Perry et al v. Fullerton et al

MOTION to Dismiss as Sanctions and Brief in Support

W.D. Okla.August 27, 2018

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA (1) BEVERLY PERRY, (2) LINDA WILSON, Plaintiffs, v. (1) G. DALE FULLERTON, (2) THE STATE OF OKLAHOMA ex rel., THE OKLAHOMA STATE BOARD OF VETERINARY MEDICAL EXAMINERS, Defendants. Case No.: 16-cv-1210-M (Removed from Comanche County Case No.: CJ-2016-116) DEFENDANT FULLERTON’S MOTION TO DISMISS AS SANCTION AND BRIEF IN SUPPORT Defendant G. Dale Fullerton respectfully requests a dismissal as sanctions imposed against Plaintiffs pursuant to Fed. R. Civ. P. 37(b)(2)(A)(v-vii). Defendant further requests Plaintiffs’ claims for emotional damages be stricken pursuant to Fed. R. Civ. P. 37(b)(2)(A)(ii). In the alternative, Defendants respectfully request Plaintiffs’ claims be dismissed for failure to prosecute or failure to comply with the Court’s Order. [Doc. 21]. In support of this Motion, Defendant states: 1. This matter was originally filed in the District Court of Comanche County on February 29, 2016. Defendant Fullerton removed this action to this Court on October 19, 2016, a full eight (8) months after the original filing as Plaintiffs waiting that long to serve Fullerton. [Doc. 1]. 2. Plaintiffs were placed on notice as far back as October 19, 2016 when Defendant Dale Fullerton’s former counsel, M. Daniel Weitman, stated in the Notice of Case 5:16-cv-01210-M Document 41 Filed 08/27/18 Page 1 of 16 ~ 2 ~ Removal to this Court “On September 30, 2016, Defendant Fullerton was served with the Complaint, service has not yet been achieved on the State of Oklahoma.” [Doc. 1 at ¶2] (emphasis added). Furthermore, every Entry of Appearance from former and current counsel has been clear that representation was for “Defendant G. Dale Fullerton” only and not The Oklahoma State Board of Veterinary Medical Examiners (“OSBVME”). [Docs. 2, 3, 8, and 9]. 3. Former Assistant Attorney General M. Daniel Weitman issued discovery to each Plaintiff on June 16, 2017. Plaintiff Perry provided her first of several haphazard responses to interrogatories on November 10, 2017. 4. The undersigned then requested an extension of all deadlines due to Plaintiffs’ failure to participate in discovery and litigation of this matter. [Doc. 16]. The Court granted the requested extension on December 19, 2017. [Doc. 17]. 5. On June 16, 2017, Defendant mailed discovery requests to Plaintiffs. Plaintiffs’ discovery responses were originally due July 16, 2017. [Doc. 18-1]. Nearly, a month later (August 10, 2017), counsel for Plaintiffs requested an extension of twenty (20) days, making their responses due August 30, 2017. Defendant agreed to the requested extension. [Doc. 18- 2]. 6. On October 10, 2017, Defendant’s counsel mailed correspondence to the address provided by Plaintiff’s counsel explaining that Plaintiffs’ discovery responses were forty-two (42) days late and requesting Plaintiffs to respond to said discovery. [Doc. 18-3]. 7. This letter was returned to OAG on October 13, 2017, as Plaintiffs’ counsel moved without giving Defendant notice of an address change. On October 27, 2017, Defendant attempted to contact Plaintiffs’ counsel by telephone. However, Plaintiffs’ Case 5:16-cv-01210-M Document 41 Filed 08/27/18 Page 2 of 16 ~ 3 ~ counsel’s office phone number would not accept calls from the Office of the Attorney General. Counsel for Plaintiffs were informed of this on October 27, 2017. 8. Plaintiffs’ counsel sent answers to interrogatories on behalf of Perry via e-mail on November 1, 2017. Perry’s Answers to Interrogatories, attached as Exhibit 1. Verifications for each Plaintiff were sent by U.S. mail on November 10, 2017 and again December 13, 2017. It should be noted that Wilson answered only two interrogatories and ignored the remainder.. Defendant’s counsel received documents from Plaintiffs prior to Thanksgiving 2017 as well as a USB drive with additional documents on November 27, 2017. [Doc. 18-7]. 