UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MARY L. COLTRANE,

Plaintiff,

v. Civil Action No. 20-22 (RDM)

VINCENT WILKINS JR., et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

In this diversity action, Plaintiff Mary Coltrane alleges that Defendant Vincent Wilkins

Jr. and his law firm, Vincent Wilkins, Jr., & Associates, committed legal malpractice, breach of

contract, fraud, and negligence in the course of representing Plaintiff in a lawsuit in federal court.

See Dkt. 1 (Compl.). Over the course of this litigation, serious questions have arisen as to

Defendant’s willingness to cooperate in discovery and to comply with the Court’s orders: to date,

Defendant has failed to appear at three hearings without advanced notice and has ignored two

Court orders compelling discovery. In light of these lapses, Plaintiff moves for sanctions against

Defendant in the form of entry of a default judgment and an award of attorney’s fees. Dkt. 26.

For the reasons stated below, the Court will GRANT in part and DENY in part Plaintiff’s

motion.

I. BACKGROUND

On January 6, 2020, Plaintiff, proceeding pro se, filed the present action, asserting claims

of legal malpractice, breach of contract, fraud, and negligence against Defendant Vincent Wilkins, Jr., and his law firm, Vincent Wilkins, Jr., & Associates.1 Dkt. 1 (Compl.). On

February 8, 2020, Defendant Wilkins, also proceeding pro se, moved for summary judgment,

asserting that Plaintiff’s claim was barred by the statute of limitations, Dkt. 5 at 2. On February

12, 2020, the Court denied Defendant’s motion for failing “to cite to any competent record

materials in support of the motion,” as required by Federal Rule of Civil Procedure 56(c)(1)(A),

and failing to “participate in a pre-motion conference prior to filing motions for summary

judgment,” as required by the Court’s standing order. Min. Order (Feb. 12, 2020).

On May 22, 2020, the parties appeared for a status conference, at which the Court

ordered Defendants to respond to the complaint by June 2, 2020, and referred the case to a

magistrate judge assigned at random for mediation. Min. Entry (May 22, 2020). Defendant

Wilkins filed his answer, Dkt. 8, and a motion to dismiss, Dkt. 9; see also Dkt. 10, 28 days late,

on June 30, 2020. In a one-page supplemental memorandum, Defendant asserted in conclusory

fashion that the Court lacked subject matter jurisdiction over the dispute, that venue was

improper, that Plaintiff’s action was barred by the statute of limitations, and that Plaintiff had

failed to state a claim for which relief can be granted. Dkt. 10 at 1.

The following day, the Court denied Defendant’s motion to dismiss in a minute order,

explaining (1) that the Court appeared to have “diversity jurisdiction . . . based on Plaintiff’s

residence in Washington, D.C., Defendant’s residence in Maryland, and Defendant’s status as

sole owner of the unincorporated Defendant Vincent Wilkins, Jr., & Associates” and (2) that

venue was proper in the District of Columbia because “the action concerns legal representation

1 Defendant Vincent Wilkins, Jr., & Associates, which appears to be an unincorporated law firm whose sole owner is Defendant Wilkins, see Min. Order (July 1, 2020), has not appeared in the case, and the parties dispute whether it is a standalone legal entity susceptible to suit. See Dkt. 28 at 6; Dkt. 29 at 4 n.2; see also Dkt. 25 at 8–9; Min. Order (Feb. 12, 2020).

2 that Defendant allegedly provided Plaintiff from his law office located in Washington, D.C. in

another case” in the District of Columbia. Min. Order (July 1, 2020) (citation omitted). Having

assured itself that both jurisdiction and venue were proper, the Court denied Defendant’s motion

“because neither [the motion to dismiss] nor the supplemental memorandum contain any legal or

any factual argument.” Id.

