George Spatta, Jr. v. LLC (2012)

RULING RE DEFENDANT'S MOTION TO REARGUE (# 130)

On February 21, 2012, the defendants, American Classic Cars, LLC and Gus J. Paoli, moved to reargue the court's January 30, 2012 ruling, denying their motion to open a default that had been entered on October 13, 2011.   On February 21, 2012, the court directed the parties to appear for oral argument on March 19, 2012, relative to the defendants' motion to reargue (# 130).

In addition to the defendants' motion to reargue, the court also considered all the pleadings and rulings in the file relative to discovery issues as well as the arguments presented by both parties in open court on March 19, 2012.   The motion to reargue is denied.

I

FACTS

The plaintiff, George Spatta, Jr., filed his complaint on August 2, 2010, which alleged that, in 2007, the defendants, holding themselves out to be experts at car assembly, offered to build a 1957 Chevrolet Bel Air Convertible as a new car for a total cost between $110,000 to $121,000.   The complaint alleges that the project was to be completed in three months.   Through his counsel, the plaintiff represented, at oral argument, that he is not in good physical health and is not a wealthy person, having mortgaged his home for $150,000 to finance the project.   The complaint further alleges that the project was not completed in three months.   In fact, the plaintiff did not receive the car until September 2009.   The plaintiff claims that he eventually paid over $200,000 for the vehicle which, he claims, is riddled with defects to the point that it cannot be driven.

The plaintiff's exasperation with the defendants' allegedly recalcitrant behavior did not abate with the filing of the complaint.   The chronology that brought the case to this point must be detailed in order to understand why the defendants' motion to reargue must be denied.

The plaintiff served a set of interrogatories and requests for production approximately one year ago, on April 4, 2011.   The defendants immediately sought a thirty-day extension of time in which to respond to the plaintiff's discovery requests.   At the end of that thirty-day period, however, the defendants failed to file any responses.   On June 8, 2011, the plaintiff moved for default for failure to comply with discovery (# 111).

On July 25, 2011, the court, Roche, J, ruled on the plaintiff's motion for default as follows:  “Compliance is ordered by 8/25/11.   If the moving party has not received compliance by that date, he may file an additional motion for default attesting to that fact and referencing this order.   Upon the appearance of that additional motion on the short calendar, and absent the filing of a notice of compliance by the time of such appearance, a default may be granted.”

On August 5, 2011, the defendants filed a notice of compliance with plaintiff's discovery (# 114).   On August 15, 2011, the plaintiff moved for sanctions, alleging that the defendants' compliance was, in large part, non-responsive.   A particular shortcoming in the responses involved the plaintiff's request for documents illustrating the cost of parts to the defendants.   Instead, and with no accompanying explanation, the defendants simply produced a document showing the cost of parts that the defendants had billed to the plaintiff.

In the course of ruling on the motion for sanctions, the court did not impose the sanction of default that was threatened in the court's July 25, 2011 order.   Instead, the court, Danaher, J., gave the defendants another opportunity to meet their discovery obligations, ruling on August 31, 2011, as follows:  “The court has reviewed the entirety of the plaintiff's interrogatories and requests for production and has also reviewed the entirety of the defendants' responses to those interrogatories and requests for production.   The defendants have provided partial compliance to some of the interrogatories and for that reason a default will not enter at this time.   However, the defendants have not materially complied with all discovery requests.   In particular, the defendants' responses to interrogatories 11, 13, 22, 25, and 26 do not reflect a good faith effort to comply with defendants' discovery obligations.   Further, the discovery responses by defendant Paoli are wholly inadequate.   The responses to all seven requests for production are woefully deficient and suggest bad faith by the defendants.   The court notes, in particular, that the defendants' representation that ‘if plaintiff's counsel is unhappy with said [discovery] responses he can depose the defendant and inquire of same’ reflects a gross misunderstanding of their obligation to respond, in good faith, to properly propounded interrogatories and requests for production.   In view of the history regarding discovery issues in this case, the inadequate responses by the defendants justify the imposition of sanctions at this time.  Practice Book Section 13–14(b).  Having found that the defendants are in violation of Practice Book Section 13–14(a), the defendants will pay the plaintiff $250 as a reasonable attorneys fee for the costs associated with the plaintiff's motion for sanctions.   Said payment will be made no later than September 14, 2011.   Further, the defendants will, no later than September 14, 2011, provide full and good faith responses to the interrogatories identified in this order, and will further provide full and good faith compliance with all seven requests for production.   If the defendants fail to comply with this order by September 14, 2011, a default will enter.”