9. Plaintiffs’ discovery production on November 11, 2017 included two boxes and a lid to a box full of ambiguously ordered and unmarked documents with no responses or objections to Defendant’s requests for production. It included electronic documents, many of which could not be opened in the files Plaintiffs presented to Defendant, thereby necessitating supplementation. The documents were not organized nor were they Bates Stamped for identification. Plaintiffs’ production of documents amounted to a document dump containing many documents that were not complete or enumerated requiring Defendant to attempt to ascertain what documents may relate to Plaintiffs’ non-existent discovery responses. 10. On January 16, 2018, Defendant mailed Plaintiffs a letter requesting that several deficiencies in Plaintiffs’ responses be remedied by January 26, 2018, or risk a motion to compel. [Doc. 18-7] 11. On January 26, 2018, Plaintiffs’ counsel sent supplemental responses to Defendant’s counsel accompanied by a letter promising further supplementation once his Case 5:16-cv-01210-M Document 41 Filed 08/27/18 Page 3 of 16 ~ 4 ~ client had recovered from the flu. Plaintiffs’ supplemental answers were still deficient. [Doc. 18-8]. 12. Plaintiffs’ attempts at supplementation were also incomplete, specifically, in supplementing the twenty-nine (29) documents that would not open, Plaintiffs have provided only eight (8) PDF documents of various messages that are clearly not in their original formats. 13. On February 26, 2018, Defendant filed a Motion to Compel regarding Plaintiffs’ deficient discovery. [Doc. 18]. 14. This Court granted Defendant’s motion, stating that “Plaintiffs’ responses to Fullerton’s discovery requests are deficient” and “more complete responses to the discovery requests shall be provided by Plaintiffs.” [Doc. 21]. 15. Less than one week before the Court’s ordered deadline for production, Plaintiffs contacted Defendant requesting a return of all documents produced in order to try and organize them, as Plaintiffs did not make a copy of any discovery materials originally produced. Defendant could not return all of the paper copies as many of them had been marked and reviewed and contained notes with litigation strategy and attorney work product on them. Defendant compromised by providing Plaintiffs’ with digital copies of all known documents on compact disc for Plaintiff to use in their efforts to comply with the Court’s Order. 16. Further, in Plaintiffs’ supplemental discovery responses received by Defendant’s counsel on May 4, 2018, Plaintiff Wilson responded “not applicable” when asked to produce all medical records related to the diagnosis or treatment of any condition alleged to have been caused by Defendant. See Plaintiffs’ Supplemental Responses to Interrogatories and Case 5:16-cv-01210-M Document 41 Filed 08/27/18 Page 4 of 16 ~ 5 ~ Requests for Production at p. 62, attached as Exhibit 2. However, in contradiction Wilson then produced a single medical record and a receipt from a counseling visit, which allegedly relates to treatment of any condition alleged to be caused by Defendant. 17. On June 19, 2018, Counsel for Plaintiffs requested the deposition of the “the board member with the most knowledge of Defendant Fullerton and the preparation of the report.” On June 20, 2018, in response to counsel’s email, Defendant expressly stated to Plaintiffs’ that he had failed to serve OSBVME and that Mr. Fullerton, in his individual capacity, was the sole Defendant in this litigation. Email String between Delluomo and Bunson, attached as Exhibit 3. 18. Plaintiffs then proceeded to issue summons to OSBVME on June 20, 2018 [Doc. 22]. From June 20, 2018 to the date of this filing, Plaintiffs have had over sixty (60) days since the issuance of Summons and still have not attempted service on the proper entity as required by statute. Plaintiffs have been more than made aware of their procedural deficiencies and have continued to let the clock run. June 21, 2018 Email from Bunson to Delluomo, attached as Exhibit 4. Also, in an August 6, 2018 telephone conversation between counsel, Plaintiffs still feigned lack of knowledge of their procedural failure to serve OSBVME. August 6, 2018 Email from Bunson to Delluomo, attached as Exhibit 5. 