United States District Court, D. Nebraska
TOSHA A. BYARS, Plaintiff,
PETROL III, LLC, a Nebraska limited liability company; Defendant.
M. Bazis United States Magistrate Judge.
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.
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
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.
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.)
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.
filed the instant motion for sanctions on November 8, 2018.
(Filing No. 36.)
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
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