     Case: 15-20700      Document: 00513578237         Page: 1    Date Filed: 07/05/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-20700                         United States Court of Appeals
                                  Summary Calendar                                Fifth Circuit

                                                                                FILED
                                                                             July 5, 2016
HEATHER TIMMS,                                                             Lyle W. Cayce
                                                                                Clerk
              Plaintiff - Appellant

v.

LZM, L.L.C., doing business as J D Byrider; RANDOLPH DANIELS-KOLIN,
Individually,

              Defendants - Appellees




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 4:15-CV-311


Before KING, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
       Plaintiff–Appellant Heather Timms appeals from sanctions levied
against her by the district court.         Timms contends that the district court
abused its discretion when it struck her amended complaint and awarded costs
and fees to Defendants–Appellees LZM, L.L.C., and Randolph Daniels-Kolin
for her failure to comply with a court issued discovery order. We find that 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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district court did not abuse its discretion in assessing such sanctions and
therefore AFFIRM the judgment of the district court.
             I. FACTUAL AND PROCEDURAL BACKGROUND
       On February 4, 2015, Plaintiff–Appellant Heather Timms filed suit
against Defendants–Appellees LZM, L.L.C., and Randolph Daniels-Kolin. In
her complaint, Timms asserted that Defendants violated the Fair Labor
Standards Act (FLSA). Timms alleged that she had not been compensated for
overtime work by LZM, her former employer, and that she was terminated
from her position as a portfolio manager at LZM in retaliation for engaging in
FLSA protected activity.          Following document production by Timms and
Defendants’ oral deposition of Timms, Defendants became aware that Timms
had not produced text messages between her and an LZM employee relevant
to her FLSA claims. Because Timms claimed to have more text messages and
because Defendants had doubts as to the credibility and completeness of
Timms’s document production, 1 Defendants moved for a court order to permit
a forensic examination of Timms’s phone and inspection of any and all text
messages and communications between Timms and LZM employees.                             The
district court ultimately granted the motion on October 2, 2015, ordering
Timms to give her phone to Defendants’ forensic examiner “for phone imaging
and inspection.”
       Following Defendants’ forensic examination of the phone, Defendants
moved for the court to find Timms in contempt of court and grant sanctions




       1  Defendants’ doubts as to credibility stemmed from the following facts: (1) Timms’s
counsel initially informed Defendants that all of Timms’s text messages were lost after her
phone crashed in May 2015, which led to Defendants deposing Timms; (2) Timms then
testified at her September 2015 deposition that she still had her text messages that she could
access through a cloud storage application on her phone; (3) Timms produced paper copies of
said text messages; and (4) the paper copies produced were missing at least two text messages
Timms was known to have.
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against her on September 30, 2015. According to Defendants, their inspection
revealed that the text messages in question were not on Timms’s phone, that
the mobile application allegedly containing such text messages was not on the
phone, and that the phone appeared to have been reset or newly activated only
three days before the forensic inspection. Defendants moved for, among other
sanctions, the court to dismiss Timms’s suit with prejudice and to shift
Defendants’ costs and fees to Timms. Timms did not file an opposition motion
in response. The district court then set a show cause hearing on Defendants’
motion for October 14, 2015. At the hearing, counsel for both parties presented
arguments, and Defendants’ forensic examiner and Timms were questioned by
counsel. 2 At the conclusion of the hearing and in a separate written order, the
district court granted Defendants’ motion for sanctions, striking Timms’s
amended complaint and awarding Defendants $8,500 in costs and attorney’s
fees related to Timms’s deposition and the forensic examination of her phone.
Timms timely appealed thereafter.
                           II. STANDARD OF REVIEW
       We have frequently observed that federal courts have inherent power to
punish parties for contempt and to impose sanctions as “reasonable and
appropriate.” Nat. Gas Pipeline Co. of Am. v. Energy Gathering, Inc., 86 F.3d