Defendant moved for reconsideration on July 24, 2020, this time providing some

(limited) factual and legal argument to support his statute of limitations defense. Dkt. 12. The

Court nevertheless denied the motion, declining to dismiss the complaint on statute of limitations

grounds because Defendant had failed to show that Plaintiff’s “claim [was] time-barred on the

face of the complaint.” Min. Order (Aug. 5, 2020) (quoting Logan v. LaSalle Bank Nat’l Ass’n,

(D.C. Ct. App. 2013)). In doing so, however, the Court took no view on

whether Defendant’s statute of limitations defense would ultimately succeed at later stages in the

litigation.

On October 28, 2020, Magistrate Judge Robin Meriweather, to whom the case had been

referred for mediation, entered an order referring the case to the Office of the Chief Circuit

Mediator and appointing Plaintiff pro bono counsel for the limited purpose of mediation. See

Dkt. 13. Pro bono counsel appeared in the case on November 24, 2020, Dkt. 15, and November

30, 2020, Dkt. 16.

On December 14, 2020, the parties met with the court-appointed mediator, who

suggested that they propound limited discovery to better evaluate potential settlement positions

before scheduling mediation. See Dkt. 26 at 10; Dkt. 26-2 at 1 (Rodriguez Decl. ¶¶ 3, 4). On

January 5, 2021, Plaintiff served Defendants with a request for production of documents, a set of

interrogatories, and a request for admissions, Dkt. 26 at 10; Dkt. 26-2 at 2 (Rodriguez Decl.

3 ¶¶ 5–11), and demanded a response within thirty days, Dkt. 26 at 10. Defendant failed to

respond, and Plaintiff followed up by both mail and email on February 8, 2021, requesting a

response by February 12. Dkt. 26 at 10; Dkt. 26-2 at 2–3 (Rodriguez Decl. ¶ 12). Defendant

once again did not respond, and Plaintiff followed up again on February 19, 2021, and March 2,

2021, to no avail. Dkt. 26 at 10–11; Dkt. 26-2 at 3 (Rodriguez Decl. ¶¶ 13–15).

The parties attended a mediation session on March 29, 2021, where Defendant explained

that he would not respond to Plaintiff’s discovery requests because he was under no court order

to do so. Dkt. 26 at 11; Dkt. 26-2 at 3–4 (Rodriguez Decl. ¶ 19). Following that revelation,

Plaintiff contacted the Court to schedule a hearing on the parties’ discovery dispute. Dkt. 26 at

11; Dkt. 26-2 at 4 (Rodriguez Decl. ¶ 20).

The Court held a hearing on the dispute on May 11, 2021. Defendant did not appear.

While the hearing was underway, a third party sent an ex parte email on Defendant’s behalf to

the Deputy Clerk, asserting that Defendant had just been released from the hospital and

requesting a new date for the hearing. See Min. Entry (May 11, 2021). The Court ordered the

parties to proceed with discovery in aid of mediation and directed Defendant to respond

promptly to the pending discovery requests. Min. Order (May 11, 2021). The Court explained

that because Defendant was not present at the hearing, it would allow him to seek

reconsideration of the Court’s order by May 18, 2021. The Court cautioned, however, that any

motion for reconsideration should be accompanied by a sealed filing documenting Defendant’s

hospitalization and release date.

The Court directed the parties to appear for a rescheduled

hearing on May 21, 2021.

The Court did not receive any communication from Defendant by the May 18, 2021

deadline. However, on May 20, 2021, Defendant’s spouse submitted an ex parte email to the

4 Deputy Clerk, informing the Court that Defendant had returned to the hospital on May 18, 2021,

and including a note from his doctor, dated May 19, 2021, stating that Defendant “is hospitalized

under my care” and, “hence, he cannot function in his normal capacity until further notice.” Dkt.

18. On May 20, 2021, the Court entered a minute order explaining that it had received notice

from Defendant’s doctor that he was, at that time, unable to participate in the litigation. Min.

