Gill v. Clements
Gill v. Clements
2022 WL 2427832 (W.D. La. 2022)
January 31, 2022

Hornsby, Mark L.,  United States Magistrate Judge

Exclusion of Evidence
Failure to Produce
Sanctions
Download PDF
To Cite List
Summary
The court granted Plaintiff's motion for sanctions and prohibited Amerifield from presenting any evidence or argument to the jury regarding course and scope or liability, and struck all of Amerifield's affirmative defenses. Electronically stored information was important in this case as it was the only way for Plaintiff to gather information regarding Amerifield's negligence. However, Amerifield had failed to provide full and complete answers and had not produced any documents responsive to Plaintiff's requests.
DORDARRIUS GILL
v.
ADRIANON CLEMENTS, ET AL
CIVIL ACTION NO. 21-cv-1168
United States District Court, W.D. Louisiana
Filed January 31, 2022

Counsel

Joseph A. Gregorio, Bossier City, LA, Justin Cole Sartin, Sartin Law Firm, Shreveport, LA, for Dordarrius Gill.
Brian Allen Homza, Cook Yancey et al., Shreveport, LA, for Adrianon Clements, Trisura Specialty Insurance Co., Amerifield Inc.
Hornsby, Mark L., United States Magistrate Judge

REPORT AND RECOMMENDATION

Introduction
*1 This is a personal injury action arising out of a motor vehicle accident in Bossier Parish. Plaintiff alleges that defendant Adrianon Clements (“Clements”) attempted to merge into the lane occupied by Plaintiff on Benton Road and collided with Plaintiff's vehicle. Plaintiff alleges that Clements was employed by defendant Amerifield, Inc. (“Amerifield”) and was in the course and scope of that employment with Amerifield at the time of the accident. Amerifield, Clements, and their alleged insurer, Trisura Specialty Insurance Company (“Defendants”), filed an answer to Plaintiff's petition denying every allegation therein.
 
Plaintiff propounded interrogatories and requests for production of documents to Defendants. Defendants sought an extension of time to respond to the discovery, which the court granted. Doc. 24. Despite the passing of the extended deadline, Amerifield failed to respond. The court granted Plaintiff's motion to compel and ordered all Defendants to provide full and complete answers to all interrogatories and requests for production within 14 days. Doc. 26.
 
In accordance with the court's order, Defendants served responses to Plaintiff's discovery, which contained answers based on information from Clements, not Amerifield. Doc. 33-3. In response to numerous requests, Defendants state: “This response requires contact with Amerifield.” Some responses say that the response will be supplemented once contact is made with Amerifield. A few weeks later, Defendants tendered their first supplemental answers to Plaintiff's interrogatories and requests for production of documents. Doc. 33-4. The supplemental answers deleted all reference to general objections but, like the initial response, contained the following:
Undersigned counsel shows that Amerifield, Inc. has not returned calls or written communication to assist in these responses. A private investigator has been retained to visit the offices in Oklahoma and provide a report on the corporation. The information contained in these responses has come from the driver, Adrianon Clements. These responses will be supplemented once contact is made with Amerifield, Inc.
 
Before the court is Plaintiff's Motion for Sanctions and Request for Expedited Consideration (Doc. 33). In the motion, Plaintiff points out that Amerifield has still not provided full and complete answers and has not produced any documents responsive to Plaintiff's requests. As a sanction, Plaintiff seeks an order:
(a) prohibiting Defendants from opposing Plaintiff's claims of liability and from introducing defenses to liability into evidence;
(b) striking Defendants' First Affirmative Defense, Second Affirmative Defense, Fourth Affirmative Defense, and Fifth Affirmative Defense (Doc. 16); and
(c) ordering that Defendant, Adrianon Clements, is 100% at fault for the April 8, 2020, motor vehicle collision.
 
Law and Analysis
Sanctions are appropriate if a party fails to answer interrogatories or fails to produce documents or things as ordered by the court. Fed. R. Civ. P. 37(b)(2)(A). For failure to obey a discovery order, the court may order the matters at issue (or any other designated facts) established for purposes of the action. Fed. R. Civ. P. 37(b)(2)(A)(i); Insurance Corp. of Ireland v. Compagnie des Bauxites, 456 U.S. 694, 695 (1982). Moreover, for failure to obey a discovery order, the court may order the disobedient party precluded from supporting or opposing designated claims or defenses or from introducing designated matters into evidence. Fed. R. Civ. P. 37(b)(2)(A)(ii). The court may also sanction the disobedient party by striking pleadings, staying further proceedings pending compliance, or terminating the action by default or dismissal. Fed. R. Civ. P. 37(b)(2)(A)(iii)-(iv). The sanctions of dismissal and default should only be ordered in extreme circumstances. F.D.I.C. v. Conner, 20 F.3d 1376, 1380 (5th Cir. 1994).
 
*2 Despite defense counsel's best efforts, he has been unable to have any contact with Amerifield. Based on the undersigned's review of the record, there is no doubt that Clements was in the course and scope of his employment with Amerifield at the time of the accident. Without discovery from Amerifield, Plaintiff can gather no information regarding whether Amerifield was negligent in its hiring, retention, training, and supervision of Clements and/or for negligently entrusting its vehicle to him.
 
Amerifield had to know that litigation was likely from the accident in question. There is no explanation for Amerifield's failure to comply with this court's order other than the principals of Amerifield are actively avoiding contact with their lawyer. Plaintiff will suffer extreme prejudice at trial if Amerifield is able to present evidence and arguments regarding course and scope, liability, or its affirmative defenses. A continuance will not solve this discovery problem because it is highly unlikely that the principals of Amerifield will suddenly appear at some future date and comply with the court's order by participating in discovery.
 
In opposition to Plaintiff's motion, Defendants ask the court to avoid imposing the harsh sanction of striking Amerifield's defenses. But Defendants propose no alternative. Amerifield was insured, and its insurer, Trisura, is providing a defense to it and Clements. It is unlikely that Plaintiff will collect any damages from anyone other than Trisura, if Plaintiff receives a damages award from the jury. Truck drivers, like Clements, are typically judgment proof. Nevertheless, fairness requires that Clements not be prohibited from presenting a defense as to his own actions. As far as the undersigned knows, Clements has participated in discovery and complied with the orders of the court.
 
Accordingly,
 
It is recommended that Plaintiff's Motion for Sanctions and Request for Expedited Consideration (Doc. 33) be granted in part and that Amerifield be prohibited from presenting any evidence or argument to the jury regarding course and scope or liability. It is further recommended that all of Amerifield's affirmative defenses be stricken.
 

Objections
Under the provisions of 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 72(b), parties aggrieved by this recommendation have fourteen (14) days from service of this report and recommendation to file specific, written objections with the Clerk of Court, unless an extension of time is granted under Fed. R. Civ. P. 6(b). A party may respond to another party's objections within fourteen (14) days after being served with a copy thereof. Counsel are directed to furnish a courtesy copy of any objections or responses to the District Judge at the time of filing.
 
A party's failure to file written objections to the proposed findings, conclusions and recommendation set forth above, within 14 days after being served with a copy, shall bar that party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court. See Douglass v. U.S.A.A., 79 F.3d 1415 (5th Cir. 1996) (en banc).
 
THUS DONE AND SIGNED in Shreveport, Louisiana, this 31st day of January, 2022.