Currently before the undersigned is Plaintiff's motion for sanctions under Rule 37, Fed. R. Civ. P. and other authority, and his motion to reconsider the undersigned's order of October 6, 2014. (Docs. 122, 134). Both motions will be granted. To provide adequate context for those rulings, it is necessary to set forth a portion of the procedural background.

After completion of initial discovery, on March 20, 2014, the undersigned filed a Report and Recommendation (“R&R”) in which I recommended granting in part a motion to dismiss filed by six Defendants. (Doc 116). I recommended the dismissal of most claims against most Defendants on the basis that Plaintiff's theory of vicarious liability failed to state a claim. However, I recommended that Plaintiff's Telephone Consumer Protection Act (“TCPA”) claims against Defendant Telephone Management Corporation (hereinafter “TMC alone or TMC”) and Defendant Fred Accuardi be permitted to proceed, insofar as Plaintiff had alleged in his third amended complaint that those two Defendants were within the definition of a “telemarketer.” Specifically, Plaintiff had alleged in part that Defendant TMC alone “originated the telemarketing calls that I received in which 508-475-1352 and 508-475-1394 appeared on my Caller ID device.” (Third Amended Complaint at ¶ 34).

As explained in the R&R:

(Doc. 91 at 18). Similarly, the R&R explained that with respect to individual Defendant Fred Accuardi:

*2 (Id. at 33).

Both Defendants and Plaintiff filed objections to the March 2014 R&R. To date, Defendants have maintained that TMC did not in fact make calls from the 508 numbers, but that some other person or entity was responsible. Plaintiff concedes that if his objections are overruled and the R&R is eventually adopted, and if Defendants further can prove that TMC was not the caller, then he will no longer be able to state a TCPA claim against TMC alone and/or Fred Accuardi as a “telemarketer” for the reasons expressed in the March R&R.

However, this case took a procedural detour when on August 5, 2014, the presiding district judge granted Plaintiff's motion to stay ruling on the March 20, 2014 R&R, effectively also holding in abeyance the Court's ruling on Defendants' prior motion to dismiss (Doc. 70), pending further interpretation of the TCPA by the Federal Communications Commission. Senior U.S. District Judge S. Arthur Spiegel explained:

(Doc. 120 at 9-10). Although Judge Spiegel's order urges the FCC to act promptly upon the conclusion of the comment period, the parties have advised the undersigned that the FCC process typically takes at least two years from the time a petition has been filed until a ruling is made. To the extent that time-table is accurate, a ruling may not be issued prior to June 2016. Nevertheless, pursuant to Judge Spiegel's order, the parties will file a joint report describing the status of FCC proceedings beginning on January 5, 2015, and every 120 days thereafter.

*3 Prior to Judge Spiegel's order holding the R&R and motion to dismiss in abeyance, on April 10, 2014, the two remaining Defendants (per the R&R) filed a motion for a protective order in which they sought a stay of all further discovery against them “until this Court has a chance to rule on a Summary Judgment Motion that Defendants plan to file in the immediate future.” (Doc. 98, emphasis added). As Defendants then noted, the original dispositive motion deadline expired on April 1, 2014.

The undersigned scheduled a telephonic conference for April 16, 2014 at which new deadlines were discussed, as well as the pending motion for protective order. During the conference, the Court partially granted Defendants' motion for a protective order, and stayed further discovery against some Defendants. The undersigned did so in anticipation of Judge Spiegel's ruling on the R&R that recommended the dismissal of multiple claims against most Defendants. However, the undersigned rejected Defendants' position that all discovery should be stayed pending the filing of a motion for summary judgment by the remaining two Defendants. Instead, the undersigned agreed that discovery should be limited to matters not resolved by the prior motion to dismiss, and should be specifically directed to the “true caller” who placed calls to Plaintiff from two 508 area code numbers. The Court directed the parties to complete all discovery relating to the “true caller” by June 1, 2014. (Minute entry of 04/16/14). Other than the June 1 new discovery deadline, no new dispositive motion deadlines or other pretrial deadlines were entered. Instead, the undersigned vacated the existing calendar order, and stated that a scheduling conference would be scheduled “within 10 days after the district judge's decision on the pending Report and Recommendation.”