19. It was not until August 7, 2018, more than two and a half (2.5) years after filing this lawsuit, and repeated notifications by Defendant, that Plaintiffs admitted they failed to serve OSBVME within the statutorily required time limit. In an attempt to remedy their neglect in prosecuting this case, Plaintiffs’ counsel filed a Motion for Extension/Enlargement of Time to Serve Defendant. [Doc. 28]. Case 5:16-cv-01210-M Document 41 Filed 08/27/18 Page 5 of 16 ~ 6 ~ 20. Plaintiffs have now missed the August 1, 2018 deadline for filing their Witness and Exhibit List, and have filed two (2) motions requesting an extension of time due to “a docketing error.” [Docs. 30, 31]. 21. Two days before Plaintiffs’ depositions were to begin, on August 6, 2018 Counsel for Plaintiffs contacted Counsel for Defendant requesting the depositions be postponed, as Plaintiffs had, in their possession documents related to this case that had not yet been produced to Defendant. 22. Defendant requested the documents be immediately produced in an attempt to review them prior to Plaintiffs’ scheduled depositions. See Ex. 5. 23. During Plaintiffs’ depositions on August 8 and 9, 2018, Plaintiffs admitted to having documents in their possession they had not yet turned over, in violation of this Court’s Order. Plaintiff Perry admitted in her deposition that there were “documents in our possession, meaning yours and mine, that are not here. See Deposition of Beverly Perry, at p. 9, ln. 3-6, attached as Exhibit 6. However, Plaintiff Perry stated it was “difficult to know which ones are missing and which ones aren’t.” Id. at p. 10, ln. 9-12. Plaintiff Perry also had medical bills she had not produced. Id. at p. 70, ln. 16 – p. 71, ln. 2. Plaintiff Wilson testified that there were documents outside of the documents she provided and that she would rely on for her testimony. See Deposition of Linda Wilson, at p. 7, ln. 2-6, attached as Exhibit 7. Plaintiff Wilson further testified that she had medical records she had not produced. Id. at p. 68, ln. 14 – p. 69, ln. 15. Plaintiff Wilson also acknowledged that her failure to provide the documents she claimed were in her possession prior her deposition meant that she was not in compliance with the Court’s order. Ex. 7, p. 68, ln. 24 – p. 69, ln. 15. Case 5:16-cv-01210-M Document 41 Filed 08/27/18 Page 6 of 16 ~ 7 ~ 24. Despite Defendant’s Counsel’s conversation with Plaintiff’s Counsel, no documents were provided by Plaintiffs or Plaintiffs’ Counsel at the depositions. 25. At the time of this filing, over two weeks after Plaintiffs’ depositions, no documentation has been provided to Defendant, even though they have been directly requested. 26. In addition, counsel has provided numerous possible dates for Defendant’s deposition beginning in June 2018. Bunson email to Delluomo of July 16, 2018, attached as Exhibit 8. Plaintiffs have refused to respond to Defendant’s dates. Instead, Plaintiffs filed a Notice to Take Deposition of Defendant on date that was not provided by Defendant, and a date he is unavailable. [Doc. 27]; see also Bunson email to Delluomo of July 27, 2018, attached as Exhibit 9. 27. Counsel for Plaintiffs stated on August 8, 2018 that he would withdraw the Notice of Deposition, which he failed to do. Counsel for Defendant emailed Plaintiffs and stated that pursuant to their verbal agreement, Mr. Fullerton would not be present for the noticed deposition. Ray email to Delluomo of August 13, 2018, attached as Exhibit 10. 28. Counsel for Defendants has continued to request dates for Defendant’s Deposition, which have been ignored. Now, due to their inability to communicate with Defendant and/or prosecute their case in good faith, Plaintiffs have filed a motion to extend discovery deadlines. This new date for discovery completion is a mere one day before Pretrial, and well after the deadline to file dispositive motions. [Docs. 17 and 34]. 