                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA



 SILVERIO AZAMAR, et al.,

           Plaintiffs,
                  v.                                       Civil Action No. 08-1052 (JDB)
 LEON STERN, et al.,

           Defendants.


                                  MEMORANDUM OPINION

       This case arises from the claims of thirteen plaintiffs that defendants Leon Stern and The

Cleaning Infantry, Inc., failed to pay plaintiffs the minimum wage, agreed-upon wages, and/or

overtime wages for cleaning services they provided, and that plaintiffs suffered retaliation for

requesting these wages, allegedly in violation of the Fair Labor Standards Act, 29 U.S.C. §§ 201

et seq., and District of Columbia and Maryland labor laws. See Second Am. Compl. (Dec. 3,

2008). The case has been at a standstill for over eight months due to Stern's failure to respond to

plaintiffs' discovery requests.1 Hence, plaintiffs have filed a motion for sanctions pursuant to

Fed. R. Civ. P. 37, seeking entry of a default against Stern. The record amply establishes that

Stern has willfully failed to respond to the written discovery requests propounded by plaintiffs,

and hence the Court will grant plaintiffs' motion and enter an order of default against Stern.

       On December 7, 2009, plaintiffs served their First Set of Interrogatories on Stern. See

Pl.'s Mem. at 1. Stern failed to respond within 30 days as required by Fed. R. Civ. P. 33(b)(2).

Id. The Court issued an Order noting Stern's failure to be responsive to this litigation, including

his failure to attend the Initial Scheduling Conference on December 17, 2009, and directed Stern


       1
           A default was entered against The Cleaning Infantry on December 31, 2008.
to comply with his discovery obligations, or else face default. See Order at 2-3 (Jan. 25, 2010).

Stern then undertook efforts to retain counsel, and plaintiffs effectively agreed to an extension of

time for Stern's discovery responses as those efforts proceeded. See Minute Order (April 9,

2010). Counsel entered an appearance on Stern's behalf on April 6, 2010 (id.), but representation

by counsel failed to result in Stern's compliance with the discovery requests. The Court held a

status hearing on July 2, 2010, at which the parties again discussed Stern's failure to respond to

the discovery requests. The Court granted one further extension of time, until July 16, 2010, for

Stern to respond to plaintiffs' discovery requests. See Second Revised Scheduling Order (July 2,

2010). The Court emphasized that:

       In light of the long delays to date, Stern will not be granted a further extension of
       time to respond to the pending written discovery absent extraordinary
       circumstances. Failure to respond may result in the imposition of sanctions
       against Stern under Fed. R. Civ. P. 37.

Id. Two months have passed since the July 16, 2010 deadline, and Stern has failed to respond to

the discovery requests without offering any explanation or excuse.

       Plaintiffs' counsel, having waited seven months from the date it first served the discovery

requests, filed the motion for sanctions shortly after the deadline had passed. The Court ordered

Stern to respond to the motion by August 16, 2010. Stern has failed to respond to the motion.

The deadline for all discovery in the case expired on September 9, 2010, again with no response

from Stern.

       Under these circumstances, the Court finds that sanctions are warranted, and that an order

entering default against Stern is the appropriate sanction. Rule 37(d)(1)(A)(ii) provides that the

Court may order sanctions against a party if "a party, after being properly served with

interrogatories under Rule 33 . . . , fails to serve its answers, objections, or written response."


                                                   2
Additionally, under Rule 37(b)(2)(A), "[i]f a party . . . fails to obey an order to provide or permit

discovery, the court . . . may issue further just orders." Sanctions may include "rendering a

default judgment against the disobedient party." Id.

        The Court finds that sanctions are appropriate under Rule 37(b)(2)(A) and 37(d)(1)(A)

because Stern has repeatedly failed to respond to plaintiffs' written discovery requests. He has

not attempted to defend his failure in any manner, despite repeated opportunities to do so; on the

contrary, as noted above, he has been completely absent from this litigation since the last status

hearing on July 2, 2010. Even before that date, his participation in the litigation was nominal.

        The only issue, then, is the particular sanction to be imposed. Considering Stern's

wholesale failure to participate in this litigation for the past two months, as well as his earlier

non-responsiveness, the Court determines that entry of a default is the appropriate sanction. In

Webb v. Dist. of Columbia, 146 F.3d 964, 971 (D.C. Cir. 1998), the court of appeals observed

that there are three basic justifications that support the use of default as a sanctions for

misconduct: (1) a determination that "the errant party's behavior has severely hampered the other

party's ability to present his case"; (2) "the prejudice caused to the judicial system when the

party's misconduct has put 'an intolerable burden on a district court by requiring the court to

modify its own docket and operations in order to accommodate the delay'"; and (3) "the need 'to

sanction conduct that is disrespectful to the court and to deter similar misconduct in the future.'"

Id. (quoting Shea v. Donohoe Constr. Co., 795 F.2d 1071, 1074-77 (D.C. Cir. 1986)). The first

and third reasons -- prejudice to plaintiffs and disrespect to the court -- clearly support entry of

default against Stern in this matter. Plaintiffs are unable to present their case for a merits

resolution without any discovery from Stern and no such discovery is possible in the face of

Stern's repeated failure to respond to discovery requests or orders of this Court. It is readily

                                                   3
apparent that Stern's failure to respond to plaintiffs' discovery requests for the past eight months

represents a willful violation of his discovery obligations, considering the lengthy extensions that

already have been provided, the Court's explicit caution to Stern that further nonresponsiveness

would result in entry of default, and Stern's failure to respond to even the motion for sanctions.

See Weisberg v. Webster, 749 F.2d 864, 871 (D.C. Cir. 1984) (holding that "willfulness or at

least gross negligence" is required to justify the most severe discovery sanctions).

       Furthermore, a default is warranted by the need to sanction conduct that is disrespectful to

this Court and to deter similar misconduct in the future. Stern's disrespect for the Court is

demonstrated not only by his failure to respond to plaintiffs' discovery requests, but also by his

disregard of the September 9, 2010, discovery deadline, his failure to respond to plaintiffs'

motion by the court-ordered deadline, and his failure to appear at the initial scheduling

conference last December 2009. The disregard Stern has shown for his discovery obligations and

the schedule set by this Court shows that a court order to comply with deadlines or to take some

other corrective action is unlikely to deter future misconduct. A lesser sanction may also

encourage similar misconduct by other litigants by indicating that flagrant violations will yield

only minor sanctions.

       The next proceeding in this case will be the filing of a motion for default judgment and an

evidentiary submission on the amount of damages to be awarded to plaintiffs, which is necessary

because the second amended complaint does not set forth a sum certain for the wages or damages

at issue. Plaintiffs shall submit their motion for default judgment, including any evidence in

support of an award of wages or damages, by not later than October 22, 2010.2



       2
           The submission should relate to both Stern and The Cleaning Infantry, as each is now in
default.

                                                  4
                                         CONCLUSION

        For the foregoing reasons, the Court will grant plaintiffs' motion for sanctions pursuant to

Fed. R. Civ. P. 37, and will enter a default against Leon Stern. A separate order accompanies

this memorandum opinion.




                                                             /s/
                                                     JOHN D. BATES
                                                 United States District Judge
Date:   September 21, 2010




                                                 5