On May 22, 2014, the undersigned entered an additional order pertaining to the limited discovery on the 508 numbers, granting Defendants' motion to compel non-party AT&T to respond to a subpoena that sought all of Defendant TMC's call records from September, 2011, the month during which calls were placed to Plaintiff from the 508 numbers. (Docs. 110, 112). The May 22 Order required AT&T to supply the requested information on or before June 13, 2014, reflecting a twelve-day further extension of the discovery deadline concerning the 508 numbers. Notwithstanding Defendants' promise to file a motion for summary judgment “in the immediate future” back in April, and the presumed receipt of any necessary discovery from AT&T prior to June 13, 2014, Defendants have yet to move for summary judgment concerning the 508 numbers.

As stated, after the undersigned entered its prior orders staying most discovery on this case for claims as to which dismissal was recommended in the March R&R, and after the Court indicated that it would set a new calendar order following the adoption or rejection of that same R&R, Judge Spiegel stayed the Court's ruling until such time as the FCC first rules on Plaintiff's pending petition before that body. Primarily because of that stay, the undersigned has not scheduled a further conference or set new calendar dates. However, despite Judge Spiegel's decision to hold the pending R&R and motion to dismiss in abeyance, technically the rest of this case has not been stayed, including all issues relating to the 508 numbers and claims against two Defendants (Fred Accuardi and TMC) that were not recommended to be dismissed.

*4 Following entry of Judge Spiegel's order partially staying proceedings in this case, on August 19, 2014, Plaintiff filed a “motion for sanctions” in which he seeks to compel further discovery from Defendants, and for sanctions pursuant to Rule 37, Fed. R. Civ. P. In his motion, Plaintiff complains that Defendants have continuously failed to provide relevant discovery, beginning with a violation of a July 11, 2013 Order compelling Defendants to respond to certain discovery by July 31, 2013.

Plaintiff asserts that the statute of limitations on his state law claims against the alleged “true caller” from the 508 numbers has expired as a direct result of the Defendants' untimely disclosure. (Doc. 122 at 1). The two calls were allegedly made on September 7 and 9, 2011, and the statute of limitations under O.R.C. § 1345.10 is two years. Only after the expiration of that deadline did Defendants identify the alleged “true caller” as an entity called “Sale Technology.”[1] As sanctions, Plaintiff seeks entry of a default judgment on his claims relating to the 508 numbers, an order holding Pacific Telecom Communications Group (“PacTel”) in contempt of court, and the imposition of a monetary sanction for “at least $11,579.” (Doc. 122 at 1). The undersigned agrees that some sanction against Defendants is warranted.

Defendants begin their response to Plaintiff's motion for sanctions with a general attack on Plaintiff's course of conduct and this litigation as “vexatious,” arguing that Defendants have “incurred thousands of dollars in legal bills” after Plaintiff allegedly refused Defendants' settlement offer of $5,000 to resolve what Defendants describe as claims worth—at most – $7,600. Several things are wrong with this response. First, considering Plaintiff has already won the entry of two default judgments and in light of Judge Spiegel's last Order and the pending FCC proceedings, this litigation cannot be described as “vexatious.” Second, it is nearly always inappropriate to relate confidential settlement discussions to a Court. Third, Plaintiff disputes Defendants' valuation of his claims, arguing that the claims are worth $34,200, not $7,600. However, the most significant problem with this portion of Defendants' response is that it is non-responsive to the pending motion. The undersigned will therefore confine analysis to the more relevant portions of Defendants' response—directed to an explanation for their prior failure to produce relevant evidence in response to Plaintiff's requests.

In addition to his motion for sanctions, Plaintiff recently moved for reconsideration of the undersigned's October 6, 2014 discovery order. That motion also will be granted.

