. He is represented by counsel and there is no indication that he is unaware of Jordan's discovery requests and the Court's order compelling him to respond. Further, Griffin's noncompliance has materially delayed this proceeding and Jordan's ability to advance his claim against Griffin. Griffin's noncompliance has thus materially prejudiced Jordan. There is a history of dilatoriness on Griffin's party: the docket and testimony from counsel evidence his repeated disregard of counsel's communications. The repeated nature of Griffin's disregard of his counsel's communications indicates that his noncompliance is willful and the product of bad faith. Finally, lesser sanctions were previously ordered by the Court in granting Jordan's motions to compel but without success. There is no indication that a sanction short of a default judgment will induce Griffin's compliance or cure the prejudice Jordan has suffered. Because Griffin has failed to participate in his defense, the Court cannot evaluate whether Jordan's claims against him have factual merit. But Griffin cannot be permitted to use his own defiance of the order compelling discovery to frustrate Jordan's ability to advance the claims against him.
Griffin's repeated failures to respond to discovery and comply with the Court's order are inexcusable. Thus, entry of a default judgment under Rule 37(b)(2)(A)(vi), although an extreme sanction, is just and appropriate. See Miller, 2019 WL 2150660, at *11-12 (W.D. Pa. May 17, 2019) (citing National Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639, 643 (1976) ("the most severe in the spectrum of sanctions provided by statute or rule 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 deterrent."); Styer v. Frito-Lay, Inc., 2015 WL 1243423, at *3 (M.D. Pa. Mar. 18, 2015) (Rule 37(b)(2) specifically provides for sanctions including entry of a default judgment); Organik Kimya, San. v. Tic. A.S., 848 F.3d 994, 1002 (Fed. Cir. 2017) (affirming entry of default judgment against party that destroyed documents despite the ALJ's explicit orders to conserve the documents). VI. Conclusion
Thus, it is respectfully recommended that Jordan's motions for default judgment against Defendant Griffin, as docketed at ECF No. 117 and ECF No. 119, be GRANTED and that a default judgment be entered against Griffin. VII. Notice
In accordance with the applicable provisions of the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) & (C), and Rule 72.D.2 of the Local Rules of Court, Defendant Griffin has fourteen (14) days from the date of the service of this Report and Recommendation to file written objections thereto. Defendant Griffin's failure to file timely objections will constitute a waiver of his appellate rights.
Entered this 1st day of June, 2020.
/s/_________
RICHARD A. LANZILLO
United States Magistrate Judge