       2 At the hearing, Timms proffered many of the arguments she now makes on appeal:
the court order only required her to turn over her phone, not any text messages that were
on a server; the phone was reset because loading text messages using the cloud storage
application froze her phone; she had problems downloading all the text messages because of
the size of her files on the cloud storage application and the limited internal memory on her
phone; and the text messages could only be accessed through a phone, not through a desktop
computer. The district court found all of these explanations unavailing. It noted that: the
order and motion to compel were clearly related to the text messages; Timms did not warn
Defendants that she had reset her phone; files from the application, including the text
messages, could be downloaded selectively without using much memory; the cloud storage
application’s website stated that files on the application could be viewed through a desktop
computer; and, in any event, the onus was on Timms to provide the messages in a consumable
form independent of any difficulties she encountered.
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464, 467 (5th Cir. 1996). In addition, Federal Rule of Civil Procedure 37(b)(2),
by its express terms, allows district courts to sanction parties for failure to obey
a discovery order in a number of ways, including striking pleadings or
rendering default judgment. 3 United States v. $49,000 Currency, 330 F.3d 371,
376 (5th Cir. 2003). Although the district court here did not expressly state
whether it was sanctioning under Rule 37 or its inherent powers, we review
both such sanctions for abuse of discretion. Chambers v. NASCO, Inc., 501
U.S. 32, 55 (1991); Smith & Fuller, P.A. v. Cooper Tire & Rubber Co., 685 F.3d
486, 488 (5th Cir. 2012). We also review any factual findings underlying such
sanctions for clear error. Am. Airlines, Inc. v. Allied Pilots Ass’n, 228 F.3d 574,
578 (5th Cir. 2000). We have noted, however, that our review of sanctions is
not perfunctory and that they “must be exercised with restraint and
discretion.”       Crowe v. Smith, 151 F.3d 217, 226 (5th Cir. 1998) (quoting



       3   Rule 37(b)(2) states, in relevant part:

       (2) Sanctions Sought in the District Where the Action Is Pending.
              (A) For Not Obeying a Discovery Order. If a party or a party's
              officer, director, or managing agent--or a witness designated
              under Rule 30(b)(6) or 31(a)(4)--fails to obey an order to provide
              or permit discovery, including an order under Rule 26(f), 35, or
              37(a), the court where the action is pending may issue further
              just orders. They may include the following:
              ...
              (iii) striking pleadings in whole or in part;
              ...
              (vi) rendering a default judgment against the disobedient
              party;
              ...
              (C) Payment of Expenses. Instead of or in addition to the orders
              above, the court must order the disobedient party, the attorney
              advising that party, or both to pay the reasonable expenses,
              including attorney's fees, caused by the failure, unless the
              failure was substantially justified or other circumstances make
              an award of expenses unjust.

Fed. R. Civ. P. 37(b)(2).
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Shepherd v. ABC, 62 F.3d 1469, 1475 (D.C. Cir. 1995)).
                  III. THE DISTRICT COURT’S SANCTIONS
         On appeal, Timms contends that the district court abused its discretion
in imposing sanctions. We disagree and hold that the district court did not
abuse its discretion. With respect to sanctions that strike complaints or grant
default judgments against parties who fail to abide by discovery orders, we
have required that two criteria be met: (1) the discovery violation was willful
and (2) “a lesser sanction would not have substantially achieved the desired
deterrent effect.” $49,000 Currency, 330 F.3d at 376. We have also allowed
the district court to consider “whether the discovery violation prejudiced the
opposing party’s preparation for trial, and whether the client was blameless in
the violation” when imposing sanctions. Id. Moreover, we require that the
sanction “must comply with the mandates of due process.” Chambers, 501 U.S.
at 50.
         Timms’s first contention is that that she did not willfully disobey the
order because it only required her to produce her phone and because she made
a good faith effort to obtain the text messages Defendants requested but was
hindered by technological difficulties.            Her argument is unavailing.             The
district court specifically found that the order covered the text messages and
that Timms was not credible in her explanation of why she did not produce
said text messages. 4 Moreover, we previously have held that a failure to abide
by discovery orders, combined with other evidence of a party delaying and
incurring needless expenses—as in this case—is sufficient for a finding of bad
faith. See Worrell v. Houston Can! Academy, 424 F. App’x 330, 336 (5th Cir.



