DIANA MEY, Plaintiff, v. CASTLE LAW GROUP, PC, a Tennessee Corporation, JUDSON PHILLIPS, Esq., an individual, CASTLE VENTURE GROUP, LLC, a Tennessee limited liability company, CASTLE EQUITY GROUP, INC., a Tennessee Corporation, CASTLE PARTNERS INC., a Tennessee Corporation, TRISTAR CONSUMER GROUP, a Tennessee Corporation, MUSIC CITY VENTURES, INC., a Tennessee Corporation, CAPITAL COMPLIANCE GROUP, CO., a Tennessee Corporation, ADVOCUS LEGAL ORGANIZATION, a Tennessee Corporation, US CONSUMER ADVOCATES, a Tennessee Corporation, THACKER AND ASSOCIATES INTERNATIONAL, LLC, a foreign limited liability company, BRUYETTE AND ASSOCIATES, LLC, a Florida Corporation, WILLIAM MICHAEL KEEVER, an individual, ASHLEY R. KEEVER, an individual, STEVE HUFFMAN, an individual, JOHN PRESTON THOMPSON, an individual, and JOHN DOES 1-10, corporate entities and individuals presently unknown, Defendants CIVIL ACTION NO. 5:19-CV-185 United States District Court, N.D. West Virginia Signed April 04, 2022 Counsel John W. Barrett, Sharon F. Iskra, Jonathan R. Marshall, Bailey & Glasser LLP, Charleston, WV, for Plaintiff. Bailey, John P., United States District Judge ORDER GRANTING DEFAULT JUDGMENT *1 Pending before this Court is Plaintiff's Renewed Omnibus Motion for Sanctions and Request for Entry of Default Judgment [Doc. 237], filed February 21, 2022. Therein, plaintiff asks this Court to impose additional sanctions against defendants, including entry of default judgment and other relief. Federal Rule of Civil Procedure 37(b) authorizes a court to issue sanctions for failure to obey a discovery order. In this Court's previous Order, this Court found that defendants had failed to obey the discovery requirements set forth in the Scheduling Order and found that sanctions were appropriate: the Court struck defendants' defenses. [Doc. 202 at 9, 12]. In her memorandum in support of the instant motion, plaintiff argues that defendants' continued misrepresentations and violations of court orders warrant the harsher sanction of default judgment and contempt of court. Under Rule 37(b)(2)(A)(vi), (vii), sanctions for failing to obey a discovery order may include “rendering a default judgment against the disobedient party” and “treating as contempt of court the failure to obey any order except an order to submit to physical or mental examination.” Defendants filed responses to the Motion on March 7 and 11, 2022. [Docs. 244, 245, & 246]. On March 30, 2022, plaintiff filed a reply, as well as a Notice of Voluntary Dismissal of defendant Sean Austin, and the Court thus dismissed defendant Austin. [Docs. 248, 249, & 250]. The Motion is now fully briefed and ripe for decision. For the reasons outlined below, this Court will grant the motion in part, enter default and default judgment against the defendants, and deny without prejudice the request to hold defendants in contempt. I. The Court finds that defendants conduct warrants entry of default judgment against them. In its earlier Order [Doc. 202], this Court found that defendants discovery abuses in this case warranted striking of defendants' pleadings. In doing so, this Court found that: Upon review of this case, this Court finds that defendants have engaged in a pattern of concealing discoverable material. The Scheduling Order in this case required discovery to be completed by October 1, 2021. Implicit in that order is that parties must engage in discovery in good faith. This Court finds that defendants have failed to obey that order. Federal Rule of Civil Procedure 37(b) authorizes a court to issue sanctions for failure to obey a discovery order. “District courts enjoy nearly unfettered discretion to control the timing and scope of discovery and impose sanctions for failures to comply with its discovery orders.” Hinkle v. City of Clarksburg, W. Va., 81 F.3d 416, 426 (4th Cir. 1996) (citing Mutual Federal Say. & Loan Ass'n v. Richards & Associates, Inc., 872 F.2d 88, 92(4th Cir. 1989)). Sanctions for failing to comply with a discovery order include “striking pleadings in whole or in part.” Fed. R. Civ. P. 37(b)(2)[(A)](iii). The Court finds such a sanction appropriate in this case, and defendants pleadings will be stricken. With the defendant's defenses stricken, the only issue remaining in this case is determining a new schedule for a trial on plaintiff's damages. *2 [Doc. 202 at 9]. Plaintiff now argues that defendant's continued misrepresentations and violations of court orders warrant default judgment and contempt of court. Rule 37(b)(2) authorizes default judgment as a sanction for failing to comply with a discovery order, though this provision is to be used sparingly. “When the sanction involved is judgment by default, the district court's ‘range of discretion is more narrow’ because the district court's desire to enforce its discovery