     Case: 13-31086         Document: 00512604095          Page: 1    Date Filed: 04/22/2014




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit


                                       No. 13-31086                                FILED
                                     Summary Calendar
                                                                               April 22, 2014
                                                                              Lyle W. Cayce
                                                                                   Clerk
SOUTHERN UNITED STATES TRADE ASSOCIATION; JERRY HINGLE;
BERNADETTE WILTZ,

                                                    Plaintiffs – Appellees
v.

SUMIT GUDDH

                                                    Defendant – Appellant




                      Appeal from the United States District Court
                         for the Eastern District of Louisiana
                                USDC No. 2:10-CV-1669


Before JOLLY, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
       The defendant, Sumit Guddh, appeals the district court’s imposition of
sanctions against him and the district court’s grant of summary judgment to
the plaintiffs – the Southern United States Trade Association (“SUSTA”), Jerry
Hingle, and Bernadette Wiltz 1 – on their defamation claims against Guddh.
As a result of Guddh’s discovery abuses and violation of court orders, the


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
       1   Unless noted otherwise, we use SUSTA to refer to all of the plaintiffs.
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district court imposed a severe sanction – striking all of Guddh’s pleadings in
the case.      After doing so, the district court granted SUSTA’s motion for
summary judgment on the issue of liability for the defamatory comments.
Subsequently, the district court also granted SUSTA’s motion for summary
judgment on the amount of damages, holding Guddh and his co-defendant
Juyasis Mata, liable in solido for $158,942 to SUSTA, and $50,000 to each
individual plaintiff. 2 Guddh and Mata were also enjoined from republishing
the statements. Because we hold that the district court did not abuse its
discretion in imposing these severe sanctions and that summary judgment was
proper, we AFFIRM the judgment of the district court.
                                                I.
      In 2010, Guddh contacted SUSTA seeking assistance for one of Guddh’s
businesses.      SUSTA denied Guddh’s request citing his company’s lack of
operating history. Following this denial, a series of offensive comments were
made about SUSTA on several websites; these comments included unflattering
allegations about SUSTA’s professional activities and comments that
impugned the character of high-level SUSTA employees.
      In June 2010, SUSTA filed this lawsuit. Because SUSTA had not yet
discovered who posted the offending comments, the original lawsuit named
“John Does 1-12” as defendants. SUSTA later discovered that the statements
originated from an IP address associated with Guddh and received permission
to amend its complaint to name Guddh as a defendant. Guddh’s inclusion
touched off a tortured discovery process.
      First, the court sanctioned Guddh for failure to respond to discovery
requests. The court then granted a several-weeks-long stay because Guddh
indicated that he would be in India during that period. After the stay was


