The defendants move to set aside the default judgment entered against the defendants on July 17, 2018. The plaintiffs object to the present motion. The defendants' motion is denied.

I

BACKGROUND

This action arose out of a fair housing discrimination claim filed on January 10, 2013, in which the plaintiffs in this matter, Independence Unlimited, Inc., Elizabeth Stahl, Tamara Santana and Cherece Burston, sought injunctive and monetary relief against the defendants, Intertown Realty Company, LLC (Intertown) and Jeffrey A. Reiner, as trustee, for alleged discrimination in violation of the Fair Housing Act of 1968, 42 U.S.C. §§ 3601 et seq., and the Connecticut Fair Housing Statute, General Statutes § 46a-64c et seq.[1] On February 26, 2018, the plaintiffs filed a motion for default judgment, alleging, inter alia, that the defendants failed to comply with their discovery obligations, by making material misrepresentations and withholding documents that should have been produced subject to court orders. On July 17, 2018, the court found that the defendants had engaged in a pattern of materially misrepresenting the scope and nature of information within their possession in violation of Practice Book § 13-14 and entered a default judgment against them. Independence Unlimited, Inc. v. Intertown Realty Co., LLC, Superior Court, judicial district of Hartford, Housing Session, Docket No. CV-13-13-5003565-S (July 17, 2018, Shah, J.).[2] Thereafter, on January 3, 2019, the defendants filed the subject motion to set aside default.[3]

The court incorporates the findings of fact from its memorandum of decision on the plaintiffs' motion for entry of default judgment, which are relevant to the disposition of the defendants' motion.

“Based on the evidence presented, the court [made] the following findings:

(Intertown Dep. 79:16-80:10.)

(Intertown Dep. 83:25-84:7.)

(Intertown Dep. 192:19-193:17.)

(Court hearing, 5/11/2018, testimony of Jackie Reiner Mozzicato, 3:20-4:2)

(Court hearing, 5/11/2018, testimony of Jackie Reiner Mozzicato, 6:21-7:3)

(Court hearing, 5/11/2018, testimony of Jackie Reiner Mozzicato, 16:4-5)

(Court hearing, 5/11/2018, testimony of Jackie Reiner Mozzicato, 16:13-14)

(Court hearing, 5/11/2018, testimony of Jackie Reiner Mozzicato, 12:8-13:4)” (Emphasis in original.) Independence Unlimited, Inc. v. Intertown Realty Co., LLC, Superior Court, supra, Housing Session, Docket No. CV-13-5003565-S.

II

LEGAL STANDARD

“The power of the court to set aside a default judgment is governed by General Statutes § 52-212.”[4] To obtain relief, “the movant must make a two part showing that (1) a good defense existed at the time an adverse judgment was rendered; and (2) the defense was not at that time raised by reason of mistake, accident or other reasonable cause ... [B]ecause the movant must satisfy both prongs of this analysis, failure to meet either prong is fatal to its motion.” (Internal quotation marks omitted.) Dziedzic v. Pine Island Marina, LLC, 143 Conn.App. 644, 652, 72 A.3d 406 (2013). “It is well established that [the] determination of whether to set aside [a] default is within the discretion of the trial court ... In the exercise of its discretion, the trial court may consider not only the presence of mistake, accident, inadvertence, misfortune or other reasonable cause ... factors such as [t]he seriousness of the default, its duration, the reasons for it and the degree of contumacy involved ... but also, the totality of the circumstances, including whether the delay has caused prejudice to the nondefaulting party.” (Internal quotation marks omitted.) Chevy Chase Bank, F.S.B. v. Avidon, 161 Conn.App. 822, 833, 129 A.3d 757 (2015).

III

DISCUSSION

The defendants have set forth three arguments in support of setting aside the entry of default. First, the defendants argue that the default entered was not proportional to the alleged discovery violation. The defendants further argue that the court's basis for the entry of default is factually inaccurate because the documents that the defendants initially thought were destroyed, and represented under oath to be to the court and the plaintiffs, are actually in an off-site storage facility. Finally, the defendants argue that the doctrine of unclean hands should operate to preclude the entry of default because the plaintiffs were also allegedly noncompliant with discovery requested by the defendants.

