United States District Court, W.D. Washington, Seattle
ORDER OF DEFAULT AS TO DEFENDANT JUSTUS KEPEL ONLY
AND SETTING BRIEFING SCHEDULE
A. TSUCHIDA CHIEF UNITED STATES MAGISTRATE JUDGE.
Justus Kepel is hereby held to be in default pursuant to
Fed.R.Civ.P. 37(b)(2)(A), for his willful failure to respond
to proper discovery requests and to this Court's orders
that he pay $500 for violating the Court's discovery
order and also provide complete discovery no later than June
24, 2019. See 49. By separate order, the Court has
stayed proceedings against Defendant Robinson pending
resolution of her recently initiated Bankruptcy Proceedings,
in the United States Bankruptcy Court for the Western
District of Washington, No. 19-11724-MLB.
parties are accordingly directed to submit briefing and
affidavits so that the Court may determine damages before
entering final judgment against Defendant Kepel.
Plaintiff's opening brief and supporting affidavits are
due on July 18, 2019. Any response by Defendant Kepel is due
no later than August 1, 2019. Plaintiff's optional reply
is due no later than August 8, 2019. The Clerk shall note the
matter for August 9, 2019.
12, 2018, Plaintiff filed his complaint alleging Defendants
Robinson and Kepel committed a series of defamatory
publications that were knowingly false when made, that they
intended to harm him, and caused him to suffer financial and
emotional injuries in excess of $1.5 million. Dkt. 4.
Plaintiff's amended complaint was filed on July 30, 2018.
Dkt. 11. Defendants filed their answers to the amended
complaint on September 19, 2019 (Dkts. 19 and 20) and
submitted a Joint Status Report on October 9, 2018. Dkt. 23.
Defendant Robinson is proceeding pro se. Defendant
Kepel is represented by Attorney Alan S. Middleton.
Id., p. 6. Pursuant to the parties' Joint Status
Report, the Court set the pretrial deadlines, including a
discovery deadline of April 5, 2019. Dkt. 25. The dispositive
motions deadline of May 3, 2019, has expired. The Court also
ordered plaintiff and defendants file their respective
pretrial statements no later than June 21, 2019 and June 28,
2019. Id. A jury in the matter was set for August 5,
February 28, 2019, Plaintiff sent interrogatories, requests
for admission, and requests for production to Defendant
Kepel. On March 22, 2019, Defendant Kepel's attorney,
Alan Middleton, assured Plaintiff that he would send the
required discovery requests by April 2, 2019. Dkt. 37, Ex. B.
On April 4, 2019, Plaintiff filed a motion to compel after
Defendant Kepel failed to send his responses. Dkt. 38; Dkt.
37, Ex. A. Defendant Kepel filed no reply to the motion.
April 23, 2019, the Court granted Plaintiff's motions to
compel (Dkts. 36 and 38) and ordered Defendant Kepel to send
his discovery responses to Plaintiff by April 30, 2019. Dkt.
39. The Court warned that failure to comply with the Order
could result in further just orders pursuant to Fed.R.Civ.P.
37(b)(2). Id., p. 2.
6, 2019, Plaintiff filed a motion for sanctions, stating that
as of June 6, 2019, Defendant Kepel had not complied with the
Court's Order. Dkt. 47. Although the Court gave Defendant
an opportunity to show cause why sanctions should not be
imposed (Dkt. 48), he did not respond to the Court's
18, 2019, the Court found that sanctions against Defendant
Kepel were warranted due to his continued failure to respond
to Plaintiff's discovery requests and for willful
disobedience of this Court's orders. The Court ordered
Defendant Kepel to pay sanctions of $500.00 and to produce
all discovery responses previously ordered by June 24, 2019.
Dkt. 49, pp. 4-8.
25, 2019, the Court ordered plaintiff to provide a status
report addressing Defendants compliance with the Court's
order for sanctions. Dkt. 50. Plaintiff filed a status report
on June 26, 2019, averring that neither defendant complied
with the Court's order. Id.
determining whether to impose default as a sanction for the
failure to respond to discovery requests and for willful
disobedience of court orders, a court must consider:
“(1) the public's interest in expeditious
resolution of litigation; (2) the court's need to manage
its dockets; (3) the risk of prejudice to [the party seeking
sanctions]; (4) the public policy favoring disposition of
cases on their merits; and (5) the availability of less
drastic sanctions.” Wanderer v. Johnston, 910
F.2d 652, 656 (9th Cir. 1990). The Ninth Circuit has further
established three subparts to the fifth factor,
“whether the court has considered lesser sanctions,
whether it tried them, and whether it warned the recalcitrant
party about the possibility of case-dispositive
sanctions.” Conn. Gen. Life Ins. Co. v. New Images
of Beverly Hills, 482 F.3d 1091, 1096 (9th Cir. 2007).
Case terminating sanctions should be reserved for a showing
of willfulness, bad faith, or fault by the non-responding
party. Id. Disobedient conduct occurs where the
noncompliant party fails to “…demonstrate that
production ... would be impossible, or that production of the
documents would subject him to civil or criminal
sanctions.” Jorgensen v. Cassiday, 320 F.3d
906, 912 (9th Cir.2003); see also, Virtual
Vision, Inc. v. Praegitzer Indus., Inc., 124 F.3d 1140,
1143-44 (9th Cir.1997).
having thoroughly analyzed the foregoing factors (which
analysis will not be repeated here), the Court concluded that
sanctions, including terminating sanctions, were warranted.
Dkt. 49. Rather than issue terminating sanctions at that time
however, the Court issued the lesser sanction of the $500
payment and another deadline to submit discovery responses.
Id. Defendant Kepel has failed to comply with these
most critical factor to be considered in case dispositive
sanctions is whether ‘a party's discovery
violations make it impossible for a court to be confident
that the parties will ever have access to the true
facts.'” Conn. Gen. Life Co., 482 F.3d at
1097. Due to Defendant Kepel's refusal to provide
discovery, and continued willful disobedience of the
Court's orders, Plaintiff has no other means of accessing
the true facts in this case. In 2018 the Court set a trial
date of August 5, 2019. Since then Defendant Kepel has
prevented Plaintiff from pursuing his own case by failing to
provide requested discovery. This places Plaintiff in the
position of going to trial without the ability to present all
of the facts to the jury. The Court ...