Case No. 03-2424-DJW.
November 18, 2004
MEMORANDUM AND ORDER
On November 1, 2004, this Court overruled Plaintiff's Motion to Strike Defendant's Answer and for Entry of Default Judgment on the Issue of Liability (doc. 55). This Memorandum and Order provides the findings of fact and conclusions of law related to the Court's November 1, 2004 ruling.
Plaintiff alleges he was injured when a rack of metal pipes tipped over and the only witnesses to this incident were Plaintiff and Defendant's employees. Plaintiff maintain that Defendant, although generally listing "employees" in their initial and final witness lists, intentionally has concealed from Plaintiff the names, addresses and social security numbers of its employees. Plaintiff argues the appropriate sanction for failing to disclose this information is to enter a default judgment against Defendant. The Court disagrees.
Pursuant to Federal Rule of Civil Procedure 26(a)(1)(B), a party must disclose "the name and, if known, the address and telephone number of each individual likely to have discoverable information that the disclosing party may use to support its claims or defenses, unless solely for impeachment, identifying the subjects of the information." Further, Rule 26(e)(1) requires a party to supplement or amend its disclosures and discovery responses if it learns the information disclosed or the response is somehow incomplete or incorrect.
Federal R. Civ. P. 37(b)(2)(C) and 37(d) permit a court to enter a default judgment against a party who fails to obey an order to provide discovery or who fails to respond to interrogatories or requests for production. A default judgment is a harsh sanction that will be imposed only when the failure to comply with discovery demands is the result of "`wilfulness, bad faith, or [some] fault of petitioner' rather than inability to comply." A "willful failure" is an intentional failure rather than involuntary noncompliance.
M.E.N. Co. v. Control Fluidics, Inc., 834 F.2d 869, 872 (10th Cir. 1987) (quoting National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 640 (1976) (quoting Societe Internationale Pour Participations Industrielles Et Commerciales, S.A. v. Rogers, 357 U.S. 197, 212 (1958))).
Id. at 872-73.
Defendant adamantly denies Plaintiff's allegations of intentional concealment and states it has been unable to locate the employment records containing the information Plaintiff seeks. More specifically, Defendant states as follows:
• Prairie Center Muffler, Inc. closed its business on September 30, 2003 and the corporation subsequently was dissolved.
• At her deposition, Staci Barthol, co-owner of Defendant company, testified she thought she had the personnel records pertaining to the business at their home. She also thought she had other business records such as invoices and delivery tickets for the August 2003 time period.
• Following the deposition, Staci searched diligently, on more than one occasion, for the records that would identify the former employees of the business. None of these records have been found.
• Staci Barthol explained to plaintiff's counsel off the record at her deposition, that the man who served as their accountant embezzled a significant amount of money from the Barthol's business and other businesses. In the process of his prosecution, the government confiscated the records from the accountant. It is now believed that the sought after records pertinent to August 2003 were among those records. Staci Barthol has made attempts to get the records back now that the accountant has been convicted and is serving time in a federal penitentiary, but she has not been successful.
• At her deposition, Staci testified to the best of her knowledge concerning the former employees of the business. She identified John Werner. She identified Larry Melvin and remembered he lived in Gardner, Kansas. She identified Allen, last name unknown who had just moved to Lawrence Kansas. Some time after the deposition, Staci advised defense counsel that Allen was Allen Morris. This information was relayed to plaintiff's counsel. The defendants had no other information about former employees.
• The Barthols have never refused to answer questions and have made a good faith attempt to obtain the information within their possession, custody and control. They told the truth to the best of their knowledge and recollection.
Based on the facts presented, the Court is not persuaded that Defendant failed to comply with a discovery order or that Defendant intentionally concealed from Plaintiff the names, addresses and social security numbers of its former employees. Because the sanction of a default judgment that will be imposed only when the failure to comply with discovery demands is intentional rather than involuntary, Plaintiff's Motion is denied.
IT IS SO ORDERED.