A

Entry of Default

The defendants first argue that the court's decision in granting the plaintiff's motion for default judgment was erroneous because the entry of default was not proportional to the alleged discovery violation, and there is no evidence that the defendant's alleged violations were willful. This argument requires the court to assess the previous order, which was decided pursuant to Practice Book § 13-14.

Practice Book § 13-14 provides in relevant part: “(a) If any party has failed to answer interrogatories or to answer them fairly, or has intentionally answered them falsely or in a manner calculated to mislead ... or has failed to comply with a discovery order ... the judicial authority may, on motion, make such order as the ends of justice require ... (b) Such orders may include the following: (1) The entry of a ... default against the party failing to comply ... (d) ... [but] the judicial authority may not impose sanctions on a party for failure to provide information, including electronically stored information, lost as the result of the routine, good-faith operation of a system or process in the absence of a showing of intentional actions designed to avoid known preservation obligations.” Generally, “[t]he decision to enter [discovery] sanctions ... and, if so, what sanction or sanctions to impose, is a matter within the sound discretion of the trial court.” (Internal quotation marks omitted.) Evans v. General Motors Corp., 277 Conn. 496, 523, 893 A.2d 371 (2006).

“In order for a trial court's order of sanctions [pursuant to Practice Book § 13-14] for violation of a discovery order to withstand scrutiny, three requirements must be met. First, the order to be complied with must be reasonably clear ... Second, the record must establish that the order was in fact violated ... [And] [t]hird, the sanction imposed must be proportional to the violation.” (Internal quotation marks omitted.) Magana v. Wells Fargo Bank, N.A., 164 Conn.App. 729, 733, 138 A.3d 966 (2016). “Our practice does not favor the termination of proceedings without a determination of the merits of the controversy where that can be brought about with due regard to necessary rules of procedure ... [However,] dismissal of an action is not an abuse of discretion where a party shows a deliberate, contumacious or unwarranted disregard for the court's authority.” (Citations omitted; internal quotation marks omitted.) Millbrook Owners Ass'n, Inc. v. Hamilton Standard, 257 Conn. 1, 16, 776 A.2d 1115 (2001).

“The issue of whether the court's rendition of a default judgment was proportional to the defendant's violation presents a [difficult] question. In determining the proportionality of a sanction to a violation, [courts] have in the past considered the [1] severity of the sanction imposed and the materiality of evidence sought ... [2] whether the violation was inadvertent or willful ... and [3] whether the absence of the sanction would result in prejudice to the party seeking the sanction.” (Citations omitted.) Forster v. Gianopoulos, 105 Conn.App. 702, 711, 939 A.2d 1242 (2008) (holding entry of default proportional to violation where defendant engaged in pattern of delay tactics, including withholding documents, information and failing to attend one deposition); see also Heidkamp v. Colby Family Chiropractic, LLC, Superior Court, judicial district of Tolland, Docket No. CV-16-6011527-S (August 30, 2018, Farley, J.) (holding judgment of dismissal appropriate where plaintiffs refused to attend court-ordered deposition). But see Moore v. Midland Credit Management, Inc., Superior Court, judicial district of New Haven, Docket No. 473878 (June 19, 2006, Levin, J.) (holding entry of nonsuit or default for failure to comply with discovery requires more careful, balanced analysis on more complete record).

In the present case, the defendants only contest that the court's order fails to meet the proportionality prong. Based on the court's review of the record, the entry of default in the court's previous order was proportional to the defendant's violation of discovery orders. The court finds the case Forster v. Gianopoulos, supra, 105 Conn.App. 711-13 (hereinafter Forster), to be instructive. In Forster, our Appellate Court upheld the decision of a trial court in rendering default judgment against a party who failed to comply with the trial court's discovery order and to attend one deposition. In analyzing whether the sanction was proportional to the party's violation, the court highlighted the fact that the defendants engaged in a pattern of delay tactics after the court ordered them to disclose certain documents on a particular date. Moreover, the court noted that the defendants failed to attend a deposition and the parties never provided justification for their violation of the court's order.

