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Byars v. Petrol III, LLC

United States District Court, D. Nebraska

January 11, 2019

TOSHA A. BYARS, Plaintiff,
v.
PETROL III, LLC, a Nebraska limited liability company; Defendant.

          ORDER

          Susan M. Bazis United States Magistrate Judge.

         This matter is before the Court on Defendant's Motion for Sanctions. (Filing No. 36.) For the reasons explained below, the motion will be granted, in part.

         BACKGROUND

         On September 25, 2018, Defendant's counsel, in accordance with this Court's final progression order, contacted the Court requesting a telephone conference with the undersigned to discuss a discovery dispute. The Court's final progression order states that “[m]otions to compel shall not be filed without first contacting the chambers of the undersigned magistrate judge to set a conference to discuss the parties' dispute.” (Filing No. 25.) Defendant's counsel indicated that Plaintiff was refusing to produce certain documents until a protective order was entered, but that Plaintiff had not filed a motion for protective order or circulated a proposed protective order. The specific documents being withheld were responsive to Defendant's Request for Production No. 1, which provides:

Produce the Plaintiff's federal and state income tax returns, including W-2 forms and all schedules, for calendar year 2010 and each year thereafter through the present and, once prepared, her 2017 federal and state income tax returns, including W-2 forms and all schedules.

         Plaintiff responded to Request No. 1 as follows: “Plaintiff will make the requested documents available after entry of a mutually agreed on protective order.” The undersigned held a telephone conference with counsel on September 27, 2018 to discuss the discovery dispute. Immediately following the conference, a text order was entered as follows: “A telephone conference regarding a discovery dispute was held . . . on September 27, 2018. The parties shall confer regarding the terms of a protective order and Plaintiff shall turn over the requested documents by October 1, 2018.” On September 28, 2018, the Court entered the parties' proposed protective order. (Filing No. 32.)

         Plaintiff did not produce the documents on October 1, 2018. Thus, on October 25, 2018, Defendant's counsel contacted Plaintiff's counsel and informed her that a motion for sanctions would be filed if the documents were not received by the following Monday. In response to the email, Plaintiff's counsel provided Plaintiff's 2016 federal and state tax returns, but without W-2 forms. On November 5, 2018, Defendant's counsel inquired as to the thereabouts of other documents, including Plaintiff's 2010 through 2017 tax returns and W-2 forms. Plaintiff's counsel responded on November 5, 2018, stating that she had provided what her clients had produced and that she could not create documents to produce.

         Defendant filed the instant motion for sanctions on November 8, 2018. (Filing No. 36.)

         DISCUSSION

         Defendant seeks sanctions under Federal Rule of Civil Procedure 37(b)(2)(A) for Plaintiff's failure to comply with this Court's September 27, 2018 order. Defendant requests that the Court dismiss Plaintiff's case or, alternatively, prohibit Plaintiff from putting on evidence at trial regarding damages for economic loss and strike such remedies from her pleadings. Defendant also requests an award of costs and attorney's fees incurred in filing the motion for sanctions.

         Rule 37(b)(2)(A) provides:

If a party or a party's officer, director, or managing agent-or a witness designed under Rule 30(b)(6) or 31(a)(4)-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:
(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 ...

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