Order (May 20, 2021). The Court, accordingly, vacated the hearing set for May 21, 2021, “to be

rescheduled when Defendant is medically cleared to proceed.” Id.2

The next day, on May 21, 2021, the Clerk’s Office entered on the docket a response from

Defendant regarding the Court’s order of May 11, 2021. Dkt. 17. Although the response was

docketed on May 21, 2021, it was stamped “received” by the Clerk’s Office on May 19, 2021.

Id. at 1. In this response, Defendant detailed his medical condition and notified the Court that he

intended to “make an oral motion to dismiss this case” at the hearing on May 21, 2021. Id. at 3.

Also on May 21, 2021, Plaintiff’s counsel sent an ex parte email to the Deputy Clerk, stating that

Plaintiff interpreted Defendant’s filing, Dkt. 17, to mean that he desired to move forward with

the hearing. The Court, in turn, ordered the parties to consult with the Deputy Clerk as to the

Court’s calendar and to propose a time for a further telephonic hearing. Min. Order (May 24,

2021). The Court also docketed Defendant’s doctor’s note under seal at that time. Dkt. 18. On

May 25, 2021, the Court ordered the parties to appear for a telephonic status conference on June

4, 2021. Min. Order (May 25, 2021). Although the Court was under the impression that both

parties had confirmed this date, the Court later discovered that in fact only Plaintiff conferred

with the Deputy Clerk; Defendant had never contacted the Deputy Clerk, as directed.

2 At the time the Court entered this order, the doctor’s note was not filed on the docket.

5 Defendant failed to appear at the hearing on June 4, 2021. On June 9, 2021, the Court

received a response from Defendant to the Court’s order of May 25, 2021, explaining that he had

not participated in the consultation with the Deputy Clerk regarding scheduling. Dkt. 19 at 1.

Defendant “estimate[d] that” he would be able to participate in hearings “by the middle of July

2021[.]” Id. Defendant’s response also moved for a continuance of the June 4, 2021 hearing.

Defendant’s response is dated “June 2, 2021” and, even if it was mailed from Upper Marlboro,

Maryland on that date, Defendant—an experienced lawyer—could have easily anticipated, it

would not be received until after the June 4 hearing. Defendant did not telephone or email the

Court to indicate that he would be unable to attend the June 4, 2021 hearing.

The Court documented these scheduling difficulties in an Order dated June 9, 2021. See

Dkt. 20. In that Order, the Court observed that “there is no indication that Defendant is not

receiving docket notifications in this litigation[]” since “[t]he Clerk’s Office, which mails

Defendant hard copies of the docket entries in this case, has received no returned mail.” Dkt. 20

at 3. As a result, the Court concluded that it was “appropriate to set deadlines for discovery and

a further hearing for a future date, allowing Defendant enough time to receive the notice and

notify the Court if he needs to reschedule.” Id. The Court, accordingly, ordered Defendant to

comply with Plaintiff’s discovery requests on or before July 21, 2021, and permitted Plaintiff to

file a motion seeking sanctions if Defendant failed to produce the requested discovery by that

date without showing good cause for failing to do so. Dkt. 20 at 3–4. The Court also

rescheduled the hearing on the discovery dispute for July 26, 2021, and ordered the Defendant to

“notify the Court and opposing counsel as soon as possible, in advance of the hearing” if he

could not attend. Dkt. 20 at 4.

6 On June 21, 2021, Defendant filed a third motion to dismiss, Dkt. 21, reiterating many of

the same arguments that the Court had already considered and rejected previously, Dkt. 25 at 6.

Plaintiff filed her opposition on July 1, 2021, Dkt. 23, and Defendant filed his reply on July 14,

2021, Dkt. 24.

Even though Defendant filed two briefs in the intervening period—one a week before the

Court’s deadline—the July 21, 2021 discovery deadline came and went without Defendant either

responding to Plaintiff’s discovery requests or providing the Court timely notice of his inability

to do so for good cause. Defendant once again failed to appear at the July 26, 2021 hearing

without any advanced notice. At that hearing, the Court orally denied Defendant’s motion to

dismiss on the record, concluding that the “motion doesn’t raise anything that’s not previously

been considered and rejected” and that Defendant’s arguments raised factual disputes that were

inappropriate at the motion to dismiss stage. Dkt. 25 at 6–7.

