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Ashford v. East Coast Express Eviction

October 8, 2008

HARRY JAKEYIA ASHFORD, ET AL. PLAINTIFFS,
v.
EAST COAST EXPRESS EVICTION, ET AL. DEFENDANTS.



The opinion of the court was delivered by: John M. Facciola U.S. Magistrate Judge

MEMORANDUM OPINION

Now before the Court is plaintiffs' Motion for Default and Adverse Inferences on Damages Against Defendants Irwin Staten and Butch Enterprises, Inc. ("Pls.' Mot.") [#161]. For the reasons stated below, that Motion is granted in part and denied in part.

Background

I have already said that the "Butch Defendants*fn1 have wholly abandoned their discovery responsibilities under the Federal Rules of Civil Procedure." Ashford v. East Coast Express Eviction, 245 F.R.D. 36, 38 (D.D.C. 2007). In that opinion I detailed the failures of the Butch Defendants to comply with their discovery obligations. The order that I issued accompanying that opinion provided that (1) plaintiffs' First Set of Requests for Admissions by Defendant Butch Enterprises, Inc. were deemed admitted, (2) that the Butch Defendants were to submit responses to all outstanding discovery requests no later than October 29, 2007, and (3) the Butch Defendants were to show cause no later than October 29, 2007, why they should not be responsible for all reasonable expenses incurred by plaintiffs in bringing the motions I had resolved in plaintiffs' favor. See Order of Oct. 15, 2007 [#122].

The Butch Defendants ignored my Order and on December 4, 2007, Judge Leon ordered the Butch Defendants to comply by December 11, 2007. In purported compliance, the Butch Defendants filed their Statement of Defendants I. Staten and Butch Enterprises, Inc. Relating to Discovery ("Statement") [#145] on December 11, 2007, representing that they "have submitted to Plaintiffs supplemental Responses to Interrogatories and Requests for Production of Documents." On December 13, 2007, plaintiffs received from defendants' counsel the following document which I have reproduced in its entirety:

DEFENDANT'S [sic] SUPPLEMENTAL REPLY TO PLAINTIFF'S [sic] REQUEST FOR PRODUCTION OF DOCUMENTS

Defendant Staten has re-searched the office of Butch Enterprises and submits herewith:

1. Check Register

2. DMV Registration.

Defendant has no other requested documents.

There were no responses whatsoever to the interrogatories plaintiffs propounded, meaning that the Butch Defendants defied two court orders (mine and Judge Leon's) that they comply with plaintiffs' outstanding discovery requests, including, of course, the interrogatories that had been propounded. Thus, plaintiffs still have not received the answers to the interrogatories, in defiance of two court orders requiring them.

Plaintiffs filed a Motion to Strike Defendants Butch Enterprises, Inc. and Irwin Staten's Statement Relating to Discovery [#154] and I recently granted that Motion as unopposed. Obviously, the representation in the Butch Defendants' December 11, 2007 Statement that they had filed "supplemental responses to interrogatories" is false. They have never answered plaintiffs' interrogatories, let alone answered them and then supplemented them.

Further, the documents submitted by the Butch Defendants in their original production consisted of only four days of payroll records and two days of work requests. Exhibit D to Pls.' Mot. If the representation that the Butch Defendants fully supplemented their document production with the items listed above is true, then significant documents have been either lost or destroyed. For example, the Butch Defendants insist that the drivers who pick up the plaintiffs to take them to the eviction site are supposed to secure from the workers: (1) a form in which the workers state that they are independent contractors; and (2) the payroll forms. The defendant Staten testified under oath that he did not retain: (1) the payroll records the members of the eviction crews signed, which included their names, addresses and social security numbers and wages received; or (2) the work requests the Butch Defendants create for each eviction they perform which include the date, address where the eviction will be performed and the starting and ending time. Id. at 2-5. Thus, the only records from which one could reconstruct which of the plaintiffs worked on an eviction and what he or she was paid are gone, except for four days of payroll records and two days of work requests. This is all of little matter to the Butch Defendants though because, they claim, the workers are independent contractors who get paid in cash, so the Butch Defendants are not required to retain these documents. The Butch Defendants have completely ignored the fact that they are engaged in litigation and therefore required to preserve documents that may be relevant to the case.

The Butch Defendants' answer to this is as cavalier as the rest of their "responses" to discovery. They contend that plaintiffs don't give their real names because they fear the tax consequences, so it is "[p]laintiffs themselves who destroy the opportunity for records." Defendants Staten and Butch Enterprise's Opposition to Motion for Default and Adverse Inferences [#163] (Defs.' Opp.") at 2. Defendants claim that the records are unreliable and the plaintiffs have no written proof that they have worked for the Butch Defendants. Hence, there ...


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