Buckeye Union Insurance v. Boggs

109 F.R.D. 420, 1986 U.S. Dist. LEXIS 29078
CourtDistrict Court, S.D. West Virginia
DecidedFebruary 21, 1986
DocketCiv. A. No. A:85-0502
StatusPublished
Cited by9 cases

This text of 109 F.R.D. 420 (Buckeye Union Insurance v. Boggs) is published on Counsel Stack Legal Research, covering District Court, S.D. West Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Buckeye Union Insurance v. Boggs, 109 F.R.D. 420, 1986 U.S. Dist. LEXIS 29078 (S.D.W. Va. 1986).

Opinion

MEMORANDUM OPINION AND ORDER

HADEN, Chief Judge.

This case presents an unusual situation for the Court. It is currently before the Court on two dispositive motions by the Plaintiff: a fairly standard motion for summary judgment and a “Motion for Judgment by Default.” The motions are unrelated. The Defendants have apparently chosen to ignore both motions. They have not responded with either memoranda or affidavits. Before turning to the merits of either motion, the Court will review the brief history of this case.

I. Background

The Plaintiff filed its complaint on April 26, 1985. The complaint alleges that the Defendants executed and delivered to the Plaintiff on or about October 5, 1973, an agreement of indemnity. In reliance upon the agreement of indemnity, the Plaintiff executed various surety bonds to Orlando Coals, Inc., the contractor named in the agreement of indemnity. The Plaintiff further alleges that by the terms of the agreement the Defendants jointly and severally agreed to indemnify the Plaintiff for any expenses or liability incurred by reason of the Plaintiff’s execution of the bonds. The Plaintiff alleges that it has suffered losses in the total amount of $129,000 and that the Defendants have refused to provide indemnity.

The Defendants failed to timely answer the complaint. On May 28, 1985, the Clerk notified counsel that there had been a fail[421]*421ure to answer within the appropriate time frame. He directed counsel to take the appropriate steps to dismiss the Defendants or to cause default to be entered.

On June 13, 1985, the Defendants having yet to file an answer, the Court by Order directed the Clerk to enter the Defendants’ default. The Order directed the Plaintiff’s counsel to submit the appropriate documents to facilitate the final entry of default. Thereafter, on July 1, 1985, the Plaintiff filed its motion for judgment by default.1

Also on July 1, 1985, the Defendants filed their motion to set aside entry of default. Such was their first activity in the case. On July 3, 1985, the Court granted the Defendants’ motion and directed the Clerk to file their answer.

On August 8, 1985, the Court issued a Pretrial Procedures and Final Scheduling Order which, inter alia, set the discovery cutoff date as November 11, 1985. On November 8, 1985, the parties filed an agreed order, approved by the Court, which extended discovery to November 25, 1985.

The Plaintiff served interrogatories and request for production of documents on the Defendants on September 30, 1985. The discovery requests were ignored by the Defendants. The Plaintiff moved to compel production. In an Order dated December 13, 1985, the Court directed the Defendants to answer and respond to the discovery within fourteen days. The Defendants were advised in the Order that failure to comply might result in sanctions being imposed against them, including “the entry of judgment against them without trial.” The Defendants did not comply with the Order. The discovery is apparently unanswered at even this date. Moreover, on October 1, 1985, the Plaintiff noticed the Defendants for depositions to be taken on November 6, 1985. The Defendants did not appear as requested.

II. Motion for Judgment by Default

As a result of the Defendants’ failure to comply with the Plaintiff’s discovery as ordered by the Court, the Plaintiff has moved the Court to enter judgment by default in its favor against the Defendants, jointly and severally. In so moving, the Plaintiff cites Rule 55 of the Federal Rules of Civil Procedure. Even more apposite is Rule 37. The following language of Rule 37(b)(2) addresses the type of situation presented by this case:

“(2) If a party ... fails to obey an order to provide or permit discovery ... the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following:
# Sri * £ £ *
(c) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party.”

Rule 37(b)(2), Federal Rules of Civil Procedure (emphasis added).

The Fourth Circuit in Wilson v. Volkswagen of America, Inc., 561 F.2d 494 (4th Cir.1977), cert. denied, 434 U.S. 1020, 98 S.Ct. 744, 54 L.Ed.2d 768 (1978), extensively reviewed the circumstances under which a judgment by default may be entered against a disobedient defendant. It noted that the sanction of default judgment is “the most severe in the spectrum of sanctions provided by statute or rule.” Id. at 503 (quoting National Hockey League v. Metropolitan Hockey Club, 427 U.S. 639, 643, 96 S.Ct. 2778, 2781, 49 L.Ed.2d 747 (1976)). With that note, the Wilson court set forth some controlling principles to be considered by the sanctioning court:

“[T]he Trial Court’s ‘range of discretion is more narrow’ than when the Court is imposing other less severe sanctions. The reason for this narrower range of discretion is that the sanction of a default judgment, though ‘a rational method of enforcement of the discovery rule,’ in an appropriate case, represents in effect ‘an infringement upon a party’s [422]*422right to trial by jury under the Seventh Amendment’ and runs counter to ‘sound public policy of deciding cases on their merits,’ and against depriving a party of his ‘fair day in court.’ Because of the importance of these constitutional and policy considerations, a leading text has stated that the exercise of the power should be confined to the ‘flagrant case’ in which it is demonstrated that the failure to produce ‘materially affect[s] the substantial rights of the adverse party' and is ‘prejudicial to the presentation of his case.’ This is so because a default judgment should normally not be imposed so as ‘to foreclose the merits of controversies as punishment for general misbehavior’ save in that rare case where the conduct represents such ‘flagrant bad faith’ and ‘callous disregard’ of the party’s obligation under the Rules as to warrant the sanction not simply for the purpose of preventing prejudice to the discovering party but as a necessary deterrent to others. Even in those cases where it may be found that failure to produce results in the discovering party’s case being jeopardized or prejudiced, it is the normal rule that the proper sanction ‘must be no more severe ...

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Bluebook (online)
109 F.R.D. 420, 1986 U.S. Dist. LEXIS 29078, Counsel Stack Legal Research, https://law.counselstack.com/opinion/buckeye-union-insurance-v-boggs-wvsd-1986.