Brian Aumueller v. Optimus Management Group, Inc. et al. (2013)

RULING ON PLAINTIFF'S MOTION FOR DEFAULT DIRECTED TO ISMAT AHSAN # 222

The plaintiff has moved the court to default the defendant pursuant to Practice Book § 13–14 for failure to object or respond to interrogatories and requests for production dated April 20, 2012.   The defendant has objected to this motion in a pleading dated November 25, 2013.   A hearing was conducted on the motion on December 4, 2013.   Jury selection was scheduled to commence on the same date.

Based upon the record presented, the court finds the following to have been proven.

1. The April 20, 2012, discovery request seeks information and other tangible items which directly relate to a number of the plaintiff's claims.

2. The defendant has willfully failed to provide the discovery.

3 The plaintiff is prejudiced by the defendant's noncompliance.

4. The defendant has failed without good faith reason or excuse to comply or object to the discovery request.

Notwithstanding these facts, the defendant asserts that the plaintiff is not prejudice by the failure to comply or object because in her attorney's opinion, the discovery sought is not relevant to material issues in the case.   Despite the passage of approximately 20 months, the defendant appears on the first day of jury selection and the hearing without even one response to a discovery request.   The date for jury selection was scheduled in January 2013.

Pursuant to Practice Book § 13–14, “the judicial authority may, on motion, make such order as the ends of justice require.”   These orders may include a default as well as less onerous sanctions.   In this regard, our appellate court has stated “Practice Book § 13–14 provides sanctions for failure to answer interrogatories, which the court may order upon motion as the ends of justice require.   These orders may vary in severity from entry of a nonsuit or default or judgment of dismissal to an award of costs of the motion, including a reasonable attorneys fee.   Decisions on the entry of such sanctions rest within the sound discretion of the trial court.”  (Citations omitted;  internal quotation marks omitted.)  Tuccio v. Garamella, 114 Conn.App. 205, 208, 969 A.2d 190 (2009).  “The factors to be considered by the court include:  (1) whether the noncompliance was caused by inability, rather than wilfulness, bad faith or other fault;  (2) whether and to what extent noncompliance caused prejudice to the other party, including the importance of the information sought to the party's case;  and (3) which sanction would, under the circumstances of the case, be an appropriate judicial response to the noncomplying party's conduct.”  Id.

In applying these standards to the record presented, the court finds that:

1. The defendant's noncompliance was willful.

2. The noncompliance has caused prejudice to the plaintiff.

3. A sanction is appropriate under the circumstances of this case.

The defendant shall comply with all discovery requests and file a notice of compliance on or before 2:00 p.m. on December 18, 2013.   The court awards the plaintiff reasonable attorneys fees and taxable costs incurred in connection with the motion for default.¹

SO ORDERED.

BY THE COURT

PETER EMMETT WIESE, JUDGE

FOOTNOTES

FN1. The plaintiff's counsel shall file an affidavit of attorneys fees and itemization of taxable costs on or before 2:00 p.m. on December 18, 2013..  FN1. The plaintiff's counsel shall file an affidavit of attorneys fees and itemization of taxable costs on or before 2:00 p.m. on December 18, 2013.

Wiese, Peter E., J.