The present case is similar to the defendants' discovery violations in Forster. Here, the court first ordered the defendants to comply with the plaintiffs' interrogatories and requests for production on October 3, 2014, after the defendants failed to appear. The record shows that the defendants blatantly ignored that order by objecting to all of the requests, even though the court had previously overruled all of the defendants' objections. Throughout the litigation, the plaintiffs expended a considerable amount of time, having filed six separate motions over a four-year period, in an effort to obligate the defendants to comply with discovery. On November 2, 2016, after the parties entered into several stipulations without any progress, the court, again, ordered the defendants to fully answer certain interrogatories and reevaluate whether they had additional documents to provide pursuant to the plaintiffs' requests. In that hearing, the court, Miller, J., stated that he was not far away from considering sanctions. The record shows that the defendants again failed to comply, requiring the plaintiffs to file a motion for sanctions on January 25, 2017.

In their memorandum of law, the defendants argue that the ruling in Forster is inapposite because: (1) the default judgment was rendered pursuant to Practice Book § 17-33; (2) the trial court in Forster had already rendered sanctions against the defendants and the entry of default judgment was the second sanction; and (3) the plaintiff would have been prejudiced in Forster had the court not entered the default judgment because the defendants were involved in bankruptcy and federal criminal and tax proceedings, and as a result, the plaintiff would have been unable to enforce a favorable judgment that may have been obtained at trial. Def's. Mot. Set Aside Default (#205), p. 5, n.1. The court disagrees. The defendants have first overlooked the fact that the Superior Courts have previously applied the Forster decision to a Practice Book § 13-14 violation. See, e.g., Consoli v. Basaran, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-13-5014155-S (October 19, 2015, Mottolese, J.T.R.).

Second, the fact that the Forster court had only sanctioned the defendants in that case once before entering the default judgment is immaterial. Here, the court is of the opinion that the entry of default was more than appropriate, as the record shows the plaintiffs were forced to file six separate motions over a four-year period regarding their first set of interrogatories and requests for production. Moreover, the defendants were in jeopardy of facing sanctions long before the court issued an entry of default for noncompliance. Finally, like in Forster, the plaintiffs here would have been prejudiced absent the entry of default in the court's previous order because the information the plaintiffs attempted to retrieve was essential to their case in chief.

The court finds that the defendants' violations of the court's previous discovery orders were willful because they engaged in a pattern of delay tactics through their objections, as demonstrated by their claim that the requested documents were “N/A,” and their conflicting testimony as to what documentation was maintained and not maintained. The defendants were given numerous opportunities to correct their noncompliance throughout the four-year period amidst several stipulations with the plaintiff and requests by the court. Moreover, although the defendants did produce some material with respect to the plaintiffs' requests, the plaintiffs were, and still are, prejudiced by the defendants' failure to fully comply with the court's orders and produce certain categories of documents. Based on the foregoing, the court's sanction was proportional to the defendants' violations of discovery orders. Accordingly, there is no good cause to set aside the default regarding the proportionality of the sanction to the defendants' violations.

B

New Evidence

The defendants next argue that the court's order is factually inaccurate. The defendants assert that during the May 11, 2018 hearing, Jackie Reiner Mozzicato, a representative of Intertown, provided inaccurate testimony that certain documents requested by the plaintiffs had been destroyed by the defendants. Since the court issued its order, the defendants' new counsel purportedly have discovered the documents Ms. Reiner Mozzicato believed to have been destroyed were actually in off-site storage. The defendants maintain that the plaintiffs are relying on the default, rather than pursuing the merits of their claims, after they rejected the defendants' invitation to view these newly discovered documents. Moreover, the defendants also argue that even if they had destroyed the documents, it would not be a proper ground for sanctions pursuant to Practice Book § 13-14(d).

1.

Practice Book § 13-14(d)

While Practice Book § 13-14(d) provides that sanctions may not be imposed upon a party for the failure to provide certain information as a result of it being lost in conjunction with a routine, good faith operation of a system or process, sanctions may nevertheless be imposed pursuant to Practice Book § 13-14(a) if there is a “showing of intentional actions designed to avoid known preservation obligations.” Id.

