WILLIAM K. HAND, individually and on behalf of all others similarly situated v. SECURE LENDING INCORPORATED CIVIL ACTION NO. 20-607 United States District Court, E.D. Louisiana Filed November 09, 2021 Douglas, Dana M., United States Magistrate Judge ORDER SECTION “R” (3) *1 Before the Court is Plaintiff's Motion for Sanctions (Rec. Doc. No. 52) filed by William K. Hand (“Plaintiff”). The motion is unopposed. After reviewing the pleadings, memoranda, and caselaw, the Court rules as follows. I. BACKGROUND Plaintiff asks the Court to sanction Secure Lending Incorporated (“SLI”) for conduct that began at the inception of the lawsuit when SLI failed to timely answer Plaintiff's complaint, and the Court entered a default judgement against it. (Rec. Doc. No. 16). SLI filed a Motion to Vacate the Entry of Default, and the Court granted it. (Rec. Doc. Nos. 19 & 28). Thereafter, on October 23, 2020, Plaintiff sent interrogatories and requests for production of documents to SLI. (Rec. Doc. No. 34-2). Plaintiff granted SLI several extensions of time to provide responses, but SLI ultimately failed to timely respond. On February 3, 2021, Plaintiff filed a motion to compel, which was set for hearing on February 24, 2021. (Rec. Doc. No. 34). The motion to compel requested that this Court: (1) order SLI to respond to Plaintiff's initial discovery, (2) deem waived any objections to Plaintiff's discovery requests that SLI may assert, and (3) award Plaintiff reasonable attorney's fees incurred in bringing this motion. Id. On February 16, 2021, SLI filed an opposition to Plaintiff's motion to compel and submitted responses to Plaintiff's interrogatories, lodging numerous objections. (Rec. Doc. Nos. 36 & 36-2). SLI also produced an audio recording. (Rec. Doc. No. 36-1). On February 24, 2021, this Court granted Plaintiff's motion to compel. (Rec. Doc. No. 42). On March 10, 2021, SLI supplemented several of its responses to Plaintiff's interrogatories while also maintaining its objections. (Rec. Doc. No. 52-2, 52-3). That same day, Plaintiff responded to SLI's requests for production for the first time, asserted several objections, and produced three documents. (Rec. Doc. No. 52-4). On May 11, 2021, SLI filed a Motion to Withdraw as Counsel, seeking an order withdrawing counsel that had represented it throughout the matter. (Rec. Doc. No. 48). On May 11, 2021, the Court granted the Motion to Withdraw. (Rec. Doc. No. 50). The Court also ordered SLI to “submit, in writing, no later than 5:00 P.M. on FRIDAY, MAY 28, 2021, a statement regarding future representation and the steps it is taking to secure new counsel.” (Rec. Doc. No. 51). The Court further stated that “[f]ailure of defendant to submit the required statement or failure of new counsel to enroll by the May 28, 2021 deadline could result in the imposition of the appropriate sanctions.” Id. On May 26, 2021, SLI, through its president, wrote a letter to the Court about its future representation and the steps it was taking to secure new counsel. (Rec. Doc. No. 54). The Clerk of Court did not receive SLI's letter until June 3, 2021. (Rec. Doc. No. 54). On June 1, 2021, Plaintiff filed the instant motion requesting that this Court strike SLI's answer, enter default judgment against it on the issues of liability and class certification, and award Plaintiff reasonable attorney's fees for bringing this motion. (Rec. Doc. No. 52). The basis for Plaintiff's motion was his contention that SLI had willfully ignored orders from both the district judge and this Court. For purposes of the instant motion, Plaintiff contends that SLI failed to comply with its deadline to respond to the Discovery Requests and a Court order compelling it to provide full and complete discovery responses without objections. (Rec. Doc. No. 52-1 at p. 6). *2 On August 5, 2021, the district judge issued an order confining the instant motion to “the question of whether sanctions are appropriate for defendant's failure to comply with court orders.” (Rec. Doc. No. 55 at p. 4). The Court discussed SLI's failure to comply with the original answer deadline and to timely respond to Plaintiff's initial discovery requests and stated that those “two lapses by defendant have already been adequately addressed by the Court.” Id. The Court stated that it found “no reason to continue penalizing defendant for its initial failure to respond to the complaint.” Id. Further, the Court recognized this Court's order compelling discovery, stating that it addressed SLI's failure to timely respond to discovery requests. Id. The district judge referred the motion to this Court to determine whether SLI violated the February 24 Order and what sanctions, if any, should be imposed. Id. at p. 6. II. LAW AND ANALYSIS Federal Rule of Civil Procedure 37(b)(2)(A) provides that: If a party or a party's officer, director, or managing agent...