MOISES CUEVAS, JR., PLAINTIFF, v. HUMBERTO NOVOA, ADRIAN ZAMARRIPA, AZTECA RECORDS LLC, AZTECA TALENT AGENCY INC., LA ENERGIA NORTENA LLC, UMG RECORDINGS INC., AND AZTECA PUBLISHING INC., DEFENDANTS CIVIL CASE NO. 3:21-CV-3243-C-BK United States District Court, N.D. Texas, Dallas Division Filed February 17, 2023 Counsel David Chase LanCarte, LanCarte Law PLLC, Nashville, TN, Marcus C. Marsden, Jr., The Colaneri Firm PC, Arlington, TX, for Plaintiff. David N. Calvillo, David M. Medina, Chamberlain Hrdlicka, Houston, TX, Angel Mata, The Law Office of Angel Mata PC, Dallas, TX, for Defendants Humberto Novoa, Adrian Zamarripa, Azteca Records LLC, Azteca Talent Agency Inc. Michael D. Karson, Cathryn Anne Berryman, Winstead PC, Dallas, TX, for Defendant UMG Recordings Inc. David N. Calvillo, Chamberlain Hrdlicka, Houston, TX, for Defendant Azteca Publishing Inc. Toliver, Renee H., United States Magistrate Judge ORDER *1 Pursuant to 28 U.S.C. § 636(b) and the district judge's referral order, Doc. 107, Plaintiff's Motion and Brief for Sanctions Including Final Default Judgment as to Liability Against Defendants Humberto Novoa, Adrian Zamarripa, Azteca Records, LLC, Azteca Talent Agency, Inc., Azteca Publishing, Inc., and La Energia Nortena, LLC, Doc. 143, is before the Court for determination. For the following reasons, Plaintiff's motion is DENIED. I. PROCEDURAL HISTORY In his operative Third Amended Complaint, Plaintiff asserts various causes of action against, inter alia, (1) La Energia Nortena, LLC (“LEN”); (2) two of LEN's member partners, Adrian Zamarripa and Humberto Novoa; and (3) Azteca Records, LLC, Azteca Talent Agency, Inc., and Azteca Publishing, Inc. (the “Azteca Entities”). Doc. 129. For ease of reference, the Court will refer to the latter five as “Defendants” and will address LEN separately as needed. On July 15, 2022, Plaintiff served his first set of interrogatories and requests for production on Defendants and LEN, although Plaintiff already had obtained a default against LEN. Doc. 119 at 2; see Doc. 99. Three days before their responses were due, Defendants moved for a protective order, and Plaintiff cross-moved to compel them to produce the requested discovery. Doc. 85; Doc. 118. The Court denied Defendants' motion, granted Plaintiff's cross-motion, and directed Defendants to respond to Plaintiff's discovery requests by December 21, 2022. See Doc. 128. When Defendants did not timely do so, Plaintiff filed the instant motion seeking sanctions pursuant to Rule 37 of the Federal Rules of Civil Procedure. Doc. 143. II. APPLICABLE LAW Rule 37 provides that if a party fails to obey an order to produce discovery, the court may impose the following sanctions: (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. FED. R. CIV. P. 37(b)(2)(A). In order to award a plaintiff the harshest sanction of a default judgment, a number of criteria must be met. First, the Court must find that the defendant's discovery violation was willful. United States v. $49,000 Currency, 330 F.3d 371, 376 (5th Cir. 2003). Second, the Court must determine that “a lesser sanction would not substantially achieve the desired deterrent effect.” Id. Other considerations include whether the discovery violation prejudiced the plaintiff's ability to prepare for trial and whether the violation is attributable to an attorney or to the party itself. Id. *2 The undersigned magistrate judge has the authority to enter non-dispositive sanctions under Rule 37(b) or deny a request for what might be considered a dispositive sanction. See 28 U.S.C. § 636(b); FED. R. CIV. P. 72. To determine whether a motion for sanctions is dispositive or non-dispositive, the sanction chosen by the magistrate judge, rather than the sanction sought by the party, governs. Brown v. Bridges, No. 12-CV-4947-P, 2015 WL 410062, at *3 (N.D. Tex. Jan. 30, 2015) (Solis, C.J.). “To conclude otherwise would permit the party seeking sanctions to engage in a game of labels that would improperly dictate the standard of review.” Id. (quoting Segal v. L.C. Hohne Contractors, Inc., 303 F. Supp. 2d 790, 794-96 (S.D. W. Va. 2004)); see also Samsung Elecs. Am., Inc. v. Yang Kun Chung, 321 F.R.D. 250, 257 (N.D. Tex. 2017) (same) (citing Brown, 2015 WL 410062, at *1-4). III. ANALYSIS Plaintiff asserts that default judgment is warranted because Defendants (1) did not provide their initial discovery responses until the day after the Court's deadline and (2) included numerous, impermissible objections in their responses despite having waived said objections by failing to timely respond or object to the discovery by the initial deadline.[1] Doc. 143, passim. Alternatively, Plaintiff requests that the Court prohibit Defendants from defending against his claims and strike Defendants' pending Motion to Dismiss Plaintiff's Third Amended Complaint.