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Abston v. Fitness Co.

March 19, 2003

PAMELA ABSTON, PLAINTIFF,
v.
THE FITNESS COMPANY, DEFENDANT.



The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge

MEMORANDUM OPINION

Pending before the Court are Pamela Abston's Motion to Compel Discovery and for Sanctions and Expenses ("Motion to Compel") and her Motion to Treat as Conceded Plaintiff's Motion to Compel and for Sanctions and Expenses ("Motion to Treat as Conceded"). For the following reasons, the Court will grant these motions in part and deny them in part.

I. BACKGROUND

Mrs. Abston has filed this lawsuit against The Fitness Company for wrongful death and survival after her husband, Derwin Abston, suffered a cardiac arrest and died while participating in a "spin" class at The Fitness Company's gym in Georgetown on January 21, 2002. Mrs. Abston alleges that, on the day in question, her husband collapsed and fell from a stationary bicycle he had been using during the class. She claims that neither the "spin" class instructor, Risa Klein, nor any other employee of The Fitness Company assisted Mr. Abston; instead, another student in the class took charge, ensuring that emergency personnel were called and performing rescue breathing and cardiopulmonary resuscitation ("CPR"). Mrs. Abston avers that The Fitness Company did not properly train its employees to handle medical emergencies and failed to keep an automated external defibrillator ("AED") on the premises.

On December 16, 2002, Mrs. Abston filed her Motion to Compel. At that time, The Fitness Company had served late responses to her Requests for Admissions and Requests for Documents and had not yet responded to her Interrogatories, despite numerous e-mail, telephone and mail requests by Mrs. Abston's counsel.*fn1 Pursuant to the Scheduling Order issued on September 13, 2002, and the Federal Rules of Civil Procedure, The Fitness Company's discovery responses were due on September 26, 2002. The Fitness Company never requested an extension of time to respond. Instead, it simply served its responses to Mrs. Abston's Requests for Admissions on October 4, 2002, and its responses to her Requests for Documents on October 23, 2002, which it supplemented on January 6, 2003. Following Mrs. Abston's motion, The Fitness Company served its responses to Mrs. Abston's Interrogatories on December 20, 2002.

The Fitness Company failed to respond timely to Mrs. Abston's Motion to Compel. Under the Local Civil Rules, The Fitness Company's Opposition was due on December 27, 2002. Having received no response to her motion or even a motion for an extension of time to respond, Mrs. Abston filed her Motion to Treat as Conceded on January 7, 2003. The Fitness Company later filed its Opposition to both motions on January 27, 2003, even though its Opposition to the Motion to Treat as Conceded was due on January 20, 2003.

On February 7, 2003, the Court held a hearing on Mrs. Abston's two motions. Counsel for The Fitness Company offered no explanation for why it had failed to comply with the Scheduling Order, the Federal Rules of Civil Procedure and the Local Civil Rules. Even so, the Court refrained from entering a default judgment, which was Mrs. Abston's requested relief, in order to give The Fitness Company one final opportunity to play fair. The Court scheduled a status hearing for February 18, 2002, and ordered The Fitness Company to produce at that hearing all documents responsive to Mrs. Abston's Requests for Documents and amended and supplemented responses to her Interrogatories. Due to The Fitness Company's past discovery abuses, the Court deemed that it had waived all objections to Mrs. Abston's discovery requests. The Court further instructed The Fitness Company to consult with Mrs. Abston's counsel to determine what additional information it must provide – in light of counsel for Mrs. Abston's October 29, 2002, letter – so that there would be no confusion by The Fitness Company about its obligations.

The Court held a status hearing on February 25, 2003, after the previously-scheduled hearing was canceled due to the President's Day snowstorm in the District of Columbia. At the hearing, The Fitness Company reported that it had produced additional responses on the day prior to the hearing. Counsel for Mrs. Abston informed the Court, however, that it was not satisfied with The Fitness Company's efforts, outlining numerous instances in which it believed that The Fitness Company had not adequately responded to Mrs. Abston's discovery requests. In particular, counsel for Mrs. Abston noted that The Fitness Company had failed to identify in its Interrogatory responses the existence of two of its employees, Adena Feczko and Albert Coleman, both of whom appear to have been present at the gym on the day that Mr. Abston died.

The Fitness Company responded that, although not included in its Interrogatory responses, these employees were disclosed somewhere in its document production to Mrs. Abston. After hearing oral argument from both sides on this issue and others, the Court ordered counsel for Mrs. Abston to file a short memorandum summarizing her problems with The Fitness Company's now-supplemented discovery responses, and The Fitness Company was ordered to respond. The parties have filed their respective memoranda and the Court is now prepared to rule on Mrs. Abston's motions.

II. ANALYSIS

Based on The Fitness Company's acknowledged discovery abuses and failure to respond timely to Mrs. Abston's motions, without explanation or excuse, the Court possesses broad authority to sanction The Fitness Company and remedy its considerable misconduct. This authority is derived from several sources, including Federal Rules of Civil Procedure 36 and 37, Local Civil Rule 7.1(b), and the Court's inherent power. The Fitness Company's failure to respond timely to any and all of Mrs. Abston's discovery requests (i.e., her Requests for Admissions, Requests for Documents, and Interrogatories) violated the Scheduling Order and Federal Rules of Civil Procedure 34 and 36. Under Federal Rule of Civil Procedure 37(b), therefore, the Court is permitted to make any order that is "just," including "rendering a judgment by default against the disobedient party." Fed. R. Civ. P. 37(b)(2)(c). The Fitness Company's failure to amend and supplement adequately its responses to Mrs. Abston's Interrogatories, discussed below, violated the Court's Order of February 7, 2003, also subjecting The Fitness Company to the sanctions of Federal Rule of Civil Procedure 37(b). Finally, The Fitness Company's failure to respond timely to Mrs. Abston's Motion to Compel and her Motion to Treat as Conceded violated Local Civil Rule 7.1(b). Under that Local Civil Rule, the Court is permitted to treat both motions as conceded and grant Mrs. Abston's requested relief of default judgment. See Motion to Compel at 10.

The record demonstrates that The Fitness Company's misconduct was willful and made in bad faith, warranting a severe sanction from the Court. The Court can only conclude from The Fitness Company's repeated discovery abuses and unwillingness to interact professionally with Mrs. Abston that it sought to stonewall Mrs. Abston and deprive her of timely and complete information concerning her lawsuit, to which she was legally entitled. The Fitness Company's failure to identify Ms. Feczko and Mr. Coleman in its Interrogatory responses, discussed below, is particularly troubling and, in conjunction with its other misconduct, smacks of intentional concealment of discoverable information that may prove to be detrimental to its case. In lieu of entering default judgment against The Fitness Company, however, the Court will issue the sanctions set forth below. Each particular sanction addresses a specific discovery abuse by The Fitness Company, as well as The Fitness Company's general pattern of misconduct.

1. The Fitness Company failed to respond timely to Mrs. Abston's Requests for Admissions. Therefore, all of Mrs. Abston's Requests for Admissions are deemed admitted pursuant to Federal Rule of Civil Procedure 36. The Court will not entertain any defenses to these admissions.

2. The Fitness Company failed to respond adequately to Interrogatory No. 4, which stated, "Please identify each person having information relevant to the incidents alleged and contentions made in the Pleadings and state the subject matter of the information possessed by that person." The Fitness Company identified Ms. Klein, Matthew Romans, Kevin Scanlon, Nancy Estrella, Steve Saxton, Richard Hall, Amy Lerner, Rich ...


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