United States District Court, D. Alaska
ORDER AND OPINION [RE: MOTIONS AT DOCKET 87 AND
102]
JOHN
W. SEDWICK SENIOR JUDGE
I.
MOTIONS PRESENTED
At
docket 87 defendants Nokian Tyres PLC and Nokian Tyres, Inc.
(collectively, “Nokian”) move to dismiss the
complaint of JTS, LLC d/b/a Johnson's Tire Service, LLC
(“JTS”) pursuant to Federal Rule of Civil
Procedure 37. JTS opposes at docket 92; Nokian replies at
docket 93.
At
docket 102 Nokian submits a motion styled as a “Request
for Ruling, ” which contains supplemental facts and
argument relevant to its motion at docket 87. JTS did not
timely respond to this motion. To the extent the motion at
docket 102 is a standalone motion, it is denied as moot in
light of today's ruling on the motion at docket 87. In
ruling on the motion at docket 87, the court has not
considered any facts or arguments found in the motion at
docket 102 because Local Rule 7.1(I) allows a party to submit
supplemental briefing and facts only with leave of court, and
Nokian did not seek leave of court to supplement its briefing
on the motion at docket 87.
Oral
argument was not requested and would not assist the court.
II.
BACKGROUND
The
court has described the background giving rise to this
litigation in detail in the order at docket 33. It need not
be repeated here. Suf fice it to say for purposes of the
present motion that JTS has repeatedly violated the Federal
Rules with regard to its initial disclosures[1] and responses to
Nokian's discovery requests.[2] JTS' initial-disclosure
mis-steps began when it served initial disclosures on April
7, 2016, that lack the damages computation required by Rule
26(a)(1)(A)(iii).[3] Its discovery-response mis-steps began
when it failed to timely respond to Nokian's 11
interrogatories, 20 requests for production
(“RFPs”), and 51 requests for admission
(“RFAs”).[4]
Two
discovery motions ensued. Regarding JTS' damages
disclosure, Nokian moved at docket 68 for Rule 37 sanctions
or, alternatively, to compel Nokian to comply with Rule
26(a)(1)(A)(iii). JTS opposed the motion at docket 71,
stating that it would provide a proper damages disclosure by
August 4.[5] On July 28, JTS produced to Nokian several
spreadsheets that set out its claimed damages, [6] but JTS failed to
support its figures with any analysis or documentation.
Regarding JTS' discovery responses, Nokian moved at
docket 75 for an order compelling JTS to respond to its
requests. JTS did not respond to the motion.
Before
the court ruled on Nokian's motions, Nokian notified the
court that as of September 9 JTS had not yet “responded
to the requests for production and interrogatories that form
the basis of” its motion at docket 75.[7] Nokian did not
mention that JTS had served Nokian in mid-August with a
14-page response to Nokian's discovery requests wherein
JTS responded to all of the RFAs at issue in Nokian's
motion at docket 75 except for RFA No. 8.[8]
On
September 21 the court granted both of Nokian's motions,
ordering JTS to serve Nokian on or before October 3 with a
proper computation of its damages, including any supporting
documentation, and with responses to Nokian's discovery
requests.[9] On October 7, Nokian filed the present
motion, arguing that JTS had failed to (1) disclose its
damages computation in a manner that complies with Rule 26;
(2) respond to Nokian's interrogatories, RFPs, and RFA
No. 8; (3) comply with the court's order at docket 83
compelling JTS to perform the above two tasks; (4) provide
timely expert reports; and (5) respond to Nokian's motion
at docket 81 to preclude JTS from offering expert witness
evidence. Nokian's fourth and fifth arguments were also
at issue in Nokian's separate motion at docket 81 to
preclude JTS from presenting expert witness evidence; these
arguments are moot in light of the court's order at
docket 90 granting the motion.
On
October 17, after Nokian filed the present motion, JTS
submitted supplemental responses to Nokian's discovery
requests. JTS asserts that it has now “responded to all
interrogatories, requests for production and requests for
admission.”[10]
III.
STANDARD OF REVIEW
Nokian's
motion seeks sanctions under Rule 37(c)(1) and (b)(2)(A)(v).
Rule 37(c)(1) provides in pertinent part that “[i]f a
party fails to provide information . . . as required by Rule
26(a) . . ., the party is not allowed to use that information
. . . to supply evidence on a motion, at a hearing, or at a
trial, unless the failure was substantially justified or is
harmless.” “Implicit in Rule 37(c)(1) is that the
burden is on the party facing sanctions to prove
harmlessness.”[11] A district court's discretion to
issue Rule 37(c)(1) sanctions is given “particularly
wide latitude.”[12] Rule 37(c)(1) also provides that, in
addition to or instead of this sanction, the court may impose
other appropriate sanctions, including the sanctions listed
in Rule 37(b)(2)(A)(i)-(vi).
Rule
37(b)(2)(A) applies where a party “fails to obey an
order to provide or permit discovery, including an order
under” Rule 37(a). It authorizes the court where the
action is pending to issue “further just orders,
” including dismissal of the action in whole or in
part.[13] “[S]anctions imposed under Rule
37(b) must be left to the sound discretion of the trial
judge.”[14] Yet, where the court is considering the
drastic sanction of dismissal under Rule 37(b)(2)(A)(v), the
court's “range of discretion is narrowed and the
losing party's non-compliance must be due to willfulness,
fault, or bad faith.”[15] If such a finding is made, the
court must weigh the following five factors in determining
whether dismissal is warranted: “(1) the public's
interest in expeditious resolution of litigation; (2) the
court's need to manage its docket; (3) the risk of
prejudice to the defendants; (4) the public policy favoring
disposition of cases on their merits; and (5) the
availability of less drastic sanctions.”[16] “Where
a court order is violated, the first and second factors will
favor sanctions and the fourth will cut against them.
Therefore, whether terminating sanctions [are] appropriate
[will turn] on the third and fifth
factors.”[17]
IV.
DISCUSSION
A.
JTS' Violation of Rule 26(a) and the Court's
Order
There
is no dispute that JTS violated the court's order at
docket 83 by not amending its damages disclosure by October 3
to bring it into compliance with Rule 26(a)(1)(A)(iii). The
only questions ...