Plaintiff's motion for sanctions refers to four pieces of evidence that he claims were destroyed and/or not turned over to him in a timely manner: (1) an email in the possession or control of Defendant TMC, by David Nelson to Sale Technology, identifying the latter entity as the “true caller” for one of the two 508 numbers; (2) database records previously maintained by a now-defunct non-party, TM Caller ID; (3) CNAM-MS database records in TMC's control that contained information that one or both of the 508 numbers were assigned to Sale Technology, which Defendant TMC allegedly deleted on or about September 28, 2011; and (4) evidence responsive to a subpoena issued to PacTel prior to the time it was named as a Defendant in this litigation.

*5 With respect to the first piece of evidence, Plaintiff points out that in response to his prior discovery requests dated May 28, 2013 concerning the 508 numbers, Defendants Fred Accuardi, ITC, and TMC claimed on June 27, 2013 to have no records at all to identify to whom the 508 numbers were assigned. Defendant TMC's response stated: “Defendant has no record verifying what entity was assigned ANI's 508-475-1394 or 508-475-1352. A company, named Bayring, may have assigned these two ANI numbers to [a] Fred Accuardi affiliated company. Defendant does not have contact information for Bayring.” (Doc. 122-4, Exhibit D, at 2; Doc. 122-5, Exhibit E, at 3). Based upon a discovery dispute relating to the same set of requests, the undersigned directed the three Defendants “to amend and update responses to the Requests for Production of Documents Numbers 1-3 by July 31, 2013.” Fred Accuardi's supplemental discovery response reiterated that “Defendant has no record verifying what entity was assigned ANI's 508-475-1394 or 508-475-1352.” However, both original and supplemental responses also stated: “These ANI's may have been assigned to the now defunct TM Caller ID, but all record of their assignment has been returned to the company which may have assigned the ANI.” (Doc. 122-7, Exh. G at 3; Docs. 126-5 and 126-8, Exhibits E and H, at 3).

Despite professing to have no knowledge and no record of the name of the assignee in their initial and compelled supplemental responses, just two and a half weeks after the undersigned entered the March 20, 2014 R&R recommending that the Defendants' motion to dismiss not be granted to the extent that Plaintiff had alleged that Fred Accuardi and/or TMC alone were the “true caller(s)” responsible for placing the 508 calls, Defendants located a record identifying the assignee. Specifically, on April 8, 2014 the Defendants notified Plaintiff that they had discovered an email, sent by David Nelson, showing that one of the 508 numbers had been assigned to “Sale Technology,” the entity that Defendants now claim actually placed the allegedly illegal calls. (Doc. 122-8, Exh. H). On June 12, 2014, Defendants produced an affidavit by Nelson authenticating the same email. The email from Nelson to Sale Technology regarding that company's use of the 508 number is a form letter that Nelson avers he would “routinely” send “to clients if I received repeated requests for a telephone number to be placed on a Do Not Call list.” (Doc. 122-9, Exh. I, Nelson Affidavit at ¶ 39).

Plaintiff argues that the email was under the possession, custody or control of the referenced Defendants at the time he first promulgated his discovery requests seeking information concerning the 508 numbers back in May 2013, long before the email was finally produced—after the expiration of the Ohio statute of limitations—in April, 2014. David Nelson was previously the account manager and records custodian for TM Caller ID. The defunct TM Caller ID has never been named as a Defendant to the instant litigation. (Doc. 122 at 4; Doc. 126). However, Nelson is currently employed by Defendant TMC, which Plaintiff alleges was the sole owner of TM Caller ID. Defendant TMC admits it is “the successor to TM Caller ID.” (Doc. 126 at 2). Plaintiff further asserts that Defendant Fred Accuardi was the sole organizer and manager of record for TM Caller ID, and remains President of Defendant TMC. (Id.).