On September 12, 2011, instead of providing the compliance ordered, the defendants elected to move to reargue the court's August 31, 2011 order, arguing, inter alia, that the defendants, “despite many manpower hours,” did not have documents showing their costs relative to the project.   Defs.' Mtn. to Reargue 5, September 12, 2011.   The defendants argued that it would be “unduly burdensome” to make them elaborate further relative to one of their interrogatory responses.   The defendants also professed not to know how to elaborate on their answer to interrogatory 25 which requested that the defendants “state the qualifications of all persons associated with the assembly of the vehicle which is the subject of this action.”   The defendants asserted that they were unable to provide any response other than, “all members have extensive experience with working on motor vehicles.”   The defendants stated that they required the court's guidance as to how to respond to that, and other, interrogatories and requests for production.

The court denied the defendants' motion to reargue on September 20, 2011.   On September 28, 2011, the plaintiff again moved for sanctions because, despite the orders entered to that point, the defendants still had not made good faith efforts to respond to the plaintiff's discovery requests (# 120).   The plaintiff also noted that the defendants had elected to ignore the court's order that they pay sanctions in the amount of $250 “no later than September 14, 2011.”

On October 4, 2011, the defendants objected to the plaintiff's September 28, 2011 motion for sanctions, claiming that they had effected supplemental compliance.   Notably, however, the defendants made no reference to the court's order imposing a monetary fine on the defendants.   On October 13, 2011, the third judge in this judicial district to consider these issues examined the state of the discovery compliance and ruled as follows:  “For the reasons given in the plaintiff's reply to the defendant's objection (# 122), the defendant has still not fully complied, including the payment of the previous sanction.   A further monetary sanction seems inadequate.   Therefore, a default is entered against the defendant.”  (Pickard, J.).

On November 1, 2011, the defendants moved to reargue Judge Pickard's order entering a default against them.¹  That motion was denied on November 8, 2011.   On January 13, 2012, the defendants moved to open the default, claiming that they had produced all responsive documents “presently” in their possession, that they had paid the monetary fine and that they had otherwise fulfilled their discovery obligations.

The plaintiff objected to the motion to open the default and reviewed the defendants' purported compliance which asserted, inter alia, that the defendants were searching for the documentation regarding their costs, and that the documents would be produced in “four to six weeks.”   The defendants did not explain the basis for that estimate, an estimate that is especially troubling in view of the representations made on September 12, 2011, implying that the responsive documents did not exist.   Furthermore, the plaintiff advised the court that the monetary fine that the defendants were ordered to pay no later than September 14, 2011, had been sent to the plaintiff in the form of a check dated January 12, 2012.   On January 30, 2012, this court denied the motion to reopen the default.   The defendants' motion to reargue the denial of the motion to reopen the default was filed on February 21, 2012.

II

DISCUSSION

Practice Book § 13–14 applies to a situation in which a party has “failed to answer interrogatories or to answer them fairly ․ or who has failed to respond to requests for production ․ or has failed otherwise substantially to comply with any other discovery order made pursuant to Sections 13–6 through 13–11 ․” In any of the foregoing situations the court has the authority to “make such order as the ends of justice require.   Such orders may include the following:  (1) The entry of a ․ default against the party failing to comply ․” Practice Book § 13–14(a), (b);  see Evans v. General Motors Corp., 277 Conn. 496, 522–23, 893 A.2d 371 (2006).

The court is fully cognizant of the well-established preference to consider a case on the merits.  “[T]he court's discretion should be exercised mindful of the policy preference to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his day in court.”  (Internal quotation marks omitted.)  Usowski v. Jacobson, 267 Conn. 73, 89, 836 A.2d 1167 (2003).   Further, the court is loathe to punish a client “for the transgressions of his or her lawyer.”  Ruddock v. Burrowes, 243 Conn. 569, 579, 706 A.2d 967 (1998) (Berdon, J., dissenting).   However, the court is also guided by the Ruddock majority's requirement that the court focus on “the nature and the extent of the conduct that led to the disciplinary dismissal.”   Id., 570.

