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Perez v. Berhanu

October 17, 2008

HUGO PEREZ, ET AL., PLAINTIFFS,
v.
VICTOR F. BERHANU D/B/A AFS FINANCIAL SERVICES, LLC, ET AL., DEFENDANTS.



The opinion of the court was delivered by: John D. Bates United States District Judge

MEMORANDUM OPINION

Plaintiffs are eight individuals allegedly hired by defendants Victor Berhanu and his company, AFS Financial Services, LLC, to perform renovations and refurbishments in the District of Columbia. They seek to recover back pay and damages from defendants pursuant to the Fair Labor Standards Act, 29 U.S.C. § 201 et seq., and District of Columbia law. The case has been at a standstill for several months due to the breakdown of settlement discussions and defendants' failure thereafter to respond to plaintiffs' discovery requests or otherwise participate in this case. Hence, plaintiffs have filed a motion for sanctions pursuant to Fed. R. Civ. P. 37, seeking entry of a default judgment against defendants and an award of attorneys fees and costs. In the alternative, plaintiffs seek to compel defendants to respond to their written discovery requests and to order Berhanu's appearance for a deposition. Defendants have not filed a response. For the reasons stated below, the Court will grant plaintiffs' motion for sanctions and enter a default judgment against defendants.

DISCUSSION

This case initially encountered difficulties moving forward because defendants' relationship with their initial counsel ended by the time of the initial scheduling conference and defendants were unsuccessful in obtaining new counsel thereafter notwithstanding repeated extensions of time to do so. The Court then referred this case to the mediation program on December 20, 2007, and appointed counsel for the limited purpose of assisting in mediation. Since the termination of settlement discussions on July 3, 2008, defendant Berhanu has been proceeding pro se,*fn1 and defendant AFS Financial Services has failed to obtain counsel.*fn2 Hence, the case has come to a complete standstill due to the failure of defendants to participate in this case in any manner.

The record amply establishes that defendants Berhanu and his company AFS Financial Services, LLC, have willfully failed to respond to the written discovery requests propounded by plaintiffs and also failed to appear for his deposition. Plaintiffs served their first set of interrogatories and first request for production of documents on August 4, 2008. See Pl.'s Ex. 1 and 2. Plaintiffs' counsel reiterated in both the cover letter and the introductory paragraph of the discovery requests that defendants' response was due 30 days from the mailing date -- that is, September 8, 2008.*fn3 Thus, even though defendants are not represented by counsel, they reasonably should have understood the deadline. The deadline passed with no response whatsoever from Berhanu or his company.

Around the same time, plaintiffs also attempted to notice Berhanu's deposition. They notified Berhanu of their intent to do so in the August 4th letter, and offered "to find a mutually agreeable time and place . . . at any point in time between now and the middle of September" which was the court-ordered deadline for completion of discovery. See Pl.'s Ex. 2. Plaintiffs' counsel received no response. See Pl.'s Ex. 5. With the close of discovery approaching, on September 2, 2008, counsel mailed a notice of deposition to Berhanu, set to take place on Friday, September 12, 2008, in the law office of plaintiffs' counsel. Id. He offered to reschedule if the scheduled date was not practicable. Id. At that time, he also reminded Berhanu of the approaching deadline for responding to plaintiffs' written discovery requests. Id. Plaintiffs' counsel then wrote to Berhanu on September 8 to remind him of the deposition and again reminded him of the deadline for discovery responses. Pl.'s Ex. 6. However, Berhanu did not respond to any of the letters, and he also failed to appear for the deposition. See Decl. of Keir S. Bickerstaffe ¶ 7.

The following Tuesday, September 16, plaintiffs' counsel left a voicemail for Berhanu stating that he had not received any responses to the written discovery requests (by then overdue), and stated that Berhanu had failed to appear for the deposition. Id. He requested that Berhanu contact him "immediately" to discuss the matters, and that he would otherwise be forced to bring the matters to the Court's attention. Id. Berhanu did not respond. Id.

Plaintiffs' counsel then filed the pending motion for sanctions. The Court ordered defendants to respond to the motion by October 9, 2008, set a status hearing on the matter for October 15, 2008, and directed the Clerk of Court to send the Order to defendants by certified mail. See Order filed Sept. 29, 2008. Defendants failed to submit a response to plaintiffs' motion for sanctions, and also failed to appear at the status hearing on October 15. In short, defendants have utterly failed to participate in this case in any manner since mediation failed in July 2008. Not only has the time for responding to plaintiffs' discovery requests expired, but the deadline for completing discovery has expired as well.

Under these circumstances, the Court finds that sanctions are warranted, and that a default judgment against defendants is the appropriate sanction. Rule 37(d)(1)(A) provides that the Court may order sanctions against a party if:

(i) a party or party's officer, director or managing agent . . . fails, after being served with proper notice, to appear for that person's deposition; or

(ii) a party, after being properly served with interrogatories under Rule 33 . . . , fails to serve its answers, objections, or written response.

Fed. R. Civ. P. 37(d)(1)(A). Under Rule 37(d)(3), sanctions may include any of the sanctions listed in Rule 37(b)(2)(a)(i)-(vi). These are:

(i) directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims;

(ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing ...


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