In the present case, it is clear that the defendants did not have a good faith system or process in place when dealing with the plaintiffs' multiple requests for documents. During discovery, the defendants responded to the plaintiffs' requests for production claiming that the information was “too numerous to list” and “too cumbersome.” Thereafter, when ordered by the court to disclose the documents, the defendants then responded to the requests claiming that they were “N/A.” The defendants' pattern of evasiveness continued when Ms. Reiner Mozzicato testified during the May 11, 2018 hearing that the subject documents were destroyed within a week to ten days, meanwhile the reply brief to the motion filed the day before the hearing indicated that “[a]ccording to Jackie Reiner, the records on individual tenants and/or applications for tenancy are kept for two to three years ...” According to the defendants, Ms. Reiner Mozzicato is Intertown's most knowledgeable representative about the day-to-day maintenance of its business files and recordkeeping. Yet, the conflict in her testimony with the defendants' brief and the fact that Ms. Reiner Mozzicato testified that she had not searched for any records pertaining to this matter until 2017 leads this court to believe the contrary. Furthermore, after a default was entered by this court on July 17, 2018, the defendants now claim that the documents were not destroyed, but are actually in storage. The defendants' pattern of evasiveness and untruthfulness with respect to the discovery in this matter leads the court to believe that the defendants never had a good faith system or process for retaining the documentation that the plaintiffs sought in discovery.

Even if the documents the plaintiffs requested were lost in conjunction with a good faith operation of a system or process, the sanctions imposed on the defendants were not based solely on the fact that Ms. Reiner Mozzicato testified that the documents were destroyed. Rather, the court's previous order was based on the defendants' pattern of delay, misinformation, evasion and representation that the requested documents had been destroyed. In fact, the current representation that they actually exist buttresses the court's ruling in that there is not one representation made by the defendants that is now credible. Moreover, the court placed a great amount of weight on the fact that the defendants blatantly violated two court orders for discovery compliance. As stated in Independence Unlimited, Inc. v. Intertown Realty Co., LLC, Superior Court, supra, Housing Session, Docket No. CV-13-5003565-S, there is no other conclusion for this court to make other than that the defendants intentionally evaded any accurate discovery responses to the plaintiffs' first set of interrogatories and request for production dated March 27, 2014, in order to prevent the plaintiffs' discovery of relevant evidence to support their allegations. This evasion violated numerous clear court orders and indicates that the defendants have shown a deliberate disregard of the court's authority. Accordingly, the defendants have failed to show that Practice Book § 13-14(d) applies to prevent the imposition of the court's previous sanctions.

2.

Good Cause

In determining whether there is good cause to set aside a default, courts may consider “factors such as [t]he seriousness of the default, its duration, the reasons for it and the degree of contumacy involved ... but also, the totality of the circumstances, including whether the delay has caused prejudice to the nondefaulting party.” (Internal quotation marks omitted.) Deutsche Bank National Trust Co. v. Cornelius, 170 Conn.App. 104, 118, 154 A.3d 79, cert. denied, 325 Conn. 922, 159 A.3d 1171 (2017).

Given the reasons for the imposition of default, the presence of contumacy, and prejudice to the plaintiffs, the court holds that the defendants have failed to demonstrate that there is good cause to set aside the default. As previously addressed, the defendants engaged in a four-year delay of their discovery obligations, starting with the plaintiff's first interrogatories and requests for production on March 27, 2014. The delays continued with the defendants' failure to appropriately respond to the plaintiffs' requests, in direct violation of the court's orders. As the court noted in its previous order, the defendants indicated they had several responsive documents but that they needed extra time to go through them and then changed their responses to “N/A,” they continually evaded producing any kind of application materials and produced contradictory testimony regarding what the defendants do and do not maintain.