29. At the deposition of Plaintiffs, Counsel for Plaintiff stated that he would provide Defendant dates he was available for Defendant’s deposition, as Counsel for Plaintiffs Case 5:16-cv-01210-M Document 41 Filed 08/27/18 Page 7 of 16 ~ 8 ~ calendar was booked. Counsel for Defendant reminded Plaintiffs and requested dates for this deposition. Ray email to Delluomo of August 13, 2018, attached as Exhibit 11. 30. Counsel for Plaintiffs only responded to Defendant with potential dates on Friday, August 24, 2018 at 3:38 pm, merely a week before the discovery cut off and over two weeks after Counsel for Defendant requested the dates. Delluomo email to Ray of August 24, 2018, attached Exhibit 12. 31. Counsel of record for Defendant believes that a look at the docket sheet of this matter, along with provided documentation, clearly displays Plaintiffs’ counsel’s inability to adhere to the Federal Rules of Civil Procedure. Additionally, Fullerton’s counsel believes it has shown the Court Plaintiffs’, as well as their counsel’s hesitancy to pursue this litigation in good faith. STATEMENT OF THE CASE On January 8, 2014, the City of Lawton requested the Oklahoma Board of Veterinary Medicine (“OBVM”) undertake an investigation into the Lawton Animal Shelter, due to the City receiving complaints of animal neglect and cruelty at the Shelter. The OBVM approved the City of Lawton’s request and Dale Fullerton, Chief Investigator, undertook the investigation. Shortly after beginning his investigation, Fullerton realized he had stepped into a hornets nest. Not only had animals been starved to death at the Shelter, but there were also allegations of cruelty in the animal neutering procedure. Apparently, a huge public debate had erupted over the use of chemical castrations on dogs housed at the Shelter. Several citizens, including Plaintiffs, and at least one animal welfare group, organized and operated by Plaintiff Case 5:16-cv-01210-M Document 41 Filed 08/27/18 Page 8 of 16 ~ 9 ~ Perry, had become involved in the debate as to whether chemical castration was cruel to the animals. Because the allegations of Plaintiffs included allegations of cruelty at the Shelter, Fullerton investigated these allegations. During the investigation, Fullerton learned that many of the citizens who were alleging cruelty had taken to social media and had made, what in Fullerton’s opinion, were threats against the staff and veterinarians at the Shelter. Fullerton completed his investigation and prepared a report, which contained recommendations regarding the Shelter and the threatening comments. Fullerton shared the report with the relevant authorities, as authorized and required by statute, including OBVM, the local district attorney and the City of Lawton. The report was not to be shared with the public and, in fact, specifically stated, “[t]his report is the property of O.S.B.M.V.E. Neither it, nor its contents may be disseminated outside the Agency to which it is loaned” on the bottom of each and every page of the authored report. Regardless of this statement, the City of Lawton, apparently, released the report to the media almost immediately. Fullerton’s position is that he conducted an investigation, reported his findings, and made recommendations regarding his findings. The facts and recommendations were supposed to remain confidential. The creation of the report and its contents were not in retaliation for any activity of Plaintiffs, but instead were an objective report of what he observed. Fullerton has done nothing improper. As a result, of Fullerton’s investigation, Plaintiffs filed this action in Comanche County on February 29, 2016, alleging: (1) Libel and Slander; (2) Negligence; (3) Invasion of Privacy/False Light; (4) Harassment/Deceit; and (5) Civil Rights Violation. Defendant Case 5:16-cv-01210-M Document 41 Filed 08/27/18 Page 9 of 16 ~ 10 ~ Fullerton removed this action to this Court on October 19, 