*1 Before the Court is Plaintiff's Motion for Sanctions, Filing No. 55, in which Plaintiff requests the Court impose sanctions against Defendant for failing to comply with this Court's September 10, 2024 Order. Filing No. 54.

On October 12, 2023, Plaintiff filed a Complaint against defaulted defendant Stanger Enterprises d/b/a Premier Pools and Spas (“Defaulted Defendant”) alleging claims for breach of contract, fraud, and violation of the Nebraska Consumer Protection Act. Filing No. 1. On March 25, 2024, Plaintiff filed an Amended Complaint adding Defendant Aaron Stanger (“Defendant”). Filing No. 26. The Amended Complaint alleged claims for fraud, violation of the Nebraska Consumer Protections Act, and piercing the corporate veil against Defendant. After Defaulted Defendant failed to answer the Amended Complaint, Plaintiff moved for a clerk's entry of default, which was granted on July 2, 2024. Filing No. 44.

On August 5, 2024, the undersigned held her first discovery dispute conference with the remaining parties. Prior to the discovery dispute conference, the Court received short statements regarding the relevant issues. Filing No. 50. At issue in this discovery conference was Defendant's failure to respond to Plaintiff's First Set of Interrogatories and First Set of Requests for Production. Plaintiff's counsel represented that, despite serving the discovery, Defendant did not respond or object in a timely fashion and, further, had not yet responded at the time of the discovery conference, despite having provided Defendant an extension to respond to such. During the discovery conference, Plaintiff indicated he had yet to receive any responses to the discovery requests at issue. Filing No. 52. Defendant's counsel confirmed such, indicating he had been working with his client to respond to such discovery. Id. Plaintiff made an oral motion to compel the responses to the discovery requests before the Court, which the Court granted. Defendant was ordered to respond to the discovery requests and provide initial disclosures by August 19, 2024. Id. Defendant's counsel represented he believed he could get the responses to Plaintiff by that date. Id.

On August 23, 2024, Plaintiff filed a motion for sanctions for Defendant's failure to comply with this Court's August 5, 2024 Order. Filing No. 51. Plaintiff requested the Court enter default judgment or, in the alternative, prohibit Defendant from supporting his defenses and opposing Plaintiff's claims. Plaintiff also requested reasonable attorney fees associated with the motion to compel and motion for sanctions. Id. Defendant did not timely respond to this motion. On September 10, 2024, the undersigned held a conference with the parties which was originally set to discuss case progression. Filing No. 52. At this conference, the Court addressed the pending motion for sanctions as well as another discovery issue that had arisen amongst the parties relating to Defendant's alleged failure to make himself available for a scheduled deposition.

*2 At the September 10, 2024 conference, Plaintiff represented that Defendant had not responded to the discovery addressed in the August 5, 2024 discovery conference with the Court and, further, had not provided initial disclosures to date. Defendant's counsel confirmed Defendant had not responded to discovery to date. Filing No. 52. During this conference, the undersigned delineated the chronology of deadlines and Defendant's failure to comply with such deadlines and, ultimately, granted this motion in part and denied this motion in part. The undersigned ordered Defendant to answer all outstanding discovery and provide initial disclosures by September 24, 2024 and, further, awarded Plaintiff certain attorney's fees. Id., Filing No. 54.

Further, the undersigned advised that, if Defendant did not comply with this order, Defendant was to file a document with the Court advising as to why the Court should not enter default against him. Filing No. 52. The undersigned also warned Defendant that she was “getting very close” to recommending default judgment due to Defendant's of lack of action in the case. Id. The Court warned that if Defendant failed to comply with the Court's order or otherwise advise the Court why it should not enter default against him, the undersigned was likely to recommend an entry of default judgment. Id. Plaintiff did not receive a response to the ordered discovery or the initial disclosures by September 25, 2024. Filing No. 60-1 at 2. Defendant has not provided this court with any additional information.