Defendants argue that they did not violate the Court's prior order to supplement their discovery responses or in any way earlier conceal the Nelson email or identity of Sale Technology. They argue that the Court's order did not specifically pertain to discovery about the 508 numbers, but instead was focused on other disputed discovery issues. In their response, Defendants also assert that when they initially searched through TM Caller ID's emails to formulate TMC's original response to the 508 query, TMC used search terms that “did not show any emails related to the 508 numbers.” (Doc. 126 at 5). TMC asserts that only in April 2014 did it discover the critical email record after it “tried using a new search term.”

Plaintiff argues in his reply memorandum that defense counsel has misread and/or misrepresented that Defendants conducted any initial email search back in 2013 when judicially compelled to supplement their discovery. It is unnecessary to determine whether any search at all was made at that time, however, because the undersigned agrees that any search was clearly inadequate. The inferential evidence is overwhelming that after conducting an inadequate search in 2013, Defendants did nothing to identify the “true caller” of the 508 calls until the undersigned recommended that Defendants' motion to dismiss be denied as to those numbers. Faced with the continuation of litigation based upon Plaintiff's allegation that Defendants were the actual callers who used the 508 numbers in violation of the TCPA, Defendants suddenly had a powerful incentive to look anew (or possibly for the first time) for evidence that identified the person or entity to whom the 508 numbers were assigned. However, no “new search term” should have been required, given that the recently discovered responsive email contains the 508 number as part of its subject line.

*6 Concerning the second piece of evidence, Plaintiff contends that TM Caller ID “destroyed their records before giving potential litigants a reasonable opportunity to notify them of the intent to sue.” (Doc. 122 at 7). Defendant TMC responds by asserting that TM Caller ID was not subject to any state or federal record requirements, but ordinarily would retain records “for two years or until its ANI lease expired, whichever occurred first.” (Doc. 126 at 2).

Even though he asserts in one portion of his motion that an Ohio statute of limitations has expired, (Doc. 122 at 1), Plaintiff also argues it is “not clear at this point how damaging the [alleged] spoliation will be to my case against Sale Technology,” since it is unknown whether that entity will dispute that it made the September 2011 calls from the two 508 numbers. (Doc. 122 at 8). Defendants respond that Plaintiff's contention that his claim against Sale Technology has been damaged is “purely hypothetical,” since Plaintiff has yet to sue Sale Technology and no statute of limitations defense has been raised. Defendants assert that Plaintiff “can still move ... for additional time to serve Sales Technology.” (Doc. 126 at 7).

As Plaintiff points out, it would be a violation of Rule 11 to file suit on a state law claim that is statutorily barred. However, Plaintiff does not allege that his federal claim against Sale Technology would be barred. Moreover, Plaintiff apparently has not so much as issued a subpoena to Sale Technology to seek its records that could confirm the identity of the true caller for the 508 numbers. The undersigned finds, based on the fact that no discovery appears to have been directed to non-party TM Caller ID, and further based on the fact that the only “non-disclosed” information is a record that could be more directly obtained from Sale Technology, that Defendants did not engage in sanctionable conduct when non-party TM Caller ID destroyed its database records.

The third, closely related,[2] item of evidence concerns information held by TMC itself, not its predecessor, TM Caller ID. Plaintiff contends that this Court should find that TMC engaged in the spoliation of evidence when it deleted CNAM-MS database records that contained information that one or both of the 508 numbers had been assigned to Sale Technology. TMC allegedly deleted the records on or about September 28, 2011, commensurate with the date that TMC and/or its predecessor stopped leasing the numbers from Bayring. Plaintiff argues that the deletion of records just 21 days after he received the first call from a 508 number on September 7, 2011, violated TMC's “duty to preserve relevant information, including ESI [electronically stored information], when that party ‘has notice that the evidence is relevant to litigation or ... should have known that the evidence may be relevant to future litigation.’ ” John B. v. Goetz, 531 F.3d 448, 459 (6th Cir. 2008)(citing Fujitsu Ltd. v. Fed. Express Corp., 247 F.3d 423, 436 (2d Cir. 2001) and Zubulake v. UBA Warburg LLC, 20 F.R.D. 212, 216-218 (S.D.N.Y. 2003)). Citing 2009 and 2006 litigation in which Accuardi and TMC had been named as defendants in New Jersey and Missouri, respectively, Plaintiff contends that those two Defendants should have known that they were likely be sued by Plaintiff in this Court in 2012.

