July 23, 2019

Tenth Circuit: Repeated Bad Faith Failure to Respond to Discovery Requests and Motions to Compel is Grounds for Dismissal

The Tenth Circuit Court of Appeals issued its opinion in Lee v. Max Int’l, LLC on Tuesday, May 3, 2011.

The Tenth Circuit affirmed the district court’s decision. Petitioner filed suit against Respondent for breach of contract; multiple discovery requests were submitted by Respondent and two motions to compel were granted by a magistrate to force production of documents by Petitioner. After repeated noncompliance, Petitioner was also warned his actions could lead to sanctions and, ultimately, the case was dismissed by the district court. Petitioner appeals the dismissal of the case. The Court agreed with the district court’s decision, finding that the district court’s “considerable discretion in this arena easily embraces the right to dismiss or enter default judgment in a case under Rule 37(b) when a litigant has disobeyed two orders compelling production of the same discovery materials in its possession . . . . [Petitioners] in this case were given no fewer than three chances to make good their discovery obligation,” including claiming they had made good when they knowingly had not, which is “strong evidence of willfulness and bad faith, and in any event is easily fault enough . . . to warrant dismissal or default judgment.”

Additionally, the district court need not expressly discuss the various factors a court may choose to consider when deciding whether to issue a dismissal sanction, as defined by Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir. 1992). The factors are not a rigid test and are merely helpful criteria; “a district court’s failure to mention or afford them extended discussion does not guarantee an automatic reversal,” especially with such a clear record of abuse and noncompliance.

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