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: (iii) striking pleadings in whole or in part...(vi) rendering a default judgment against the disobedient party.... Fed. R. Civ. P. 37(b)(2)(A). Moreover, Federal Rule of Civil Procedure 37(b)(2)(C) states: Instead of or in addition to the orders above, the court must order the disobedient party, the attorney advising that 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. 37(b)(2)(C). Thus, Rule 37(b)(2) authorizes the district court to strike pleadings or render a default judgment against a party as a sanction for failure to comply with a discovery order. Plasticsource Workers Comm. v. Coburn, 283 F. App'x 181, 184 (5th Cir. 2008) (citing Fed. R. Civ. P. 37(b)(2)(A)(iii), (vi)). When a district court awards default judgment as a discovery sanction, two criteria must be met. Id. (citing Smith v. Smith, 145 F.3d 335, 344 (5th Cir.1998)). First, the penalized party's discovery violation must be willful. Id. Second, drastic measures are only to be employed where a lesser sanction would not substantially achieve the desired deterrent effect. Id. The reviewing court may also consider whether the discovery violation prejudiced the opposing party's preparation for trial and whether the client was blameless in the violation. Id. (citing Batson v. Neal Spelce Assocs., 765 F.2d 511, 514 (5th Cir.1985)); see also F.D.I.C. v. Conner, 20 F.3d 1376, 1380–81 (5th Cir. 1994) (citations omitted) (reiterating the factors to be reviewed before a district court may dismiss a case as a sanction for violating a discovery order). A. Discussion Plaintiff asks the Court to strike SLI's answer, enter a default judgment against SLI, and award Plaintiff attorney's fees. Plaintiff argues that the requested sanctions are warranted because SLI violated this Court's order waiving SLI's objections to discovery and requiring it to provide complete responses to discovery. Plaintiff contends that SLI's continued assertion of objections in conjunction with its production of only four documents clearly violate the Court's order. Plaintiff contends that a sanction less drastic than striking SLI's entire answer and entering a default judgment would not deter further similar conduct by SLI and would leave the litigation in limbo. Plaintiff further contends that his trial preparation is clearly prejudiced because SLI has completely refused to participate in discovery and comply with Court orders. Plaintiff contends that SLI's deficient responses to discovery in this litigation involving class action claims, as well as its failure to inform the Court of its plans to retain counsel, have seriously prejudiced his preparation for trial because he is unable to obtain necessary information within the Court ordered deadlines. *3 Plaintiff further argues that there is no evidence that SLI misunderstood the Court's discovery order, which clearly granted the Motion to Compel in full. Plaintiff contends that the order did not excuse SLI's failure to timely respond or permit it to assert objections. In this case, the Court does not find willfulness or bad faith accompanied by a record of delay or contumacious conduct sufficient to warrant striking SLI's answer and entering a default judgment against it on the issues of liability and class certification. Although SLI failed to timely respond to Plaintiff's initial discovery responses, the Court notes that SLI did provide responses to Plaintiff's discovery requests prior to the hearing on the Motion to Compel. Furthermore, after the Court granted Plaintiff's motion to compel, SLI supplemented its discovery responses. Plaintiff cites to Com. Metals Co. v. Dalian Suntime Int'l Transp. Co. to support his position that SLI's answer should be stricken and a default judgment entered against it. No. CIV.A. 13-6525, 2015 WL 3796504, at *1 (E.D. La. June 18, 2015). The Court finds Com. Metals Co. to be distinguishable, as that case involved a Defendant that had completely failed to provide any responses to