orders is confronted head-on by the party's rights to a trial by jury and a fair day in court.” Mutual Fed. Sav. & Loan Ass'n v. Richards & Assocs., Inc., 872 F.2d 88, 92 (4th Cir. 1989) (citing Wilson v. Volkswagen of America, Inc., 561 F.2d 494, 503–504 (4th Cir. 1977), cert. denied, 434 U.S. 1020 (1978)). Wilson established a four-part test to balance those competing interests, which the Fourth Circuit summarized in Richards: “(1) whether the noncomplying party acted in bad faith; (2) the amount of prejudice his noncompliance caused his adversary, which necessarily includes an inquiry into the materiality of the evidence he failed to produce; (3) the need for deterrence of the particular sort of noncompliance; and (4) the effectiveness of less drastic sanctions.” Richards, 872 F.2d at 92 (4th Cir. 1989) (citing Wilson, 561 F.2d at 503–506 (4th Cir. 1977)). Turning to the first part of the test, the Court finds that a finding of bad faith on the part of the defendants is easily met. This Court has already found that defendants have “engaged in a pattern of concealing discoverable material.” [Doc. 207 at 9]. The instant motion and memorandum in support merely shows a wider scope of intentional discovery abuse. An ongoing source of dispute in this case has been defendants' failure to produce documents reflecting defendants' interest, affiliations, officer status or ownership in any entities or in which another defendant also shared an interest, affiliation, or officer status. See [Doc. 202 at 3]. In her memorandum in support of the instant motion, plaintiff lists newly found evidence of organizations that meet this criteria. Plaintiff lists fifteen organizations she has independently found, nearly all of which have defendants Thompson and Huffman as officers. [Doc. 238 at 5]. As plaintiff points out, several of these were formed while this case was ongoing. [Id.]. In light of this Court's findings in its January 4 Order, the Court finds that the failure to disclose the business entities shown by plaintiff demonstrate a continued pattern by defendants; indeed, the fact that defendants failed to disclose organizations that were founded during this case make it implausible that their omission was due to mistake or inadvertence. Accordingly, a finding of bad faith is warranted. Second, the Court finds that the amount of prejudice caused to Mey through defendants' noncompliance favors a sanction of default judgment. Much of the evidence that has been concealed has been directly related to the interrelationships between the named defendants and their business entities. Plaintiff's theory of this case relies on establishing alter ego and joint venture claims. Accordingly, the evidence relating to the relationships between the various parties would be essential to showing that defendants were ultimately responsible for the calls made to plaintiff. *3 Third, “the need for deterrence of the particular sort of noncompliance” favors default judgment. Through the course of this case, defendants have had multiple, repeated opportunities to remedy their conduct and have not done so. Entry of default judgment then, would serve as “an unmistakable message to them and others that the judicial system will not tolerate repeated misconduct never wholly remedied in the future. To find otherwise would be to send the opposite message that the court may be pushed, ignored and defied to the outermost limits so long as the noncomplying party has even an inadequate fallback act ready in the wings should the final curtain be falling.” Richards, 872 F.2d at 94 (4th Cir. 1989). Finally, as to the effectiveness of less drastic sanctions, the Court finds that defendants conduct in this case, as well as the pattern of conduct in similar cases set forth in this Court's January 4 Order, demonstrates that the harsh sanction of default judgment is justified in this case. Although plaintiff sets forth her calculation of damages in the instant motion, the Court finds it appropriate to conduct a Jury Trial to determine the number of statutory violations in order to calculate damages. Although the number of violations will be determined at trial, defendants raise several questions of law related to damages which the Court will address. First, defendants correctly point out that a party cannot obtain more on default than what was pled in the Complaint. Lopez v. NTI, LLC, No. CIV. A. DKC2008-1579, 2008 WL 5120542, at *2 (D. Md. Dec. 4, 2008) (Chasanow, J.) (“Fed.R.Civ.P. 54(c) limits the type of judgment that may be entered based on a party's default: ‘A default judgment must not differ in kind from, or exceed in amount, what is demanded in the pleadings.’ ”). However, the Court believes defendants mischaracterize the Second Amended Complaint when they claim that “Plaintiff seeks damages for over one hundred additional calls.” [Doc. 245 at 2] (emphasis added). Although paragraph 45 of the Second Amended Complaint lists “approximately 25 calls” between March 6, 2018, and June 25, 2018, plaintiff goes on to allege that defendants continued to call her “throughout 2018 and during January 2019,” as well as a call on February 6, 2020. [Doc. 63 at ¶¶ 72 & 78]. Accordingly, plaintiff is not limited to the twenty-five calls alleged in [Doc. 63 at ¶ 45]. Further, several of the defendants cite to West Virginia Code § 55-7-13a, which enacted modified comparative fault, for the proposition that they cannot be held jointly liable for damages in this case, and that the jury must consider the “empty chairs” in this matter. See [Docs. 245 at 7 & 246 at 19]. But defendants may still be held jointly and severally liable where vicarious liability applies. J&J Sports Prods., Inc. v. Good, No. 2:18-CV-00781, 2018 WL 6422467, at *2 (S.D. W. Va. Dec. 6, 2018) (Goodwin, J.); Joe Hand Promotions Inc. v. Harrison, No. 2:14-CV-28688, 2016 WL 6988501, at *2 (S.D. W. Va. Nov. 28, 2016) (Johnston, J.). As plaintiff points out, “[b]y virtue of the Court's [January 4] ruling, Defendants are deemed to have engaged in these schemes against Ms. Mey in joint enterprise and as alter egos of one another.” [Doc. 248 at 6]. As to defendants argument that plaintiff cannot pursue penalties under both the TCPA and WVCCPA, the Court finds that there is nothing that prevents penalties under both statutes. Although it “goes without saying that the courts can and should preclude double recovery by an individual,” Gen. Tel. Co. of the Nw. v. Equal Emp. Opportunity Comm'n, 446 U.S. 318, 333 (1980), the statutory penalties at issue in this case penalize different conduct. See Charvat v. NMP, LLC, 656 F.3d 440 (6th Cir. 2011) (allowing for claims under the TCPA and Ohio Consumer Sales Practices Act). II. The Court declines to hold defendants in contempt. *4 In setting forth potential sanctions for not obeying a discovery order, Federal Rule of Civil Procedure 37(2)(A) also authorizes “treating as contempt of court the failure to obey any order except an order to submit to a physical or mental examination.” “To establish civil contempt, each of the following elements must be shown by clear and convincing evidence: (1) the existence of a valid decree of which the alleged contemnor had actual or constructive knowledge; (2) ... that the decree was in the movant's ‘favor’; (3) ... that the alleged contemnor by its conduct violated the terms of the decree, and had knowledge (at least constructive knowledge) of such violations; and (4) ... that [the] movant suffered harm as a result.” Ashcraft v. Conoco, Inc., 218 F.3d 288, 301 (4th Cir. 2000) (citation omitted). “Judicial sanctions in civil contempt proceedings may, in a proper case, be employed for either or both of two purposes: to coerce the defendant into compliance with the court's order, and to compensate the complainant for losses sustained. Where compensation is intended, a fine is imposed, payable to the complainant. Such fine must of course be based upon evidence of complainant's actual loss.... But where the purpose is to make the defendant comply, the court's discretion is otherwise exercised.” Omega World Travel, Inc. v. Omega Travel & Shipping Agencies, Inc., 905 F.2d 1530 (4th Cir. 1990) (unpublished) (citing United States v. United Mine Workers of Am., 330 U.S. 258, 303–04 (1947) (citation omitted)). In this case, plaintiff argues that a civil contempt order is essential to ensure that defendants do not escape judgment. Plaintiff argues that “it is clear that Defendants will stop at nothing to collaboratively hide money, transfer assets, and avoid paying what is due to Ms. Mey.” [Doc. 238 at 25]. Without making a finding as to whether the Ashcroft factors are met in this case, the Court finds that holding defendants in contempt is premature at this stage in the proceedings. Because there has not yet been a determination of damages, holding defendants in civil contempt pending payment of those damages would make little sense. In light of the foregoing, Plaintiff's Renewed Omnibus Motion for Sanctions and Request for Entry of Default Judgment [Doc. 237] is hereby GRANTED IN PART AND DENIED IN PART. The Clerk is directed to enter default against each remaining defendant, and plaintiff's Motion is GRANTED insofar as it seeks default judgment against defendants. A Jury Trial solely on the issue of damages will be conducted, as scheduled, May 3, 2022, at 9:00 a.m. At trial, the jury will be asked to determine the number of calls made and the number of violations under each of the statutes. Insofar as the instant motion also asks this Court to hold defendants in contempt, the Motion is DENIED WITHOUT PREJUDICE. It is so ORDERED.