333 F.R.D. 249 (N.D.Fla. 2019), 3:18-cv-1466-TKW/MJF, DeepGulf Inc. v. Moszkowski

Docket Nº:3:18-cv-1466-TKW/MJF
Citation:333 F.R.D. 249, 105 Fed.R.Serv.3d 83
Opinion Judge:Michael J. Frank, United States Magistrate Judge
Party Name:DEEPGULF INC. and Toke Oil and Gas S.A., Plaintiffs, v. Marc M. MOSZKOWSKI, Defendant.
Attorney:Braden Kirk Ball, Jr., Pensacola, FL, for Plaintiffs. Mary Allie Elizabeth Boller, Thomas Richard Boller, Thomas R. Boller PC, Mobile, AL, for Defendant.
Case Date:November 05, 2019
Court:United States District Courts, 11th Circuit, Northern District of Florida

Page 249

333 F.R.D. 249 (N.D.Fla. 2019)

105 Fed.R.Serv.3d 83

DEEPGULF INC. and Toke Oil and Gas S.A., Plaintiffs,


Marc M. MOSZKOWSKI, Defendant.

No. 3:18-cv-1466-TKW/MJF

United States District Court, N.D. Florida, Pensacola Division

November 5, 2019

Page 250

Braden Kirk Ball, Jr., Pensacola, FL, for Plaintiffs.

Mary Allie Elizabeth Boller, Thomas Richard Boller, Thomas R. Boller PC, Mobile, AL, for Defendant.


Michael J. Frank, United States Magistrate Judge

Plaintiffs moved this court, pursuant to Rule 37(d)(1), to impose sanctions on Defendant for his failure to provide Excel spreadsheets containing financial information that are responsive to one or more requests for production of documents. For the reasons set forth below, this motion must be denied without prejudice.

I. Background

On April 3, 2018, the Plaintiffs filed this action in Florida state court, and Defendant removed this case to federal court on June

Page 251

25, 2018. In their complaint, the Plaintiffs allege breach of a non-competition agreement, civil theft, conversion, and fraudulent misrepresentation. Plaintiffs seek, among other relief, an accounting, damages, injunctive and declaratory relief, court costs, and attorney’s fees. The Defendant has asserted counterclaims against the Plaintiffs for fraud, breach of contract, and defamation.

On November 12, 2018, Plaintiffs propounded requests for the production of documents. Request 18 asked Defendant to produce "Copies of all Toke Oil and Gas, S.A.’s financial, bookkeeping or transaction records from the date that you [Defendant] became involved with Toke Oil and Gas, S.A. to the present date." According to Plaintiffs, while pro se, Defendant responded: Marc Moszkowski has no knowledge of any clause in the agreement between DeepGulf, Inc., and Toke Oil and Gas S.A. to acquire a majority interest in Toke Oil and Gas, S.A. that would have required prior Toke Oil and Gas, S.A. information to be communicated to DeepGulf, Inc. The Plaintiffs are hereby requested by Marc Moszkowski to produce supporting evidence that he should comply with the request of paragraph 18.

(Doc. 194 at 1-2)

On April 4, 2019, after Defendant had obtained legal counsel, United States District Court Judge M. Casey Rodgers issued an order that "Defendant shall supplement his discovery responses in accordance with the Rules [of Civil Procedure] on or before May 15, 2019." On May 15, 2019, Defendant’s counsel provided additional discovery materials to Plaintiffs.

On July 11, 2019, Plaintiffs filed a motion to compel the Defendant to produce documents responsive to Plaintiffs’ Request for Production 19. On August 2, 2019, Defendant’s counsel responded that they produced additional documents to Plaintiffs on July 12, 2019, and that they believed that all relevant documents had been produced. Based on this representation and the lack of any disagreement from Plaintiffs, the undersigned denied without prejudice the motion to compel on the ground of mootness. (Doc. 107).

According to Plaintiffs, on July 18, 2019, Plaintiffs’ counsel sent an email to Defendant’s counsel inquiring whether Defendant had additional documents responsive to Plaintiffs’ Request for Production 18. Defendant’s counsel allegedly represented that "no documents would need to be provided." (Doc. 105 at 2).

According to Plaintiffs, while they were reviewing documents that were responsive to Request for Production 19, Plaintiffs found an email which indicated that Defendant may possess Excel spreadsheets that were responsive to Plaintiffs’ Request for Production 18 and which Defendant had not provided to Plaintiffs. The relevant email was from Defendant to an individual by the name of "Rodney Lewis." The email was dated January 5, 2018, which is approximately three months before Plaintiffs filed this civil action and approximately eight months before Plaintiffs served their requests for production. In the email, Defendant states: I’ve been working on the Toke accounts again.

