United States District Court, S.D. Mississippi, Western Division
ASHLEY BROOKS, ET AL. PLAINTIFFS
ILLUSIONS, INC., ET AL. DEFENDANTS
Michael T. Parker UNITED STATES MAGISTRATE JUDGE
MATTER is before the Court on Plaintiffs' Motion for
Sanctions . On October 21, 2016, Plaintiffs served
discovery requests upon Defendants. See Notices 
 . On December 14, 2016, the Court conducted a
telephonic conference with the parties regarding discovery
issues. During the conference, Plaintiffs asserted that
Defendants had failed to provide discovery responses and
moved ore tenus to compel Defendants to respond to
their interrogatories, requests for admissions, and requests
for production. The Court granted Plaintiffs' ore
tenus motion to compel, directed Defendants to respond
to Plaintiffs' requests for admissions that very
day-December 14, 2016, and directed Defendants to serve
responses to Plaintiffs' interrogatories and requests for
production by December 23, 2016. See Order .
December 23, 2016, Defendants provided responses to
Plaintiffs' discovery requests. See Notices 
. Thereafter, disputes arose between the parties
regarding the sufficiency of Defendants' discovery
responses. On January 4, 2017, the Court conducted another
telephonic conference with the parties regarding their
discovery disputes. The parties were unable to resolve their
disputes, and on January 13, 2017, Plaintiffs filed a Motion
to Compel . In their Motion , Plaintiffs complained
that Defendants provided, inter alia, interrogatory
responses which are not sworn under oath, some discovery
responses which were inconsistent, and others which were
February 3, 2017, the Court ordered Defendants to sign under
oath their answers to Plaintiffs' interrogatories and
provide them to Plaintiffs on or before February 8, 2017.
See Order . The Court also granted Plaintiffs
leave to depose Defendants Thomas Walsh and Illusions, Inc.
regarding Plaintiffs' discovery requests, Defendants'
discovery responses, and Defendants' business records and
record keeping procedures. Id. The Court directed
the parties to confer on or before February 10, 2017, to
schedule these depositions. Id. The Court declined
to award fees or impose sanctions at that time, but warned
Defendants that their “failure to comply with this
order may result in the Court assessing the costs and fees
involved or imposing other sanctions.” Id.
February 17, 2017, Plaintiffs filed the instant Motion for
Sanctions . According to Plaintiffs, Defendants have not
provided sworn answers to interrogatories or responded to
their requests to schedule the depositions of Thomas Walsh
and Illusions, Inc. Defendants failed to respond to
Plaintiffs' Motion . Additionally, Defendants have not
filed notices of compliance confirming that they provided
sworn responses and scheduled depositions as required by the
Court's Order .
have clearly failed to comply with the Court's Order.
This Court has broad discretion to exercise its various
sanctioning powers. Topalian v. Ehrman, 3 F.3d 931,
934 (5th Cir. 1993); Shipes v. Trinity Indus., 987
F.2d 311, 323 (5th Cir. 1993) (“The imposition of
sanctions is a matter of discretion for the district
court.”). Federal Rule of Civil Procedure 37(b) allows
for sanctions when a party fails to obey a discovery order.
The sanctions may include directing that facts be taken as
established, prohibiting the party from supporting or
opposing claims or defenses, striking pleadings, staying the
proceedings until the order is obeyed, dismissing the action,
rendering default judgment, or finding the party in contempt
of court. Fed.R.Civ.P. 37(b)(2)(A). In lieu of, or in
addition to the aforementioned sanctions, “the court
must order the disobedient party, the attorney advising the
party, or both to pay the reasonable expenses, including
attorney's fees, caused by the failure, unless the
failure was substantially justified or other circumstances
make an award of expenses unjust.” Fed.R.Civ.P.
speaking, courts should punish parties no more harshly than
is necessary to vindicate the injury inflicted by the
particular misbehavior at issue. Carroll v. Jaques
Admiralty Law Firm, P.C., 110 F.3d 290, 294 (5th Cir.
1997). “Rule 37 sanctions must be applied diligently
both to penalize those whose conduct may be deemed to warrant
such a sanction, and to deter those who might be tempted to
such conduct in the absence of such a deterrent.”
Roadway Express, Inc. v. Piper, 447 U.S. 752, 763-64
their Motion , Plaintiffs request that the Court prohibit
Defendants from introducing evidence-not previously
produced-opposing Plaintiffs' claims and request that the
Court award them costs and attorney's fees incurred by
bringing their discovery motions. Defendants failed to
respond to Plaintiffs' Motion , and the Court finds
no substantial justification for Defendants' failure to
cooperate in discovery or obey the Court's Order  or
other circumstances which would make an award of fees and
expenses unjust. Thus, Plaintiffs should be awarded their
attorney's fees and expenses incurred in connection with
their Motion to Compel  and the instant Motion .
as prohibiting Defendants from introducing certain evidence
may effectively deprive Defendants of the opportunity to
contest the merits of the case, the Court finds that
Defendants should be afforded a final opportunity to comply
with the Court's orders and that a lesser sanction should
be imposed. Defendants are warned that their failure to
timely comply with this order may result in additional
sanctions, such as prohibiting them from introducing evidence
opposing Plaintiffs' claims or entry of a default
THEREFORE, ORDERED that:
1. Plaintiffs' Motion for Sanctions  is GRANTED in
part and DENIED in part.
2. On or before March 21, 2017, Defendants shall sign under
oath their answers to Plaintiffs' interrogatories and
provide them to Plaintiffs. Defendants shall immediately file
a notice of compliance confirming that sworn responses have
been provided. Failure to do so will result in the imposition
of sanctions against Defendants and/or their counsel.
3. On or before March 21, 2017, the parties shall confer and
schedule the depositions of Defendants Thomas Walsh and
Illusions, Inc. Defendants shall initiate this communication
and provide potential dates for the depositions in writing.
By March 21, 2017, Defendants shall file a notice of
compliance with this order, informing the Court of the dates
of the depositions. The parties' full cooperation is
4. On or before March 24, 2017, Plaintiffs' counsel shall
file an affidavit and itemization of fees and expenses
incurred in connection with their Motion to Compel ...