Since this call, Plaintiff filed the present Motion for Sanctions. Filing No. 55. Defendant did not file a timely response to this motion. After review of the pending motion, the Court ordered the parties to file and serve the evidentiary materials related to the pending motion. Filing No. 59. Plaintiff filed evidence on November 27, 2024. Filing No. 60. Defendant did not timely file evidence. To date, Defendant has not complied with the Court's order to respond to the subject discovery and the discovery remains outstanding.

Fed. R. Civ. P. 37(d)(1)(A)(ii) permits the Court to issue sanctions if “a party, after being properly served with interrogatories under Rule 33 or a request for inspection under Rule 34, fails to serve its answers, objections, or written response.” Furthermore Fed. R. Civ. P. 37(b)(2)(A)(vi) provides that “[i]f a party ... fails to obey an order to provide or permit discovery ... the court may [enter an order] ... rendering a default judgment against the disobedient party.”

Plaintiff served the discovery at issue on Defendant on May 29, 2024. Filing No. 60-1 at 2. Plaintiff not only did not respond timely to this discovery, but, further, failed to comply with two court orders requiring responses to this discovery. Filing Nos. 50, 54. In addition, despite both oral and written warnings to Defendant regarding potential consequences, which included the entry of a default judgment against him, Defendant has yet to respond to the discovery at issue, provide initial disclosures, comply with the Court's orders, or provide an explanation as to why Defendant has been unable to comply with these deadlines. This litigation has been stalled and delayed to Plaintiff's detriment because Defendant has refused to provide discovery responses.

District courts have “a large measure of discretion in deciding what sanctions are appropriate for misconduct.”). Hunt v. City of Minneapolis, 203 F.3d 524, 527 (8th Cir. 2000). When considering whether to issue sanctions, courts have considered the following elements: “(1) the severity of the violation, (2) the legitimacy of the party's excuse for failing to comply, (3) whether the violations have been repeated, (4) the deliberateness of the misconduct, (5) mitigating excuses, (6), prejudice to the [other party] and to the operations of the court, and (7) the adequacy of lesser sanctions.” See Deneke v. Menard, Inc., No. 5:21-CV-05068, 2022 WL 2237827 (D.S.D. June 22, 2022) (citing Atmosphere Hosp. Mgmt., LLC v. Curtullo, No. 5:13-CV-05040-KES, 2015 WL 136120, at *20 (D.S.D. Jan. 9, 2015)). The Court can also consider these factors when determining the type of sanctions that should be issued. Any sanction imposed must be just and specifically related to the claim at issue in the discovery order. Fed. R. Crim P. 37(b)(2). Though an 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, 2013 WL 1914912, at *2 (D. Neb. May 8, 2013) (citing Everyday Learning Corp. v. Larson, 242 F.3d 815, 817 (8th Cir. 2001).

*3 The undersigned has considered the relevant factors and, given Defendant's repeated non-compliance and lack of action whatsoever in the above-captioned case, the Court finds the entry of default judgment to be appropriate in these extreme circumstances. Despite having multiple opportunities to resolve the failure at issue, Defendant has neglected to do so. Defendant has failed to respond to pending motions and has not attempted to provide an explanation for his noncompliance. Moreover, these actions have continued even after this Court awarded monetary sanctions in association with Defendant's lack of compliance.

The undersigned has provided the Defendant adequate opportunity to remedy the issues at hand and both Plaintiff and the Court are prejudiced by Defendant's inaction. Therefore, the undersigned finds that an entry of default judgment is appropriate.

Accordingly,

IT IS HEREBY RECOMMENDED to the Honorable John M. Gerrard, United States Senior District Court Judge, pursuant to 28 U.S.C. § 636(b), that he grant Plaintiff's motion for sanctions and enter default against Defendant without further notice.

IT IS FURTHER RECOMMENDED that if a default is entered against Defendant, Plaintiff be afforded an opportunity to prove the amount of damages at issue so the Court can enter a default judgment against Defendant.

The parties are notified that failing to file an objection to this recommendation as provided in the local rules of this court may be held to be a waiver of any right to appeal the court's adoption of the recommendation.

Dated this 5th day of December, 2024.