United States v. Moser

168 F.R.D. 171, 1996 U.S. Dist. LEXIS 12057, 1996 WL 478804
District Court, M.D. Pennsylvania·Decided August 7, 1996·No. No. 4:CV-95-0115·Published·Cited by 2 cases

Opinion

OPINION

MUIR, District Judge.

I. Introduction.

On January 25,1995, the Government commenced this civil action against Defendants Steven P. Moser and Deborah A. Moser pursuant to the Financial Institution Reform, Recovery, and Enforcement Act of 1989, 12 U.S.C. § 1811, et seq. The Government sought an award of civil penalties against the Mosers for the Mosers’ alleged fraudulent submission of claims to several financial institutions. The Mosers are proceeding pro se.

The Clerk of Court assigned responsibility for this case to us but referred it to United States Magistrate Judge Raymond J. Durkin for preliminary consideration.

On January 11, 1996, Magistrate Judge Durkin issued a report in which he recommended that the Government’s motion for sanctions against the Mosers for failure to participate in discovery be granted and that such sanction be in the form of a default judgment entered in favor of the Government and against the Mosers in the amount of $9,000,000. Because we were of the view that awarding a judgment of $9,000,000 for the Government and against the Mosers would be excessive, on February 16,1996, we issued an order in which we set a briefing schedule as to the proper sanction, if any, to be imposed upon the Mosers.

After the conclusion of briefing, on May 31, 1996, we held a hearing on the question. During the hearing, the Mosers argued that this Court had no jurisdiction over them, and that the case should be dismissed on that ground. Because the issue of jurisdiction was not properly before this Court on a motion we issued an order on June 4,1996, in which we allowed the Mosers a period of time within which to file a motion to dismiss based on lack of personal jurisdiction. On June 17, 1996, the Mosers filed a document which we construed to be a motion to dismiss based upon lack of personal jurisdiction. On July 24,1996, we issued an order in which we denied the Mosers’ motion to dismiss based upon lack of personal jurisdiction. Now ripe for disposition is the issue regarding the proper sanction, if any, to be imposed upon the Mosers by reason of the Mosers’ failure to participate in discovery. The following are the Court’s findings of fact, discussion, and conclusions of law with respect to the issue raised.

II. Findings of Fact.

1. The complaint in this action was filed on January 25,1995.

2. The complaint alleged that the Defendants Steven and Deborah Moser committed violations of three federal statutes; 18 U.S.C. § 1014,1341,1344.

3. Each statutory violation noted in paragraph 2 above is a violation of the Financial Institution Reform, Recovery and Enforcement Act, 12 U.S.C. § 1833a, et seq.

4. The violations of the above statutes were the result of the Mosers using worthless money orders in attempts to. satisfy debts owed to three banks located in this district.

5. On April 6, 1995, the Mosers filed a “Motion to Dismiss Due to Erroneous Complaint as Provided in Title 28 U.S.C. [173] § 1002.” * No brief was filed in support of this motion.

6. On April 17, 1995, Magistrate Judge Durkin issued a case management order directing, among other things, that a scheduling conference be held on May 17, 1995.

7. Steven Moser appeared at said conference but Deborah Moser failed to attend.

8. On May 4, 1995, the Government served on both Defendants its first request for production of documents and first set of interrogatories.

9. On July 10, 1995, the Mosers returned these discovery documents to the Government as “refused,” and did not provide any responses thereto.

10. On May 18, 1995, Magistrate Judge Durkin directed the Government to respond to the Mosers’ motion to dismiss.

11. - On May 26, 1995, the Government responded in opposition to the Mosers’ Motion to Dismiss.

12. On June 8, 1995, a second case management order was issued by Magistrate Judge Durkin.

13. On June 21, 1995, Magistrate Judge Durkin denied the Defendants’ motion to dismiss, stating that it was “completely without merit.”

14. On September 18, 1995, the Government issued notices of depositions to both Defendants which stated that depositions would be held on October 5,1995.

15. Also on September 18, 1995, the Government filed a motion to compel responses to its interrogatories and document requests. A brief in support was also filed.

16. The Mosers failed to appear at the depositions scheduled for October 5, 1995, and did not file any objections to said depositions.

17. On October 30,1995, the Court issued an order granting the Government’s motion to compel and directing that the Mosers respond to the interrogatories and document requests within 10 days of that order.

18. The Mosers did not comply with the order.

19. On November 24, 1995, the Magistrate Judge issued an order which warned the Mosers that continued failure on their part to abide by the rules of the Court could result in sanctions.

20. On November 28, 1995, the Government filed a second motion to compel discovery, with a brief, based on the additional failure of the Mosers to appear at their depositions and on the Mosers’ return of the deposition notices marked “Refused for Cause.” This second motion sought sanctions in the form of a default judgment for the Government.

21. On November 29, 1995, the United States filed and served a petition for entry of default.

22. On December 15, 1995, a default was entered by the Clerk of Court against both Defendants.

23. On January 11, 1995, Magistrate Judge Durkin issued a report and recommendation finding that the Mosers had not only failed to comply with proper discovery requirements, but also had flouted the jurisdiction of the Court and unduly swelled the record with irrelevant documents.

24. The report and recommendation contained a recommendation that a sanction be imposed in the form of a default judgment for $9,000,000, the maximum allowed for the violations of law committed by the Mosers.

25. On January 22,1996, the Mosers filed two documents with the Court”: “Notice” and “Refusal for Cause.”

26. On January 30,1996, the Government responded to the “Refusal for Cause.”

27. On February 16, 1996, this Court directed the United States to file a brief regarding sanctions deemed appropriate by the Government and permitting the Mosers to respond to that brief.

28. On February 23, 1996, the Government filed its brief in support of sanctions [174] which asserted that a sanction in the form for a default judgment for $10,000 was appropriate.

29. The Government has been required to expend significant labor and other resources in investigating, prosecuting, and litigating this matter.

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United States v. Moser, 168 F.R.D. 171, 1996 U.S. Dist. LEXIS 12057, 1996 WL 478804 (M.D. Pa. 1996).

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