                                   UNPUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                                     No. 17-2258


CURTIS E. DAVIS, Trustee U/W/A Dated July 15, 1997; REBA M. DAVIS, his
wife,

                    Plaintiffs,

LARRY AUSTIN,

                    Defendant – Appellant,

             v.

UNITED STATES OF AMERICA, Department of Treasury; INTERNAL
REVENUE SERVICE,

                    Defendants – Appellees,

             and

ELLEN FRIEND; HELEN AUSTIN RYAN; RAYMOND AUSTIN, heirs of;
OTELLA AUSTIN; VIRGIL W. DAVIS; RODNEY HUBBARD, d/b/a Rodney
Hubbard & Son Logging; EQUABLE ASCENT FINANCIAL,

                    Defendants.


Appeal from the United States District Court for the Southern District of West Virginia,
at Bluefield. Omar Jawdat Aboulhosn, Magistrate Judge. (1:16-cv-02755)


Submitted: August 31, 2018                                Decided: September 11, 2018


Before WILKINSON, MOTZ, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.


Floyd E. Boone, Jr., Patrick C. Timony, BOWLES RICE LLP, Charleston, West
Virginia, for Appellant. Richard E. Zuckerman, Principal Deputy Assistant Attorney
General, Thomas J. Clark, Gretchen M. Wolfinger, Tax Division, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C.; Michael B. Stuart, United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia,
for Appellees.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

      Larry Austin appeals the magistrate judge’s January 25, 2017, order granting the

United States’ motion to compel his compliance with discovery requests, February 15,

2017, order granting the United States’ Fed. R. Civ. P. 37 motion for default judgment as

a sanction for his failure to participate in discovery, and September 26, 2017, order

denying his motion to reconsider the February 15 order. Austin confines his appeal to

challenging the February 15 and September 26 orders only. We affirm.

      We review the imposition of discovery sanctions, including the imposition of a

default judgment, for abuse of discretion. Hoyle v. Freightliner, LLC, 650 F.3d 321, 329

(4th Cir. 2011); Anderson v. Found. for Advancement, Educ. & Emp’t of Am. Indians,

155 F.3d 500, 504 (4th Cir. 1998). “A court abuses its discretion when its conclusion is

guided by erroneous legal principles or rests upon a clearly erroneous factual finding.”

In re Jemsek Clinic, P.A., 850 F.3d 150, 156 (4th Cir. 2017) (internal quotation marks

omitted).

      The magistrate judge, in his discretion, had both the inherent authority and

authority under Rule 37 to sanction Austin for his uncontested failures in this case to

respond to the United States’ second request for interrogatories and production, comply

with the January 25 order, and attend his previously noticed deposition. See Fed. R. Civ.

P. 37(b)(2)(A)(v)-(vi); Projects Mgmt. Co. v. Dyncorp Int’l LLC, 734 F.3d 366, 373

(4th Cir. 2013); Anderson, 155 F.3d at 504–05. “A court’s inherent power includes the

ability to order the dismissal of a case.” Projects Mgmt. Co., 734 F.3d at 373. Before



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exercising its inherent power to dismiss based on the wrongdoing of a party in the

judicial process,

       a court must consider the following factors: (1) the degree of the
       wrongdoer’s culpability; (2) the extent of the client’s blameworthiness if
       the wrongful conduct is committed by its attorney, recognizing that [courts]
       seldom dismiss claims against blameless clients; (3) the prejudice to the
       judicial process and the administration of justice; (4) the prejudice to the
       victim; (5) the availability of other sanctions to rectify the wrong by
       punishing culpable persons, compensating harmed persons, and deterring
       similar conduct in the future; and (6) the public interest.

United States v. Shaffer Equip. Co., 11 F.3d 450, 462-63 (4th Cir. 1993).

       Additionally, if a party fails to obey an order to provide or permit discovery, fails

to appear for a deposition, or fails to serve a response after being served with

interrogatories or a request for production, a district court may order sanctions, including

“rendering a default judgment against the disobedient party.”            Fed. R. Civ. P.

37(b)(2)(A)(vi), (d)(1)(A), (3). Courts must consider the following factors in determining

whether to sanction a party with default judgment under Rule 37: “(1) whether the

noncomplying party acted in bad faith; (2) the amount of prejudice his noncompliance

caused his adversary . . . ; (3) the need for deterrence of the particular sort of

noncompliance; and (4) the effectiveness of less drastic sanctions.” Mut. Fed. Sav. &

Loan Ass’n v. Richards & Assocs., 872 F.2d 88, 92 (4th Cir. 1989).

       With these standards in mind and after review of the record and the parties’ briefs,

we conclude that Austin fails to establish reversible error in the February 15 and

September 26 orders. We reject Austin’s claim, raised for the first time on appeal, that

vacatur of the orders is warranted because the default judgment violated Fed. R. Civ. P.


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54(c). See Karpel v. Inova Health Sys. Servs., 134 F.3d 1222, 1227 (4th Cir. 1998).

We also reject as unexplained, unsupported by the record, and unsupported by citations to

relevant authorities, see Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d 562, 568

n.7 (4th Cir. 2015), Austin’s challenges to the magistrate judge’s rulings on prejudice and

the availability and effectiveness of sanctions other than default judgment. Although

Austin develops his arguments regarding prejudice and sanctions other than default

judgment in his reply brief, these developed arguments are raised for the first time in that

brief, and we therefore do not consider them. United States v. Copeland, 707 F.3d 522,

530 (4th Cir. 2013).

       Austin further claims that the magistrate judge abused its discretion in entering a

default judgment against him and denying reconsideration because he did not receive

actual notice of the scheduled deposition, the discovery requests, the motions to compel

and for default judgment, and the magistrate judge’s orders granting the motion to

compel and granting the motion of his former counsel to withdraw as counsel of record.

Austin’s counsel, however, received notice of the scheduled deposition and the United

States’ discovery requests, and, after counsel withdrew from the case, the United States’

motions and the magistrate judge’s orders were mailed to Austin at his last known

mailing address. Austin wholly fails to explain how—in light of this record and the lack

of evidence in it establishing he ever informed his attorney, the district court, or counsel

for the United States of relevant changes in his contact information—the notice of the

discovery requests, motions, and orders was deficient. We also reject as without merit

Austin’s reliance as part of his notice argument on this court’s decisions in Hathcock v.

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Navistar Int’l Transp. Corp., 53 F.3d 36 (4th Cir. 1995), and Wilson v. Volkswagen of

Am., Inc., 561 F.2d 494 (4th Cir. 1977). These cases are distinguishable from the subject

case because the defaulted parties were participating in them; the cases further did not

require the magistrate judge to have provided Austin with notice he intended to enter

default judgment as a discovery sanction.

      Finally, Austin challenges the magistrate judge’s determinations in the February

15 and September 26 orders that he acted in bad faith. We conclude, however, that the

magistrate judge’s determinations are amply supported by the record surrounding

Austin’s failure to act once he learned that counsel had withdrawn from the case.

See Austin v. United States, No. 1:16-cv-02755 (S.D.W. Va. Sept. 26, 2017).

      Austin fails to establish reversible error by the magistrate judge, and we therefore

affirm. We dispense with oral argument because the facts and legal contentions are

adequately presented in the materials before this court and argument would not aid the

decisional process.

                                                                              AFFIRMED




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