*7 In their response, Defendants first challenge Plaintiff's assertion that TMC destroyed the records “just 21 days after” Plaintiff received the first 508 call. However, Defendants do not offer any differing evidence as to when the records were destroyed, and Plaintiff explains in his reply that date is based upon TMC's stated records retention policies, which Plaintiff asserts are themselves evidence of “Defendants' bad faith campaign to hide the identifies of the Defendants' clients from potential litigants.” (Doc. 128 at 12).

It is unnecessary to determine the exact date in 2011 that TMC may have destroyed its records, because there is no dispute that TMC destroyed them pursuant to its ordinary business records policy, and Plaintiff's “duty to preserve” theory is unpersuasive. In the relatively few cases in which violation of a pre-litigation duty to retain documents has been found to be sanctionable absent any type of “hold” request, the likelihood of imminent litigation was much clearer than is presented here. See e.g. Zubulake, 220 F.R.D. at 216 (holding that employer had a duty to preserve once the employee filed an EEOC complaint, and “may” have had a duty earlier in light of evidence that “almost everyone ... recognized the possibility that [Zubulake] might sue.”).

In Ross v. American Red Cross, 567 Fed. Appx. 296 (6th Cir. Jan. 27, 2014), cert. denied, 2014 WL 2803192 (Oct. 6, 2014), the Sixth Circuit recently emphasized that strong evidence is required before a district court may sanction a party for spoliation of evidence. As the Ross Court observed, the failure to produce relevant evidence falls along “a continuum of fault” that ranges from purely innocent behavior to intentional destruction of relevant evidence. Imposing a “duty to preserve” ESI relating to the 508 numbers leased by TMC from Bayring in September 2011 would be akin to imposing a duty on a large manufacturer to permanently preserve ESI relating to any widely used consumer product, so long as a consumer somewhere had once sued the manufacturer over the same product. In truth, the duty to preserve evidence that Plaintiff seeks to impose on TMC is even broader than that hypothetical scenario. After all, it was not TMC that is (now) alleged to have made the 508 calls, but its client, Sale Technology. Thus, absent the imposition of vicarious liability for its client's misdeeds, TMC itself would not be liable under the TCPA. Whether or not the FCC ultimately determines that vicarious liability is available, it is difficult to conceive of an instance in which TMC should have known in September 2011 that it had a duty to preserve evidence relating to one of its clients.[3]After all, using Judge Spiegel's recent description, Plaintiff's theory of vicarious liability against TMC is “one of first impression and wide-reaching consequence.” (Doc. 120 at 10).

Finally, Plaintiff seeks sanctions against PacTel on the basis of its response to a subpoena served on September 25, 2012, shortly after Plaintiff initiated suit in this Court, but prior to the time that PacTel became a party Defendant. The subpoena requested records regarding the identity of persons or entities to whom certain telephone numbers were assigned. PacTel responded by stating that six of the numbers were assigned to Defendant ITC (in Belize), but stated that it had no responsive documents concerning Plaintiff's request for names of all ITC's “owners, officers, employees or representatives,” at least as PacTel read the request to be limited on its face “to the extent that your [PacTel's] records contain this information.” Plaintiff argues that he had to “expend substantial effort to find out who operates ITC,” (Doc. 122 at 9). Eventually, he learned that Defendant Fred Accuardi had registered internet domain names used by ITC, using the same account Accuardi had used to register domain names used by PacTel and TMC. Plaintiff complains that PacTel's response to his subpoena had to have been false, in light of an admission by PacTel in other unrelated California litigation that Fred Accuardi is CEO of PacTel and that he and his wife own 75% of the shares of PacTel, and that Fred Accuardi is the beneficial owner of ITC. (Doc. 122 at 9-10).

