On July 16, 2020, this court issued an Order denying Sadie Jane Sabin, Simply Sadie Jane and Simply Fusion's (collectively Plaintiffs) short form discovery motion for failure to meet and confer but ordered the parties to meet and confer within 10 days of the July 16, 2020 Order (ECF 21). On August 24, 2020, Plaintiffs renewed their discovery motion seeking to compel interrogatory responses indicting that, as directed by the court, the parties met and conferred, reached an agreement on the outstanding discovery issue but Defendants Christopher P. Newman and Cinehopper (collectively Defendants) failed to produce the discovery as agreed upon (Renewed Motion) (ECF 22). Thereafter, the court granted the Renewed Motion in part, and ordered Defendants, within 15 days of October 27, 2020, to “supplement their discovery responses consistent with the communications counsel had with Plaintiffs” (October Order) (ECF 24). When Defendants failed to comply with the October Order, Plaintiffs filed the present Motion for Order to Show Cause Why Defendants Should Not be Held in Contempt for Violating Court's October 28, 2020 Order (Motion) (ECF 27). After failing to submit a response to the Motion (ECF 28), on December 21, 2020, the court issued an Order to Show Cause ordering Defendants to show cause by December 30, 3030, as to why the court should not find them in contempt for failing to comply with the court's October Order. (See Order to Show Cause, ECF 29). In the Order to Show Cause, the court warned that “[f]ailure to respond may result in appropriate sanctions pursuant to Federal Rule of Civil Procedure 37.” To date, Defendants have failed to respond and the time to do so has expired.

Defendants have failed to comply with the court's October Order (ECF 24) and have failed to respond to the Order to Show Cause (ECF 29). As a sanction for failure to comply with a court order, Rule 37 provides that a court may “issue further just orders” including one or more of the following sanctions:

Fed. R. Civ. P. 37(b)(2)(A)(i)-(vii). In addition, Rule 37 permits the court to award expenses and attorney's fees if a discovery motion is granted. Fed. R. Civ. P. 37(a)(5). The discretion to choose a sanction is limited in that the chosen sanction must be both ‘just and related to the particular ‘claim’ which was at issue in the order to provide discovery.’ ” Ehrenhaus v. Reynolds, 965 F.2d 916, 920–21 (10th Cir. 1992) (quoting Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 707 (1982)). Moreover, before choosing dismissal, the court should consider prejudice, interference with the judicial process and culpability of the litigant. Id. at 921.

*2 Plaintiffs request the court find Defendants in contempt and impose the following sanctions: (i) an award of costs and attorneys’ fees to Plaintiffs for this Motion and its two previously filed motions to compel; (ii) dismissal of the Defendants’ Counterclaims with prejudice; (iii) striking Defendants’ answers to Plaintiffs’ interrogatories; and (iv) prohibiting Defendants from presenting any evidence on summary judgment or at trial that should have been provided in response to Plaintiffs’ interrogatories (collectively Requested Sanctions) (ECF 27).

The court finds Plaintiffs have been prejudiced by Defendants’ failure to provide the interrogatory responses consistent with the obligations under the Federal Rules. The interrogatories, first served in March of 2020, sought information on issues at the heart of this matter (ECF 27 at 3). While Defendants submitted an initial “response” of objections, the record supports that Defendants were not diligent or forthcoming with the requested information for a sustained period—namely, Plaintiffs have been trying to secure the information since March of 2020 and to date do not have the information (ECF 27 at 2-5). Defendants’ response and compliance with the court's October Order is a necessary part of litigation. Defendants’ behavior has therefore interfered with the judicial process. Plaintiffs filed their initial discovery motion back in June of 2020 (ECF 18) and while the court found the parties had failed to sufficiently meet and confer, discussions did take place. Plaintiffs were thereafter diligent in following the court's order (ECF 21), met and conferred and came to an agreement on what would be produced well after the initial deadlines (ECF 24). When Defendants failed for a second time to produce the requested discovery by the extended deadline, Plaintiffs were forced to file their Renewed Motion, further prolonging what should have been produced as mandated by the discovery rules (ECF 24). Defendants have not responded to the Motion or the Order to Show Cause and the court therefore has no argument to dispute the culpability of the Defendants.

Based on Defendants’ contempt in failing to respond to the court's October Order and failure to supplement their responses to Plaintiffs’ Interrogatories (ECF 27-1), the court finds sanctions are justified. In determining which sanctions would be just and related to the particular discovery at issue, the court finds dismissal of Defendants’ counterclaims is not warranted at this time. See Meade v Grubbs, 841 F.2d 1512, 1520 (10th Cir. 1988) (noting dismissal is usually appropriate only where a lesser sanction would not serve the interest of justice). However, the court will award Plaintiffs’ costs and attorneys’ fees incurred in filing their Renewed Motion and the present Motion (ECF 22 and 27). Because Plaintiffs failed to meet and confer on the initial Motion to Compel Responses to Interrogatories (ECF 18), the court does not find fees justified on that motion. The court will also strike Defendants’ answers to Plaintiffs’ Interrogatories and prohibit Defendants from presenting any evidence on summary judgment or at trial that should have been provided in response to Plaintiffs’ Interrogatories.

For the reasons stated above, it is HEREBY ORDERED that pursuant to Federal Rule 37, Defendants are ORDERED to pay Plaintiffs’ reasonable expenses and attorneys’ fees incurred in bringing their Renewed Motion and the present Motion (ECF 22 and 27). If the parties are unable to reach an agreement on the amount, Plaintiffs are directed to file an affidavit of expenses and fees incurred within thirty (30) days from the date of this Order. Defendants may then file any response within fourteen (14) days and if necessary, Plaintiffs may then file a response within seven (7) days.

*3 IT IS ALSO ORDERED that the responses to Plaintiffs’ Interrogatories are hereby STRICKEN, any objections are considered waived. IT IS FURTHER ORDERED that Defendants are prohibited from presenting any evidence which would have been provided in response to Plaintiffs’ Interrogatories within a motion for summary judgment or at trial.

DATED this 22 January 2021.