        While Timms asserts on appeal that not turning over the text messages was, at most,
         4

negligent based on her confusion of what the district court’s order meant, this is belied by her
response to Defendants’ original motion to compel where she expressly recognized that
Defendants sought access to her text messages.
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2011) (per curiam) (unpublished). Timms next contends that the district court
failed to employ less drastic sanctions that were available. However, Timms
does not point to any alternative options that the district court could have
employed. And we previously found that a district court “was well within its
discretion in awarding default judgment as a sanction,” where—as is the case
here—a party was uncooperative in its initial discovery production and
subsequently did not abide by a court’s discovery order aimed at remedying
this problem. $49,000 Currency, 330 F.3d at 379; see also Moore v. CITGO Ref.
& Chems. Co., L.P., 735 F.3d 309, 317 (5th Cir. 2013) (“[T]his circuit has
rejected the view that a court is ‘required to attempt to coax [parties] into
compliance with its order by imposing incrementally increasing sanctions.’”
(quoting $49,000 Currency, 330 F.3d at 379)).
       Timms finally argues that there was insufficient evidence to justify the
$8,500 in attorney’s fees and costs awarded to Defendants by the district court.
Timms asserts that no affidavits or billing records were present at the time of
the show cause hearing and that, therefore, there was no way of determining
whether Defendants’ counsel’s hourly rate was reasonable. Timms, however,
failed to raise any objection at the show cause hearing or file a motion for
reconsideration, thereby waiving any argument on appeal. See Hogrobrooks v.
Bally’s Olympia L.P., No. 02-60229, 2002 WL 31115080, at *2 (5th Cir. Sept.
16, 2002) (per curiam) (unpublished); Prince v. Poulos, 876 F.2d 30, 33–34 (5th
Cir. 1989); see also Cleveland Hair Clinic, Inc. v. Puig, 200 F.3d 1063, 1068
(7th Cir. 2000). 5 Even if we were to evaluate the district court’s court fee-
shifting sanctions, we ask only if the district court’s factual findings were


       5 Timms argues that it would not have been possible to object at the hearing, claiming
that the transcript of the proceedings demonstrated the district court’s resistance to allowing
Timms’s counsel to speak. However, the transcript shows that Timms’s counsel was asked,
immediately following the imposition of monetary sanctions, if he had anything to add to the
order and counsel declined to raise objections.
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clearly erroneous and whether it abused its discretion. Eastway Gen. Hosp.,
Ltd. v. Eastway Women’s Clinic, Inc., 737 F.2d 503, 505 (5th Cir. 1984). As we
have previously discussed, the district court did not otherwise abuse its
discretion in assessing sanctions. Moreover, Timms does not demonstrate on
appeal how the monetary figure of $8,500, which the district court calculated
after discussions with Defendants’ counsel, is based on clearly erroneous facts.
While Timms argues that the district court improperly included costs for her
deposition in the monetary sanction, the court found that the costs of Timms’s
deposition were the product of her refusals to cooperate with discovery and
produce the relevant text messages. Cf. Tollett v. City of Kemah, 285 F.3d 357,
368 (5th Cir. 2002) (stating that, under Rule 37, a party could not recover
monetary sanctions on discovery requests unrelated to a failure to comply with
discovery). Given the “broad range of discretion” afforded to district courts in
assessing sanctions, even absent waiver, we cannot say that the district court
erred in awarding attorney’s fees and costs. 6 Eastway Gen. Hosp., 737 F.2d at
505.
                                  IV. CONCLUSION
        For the foregoing reasons, we AFFIRM the judgment of the district court.




        6On appeal, Defendants also seek appellate attorney’s costs and fees for defending
the district court’s judgment on appeal. We decline to grant Defendants appellate attorney’s
fees and costs. Defendants cite no relevant Fifth Circuit precedent on the matter, and we
cannot say, given the severity of the sanction at issue, that Timms’s appeal was frivolous.
See Reed v. Johnson, No. 95-31157, 1997 WL 33422, at *1 (5th Cir. Jan. 14, 1997) (per
curiam).
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