2016. [Doc. 1]. Plaintiffs allege they incurred medical expenses, as a result of pain and suffering, mental anguish, emotional distress caused by Fullerton’s investigation [Doc. 1-1]. At no time during this litigation have Plaintiffs’ attempted to serve Defendant OSBVME, despite having named them in their lawsuit and being notified by Fullerton’s counsel that service had not been achieved. Now after several months, a Court order directing Plaintiffs to properly respond to discovery and multiple extensions, Plaintiffs are asking the Court, once again, to overlook their failure to participate in the prosecution of their case. A scan of the docket sheet and pleadings filed in this matter accurately reflects Plaintiffs’ inability to adhere to deadlines imposed by the Court or the Federal Rules of Civil Procedure. ARGUMENT AND AUTHORITIES PROPOSITION I: PLAINTIFF SHOULD BE SANCTIONED FOR FAILURE TO COOPERATE WITH DISCOVERY According to the Tenth Circuit Court of Appeals, “[a] district court undoubtedly has discretion to sanction a party for failing to prosecute or defend a case, or for failing to comply with the local or federal procedural rules.” Reed v. Bennett, 312 F.3d 1190, 1195 (10th Cir. 2002). In the case where a plaintiff fails comply with such order; the court may issue any of the following orders under Fed. R. Civ. P. 37(b)(2)(A)(i)-(vi): (i) directing that the matters embraced in the court 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 designated matters as evidence; (iii) striking pleadings in whole or part; (iv) staying further proceedings until the order is obeyed; (v) dismissing the action or proceedings in whole or in part; or Case 5:16-cv-01210-M Document 41 Filed 08/27/18 Page 10 of 16 ~ 11 ~ (vi) rendering a default judgment against the disobedient party. Fed. R. Civ. P. 37(b)(B). “[A]n evasive or incomplete disclosure, answer, or response must be treated as failure to disclose, answer, or respond. Fed. R. Civ. P. 37(a)(4). The rule sets out one exception when a party fails to comply with an order under Fed. R. Civ. P. 35(a), “unless the disobedient party shows that it cannot produce the other person.” Fed. R. Civ. P. 37(b)(B). Here, Plaintiffs have refused throughout this process to prosecute this case and blatantly failed to comply with this Court’s order wherein Plaintiff’s failed, once again, to fully respond to discovery. [Doc. 21]. Additionally, at Plaintiffs’ depositions, each admitted to having documents within their possession that had not yet been turned over to Defendant. (See Exs. 6 and 7). The most egregious of these was Plaintiff Wilson’s admission that she had medical records in her possession, though she responded in her verified discovery responses that such records were “not applicable” and that she only had one medical record. In fact, Plaintiff Wilson agreed that she was not in compliance with the Court’s Order. (Ex. 7.). Such refusal to provide medical records, documents, and names of medical providers deprives Defendants of the ability to determine the existence and extent of Plaintiffs’ alleged injuries. As such, Defendant respectfully requests this Court to enter any or all of the orders listed in Fed. R. Civ. P. 37(b)(2)(A)(i)-(vi). PROPOSITION II: PLAINTIFF’S CLAIMS SHOULD BE DISMISSED The Court should Dismiss Plaintiffs case pursuant to Fed. R. Civ. P. 37(b)(2)(A)(v), as a sanction for the unwarranted and contemptuous behavior of Plaintiffs in their absolute failure to comply with Court ordered discovery. Additionally, the Court should dismiss Plaintiffs case pursuant to Fed. R. Civ. P. 41(b) for failure to prosecute and failure to comply Case 5:16-cv-01210-M Document 41 Filed 08/27/18 Page 11 of 16 ~ 12 ~ with a court order. A district court can dismiss a case with prejudice for failure to comply with discovery rules, especially where an order has previously been entered requiring it. See: Schroeder v. Southwest Airlines, 129 F.App’x 481 (10th Cir. 2005). In Schroeder, a Tile VII case, the plaintiff had repeatedly failed to properly