*8 In their response, Defendants argue that “at the time it responded to the subpoena,” PacTel did not have documents identifying the owners, officers, employees or representatives of ITC, despite the close relationship of ITC to PacTel and Fred Accuardi. Defendants suggest that the lack of documentation is “completely plausible” given the need for corporations to maintain separate documents in order to retain the status of each as a legally separate entity. (Doc. 126 at 12). Defendants further dispute the amount of effort required to ascertain who actually operated ITC, since Plaintiff is “well seasoned in litigation” and was able to obtain the information by issuing a subpoena to GoDaddy.com. (Doc. 126 at 12-13). PacTel asserts that it responded to the subpoena truthfully because the subpoena sought only “documents” and not “information.” Id.

In a reply memorandum, Plaintiff challenges the Defendants' explanation that a lack of documentation between the closely affiliated companies is “completely plausible,” calling Defendants' position “preposterous.” (Doc. 132 at 14). He asserts that PacTel lied to him and to this Court in responding to the subpoena. He disputes Defendants' assertion that he expended little effort discovering the truth, detailing his extensive internet research into how to obtain the information prior to serving a subpoena on GoDaddy.com.

As proof of Defendants' bad faith, Plaintiff has attached to his reply memorandum documentation from a person identified as Michael Wood, who submitted comments in support of Plaintiff's FCC Petition.[4] The documents were apparently obtained by Mr. Wood in the course of Wood's unrelated litigation against PacTel. They include emails from Fred Accuardi that appear to have been sent in his capacity as Manager of ITC to Steve Hamilton, in Hamilton's capacity as an officer of PacTel. The emails bear dates from January 19, 2012 through May 2, 2012.

On October 6, 2014, during a telephonic hearing on the issue of Plaintiff's request for further discovery and the pending motion for sanctions, the undersigned granted Defendants' motion to file a surreply in order to respond to the “Michael Wood” evidence presented by Plaintiff for the first time in his reply. In Defendants' surreply,[5] they argue that the emails do not definitively prove that they were sent by Fred Accuardi as a representative of ITC, suggesting that they could have been sent by Fred Accuardi on behalf of some other company. PacTel maintains that the emails “were not, to [PacTel's] PTCG's knowledge, sent on behalf of ITC.” (Doc. 132 at 4). Defendants also argue that Plaintiff has never asked ITC who owns and operates it, and that the remaining Defendants should not be sanctioned for allegedly increasing Plaintiff's litigation expenses through the allegedly evasive responses, when Plaintiff theoretically could have obtained the information directly from ITC in Belize.

On October 20, 2014, Plaintiff filed a motion to reconsider the undersigned's October 6 order continuing to stay further discovery and permitting Defendants to file their surreply. Plaintiff points out that the surreply continues to refuse to provide Plaintiff with discovery intended to settle the issue of whether Fred Accuardi sent the email on behalf of ITC, yet Defendants also continue to imply that the emails were not from ITC. The undersigned agrees with Plaintiff that “[t]he Defendants are exploiting the lack of a discovery order to create uncertainty where none should exist.” The undersigned further concludes that PacTel should be sanctioned for its incomplete prior response to Plaintiff's subpoena.

*9 Plaintiff seeks both further discovery and a multitude of sanctions. For example, Plaintiff has attached his draft discovery requests to PacTel and Fred Accuardi as an exhibit to his motion to reconsider. (Doc. 134-1). While Defendants have until November 13, 2014 to respond to that motion, the undersigned finds it unnecessary to wait until the expiration of Defendants' response time based on the record presented. Plaintiff previously provided the same draft discovery requests to defense counsel on September 29, 2014, and to this Court prior to the October 6, 2014 telephone conference. Defendants were given ample time to orally argue their response on October 6 and in their later filed surreply. Thus, directing Defendants to respond to Plaintiff's draft discovery requests is appropriate at this time.

