UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SILVERIO AZAMAR, et al.,
Plaintiffs,
v. Civil Action No. 08-1052 (JDB)
LEON STERN, et al.,
Defendants.
MEMORANDUM OPINION
This case arises from the claims of thirteen plaintiffs that defendants Leon Stern and The
Cleaning Infantry, Inc., failed to pay plaintiffs the minimum wage, agreed-upon wages, and/or
overtime wages for cleaning services they provided, and that plaintiffs suffered retaliation for
requesting these wages, allegedly in violation of the Fair Labor Standards Act, 29 U.S.C. §§ 201
et seq., and District of Columbia and Maryland labor laws. See Second Am. Compl. (Dec. 3,
2008). The case has been at a standstill for over eight months due to Stern's failure to respond to
plaintiffs' discovery requests.1 Hence, plaintiffs have filed a motion for sanctions pursuant to
Fed. R. Civ. P. 37, seeking entry of a default against Stern. The record amply establishes that
Stern has willfully failed to respond to the written discovery requests propounded by plaintiffs,
and hence the Court will grant plaintiffs' motion and enter an order of default against Stern.
On December 7, 2009, plaintiffs served their First Set of Interrogatories on Stern. See
Pl.'s Mem. at 1. Stern failed to respond within 30 days as required by Fed. R. Civ. P. 33(b)(2).
Id. The Court issued an Order noting Stern's failure to be responsive to this litigation, including
his failure to attend the Initial Scheduling Conference on December 17, 2009, and directed Stern
1
A default was entered against The Cleaning Infantry on December 31, 2008.
to comply with his discovery obligations, or else face default. See Order at 2-3 (Jan. 25, 2010).
Stern then undertook efforts to retain counsel, and plaintiffs effectively agreed to an extension of
time for Stern's discovery responses as those efforts proceeded. See Minute Order (April 9,
2010). Counsel entered an appearance on Stern's behalf on April 6, 2010 (id.), but representation
by counsel failed to result in Stern's compliance with the discovery requests. The Court held a
status hearing on July 2, 2010, at which the parties again discussed Stern's failure to respond to
the discovery requests. The Court granted one further extension of time, until July 16, 2010, for
Stern to respond to plaintiffs' discovery requests. See Second Revised Scheduling Order (July 2,
2010). The Court emphasized that:
In light of the long delays to date, Stern will not be granted a further extension of
time to respond to the pending written discovery absent extraordinary
circumstances. Failure to respond may result in the imposition of sanctions
against Stern under Fed. R. Civ. P. 37.
Id. Two months have passed since the July 16, 2010 deadline, and Stern has failed to respond to
the discovery requests without offering any explanation or excuse.
Plaintiffs' counsel, having waited seven months from the date it first served the discovery
requests, filed the motion for sanctions shortly after the deadline had passed. The Court ordered
Stern to respond to the motion by August 16, 2010. Stern has failed to respond to the motion.
The deadline for all discovery in the case expired on September 9, 2010, again with no response
from Stern.
Under these circumstances, the Court finds that sanctions are warranted, and that an order
entering default against Stern is the appropriate sanction. Rule 37(d)(1)(A)(ii) provides that the
Court may order sanctions against a party if "a party, after being properly served with
interrogatories under Rule 33 . . . , fails to serve its answers, objections, or written response."
2
Additionally, under Rule 37(b)(2)(A), "[i]f a party . . . fails to obey an order to provide or permit
discovery, the court . . . may issue further just orders." Sanctions may include "rendering a
default judgment against the disobedient party." Id.
The Court finds that sanctions are appropriate under Rule 37(b)(2)(A) and 37(d)(1)(A)
because Stern has repeatedly failed to respond to plaintiffs' written discovery requests. He has
not attempted to defend his failure in any manner, despite repeated opportunities to do so; on the
contrary, as noted above, he has been completely absent from this litigation since the last status
hearing on July 2, 2010. Even before that date, his participation in the litigation was nominal.
The only issue, then, is the particular sanction to be imposed. Considering Stern's
wholesale failure to participate in this litigation for the past two months, as well as his earlier
non-responsiveness, the Court determines that entry of a default is the appropriate sanction. In
Webb v. Dist. of Columbia, 146 F.3d 964, 971 (D.C. Cir. 1998), the court of appeals observed
that there are three basic justifications that support the use of default as a sanctions for
misconduct: (1) a determination that "the errant party's behavior has severely hampered the other
party's ability to present his case"; (2) "the prejudice caused to the judicial system when the
party's misconduct has put 'an intolerable burden on a district court by requiring the court to
modify its own docket and operations in order to accommodate the delay'"; and (3) "the need 'to
sanction conduct that is disrespectful to the court and to deter similar misconduct in the future.'"
Id. (quoting Shea v. Donohoe Constr. Co., 795 F.2d 1071, 1074-77 (D.C. Cir. 1986)). The first
and third reasons -- prejudice to plaintiffs and disrespect to the court -- clearly support entry of
default against Stern in this matter. Plaintiffs are unable to present their case for a merits
resolution without any discovery from Stern and no such discovery is possible in the face of
Stern's repeated failure to respond to discovery requests or orders of this Court. It is readily
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apparent that Stern's failure to respond to plaintiffs' discovery requests for the past eight months
represents a willful violation of his discovery obligations, considering the lengthy extensions that
already have been provided, the Court's explicit caution to Stern that further nonresponsiveness
would result in entry of default, and Stern's failure to respond to even the motion for sanctions.
See Weisberg v. Webster, 749 F.2d 864, 871 (D.C. Cir. 1984) (holding that "willfulness or at
least gross negligence" is required to justify the most severe discovery sanctions).
Furthermore, a default is warranted by the need to sanction conduct that is disrespectful to
this Court and to deter similar misconduct in the future. Stern's disrespect for the Court is
demonstrated not only by his failure to respond to plaintiffs' discovery requests, but also by his
disregard of the September 9, 2010, discovery deadline, his failure to respond to plaintiffs'
motion by the court-ordered deadline, and his failure to appear at the initial scheduling
conference last December 2009. The disregard Stern has shown for his discovery obligations and
the schedule set by this Court shows that a court order to comply with deadlines or to take some
other corrective action is unlikely to deter future misconduct. A lesser sanction may also
encourage similar misconduct by other litigants by indicating that flagrant violations will yield
only minor sanctions.
The next proceeding in this case will be the filing of a motion for default judgment and an
evidentiary submission on the amount of damages to be awarded to plaintiffs, which is necessary
because the second amended complaint does not set forth a sum certain for the wages or damages
at issue. Plaintiffs shall submit their motion for default judgment, including any evidence in
support of an award of wages or damages, by not later than October 22, 2010.2
2
The submission should relate to both Stern and The Cleaning Infantry, as each is now in
default.
4
CONCLUSION
For the foregoing reasons, the Court will grant plaintiffs' motion for sanctions pursuant to
Fed. R. Civ. P. 37, and will enter a default against Leon Stern. A separate order accompanies
this memorandum opinion.
/s/
JOHN D. BATES
United States District Judge
Date: September 21, 2010
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