Opinion
Civil Action No. 3:00-CV-1680-G
January 18, 2001
MEMORANDUM ORDER
Before the court is the motion of the defendants, J. Russell Kerr, Jr., Fan Brace, Inc., Angelo Fan Brace, L.L.C., Angelo Fan Brace Licensing, L.L.C. and Fan Tex, Inc. ("defendants"), for sanctions and to enlarge the time for discovery. For the reasons discussed below, the motion is denied.
I. ANALYSIS A. Sanctions
This court has the inherent power, as well as the authority expressly granted to it under the Federal Rules of Civil Procedure, to impose sanctions where warranted. See Chambers v. NASCO, Inc., 501 U.S. 32, 46 (1991) (finding "no basis for holding that the sanctioning scheme of the statute and the rules displaces the inherent power to impose sanctions"). Rule 37 of the Federal Rules of Civil Procedure provides that, for failure to "obey an order to provide or permit discovery," a court may "make such orders in regard to the failure as are just." FED. R. CIV. P. 37(b)(2). For the court to impose sanctions under Rule 37, however, there must be a violation of a discovery order. See Bayou, S.A. v. Polembros Shipping Limited, 196 F.R.D. 479, 482 (S.D. Tex. 2000) (citing Lillie v. United States, 40 F.3d 1105, 1109 (10th Cir. 1994); Bashir v. National R.R. Passenger Corp., 929 F. Supp. 404, 413 (S.D. Fla. 1996) [, aff'd, 119 F.3d 929 (11th Cir. 1997)]).
Apart from the Rules, the court has the inherent power to issue sanctions for discovery abuses, but such power "must be exercised `with restraint and discretion.'" Natural Gas Pipeline Company of America v. Energy Gathering, Inc., 2 F.3d 1397, 1406 (5th Cir. 1993) (quoting Roadway Express, Inc. v. Piper, 447 U.S. 752, 764 (1980)), cert. denied, 510 U.S. 1073 (1994). Under its inherent power, a court may impose the sanctions of striking a defense or deeming a fact as established when "a preponderance of the evidence establishes that a party's misconduct has tainted the evidentiary resolution of the issue." Shepherd v. American Broadcasting Companies, Inc., 62 F.3d 1469, 1478 (D.C. Cir. 1995) (holding that unlike "punitive sanctions," such as dismissal, which require a showing of extraordinary misconduct by clear and convincing evidence, "issue related sanctions" require a lesser showing). See also Marrocco v. General Motors Corporation, 966 F.2d 220, 225 (7th Cir. 1992) (employing the term "issue related sanctions").
In the case at bar, the defendants accuse the plaintiffs of committing a broad array of discovery violations. See Defendants' Motion to Enlarge Time and Motion for Sanctions at 3-5 (complaining of, among other things, plaintiffs' alleged "pattern of conduct calculated to obstruct the discovery process and to escalate the costs of litigation."). However, the defendants have failed to point to any specific discovery order allegedly breached by the plaintiffs. Thus, there can be no sanction under Rule 37, which deals only with discovery orders.
Any sanction in this case must therefore stern from the court's inherent power to issue sanctions. The defendants have not persuaded the court that such sanctions are warranted in the present case. The defendants' request for sanctions contains little more than a series of allegations of "total abject failure . . . to cooperate," "absolute refusal . . . to respond to reasonable discovery requests," "continual pattern of non-response," etc. on the part of the plaintiffs' and their counsel, Id. Such vague and generally conclusory — allegations do not provide a basis for the imposition of sanctions. The instant motion for sanctions must therefore be denied.
B. Enlargement of Time for Discovery
The defendants have also moved for an extension of the discovery deadline to allow them to conduct an oral deposition of W. Thomas Timmons, one of the counterclaim defendants. See id. at 2. On January 17, 2001, the court entered an order remanding this case to the state court from which it was previously removed. See Memorandum Order (January 17, 2001). Accordingly, the motion for an enlargement of time for discovery is denied as moot, without prejudice to its being reurged in the state court.
II. CONCLUSION
For the foregoing reasons, the defendants' motion for sanctions and to enlarge the time for discovery is DENIED.
SO ORDERED.