In addition to compelling additional discovery, Plaintiff seeks the entry of a default judgment relating to the 508 numbers, an order holding PacTel, TMC, and Fred Accuardi in contempt of court, and the imposition of a monetary sanction in his favor under both Rule 37, Fed. R. Civ. P. and other authority. Plaintiff's original motion sought a monetary sanction of $11,579, representing $1600 in “lost” state law claims against Sale Technology, plus the “actual value” of consulting fees that the pro se Plaintiff could have earned from various clients had he expended the same 71 hours at work, rather than in pursuit of the missing information. Based upon the Michael Wood evidence and the filing of Defendants' surreply, Plaintiff recently increased his request for the imposition of a default judgment not only as to the 508 numbers, but for “all claims against Fred Accuardi and Pacific Telecom, i.e., $34,200 plus the expense of bringing this motion.” (Doc. 128 at 4, emphasis original). In addition to citing Rule 37, Plaintiff relies upon this Court's “inherent powers.” Chambers v. Nasco, Inc., 501 U.S. 32 (1991).

To the extent that the Court does not enter a default judgment, Plaintiff seeks the entry of an order either establishing that Defendants were the “true callers” of the 508 calls, and/or barring Defendants “from introducing evidence that someone other than the Defendants might have originated the calls from the 508 telephone numbers,” or presenting any other defense based upon someone else originating the calls. Plaintiff argues that it is “fair” to ignore the recently discovered evidence that Sale Technology placed the calls based on Defendants' failure to earlier disclose that evidence.

Finally, Plaintiff seeks an order holding Defendants in civil contempt of court, based upon the failure of TMC and Fred Accuardi to take “all reasonable steps” within their power to comply with the July 11, 2013 order compelling them to supplement their discovery responses. United States v. Conces., 507 F.3d 1028, 1042 (6th Cir. 2007). Likewise, Plaintiff argues that PacTel should be held in contempt because it did not take all reasonable steps to comply with the subpoena. Based upon the recently obtained Michael Wood evidence, Plaintiff additionally asks this Court to impose criminal contempt upon Defendant Fred Accuardi (for his allegedly false affidavit) and/or PacTel (for its allegedly false response to the prior subpoena). Plaintiff also asks this Court to refer this matter to the U.S. Department of Justice for consideration of criminal perjury charges.

Rule 37(d), Fed. R. Civ. P., provides for sanctions when a party fails to attend his own deposition or to provide complete responses to written discovery requests. In general, the rule provides for sanctions if a party “after being properly served with interrogatories ... or a request for inspection ... fails to serve its answers, objections, or written response.” Rule 37(d)(1). “A failure [to respond or appear] 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).” Rule 37(d)(2).

*10 In addition to the sanctions authorized under Rule 37(d), Rule 37(b)provides for sanctions where a party has failed to comply with a prior court order compelling discovery. “If the court where the discovery is taken orders a deponent to be sworn or to answer a question and the deponent fails to obey, the failure may be treated as contempt of court.” Rule 37(b)(1).

The sanctions authorized by both Rule 37(d) and Rule 37(b)(2) are identical. Thus, if a party fails to respond to discovery, appear for a deposition, or obey a discovery order, the court where the action is pending may issue orders including the following:

Rule 37(b)(2)(A); see also Rule 37(d)(3)(“sanctions may include any of the orders listed in Rule 37(b)(2)(A)(i)–(vi)”).

Both provisions of Rule 37 mandate the award of attorney's fees in most cases, regardless of what other sanctions are imposed. “[T]he court mustorder the disobedient party, the attorney advising that party, or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust.” Rule 37(d)(3)(emphasis added).