Plaintiff's discovery requests, despite several requests from Plaintiff and Defendant's own counsel. Id. Furthermore, Defendant's counsel informed the Court that he could not obtain the cooperation of Defendant in the litigation. Id. Defendant's counsel eventually withdrew, and the Court ordered the Defendant to answer all outstanding discovery. Id. When granting Plaintiff's motion for sanctions and striking Defendant's answer, the Court noted that it was clear that the Defendant's violations of the Court's order were willful and in bad faith because it was the litigant – not the attorney – who caused the situation to arise. Id. at *2. The Court stated, “it is impossible to answer discovery when a client will not provide information.” Id. Unlike Com. Metals Co., the instant case does not involve a complete failure to provide discovery responses or a clear indication that it was SLI alone that refused to provide information. As previously stated, SLI has both provided and supplemented its responses. The fact that responses have been provided – although they may be deficient – diminishes any argument that SLI has refused to participate in discovery, acted in bad faith, and failed to provide responses. Furthermore, the instant circumstances are dissimilar from circumstances where the Fifth Circuit has found a litigant's disregard for a Court's order to be willful. See S. U.S. Trade Ass'n v. Guddh, 565 F. App'x 280, 281-83 (5th Cir. 2014) (affirming striking of pleadings and finding willful disregard for Court's orders where litigant: (1) refused to answer discovery requests and questions at a deposition, (2) refused to pay court-ordered attorney's fees, (3) refused to appear in person at a deposition although ordered to do so, and (4) refused to appear in person for a pre-trial conference although ordered to do so). Nevertheless, the Court notes that SLI's responses to Plaintiff's discovery requests contain several objections and withhold information pursuant to those objections. See First Supplemental Response of Secure Lending Incorporated to Interrogatories by Plaintiff, William K. Hand (Rec. Doc. No. 52-3); Response of Secure Lending Incorporated to Requests for Production of Documents (Rec. Doc. No. 52-4). When the Court granted the Motion to Compel, it granted all relief requested by Plaintiff in the motion, including the waiver of objections and an award of attorney's fees. The Order was based on SLI's complete failure to provide timely responses to Plaintiff's discovery requests, which generally amounts to a waiver of objections. In re U.S., 864 F.2d 1153, 1156 (5th Cir. 1989) (“[A]s a general rule, when a party fails to object timely to interrogatories, production requests, or other discovery efforts, objections thereto are waived.”). Thus, the Court finds that SLI's responses with objections violated the Court's February 24, 2021, Order granting Plaintiff's Motion to Compel. However, the Court does not find that this conduct alone justifies striking SLI's answer and entering a default judgment against it. *4 Having found that there is no willfulness or bad faith accompanied by a record of delay or contumacious conduct, the Court will not strike SLI's answer or enter a judgment of default. However, the Court finds that SLI's continued objections and failure to provide complete responses to Plaintiff's discovery warrants a less severe sanction. Thus, the Court will order SLI to remove its objections and pay the reasonable attorney's fees incurred by Plaintiff in filing the instant motion. The Court, however, cautions SLI that a failure to comply with any more court orders will result in a sanction more severe than the mere imposition of attorney's fees. III. CONCLUSION Based on the foregoing, IT IS ORDERED that the Plaintiff's Motion for Sanctions (Rec. Doc. No. 52) is GRANTED IN PART, and SLI is ordered to remove all objections to Plaintiff's discovery requests and respond in full within ten (10) days of this order or by November 19, 2021. IT IS FURTHER ORDERED that SLI shall pay the reasonable attorney's fees incurred by Plaintiff in filing the Motion for Sanctions. This order reserves the right of Plaintiff to file the appropriate motion with supporting documentation to recover the costs and fees incurred in the filing of their Motion for Sanctions within ten (10) days of the date of this order or by November 19, 2021. New Orleans, Louisiana, this 9th day of November, 2021.