The plaintiff cannot rely on the “preference to bring about a trial on the merits” as an impenetrable shield that allows protracted delays, conflicting explanations for the delays, and a disregard for court-ordered discovery compliance and court-ordered sanctions.   Our Supreme Court has made clear that the court must consider three factors, in particular, in determining whether a sanction should be imposed for a breach of discovery orders and, if so, which sanction is appropriate.   The factors are as follows:  “First, the order to be complied with must be reasonably clear.   In this connection, however, we also state that even an order that does not meet this standard may form the basis of a sanction if the record establishes that, notwithstanding the lack of such clarity, the party sanctioned in fact understood the trial court's intended meaning.   This requirement poses a legal question that we will review de novo.   Second, the record must establish that the order was in fact violated.   This requirement poses a question of fact that we will review using a clearly erroneous standard of review.   Third, the sanction imposed must be proportional to the violation.   This requirement poses a question of the discretion of the trial court that we will review for abuse of that discretion.”  Millbrook Owners Assn., Inc. v. Hamilton Standard, 257 Conn. 1, 17–18, 776 A.2d 1115 (2001).

The court's multiple orders that the defendants respond in good faith to the plaintiff's interrogatories and requests for production were quite clear.   It was, and is, abundantly clear that the defendants' costs relative to the project described in the complaint are at the core of the controversy.   Initially, the defendants stated that they did not possess the documentation regarding their costs.   Then, eventually and on multiple occasions, they claimed that they would be assembling the documents “within four to six weeks.”   The documents needed by the plaintiff were clearly requested, the order that they be produced was clear, and the defendants eventually stated that they would be producing the documents “within four to six weeks,” a statement which establishes that the defendants understood what the plaintiff was seeking and what the court had ordered them to produce.   The court's orders were clear.

The court's orders were violated.   The defendants missed multiple deadlines calling upon them to produce the required documents.   Indeed, at oral argument, the plaintiff reported that the documents had not yet been fully produced.   The defendants also ignored the deadline by which the court-ordered fine was to be paid and made disingenuous representations as to how that payment was being handled.   The court's orders have been violated.

The sanction imposed is proportional to the violation.   First, the plaintiff has been unable, for over a year and despite multiple court orders, to obtain the documentation he requires to prepare his case for trial.   The documents sought are central to his case.   The court first imposed deadlines that were ignored, then imposed a fine that was ignored ² and finally entered a default.   The discipline imposed was progressive yet unavailing.   In fact, the defendants have yet to achieve full compliance with their discovery obligations despite the fact that the first default was entered more than five months ago and, thereafter, there was significant litigation regarding discovery issues.   The court has no other tools available to compel compliance at this point, and, thus, the entry of a default is the only effective option that can be employed.

The defendants' motion to reargue, itself, provides ample basis for denying the motion.   In their motion, the defendants claim that the payment of the $250 sanction “was delayed in light of the motion to reargue the court's original decision ․ Payment has been made with respect to the sanctions of the court.”   Def's. Mtn. to Reargue 3–4, February 21, 2012.   This argument is disingenuous, at best.   Even assuming that a motion to reargue serves as a stay of an order to pay sanctions, a dubious prospect that the defendants do not support with any authority,³ the defendants' motion to reargue was denied on September 20, 2011.   The plaintiff filed a pleading on September 28, 2011, establishing, as a matter of public record, that the fine had not been paid.   Despite the foregoing, the fine was not paid until nearly four months after the court denied the defendants' motion to reargue.   At oral argument, the defendants claimed that the fine had not been paid due to “oversight.”

The defendants argued that they were justified in their representation that they would assemble the necessary cost documents in “four to six weeks,” in part, because they were busy “running their business.”   The latter argument ignores two critical points.   First, the defendants were the subject of court orders to produce certain documents, but they improperly elected to elevate their personal business interests above those court orders.   Second, if the defendants had set to work acquiring the materials when the discovery requests were first served in April 2011, the thirty-day extension that they requested, and de facto received, gave them, ab initio, a full sixty days to acquire the documents.

Instead of beginning to gather the necessary documents in April 2011, the defendants chose to delay providing any responses until four months after the discovery requests were first served.   Moreover, the defendants' responses were inadequate, and when the plaintiff protested, the defendants advised him that “if plaintiff's counsel is unhappy with said [discovery] responses he can depose the defendant and inquire of same.”   On August 31, 2011, the court specifically ruled that the latter viewpoint “reflects a gross misunderstanding of [the defendants'] obligation to respond, in good faith, to properly propounded interrogatories and requests for production.”   Despite the August 31, 2011 ruling, it appears that the defendants waited several months to even begin to acquire the cost documents.   Indeed, as late as the filing of the February 21, 2012 motion to reargue, the defendants claimed that they still “[do] not presently have that information available ․ Defendant [sic] anticipates the information will be available in 4–6 weeks from the above date.”  (Emphasis added.)   Defs.' Mtn. to Reargue 10–11, February 21, 2012.