1. I don’t think that despite their loud demands (which they make as unacceptable as possible) Rus and Tom want me to send them the Toke documents, for a simple reason: I doubt they are dumb enough to believe that I could have received $1,000,000 from Toke, but for as long as I don’t send them the documentation they can pretend they think I received the money, which buys time for Rus, who makes it very difficult for anyone to study the DeepGulf accounts and doesn’t seem to be prepared to explain his expenses. You could say that I could send them the documentation, but I don’t think it can prove anything, since it can be doctored any way you want and they would not fail to say so. The documentation consists exclusively of Excel spreadsheets.

(Doc. 104 at 8) (emphasis added).

According to Defendant’s counsel, Defendant provided these Excel spreadsheets to defense counsel in April 2019, but Defendant’s counsel did not produce them to Plaintiffs’ counsel. Defendant’s counsel explains: Defendant produced said spreadsheets to defense counsel in April 2019, but they

Page 252 were not produced due to defense counsel’s information and belief the financial data contained in the spreadsheets had already been summarized in the financial documents already in the hands of Plaintiffs since 2011 and 2012, and because of confidentiality concerns which were acknowledged by Plaintiffs on 31 July 2019.

(Doc. 117 at 3, n.1).

On August 2, 2019, Plaintiffs filed another motion to compel seeking these additional materials responsive to Request for Production 18. (Doc. 104). Plaintiffs also moved to have this court impose sanctions on Defendant. (Id. ). Specifically, Plaintiffs asked this court to enter a default judgment and strike Defendant’s counter-claim. Although there are many Eleventh Circuit cases addressing the relevant standard for imposing sanctions pursuant to Rule 37, Plaintiffs’ motion for sanctions and the memorandum in support did not cite a single case from the Eleventh Circuit. Indeed, it was largely devoid of analysis and cited only a district court case from the Southern District of New York in addition to a case from the Seventh Circuit and one from the Tenth Circuit. In any event, the motion for sanctions and memorandum in support did not address most of the factors a court is required to address before imposing sanctions.

On August 6, 2019, Defendant produced Excel spreadsheets to Plaintiffs. (Doc. 110-1). On August 26, 2019, based on Defendant’s representation that he had produced the requested materials on August 6, 2019, the undersigned denied the motion to compel without prejudice in light of its mootness. (Doc. 111). Plaintiffs objected to the undersigned’s order insofar as it did not impose sanctions on the Defendant.

According to Plaintiffs, the court should impose sanctions on Defendant, pursuant to Rule 37 of the Federal Rules of Civil Procedure, because "Defendant has intentionally, unjustifiable, and in bad faith not responded to Plaintiffs’ Requests for Production and violated his obligations under the Federal Rules of Civil Procedure on multiple occasions." (Doc. 105 at 2). Plaintiffs explain: This is not the first time that Defendant has failed to respond to Plaintiffs’ discovery request. It has been a pattern with this Defendant .... The sanction should be severe in light of Defendant’s failure to disclose anything initially in this case pursuant to Rule 26, the Defendant’s failure to respond with any documents at all while proceeding pro se and the Defendant’s withholding of documents from Plaintiffs even when given the opportunity to supplement Defendant’s answer to requests for production.

(Doc. 105 at 7). Plaintiffs, therefore, again ask that the court: (1) impose a default judgment against Defendant; and (2) strike Defendant’s counter-claim.

II. Discussion

A district court’s broad power to control discovery "includes the ability to impose sanctions on uncooperative litigants." Phipps v. Blakeney, 8 F.3d 788, 790 (11th Cir. 1993); Malautea v. Suzuki Motor Co., Ltd., 987 F.2d 1536, 1542 (11th Cir. 1993) (Rule 37 "gives district judges broad discretion to fashion appropriate sanctions for violation of discovery orders ...."); In re Chase & Sanborn Corp., 872 F.2d 397, 400 (11th Cir. 1989) ("The district court has broad, although not unbridled discretion in imposing sanctions under Rule 37.") (quoting Dorey v. Dorey, 609 F.2d 1128, 1135 (5th Cir. 1980)). Rule 37 of the Federal Rules of Civil Procedure provides that a court may impose sanctions when a party "fails to obey an order to provide or permit discovery, including an order under Rule 26(f), 35 or 37(a)" or when...

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