[2] Doc. 143 at 16. Defendants respond that they were relieved of their obligation to respond to discovery until the Court ruled on their motion for protective order and, thus, have not waived their discovery objections. Doc. 154 at 3. Additionally, Defendants point out that, due to counsel's calendaring error, they served their discovery responses only one day after the Court's December 21 deadline and have produced additional discovery since the parties' Protective Order was entered on January 9, 2023. Doc. 154 at 2, 4. Upon consideration of the law, the briefs, and the posture of this action, the Court finds that sanctions are not warranted largely for the reasons Defendants argue. Taking Plaintiff's sanction requests separately, the Court initially notes that while Rule 37 provides that pleadings may be stricken as a discovery sanction, motions are not “pleadings.” See FED. R. CIV. P. 7(a) (defining a pleading as “(1) a complaint; (2) an answer to a complaint; (3) an answer to a counterclaim designated as a counterclaim; (4) an answer to a crossclaim; (5) a third-party complaint; (6) an answer to a third-party complaint; and (7) if the court orders one, a reply to an answer.”); see Albany Ins. Co. v. Almacenadora Somex, S.A., 5 F.3d 907, 911 (5th Cir. 1993) (holding that a motion to dismiss is not a “pleading” for purposes of Rule 15(a)). Accordingly, Defendant's Motion to Dismiss Plaintiff's Third Amended Complaint is not subject to being stricken. *3 As noted above, to justify a default judgment “death penalty” sanction, the Court must find that Defendants' discovery violation was willful and that “a lesser sanction would not substantially achieve the desired deterrent effect.” $49,000 Currency, 330 F.3d at 376. Here, these factors weigh in Defendants' favor. As they argue, they were not obligated to respond to Plaintiff's discovery requests while their timely-filed motion for a protective order was pending. See FED. R. CIV. P. 37(d)(2) (providing that a party's failure to respond to discovery requests “ is not excused on the ground that the discovery sought was objectionable, unless the party failing to act has a pending motion for a protective order under Rule 26(c).”); see MetroPCS v. Thomas, 327 F.R.D. 600, 615-16 (N.D. Tex. 2018) (holding that a motion to quash and for a protective order filed the day before a witness's deposition shielded her from sanctions). Next, the Court finds that Defendants' tardy compliance with the Court's Order was not willful given counsel's representation as an officer of the court that he served the responses one day late due to a calendaring error. The Court is unaware of any other instance in which Defendants failed to comply with a court order, and compliance one day late cannot be viewed as willful under the circumstances. But cf. $49,000 Currency, 330 F.3d at 374, 377 (affirming entry of default judgment as a discovery sanction where the parties did not supply the discovery responses—which themselves violated the court's order—until nearly a month after the court ordered them to do so). Plaintiff has not established a “record of delay or contumacious conduct” by Defendants and, given the Court's recent entry of an Amended Scheduling Order, Plaintiff has not been “substantially prejudiced” in his ability to prepare for trial by Defendants' dilatory discovery responses. See FDIC v. Conner, 20 F.3d 1376, 1381-82 (5th Cir. 1994) (holding that the district court abused its discretion in dismissing the plaintiff's claims for failing to comply with a discovery order where most of the responses, although violative of the court's order in some respects, were timely because the plaintiff's actions were not sufficiently contumacious, and the defendants were not substantially prejudiced by the delay). In short, Plaintiff is not entitled to a default judgment against Defendants. For similar reasons, the Court also declines to bar Defendants from opposing Plaintiff's claims. That remedy is reserved for more serious violations of court orders. See, e.g., Certain Underwriters at Lloyds London v. Corp. Pines Realty Corp., 355 F. App'x 778, 780 (5th Cir. 2009) (holding that sanctions in the form of excluding evidence or claims of damages are appropriate where a party instructed its witness to violate a court order); Foreman v. Rogers, No. 3:21-CV-13-S-BN, 2022 WL 904270, at *4-5 (N.D. Tex. Mar. 11, 2022) (Horan, J.) (finding that striking the pro se defendant's answer and affirmative defenses was warranted in light of his “total failure to engage in discovery” and violation of the court's order granting the plaintiffs' motion to compel), adopted by 2022 WL 902767 (N.D. Tex. Mar. 28, 2022) (Scholer, J.); Fu v. Chin, No. 3:18-CV-2066-N-BN, 2020 WL 7049161, at *5 (N.D. Tex. Oct. 23, 2020) (Horan, J.) (finding that defendant should be precluded from using documents he did not produce during discovery to support his summary judgment arguments), adopted by 2020 WL 7047053 (N.D. Tex. Dec. 1, 2020) (Godbey, J.). IV. CONCLUSION For the foregoing reasons, Plaintiff's Motion and Brief for Sanctions Including Final Default Judgment as to Liability Against Defendants Humberto Novoa, Adrian Zamarripa, Azteca Records, LLC, Azteca Talent Agency, Inc., Azteca Publishing, Inc., and La Energia Nortena, LLC, Doc. 143, is DENIED. *4 SO ORDERED on February 17, 2023. Footnotes [1] Despite Plaintiff's representation, Doc. 143 at 6, the Court did not order Defendants to provide objection-free responses or find that they had waived their objections to the discovery requests. [2] Plaintiff also seeks to strike LEN's Motion to Dismiss for Insufficient Service, Doc. 100, and Motion to Strike Clerk's Entry of Default, Doc. 104, but a default already had been entered against LEN by the time Plaintiff filed the instant motion. LEN was thus not obligated to respond to the discovery requests. See Jenkens & Gilchrist v. Groia & Co., 542 F.3d 114, 123 n.6 (5th Cir. 2008) (finding that a defendant only has a duty to answer after service has been perfected.). Moreover, the Court recently recommended that LEN's motions be granted, and the Clerk reissued summons to LEN at Plaintiff's request. Doc. 160; Doc. 162. Thus, Plaintiff's instant motion is moot as to LEN.