serve pleadings or respond to discovery. The district court there also found that plaintiff had failed to prosecute her case or comply with discovery requests, and dismissed the case with prejudice. In addition to her failure to serve copies of her pleadings (apparently before electronic filing and service), she failed to respond to written discovery over a period of only four (4) (December 2003 – February 2004) months. During that timeframe, plaintiff apparently also failed to appear for her own deposition or adequately respond to defendant’s written discovery. The Tenth Circuit upheld the dismissal with prejudice finding that “a district court undoubtedly has discretion to sanction a party for failing to prosecute a case or for failing to comply with local or federal procedural rules…in addition, a district court has discretion to dismiss a case for discovery violations…” citing LaFleur v. Teen Help, 342 F.3d 1145, 1151 (10th Cir. 2003)(other internal citation omitted). Similarly, Plaintiffs claims should be dismissed under 41(b). In evaluating dismissals, whether under 27 or 41(b), the Court considers five (5) criteria for evaluating dismissal as a sanction: (1)The degree of actual prejudice to the defendant; (2) the amount of interference the judicial process; (3) the culpability of the litigant; (4) whether the court warned the party in advance that dismissal of the action would be a likely sanction for noncompliance; and (5) the efficacy of lesser sanction. Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir. 1992). In Schroeder, the court agreed that plaintiff along with her attorney, failed on all counts and that both were culpable. Schroeder at ¶ 3. Case 5:16-cv-01210-M Document 41 Filed 08/27/18 Page 12 of 16 ~ 13 ~ Under the Ehrenhaus standard, dismissal is warranted in this case under Rule 27. Here, the first two (2) criteria are met: Plaintiffs have failed to adequately respond to discovery, and therefore Defendant will suffer actual prejudice because he is unable to defend himself properly. Plaintiffs’ failure to provide Defendant with medical documents or respond to Defendant’s requests is unheard of and indefensible. Without the improperly withheld documents by Plaintiffs, Defendant cannot properly defend the case as he is unable to determine the existence and extent of the injuries Plaintiffs are claiming. Further, Defendant has no idea what other documents are in Plaintiffs’ possession. As to the culpability and notice of Plaintiffs, in an Order entered by this Court pertaining to Defendant’s Motion to Compel [Doc. 19], the Court stated “Plaintiffs’ responses to Fullerton’s discovery requests are deficient and that more complete responses to the discovery should be provided by Plaintiffs.” See [Doc. 21]. Apparently, this Order had no impact on Plaintiffs. Finally, while there are other sanctions available, none will effectively alleviate the prejudice to Defendant or the interference with the Court’s own docket. To allow Plaintiffs to provide discovery or support their claims with evidence where they have been ordered and failed to do so already, will put Defendant and the Court right back where it started months ago. In addition, Plaintiffs have failed to comply with Federal Rules of Civil Procedure in prosecuting this case, which only serves to further prejudice Defendant. The only reasonable and warranted response is a dismissal. Plaintiffs have refused to cooperate in discovery. This Court ordered Plaintiffs to comply with discovery. However, in their own depositions, Plaintiffs admit they have documents they still have not turned over, in direct opposition to the Court order and both acknowledged the Case 5:16-cv-01210-M Document 41 Filed 08/27/18 Page 13 of 16 ~ 14 ~ withholding of documents means they are not in compliance with this Court’s order. It has been over two weeks since Plaintiffs’ depositions, and still no communication from Plaintiffs regarding the documents in question. Plaintiffs’ case should be dismissed pursuant to Fed. R. Civ. P. 