United States District Court, N.D. Illinois, Eastern Division
May 3, 2005.
AMERICAN MASSAGE THERAPY ASSOCIATION and THE COMMISSION ON MASSAGE THERAPY ACCREDITATION, Plaintiffs,
CHRIS FOLKERS d/b/a/ COUNCIL OVERSEEING MEDICAL & MASSAGE THERAPY ACCREDITATION and JAMES LATTANZIO, Defendants.
The opinion of the court was delivered by: IAN LEVIN, Magistrate Judge
MEMORANDUM ORDER AND OPINION
This cause comes before the Court on Plaintiffs American
Massage Therapy Association and The Commission on Massage Therapy
Accreditation (hereinafter "Plaintiffs") motion for sanctions
pursuant to Federal Rule of Civil Procedure 37(b)(2). For the
reasons herein set forth, the Court grants Plaintiffs' motion.
In December of 2003, Plaintiffs initially sought discovery in
this case from Defendants Chris Folkers and James Lattanzio
(hereinafter "Defendants"). (Pls.' Mot. at 1.) Plaintiffs served
follow-up discovery requests in February and March of 2004.
(Id.) Because Defendants' responses to Plaintiffs' discovery
requests were grossly inadequate and incomplete, Plaintiffs'
motions to compel were granted and ultimately a default judgment
as to liability was entered against Defendants.*fn1 (Dkt. Nos. 53, 63, 90, 121, 139.)
Since entry of the default judgment, Defendants have not
provided responses to Plaintiffs' discovery requests.*fn2
This matter has been referred by the District Judge to conduct
prove-up proceedings. (Dkt. No. 139.)
Rule 37(b)(2) vests a court with authority to sanction a party
for failing to obey a court order. Fed.R.Civ.P.37(b)(2).
Specifically, Rule 37(b)(2) reads in pertinent part: "If a party
. . . fails to obey an order to provide . . . discovery . . .,
the court in which the action is pending may make such orders in
regard to the failure as are just, and among others the
following: (B) An order refusing to allow the disobedient party
to support or oppose designated claims or defenses, or
prohibiting the party from introducing designated matters in
evidence." Fed.R.Civ.P.37(b)(2)(B); see also
A "district court has broad discretion in determining whether
to impose sanctions, including exclusion of evidence, for discovery violations." Boynton v.
Monarch, No. 92 C 140, 1994 WL 463905, at *1 (N.D. Ill. Aug. 25,
1994) (citing Scaggs v. Consolidated Rail Corp., 6 F.3d 1290,
1295 (7th Cir. 1993)). However, "[a]n award of sanctions must
be proportionate to the circumstances surrounding the failure to
comply with discovery." Crown Life Ins. Co. v. Craig,
995 F.2d 1376, 1382 (7th Cir. 1993). Moreover, "Rule 37 sanctions may
only be imposed where a party displays `wifulness, bad faith, or
fault.'" Langley v. Union Electric Co., 107 F.3d 510, 514
(7th Cir. 1997) (quoting Philips Medical Systems Int'l, B.V.
v. Bruetman, 982 F.2d 211, 214 (7th Cir. 1992)). Where
discovery violations are wilful and unexcused, "a harsh sanction"
is justified. Diehl v. H.J. Heinz Co., 901 F.2d 73, 75 (7th
Plaintiffs bring the subject motion for sanctions averring that
the Court should bar Defendants from presenting evidence at the
prove-up hearing because Defendants have failed to comply with
their discovery requests and have provided virtually no discovery
on issues relating to damages and attorneys' fees. (Pls.' Mot. at
3.) Plaintiffs contend, however, that because Mr. Lattanzio, the
defendant who responded to this motion, intends to rely only on
their documents and statements, he should be permitted to
cross-examine Plaintiffs' witnesses which would include
questioning the witnesses about documents produced by Plaintiffs.
(Pls.' Reply at 2-3.) Plaintiffs therefore request that the Court
enter an order prohibiting Defendants from presenting any
documentary or testimonial evidence relating to damages or
attorneys' fees at the prove-up hearing. (Id. at 3.)
Mr. Lattanzio, on the other hand, contends that he has produced
documents to Plaintiffs and that there were additional documents
that could be reviewed in person by Plaintiffs. (Lattanzio's Resp. at 1-2.) Mr. Lattanzio asserts, however, that Plaintiffs
objected to the production of documents and, moreover, they never
traveled to Defendants to review the additional documents. (Id.
at 2.) Mr. Lattanzio also claims that Plaintiffs have made
numerous inconsistent representations and false statements
directly to the Court and through the filing of various motions.
(Id.) Moreover, Mr. Lattanzio avers that when he complained
that Plaintiffs refused to disclose discovery in the form of
"financial statements" or "damage analysis," Plaintiffs stated
they were seeking only the profits from the business and
therefore do not have to produce these documents. (Id.)
Furthermore, at the prove-up hearing, Mr. Lattanzio asserts that
he intends to rely on those statements and documents that have
been produced by Plaintiffs, those statements that have been made
to the Court and those statements and documents which constitute
judicial admissions. (Id. at 3.)
The Court initially notes that Defendants have violated
numerous court orders and have ultimately failed to provide the
required discovery. (See Dkt. Nos. 53, 63, 90, 121, 139.) Next,
Mr. Lattanzio, in his responsive brief, does not deny that he has
not provided complete responses to Plaintiffs' discovery requests
that relate to Plaintiffs' claims for damages and attorneys'
fees. (See Lattanzio's Resp.) Moreover, the 15,000 pages of
documents that Mr. Lattanzio produced were virtually all
irrelevant and most of them were downloaded from the Internet.
(See Pls.' Reply, Ex. B.) When Mr. Lattanzio produced these
15,000 pages of documents he also indicated that he had "an
additional [four] to [six] thousand pages of ancillary
questionable production documents" that he would make available
for review. (Dkt. No. 130, Pls.' Reply, Ex. A.) However, when
Plaintiffs' attorney wrote to Mr. Lattanzio asking him to
identify these additional documents by category, he refused to do
so. (Pls.' Reply, Ex. 1 at ¶ 6 & Ex. D.)
Accordingly, in light of Defendants egregious and wilful
conduct and dilatory tactics, the Court grants Plaintiffs' motion for sanctions and finds that the
appropriate sanction herein is to bar Defendants from presenting
any documentary or testimonial evidence relating to damages or
attorneys' fees at the prove-up hearing. See e.g., Soderbeck v.
Burnett County, Wis., 821 F.2d 446, 452-54 (7th Cir. 1987)
(if a party fails to serve proper answers to another party's
interrogatories the court may prohibit that party from
introducing into evidence matters that were requested but not
disclosed pursuant to Rules 37(b)(2)(B) and (d)). This sanction
is warranted given Defendants should not be permitted to benefit
from their own wilful failure to comply with discovery and court
orders. See e.g., Langley, 107 F.3d at 514; Diehl,
901 F.2d at 75. Moreover, Plaintiffs would be prejudiced if Defendants
were allowed to present documentary and testimonial evidence
because Plaintiffs have almost no discovery on issues relating to
damages and attorneys' fees. Mr. Lattanzio and Mr. Folkers,
however, will be permitted to cross-examine Plaintiffs'
witnesses, including questioning them about documents that the
Plaintiffs have produced.*fn3
In view of the foregoing, the Court grants Plaintiffs' motion