This matter is before the Court on Plaintiff's Motion for Sanctions (Filing No. 71). For the reasons explained below, the undersigned will recommend that the motion be granted.

On April 29, 2021, Plaintiff served interrogatories, requests for production of documents, and requests for admission on counsel of record for Defendants KC Property Guys, LLC, a Kansas Limited Liability Company, and KC Property Guys, LLC, a Missouri Limited Liability Company (collectively, “KC Property”). (Filing No. 44.) Counsel for the parties agreed that KC Property's responses to these requests would be due June 14, 2021. When Plaintiff did not receive responses to the discovery requests on June 14, 2021, Plaintiff's counsel contacted KC Property's counsel regarding the matter.

On June 17, 2021, KC Property's counsel informed Plaintiff's counsel that he was directed to withdraw his appearance on behalf of KC Property. On June 23, 2021, KC Property's counsel filed a motion to withdraw. (Filing No. 45.) On June 24, 2021, the undersigned entered an order granting the motion to withdraw. (Filing No. 46.) The order advised KC Property that corporate parties cannot litigate in this forum without licensed counsel and that KC Property was technically in default as of the time counsel was permitted to withdraw.[1] Therefore, the order further directed KC Property to have substitute counsel enter an appearance on its behalf by July 23, 2021. Counsel did not enter an appearance on behalf of KC Property as ordered.

On August 13, 2021, Plaintiff's counsel requested a status conference to discuss the outstanding answers to the discovery requests. A telephone status conference was held before the undersigned on September 8, 2021. Counsel for Plaintiff appeared and Eric Scheele, President of KC Property, appeared on behalf of KC Property. At that time, the Court cautioned Mr. Scheele that he could not represent KC Property in this case and that KC Property needed to retain counsel. Following the conference, the undersigned entered a text order directing that responses to the outstanding discovery requests be provided by October 25, 2021. (Id.)

As of today's date, counsel has not entered an appearance on behalf of KC Property and KC Property has not provided discovery responses as ordered. Moreover, KC Property has not responded to the instant Motion for Sanctions.

Plaintiff requests that default judgment be entered against KC Property pursuant to Federal Rule of Civil Procedure 37(b)(2)(A)(vi) for KC Property's failure to answer written discovery in compliance with this Court's September 8, 2021 order.

Rule 37(b)(2)(A)(vi) provides that if a party or a party's officer, director, or managing agent fails to obey an order to provide or permit discovery, the court may render a default judgment against the disobedient party. Fed. R. Civ. P. 37(b)(2)(A)(vi). Although entry of default is a severe punishment, “[s]uch a sanction is appropriate when there has been an order compelling discovery, a willful violation of that order, and prejudice to the other party.” Peter Kiewit Sons,’ Inc. v. Wall Street Equity Grp,, LLC, No. 8:10CV365, 2013 WL 1914912, at *2 (D. Neb. May 8, 2013) (citing Everyday Learning Corp. v. Larson, 242 F.3d 815, 817 (8th Cir. 2001)).

The undersigned will recommend that default judgment be entered against KC Property. An order was entered on September 8, 2021 directing KC Property to provide discovery responses by October 25, 2021. KC Property was aware of and understood this order as Mr. Scheele appeared on KC Property's behalf at the September 8, 2021 telephone conference. KC Property willfully and knowingly disregarded this order by failing to provide responses.

KC Property's failure to provide discovery responses has prejudiced Plaintiff. Case progression deadlines were stayed on September 8, 2021 to allow time for KC Property to provide discovery responses. When responses were not provided, this motion was filed. An amended progression order has not been entered due to the pendency of this motion. This litigation has been stalled and delayed to Plaintiff's detriment because KC Property has refused to provide discovery responses.

The undersigned is doubtful that KC Property will comply with future Court orders or its other obligations in this suit. Not only did KC Property disregard the undersigned's September 8th order, but it also failed to comply with the June 24th order directing it to obtain substitute counsel. Further, KC Property has not filed a response to the Motion for Sanctions. Thus, the undersigned concludes that any sanction less than dismissal would not be effective. Therefore, the undersigned finds entry of default judgment is appropriate.

Accordingly,

IT IS HEREBY RECOMMENDED to United States District Court Judge Brian Buescher that Plaintiff's Motion for Sanctions (Filing No. 71) be granted, and that default judgment be entered against KC Property Guys, LLC, a Kansas Limited Liability Company, and KC Property Guys, LLC, a Missouri Limited Liability Company.

Dated this 9th day of December, 2021.

A party may object to a magistrate judge's order by filing an objection within fourteen (14) days after being served with a copy of the findings and recommendation. Failure to timely object may constitute a waiver of any objection.

See Rowland v. California Men's Colony, Unit II Men's Advisory Council, 506 U.S. 194, 202 (1993) (“[A] corporation may appear in the federal courts only through licensed counsel”); Ackra Direct Mktg. Corp. v. Fingerhut Corp., 86 F.3d 852, 857 (8th Cir. 1996) (stating that a corporation was technically in default as of the date its counsel was permitted to withdraw from the case without substitute counsel appearing).