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FRBP 7037 Failure to Make Discovery: Sanctions

Rutledge v. Barnes  (July 18, 2013) 
Issue:  Plaintiff filed adversary proceeding requesting that certain debt be determined to be non-dischargeable as to Debtor Defendant under 11 U.S.C. §523(a)(2)(A), §523(a)(4), and §523(a)(6) of the Bankruptcy Code. Plaintiff filed a Motion for Sanctions pursuant to Federal Rule of Civil Procedure 37 and Bankruptcy Rule 7037 requesting the Court impose “death penalty” sanctions on Debtor Defendant by striking the Debtor Defendant’s answer and entering a default judgment based on Debtor Defendant’s numerous discovery abuses and violations of discovery orders issued by the Court and the state court. Holding: Under the extreme facts and circumstances presented, the Court granted the Motion for Sanctions filed by Plaintiff, struck Debtor Defendant’s answer and entered a non-dischargeability default judgment against Debtor Defendant as a “death penalty” sanction.  The Court determined that Debtor Defendant willfully and intentionally failed and refused to appear for his deposition on multiple (five) occasions, that the Debtor Defendant had conjured up a doctor’s letter (without the doctor’s knowledge) under false pretenses as an excuse, that Debtor Defendant had ignored and violated multiple discovery orders of the Court and the state court, that Debtor Defendant’s own conduct (not the conduct of his attorney) was repeatedly dilatory and obstructive with respect to Plaintiff’s discovery efforts, that Debtor Defendant had failed to respond to Plaintiff’s written discovery requests, that Debtor Defendant prejudiced Plaintiff in preparation for trial, that Debtor/Defendant personally acted in bad faith, and that under the extreme circumstances presented no lesser sanction would achieve the desired deterrent effect.