While the defendants argue that the documents the plaintiffs have sought for the past four years are actually in existence. The court is unpersuaded by this argument. The court finds that there is no mistake, accident, inadvertence, misfortune, or other reasonable cause that the defendants can rely upon in justifying introduction of evidence that was thought to be destroyed for four years. The defendants exercised control over the requested documents for four years and these documents should have been made available to the plaintiffs after the court first ordered the defendants to comply on October 3, 2014. As a result, the plaintiffs have been prejudiced in not being able to access the very documents that serve as the basis for the litigation. Accordingly, the court finds that the defendants failed to demonstrate any good cause for their arguments regarding the alleged factual inaccuracies regarding the court's order.

C

The Doctrine of Unclean Hands

“The doctrine of unclean hands expresses the principle that where a plaintiff seeks equitable relief, he must show that his conduct has been fair, equitable and honest as to the particular controversy in issue.” (Internal quotation marks omitted.) Thompson v. Orcutt, 257 Conn. 301, 310, 777 A.2d 670 (2001). “Application of the doctrine of unclean hands rests within the sound discretion of the trial court ... The doctrine generally should not be employed to insulate the party who asserts it from the consequences of his own wrongdoing.” (Citations omitted; internal quotation marks omitted.) A&B Auto Salvage, Inc. v. Zoning Board of Appeals, 189 Conn. 573, 578, 456 A.2d 1187 (1983). “The party seeking to invoke the clean hands doctrine to bar equitable relief must show that his opponent engaged in willful misconduct with regard to the matter in litigation ... The trial court enjoys broad discretion in determining whether the promotion of public policy and the preservation of the courts' integrity dictate that the clean hands doctrine be invoked.” (Internal quotation marks omitted.) Monetary Funding Group, Inc. v. Pluchino, 87 Conn.App. 401, 407, 867 A.2d 841 (2005). “[I]t is a well-established rule ... that [t]he party ... complaining that his opponent is in court with unclean hands ... must show that he himself has been injured by such conduct ... The wrong must have been done to the [party] himself and not to some third party.” (Emphasis in original; internal quotation marks omitted.) Halloran v. Spillane's Servicenter, Inc., 41 Conn.Sup. 484, 497-98, 587 A.2d 176 [1 Conn. L. Rptr. 790] (1990). Ultimately, “[t]he clean hands doctrine is applied not for the protection of the parties but for the protection of the court ... It is applied not by way of punishment but on considerations that make for the advancement of right and justice.” (Internal quotation marks omitted.) U.S. Bank National Ass'n v. Eichten, 184 Conn.App. 727, 747, 196 A.3d 328 (2018).

The defendants argue that the doctrine of unclean hands should apply to prevent the entry of judgment because the plaintiffs have not complied with discovery. More specifically, the defendants point to numerous instances throughout the litigation where the defendants served the plaintiffs with interrogatories and other discovery requests, and the plaintiffs responded with objections to their requests and provided “several meager and evasive responses to some of the interrogatories ...” Def's. Mot. Set Aside Default (#205), p. 8. The defendants further highlight that the plaintiffs' responses were mere recitations of the allegations in the complaint and that the plaintiffs initially avoided responding to a discovery request in 2013, arguing that it was premature. Id., p. 10.

Based on the circumstances in this case, the court is not persuaded that the plaintiff has engaged in any willful misconduct that would warrant the application of the unclean hands doctrine. While the defendants argue that the plaintiffs provided “meager and evasive responses” that were “recitations of the allegations in the complaint” and objected to some of the defendants' discovery requests, the act of objecting to a request, standing alone, does not warrant the application of the unclean hands doctrine. Furthermore, the record does not show that the plaintiffs withheld any documentation, nor did they misrepresent the materials that they had in their possession pertaining the present litigation, as is the case with the defendants. Moreover, the objections asserted by the plaintiffs were never challenged by the defendants pursuant to a motion before the court. Finally, the defendants concede that the plaintiffs eventually did provide responses to the defendants' requests on March 27, 2014. Def's. Mot. Set Aside Default (#205), p. 10. Accordingly, the defendants have failed to show good cause to set aside the judgment under the theory of unclean hands.[5]

CONCLUSION

For the foregoing reasons, the court denies the defendants' motion to set aside the default judgment.

SO ORDERED.

BY THE COURT