      2   Mata is not a party to this appeal.
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lifted, the court ordered Guddh to pay SUSTA attorneys’ fees of $2,475 for
Guddh’s failure to respond to the discovery requests. Guddh has yet to pay
this amount.
      Because Guddh remained in India, SUSTA agreed to conduct his
deposition via telephone. During the deposition, Guddh was (at the very least)
evasive. Acting pro se, Guddh refused to answer routine questions such as
where he attended college, refused to answer relevant questions on the grounds
that they were “overly broad,” and claimed that information such as his home
address and whether he had sold a business were “privileged.”          SUSTA
suspended the deposition and filed a motion to compel Guddh to appear for an
in-person deposition in the hope that the magistrate judge could monitor the
deposition. The court granted this motion, and Guddh was ordered to appear
for an in-person deposition. He failed to appear as ordered. Guddh then
requested permission to attend a pre-trial conference via telephone rather than
in person as required by the court’s scheduling order. This request was denied,
and the court made clear to Guddh that any failure to appear in person could
result in sanctions “including, but not limited to, sua sponte dismissal of the
suit, assessment of costs and attorney fees, default, or other appropriate
sanctions.” To make the matter more clear, the court issued another order
explicitly directing Guddh to appear in person at the pre-trial conference.
Guddh failed to appear.
      As a result of these transgressions, the court sanctioned Guddh by
striking all of his pleadings. The court then granted SUSTA’s motions for
summary judgment on liability and on damages. The court entered a final
judgment ordering Guddh to pay each individual plaintiff $50,000 for harm to
their reputation and emotional distress, and $158,942 to SUSTA for costs that
SUSTA incurred in repairing the damage caused by the statements. Guddh
now brings this appeal.
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                                          II.
                                          A.
        Guddh’s main contention on appeal is that the district court erred in
imposing a sanction as severe as striking all of his pleadings. A district court’s
imposition of sanctions is reviewed for abuse of discretion. F.D.I.C. v. Conner,
20 F.3d 1376, 1380 (5th Cir. 1994). Where an imposed sanction is severe, we
must conduct a “particularly scrupulous” review. Brinkmann v. Dallas Cnty.
Deputy Sheriff Abner, 813 F.2d 744, 749 (5th Cir. 1987).
        Rule 37 “authorizes a district court to strike pleadings of . . . a party that
fails to comply with a discovery order.” U.S. for the Use of M-CO Constr., Inc.
v. Shipco Gen., Inc., 814 F.2d 1011, 1013 (5th Cir. 1987). A district court order
must provide a sufficient basis for the review of its decision, but the court “need
not provide specific factual findings in every sanction order.” Topalian v.
Ehrman, 3 F.3d 931, 936 (5th Cir. 1993). “[T]he degree and extent to which a
specific explanation must be contained in the record will vary accordingly with
the particular circumstances of the case, including the severity of the violation,
the significance of the sanctions, and the effect of the award.” Thomas v.
Capital Sec. Servs., Inc., 836 F.2d 866, 883 (5th Cir. 1988) (en banc). In the
Rule 11 sanction context, we have emphasized “the importance of an adequate
record for appellate review in those cases in which the violation is not apparent
on the record and the basis and justification for the trial judge’s Rule 11
decision is not readily discernible.” Id. In deciding on which sanction to
impose, “the district court should carefully choose sanctions that foster the
appropriate purpose of the rule, depending on the parties, the violation, and
the nature of the case.” Topalian, 3 F.3d at 936 (citing Thomas, 836 F.2d at
877).
        Here, the district court did not abuse its discretion in striking Guddh’s
pleadings. Although the striking of all pleadings is a serious sanction that
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requires an explicit factual basis from the district court, the district court order
supplied a sufficient factual basis for the sanctions. The court had previously
sanctioned Guddh for discovery abuses – a sanction Guddh has yet to pay –
and Guddh still failed to abide by the court order and appear in person for his
deposition and the pre-trial conference. After Guddh’s first failure to appear
(for his deposition), the court explicitly warned Guddh prior to the pre-trial
conference that he must appear in person and that failing to do so would lead
to the imposition of severe sanctions “including, but not limited to, sua sponte
dismissal of the suit, assessment of costs and attorney fees, default, or other
appropriate sanctions.” Guddh once again failed to appear.
      We have upheld the striking of a party’s pleadings based on discovery
abuses in the past. See, e.g., KeyBank Nat. Ass’n v. Perkins Rowe Assocs.,
L.L.C., 539 F. App’x 414, 417–20 (5th Cir. 2013) (unpublished) (affirming the
district court’s striking of defenses and counterclaims based on discovery
abuses); Plasticsource Workers Comm. v. Coburn, 283 F. App’x 181, 184–85
(5th Cir. 2008) (unpublished) (same). Guddh abused the discovery process
through his failure to respond to discovery requests or appear for depositions.
In addition, he violated an explicit court order to appear for the pre-trial
conference.    These transgressions, combined with the district court’s
knowledge that earlier monetary sanctions had no curative effect, provide a
substantial factual basis for striking Guddh’s pleadings.
      Guddh argues that the district court should not have imposed such a
sanction in his case because his violation of the court’s order was not willful.
See Smith v. Smith, 145 F.3d 335, 344 (5th Cir. 1998) (requiring a showing of
bad faith for dismissal of a suit to be authorized as a sanction). Guddh’s
argument is unavailing. In determining whether a violation is willful, the
court may “rely on its complete understanding of the parties’ motivations.” Id.
Here, the district court observed Guddh’s discovery abuses, his evasive and
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obstructive behavior during his deposition, his failure to appear for an in-
person deposition, and his failure to appear for a pre-trial conference in
violation of the court’s direct instructions and despite the court’s warning that
failure to appear would lead to sanctions including “sua sponte dismissal of the
suit, assessment of costs and attorney fees, default, or other appropriate
sanctions.” From this pattern of behavior, there is no error in finding that
Guddh’s actions were willful. 3
                                            B.
       Guddh next argues that, even if the district court was correct in granting
summary judgment to SUSTA on liability, the district court erred in granting
summary judgment to SUSTA on the issue of damages. We review a grant of
summary judgment de novo. Royal v. CCC & R Tres Arboles, L.L.C., 736 F.3d
396, 400 (5th Cir. 2013). “Under Louisiana law, the plaintiff must prove
damages with reasonable certainty, but this merely means that the plaintiff
must prove damages by a preponderance of the evidence as in other civil
contexts.” Mobil Exploration and Producing U.S., Inc. v. Cajun Const. Servs.,
Inc., 45 F.3d 96, 101–02 (5th Cir. 1995).
       Here, SUSTA provided sufficient evidence of its damages to satisfy this
burden.     Both Hingle and Wiltz filed affidavits describing the effect the
statements had on them. SUSTA provided documentation of expenditures that
it undertook to combat the negative effect the statements had on its reputation.
Additionally, the plaintiffs included affidavits from other individuals in the
trade community that work with SUSTA. These affidavits further supported
the claims that these defamatory comments cast SUSTA and its employees in




       3 Guddh also argues that summary judgment on liability was inappropriate because
his pleadings raised several material issues of fact. Having decided that the district court
did not abuse its discretion in striking these pleadings, we need not reach this argument.
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                                 No. 13-31086
a negative light. The district court did not err in granting summary judgment
to SUSTA on the amount of damages based on these submissions.
                                      C.
      Finally, Guddh argues that the district court erred in holding Guddh and
Mata liable in solido instead of apportioning liability individually, which
Guddh argues is required under Louisiana law. Again, Guddh’s argument is
misplaced. Guddh cites two articles of the Louisiana Code of Civil Procedure
for support, but these procedural rules are not binding in federal court. See
DP Solutions, Inc. v. Rollins, Inc., 353 F.3d 421, 427 (5th Cir. 2003) (“Federal
courts apply state substantive law in diversity jurisdiction cases, but apply
federal procedural law.”).
      Here, the district court, after striking Guddh’s pleadings, held that
Guddh and Mata were liable for conspiring to defame SUSTA and the
individual plaintiffs. Based on this conspiracy, Guddh and Mata were properly
held liable in solido based on Louisiana substantive law. Chrysler Credit Corp.
v. Whitney Nat. Bank, 51 F.3d 553, 561 (5th Cir. 1995) (recognizing that under
Louisiana law, a party who conspires with another is liable in solido).
                                      III.
      Because we hold that the district court did not err in striking Guddh’s
pleadings, in calculating the damage amount, or in holding Guddh and Mata
liable in solido for that amount, we AFFIRM the judgment of the district court.




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