With few exceptions, orders concerning pre-trial discovery matters including the imposition of monetary sanctions for violations under Rule 37 are considered to be nondispositive.[6] Nance v. Wayne County, 264 F.R.D. 331 (M.D. Tenn. 2009); Sutton v. U.S. Small Bus. Admin., 92 Fed. Appx. 112, 120 (6th Cir. 2003)(motion for discovery sanction is “not excepted in subparagraph (A) or elsewhere referenced in § 636(b)(1)(B)” and therefore a magistrate judge can determine a Rule 37 sanctions motion); Starcher v. Correctional Medical Systems, Inc., 144 F.3d 418, 422-423 (6th Cir. 1998)(noting that imposition of fees is not within the exception of a “small class” of discovery orders that would be immediately appealable); see generallyUniversal Health Group v. Allstate Ins. Co., 703 F.3d 953 (6th Cir. 2013)(series of non-dispositive sanctions imposed by order by magistrate judge, prior to report and recommendation that recommended sanction of dismissal for continued violations); LeMasters v. Christ Hospital, 791 F. Supp. 188 (S.D. Ohio 1991)(partially modifying but affirming “nondispositive” magistrate judge order imposing sanction of $500 per day for tardy discovery production). The undersigned has the authority to impose a monetary sanction, and indeed, is required to do so absent substantial justification for the conduct or circumstances that would make such an award unjust. Neither exists here.

*11 On the other hand, the imposition of the more serious penalties requested by Plaintiff, including but not limited to the entry of a default judgment, precluding the admission of evidence, precluding Defendants from presenting defenses, and/or the imposition of civil or criminal contempt, are all arguably dispositive in nature. So too is the imposition of sanctions under the Court's “inherent authority” or under Rule 11. The undersigned may recommend the imposition of such dispositive penalties by Report and Recommendation. However, the undersigned declines to do so at the present time, concluding that non-dispositive monetary sanctions under Rule 37 should prove sufficient at this time. Should Defendants persist in sanctionable conduct, however, the undersigned will not hesitate to recommend more serious sanctions.

Based upon the undersigned's review of the record, and for the reasons discussed herein, IT IS ORDERED:

1. Plaintiff's motion for sanctions (Doc. 122) is GRANTED IN PART as follows:

2. Plaintiff's motion for reconsideration (Doc. 134), to the extent it has been considered in connection with the pending motion for sanctions, is GRANTED;

3. To the extent not addressed by this Memorandum Order, with the exception of the requested relief against PacTel which is stayed pending further review, Plaintiff's remaining requests for sanctions and for reconsideration (Docs. 122, 134) are DENIED;

4. Based on the anticipated length of the stay prior to the Court's ruling on the pending R&R and Defendants' motion to dismiss, Defendants' course of conduct to date, and the undersigned's concerns that further highly relevant discovery may permanently disappear, the undersigned will entertain a motion by Plaintiff to reopen discovery as to all Defendants, including those as to whom dismissal was previously recommended. Said motion shall be limited to ten (10) pages, and shall be filed on or before November 28, 2014. As grounds exist for expediting the Court's ruling, Defendants shall file any response (also limited to ten pages) on or before December 10, 2014, with Plaintiff to file any reply memorandum (limited to eight pages) on or before December 17, 2014.

While Plaintiff refers to this entity as “Sale Technology,” the Court notes that Defendants refer to the same entity by the name of “Sales Technology.”

The parties' memoranda reflect some ambiguity as to whether the second and third items are in fact one and the same.

The undersigned agrees with Defendants that the fact that TMC may have suspected that Sale Technology was violating the Do Not Call law with respect to one phone number, as evidenced by the Nelson email, cannot be said to be equivalent to knowledge of imminent litigation.

Defendants assert that the comments were filed by Mr. Wood outside of the FCC deadline for original comments, and instead were filed on the deadline for filing “reply comments.” Whether or not the FCC considers the comments is irrelevant to the issue presented to this Court.

Plaintiff filed a “Notice of Rule 11(C) Request for Defendants to Withdraw” their surreply. (Doc. 133). Such a notice ordinarily would not be filed of record, and requires no action by this Court.

Rule 37 motions for sanctions differ from sanctions under Rule 11, which the Sixth Circuit considers to be dispositive. See Bennett v. General Caster Serv., 976 F.2d 996, 997 (6th Cir. 1992).