37(b)(2)(A)(v) as a sanction for the unwarranted and contemptuous behavior of Plaintiffs in their failure to comply with discovery. Similarly, Plaintiffs case should be dismissed for failure to prosecute. Plaintiffs’ continual lack of communication and failure to comply with the Federal Rules of Civil Procedure are inexcusable and have caused undue prejudice to Defendant. Defendant gave Plaintiffs deposition dates beginning in June, 2018. Plaintiffs continually ignored Defendant’s emails, and now are seeking to extend the discovery deadline to the day before pretrial, after any dispositive motions have been filed. In addition, Plaintiffs have failed to provide a Final Witness and Exhibit List as required under the Scheduling Order, and have failed to serve OSBVME. PROPOSITION III: PLAINTIFFS SHOULD BE PROHIBITED FROM SUPPORTING OR OPPOSING DESIGNATED CLAIMS OR DEFENSES, OR FROM INTRODUCING DESIGNATED MATTERS AS EVIDENCE One other available sanction warranted in this matter, again if the Court is not inclined to grant an outright dismissal, would be that Plaintiffs be prohibited in opposing defenses offered by Defendant in regards to all areas where discovery was sought in regards to Plaintiffs alleged mental injury. This would include issues of any claim of PTSD, anxiety, and/or depression which Plaintiffs claim were caused by Defendant, or any other area where Plaintiffs failed to provide responses and that all pertinent facts and reasonable Case 5:16-cv-01210-M Document 41 Filed 08/27/18 Page 14 of 16 ~ 15 ~ inferences to be drawn from such facts be taken as established for purposes of this action. See: Fed. R. Civ. P. 37(b)(2)(A)(i)-(ii). PROPOSITION IV: DEFENDANT SHOULD BE AWARDED ATTORNEYS’ FEES AND EXPENSES The Court may also award fees and costs against a non-cooperating party under Rule 37 instead of or in addition to those listed in Fed. R. Civ. P. 37 (b)(2)(A)(i)-(vi). Fed. R. Civ. P. 37(b)(C) (emphasis added). The purpose of awarding fees under Rule 37 is to deter the abuse of the discovery process and to “put teeth in the tiger of Rule 37.” Diaz v. Romer, 961 F.2d 1508, 1512 (10th Cir. 1992). The provision places the burden on the disobedient party to avoid expenses by showing that his failure is “justified or that certain circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(b)(C). Here, Plaintiffs’ willful failure to respond to discovery is failure to comply with this Court’s Order [Doc. 21], and Defendant’s fees and costs should be awarded. Defendant’s counsel will submit for approval their hours spent conferring and preparing this motion to be filed because Plaintiffs failed to comply with the Order, if this Court deems attorneys’ fees and expenses are warranted. Defendants respectfully request the Court order Plaintiffs to pay Defendant’s attorney’s fees and costs to be determined. CONCLUSION In light of the foregoing, Defendant prays this Court dismiss this case as a sanction, or in the alternative, Plaintiffs’ claims for severe emotional distress should be stricken. Defendants also request payment of attorneys’ fees and costs and for any and all other such relief the Court deems just and proper. Case 5:16-cv-01210-M Document 41 Filed 08/27/18 Page 15 of 16 ~ 16 ~ Respectfully submitted, /s/ Timothy M. Bunson TIMOTHY M. BUNSON, OBA# 31004 LAUREN RAY, OBA#22694 Assistant Attorneys General Oklahoma Attorney General’s Office Litigation Unit 313 NE 21st Street Oklahoma City, OK 73105 Telephone: 405.521.3921 Facsimile: 405.521.4518 Email: tim.bunson@oag.ok.gov Email: lauren.ray@oag.ok.gov Attorneys for G. Dale Fullerton CERTIFICATE OF SERVICE I hereby certify that on this 27th day of August 2018, I electronically transmitted the above and foregoing document to the Clerk of the Court using the ECF System for filing and to the following ECF registrants: Daniel M. Delluomo Steven W. Crow 6812 N. Robinson Ave. Oklahoma City, OK 73116 Attorneys for Plaintiffs /s/Timothy M. Bunson Timothy M. Bunson Case 5:16-cv-01210-M Document 41 Filed 08/27/18 Page 16 of 16