With regard to the defendants' failure to “state the qualifications of all persons associated with the assembly of the vehicle,” the defendants insist that their answer, “all members have extensive experience with working on motor vehicles,” is fully responsive.   In their motion to reargue, the defendants stated:  “How the court ruled this response does not reflect a good faith effort to comply with the discovery is a mystery which I believe the court needs to explain.”   Defs.' Mtn. to Reargue 11, February 21, 2012.   The court explained the “mystery” at oral argument, offering examples of a sufficient answer.   Minimal reflection is needed to permit one to conclude that a sufficient answer might have set forth, e.g., the names of all who worked on the vehicle, whether any had attended technical schools, the number of years they had worked in the automotive rebuilding/restoration field, the number of automobiles that each had restored or rebuilt, whether any had extra-employment avocational experiences with automotive rebuilding, repair or restoration, and whether any received certification in automotive repair from any automotive manufacturer, dealership or repairer.   After the court made some of the foregoing suggestions at oral argument, the defendants offered to file a supplemental response to the interrogatory.

The defendants also attack the plaintiff, protesting his “use of discovery as an end rather than a means to justice ․ in direct contradiction to stated policy of the Connecticut Supreme Court.”   Defs.' Mtn. To Reargue 5–6, February 21, 2012.   This last claim convinces the court, if further convincing were needed, that the defendants simply refuse to understand that they have failed to meet their discovery obligations, that they have repeatedly ignored court orders, and that they are incapable of recognizing that the fault lies, not with either the court or the plaintiff, but with the defendants themselves.

The court finds that the evidence sought by the plaintiff is material to the case, the violation of the court's orders was willful and the absence of the entry of a default would result in prejudice to the plaintiff.  Forster v. Gianopoulos, 105 Conn.App. 702, 711–13, 939 A.2d 1242 (2008).

III

CONCLUSION

This court has an obligation to all litigants to move cases efficiently.   Delays and litigation of the type that have occurred in this case cause inevitable ripple effects that delay other cases on the docket.   The judicial time expended in attempting to coax, and then order, these defendants to meet their obligations has been wasted.   The court has exhausted its available means of moving this case forward in a timely and efficient manner.

The court also has obligations to the plaintiff, and to this point has failed to meet those obligations.   The plaintiff's counsel has been forced to explain, repeatedly, to his client why he has been unable, despite the passage of a full calendar year, to obtain even the basic discovery needed to prepare this case for trial.   The seeds of the dispute between these parties were sown five years ago, in 2007.   The suit was filed twenty months ago, discovery is still not complete and the record convinces this court that the defendants are unlikely to ever meet their obligations in good faith.   In light of all the foregoing facts, there is no justification for setting aside the default that has entered in this case.  Rowe v. Goulet, 89 Conn.App. 836, 842, 875 A.2d 564 (2005).   The motion to reargue is denied.   This matter will proceed to a hearing in damages.

So ordered.

BY THE COURT,

John A. Danaher III.

FOOTNOTES

FN1. In that motion, the defendants asserted that payment of the monetary fine that was due on September 14, 2011, “will be forthcoming.”.  FN1. In that motion, the defendants asserted that payment of the monetary fine that was due on September 14, 2011, “will be forthcoming.”

FN2. “[A]lthough a sanctions order is not itself a discovery order, it is an order entered for failure to comply with discovery procedure.”   Usowski v. Jacobson, supra, 267 Conn. 93.   A sanctions order is entitled to the same respect that is owed to a discovery order..  FN2. “[A]lthough a sanctions order is not itself a discovery order, it is an order entered for failure to comply with discovery procedure.”   Usowski v. Jacobson, supra, 267 Conn. 93.   A sanctions order is entitled to the same respect that is owed to a discovery order.

FN3. Practice Book § 61–11(b) sets forth the procedure for seeking a stay of a court order.   That section is distinct from Practice Book § 11–12, which permits the filing of a motion to reargue, but which does not suggest, in any way, that a motion to reargue serves to stay a court order.  “An order of the court must be obeyed until it has been modified or successfully challenged.”  Jaconski v. AMF, Inc., 208 Conn. 230, 234–35, 543 A.2d 728 (1988)..  FN3. Practice Book § 61–11(b) sets forth the procedure for seeking a stay of a court order.   That section is distinct from Practice Book § 11–12, which permits the filing of a motion to reargue, but which does not suggest, in any way, that a motion to reargue serves to stay a court order.  “An order of the court must be obeyed until it has been modified or successfully challenged.”  Jaconski v. AMF, Inc., 208 Conn. 230, 234–35, 543 A.2d 728 (1988).

Danaher, John A., J.