As a result of Defendant’s failure to appear and failure to comply with the Court’s order

compelling discovery, the Court permitted Plaintiff to file a motion for sanctions, Dkt. 25 at 5, 9,

as it had warned Defendant it would do in its June 9, 2021 Order, Dkt. 20 at 4. Plaintiff filed that

motion on July 30, 2021, seeking default judgment and attorney’s fees as discovery sanctions.

Dkt. 26. The Court ordered Defendant to submit an opposition brief, Dkt. 27, which he did on

August 16, 2021. Dkt. 28. Plaintiff filed her reply on August 23, 2021. Dkt. 29. The motion is

now ripe for consideration.

II. LEGAL STANDARD

Federal Rule of Civil Procedure 37 provides courts with the tools to compel discovery

and to sanction those who resist the Court’s orders. Under Rule 37(b), the Court may impose

sanctions on a party who “fails to obey an order to provide or permit discovery,” including an

7 order on a motion to compel. Fed. R. Civ. P. 37(b)(2)(A). The rule “requires the moving party

to demonstrate . . . (1) [that] there is a discovery order in place, and (2) that the discovery order

was violated.” Embassy of Fed. Republic of Nigeria v. Ugwuonye,

(D.D.C.

2013). If these requirements are met, the court may order such sanctions it deems to be “just”

under the circumstances, including but not limited to (1) “directing that the matters embraced in

the order or other designated facts be taken as established for purposes of the action;” (2)

“prohibiting the disobedient party from supporting or opposing designated claims or defenses;”

(3) “striking [the] pleadings in whole or in part;” (4) “staying further proceedings until the order

is obeyed;” (5) “dismissing the action or proceeding in whole or in part;” (6) “rendering a default

judgment against the disobedient party;” or (7) “treating as contempt of court the failure to obey”

the order. Fed. R. Civ. P. 37(b)(2)(A). Moreover, “[i]nstead of or in addition to the[se] orders,”

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” to obey the Court’s

discovery orders, unless the Court determines that the party’s failure was “substantially justified

or other circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(b)(2)(C).

District courts have broad discretion to issue discovery sanctions under Rule 37. Bonds

v. District of Columbia,

(D.C. Cir. 1996). At the same time, “any sanction”

issued under the Rule 37 “must be just” and “guided by the concept of proportionality.”

(quotation marks omitted). The D.C. Circuit has cautioned, moreover, that default judgment

should be a “sanction of last resort,” only to be used when “less onerous methods” obviously

would prove futile or ineffective, although the Court need not exhaust lesser sanctions if the

circumstances merit a default. Webb v. District of Columbia,

(D.C. Cir. 1998)

(quotation marks omitted).

8 III. ANALYSIS

Plaintiff’s motion seeks default judgment and attorney’s fees as discovery sanctions

against both Defendant Vincent Wilkins Jr. and Defendant Vincent Wilkins, Jr., & Associates.

Upon consideration of the parties’ arguments and the circumstances of the case, the Court will

grant in part Plaintiff’s request for attorney’s fees with respect to Defendant Vincent Wilkins but

will deny the motion in all other respects—at least for the time being.

As an initial matter, the parties dispute whether Defendant Vincent Wilkins, Jr., &

Associates—the law office under which Defendant Wilkins allegedly held himself out to

Plaintiff—exists as a legal entity separate from Defendant Wilkins, such that it may properly be

named as a defendant in this case. See Dkt. 28 at 6; Dkt. 29 at 4 n.2. The Court need not decide

that issue now, however, because only Defendant Wilkins has appeared in this case and thus, as a

technical matter, the Court’s discovery orders applied only to him. See Min. Order (May 11,

2021) (ordering that “Defendant shall promptly respond to the discovery filed to date” (emphasis

added)); Dkt. 20 at 3 (directing “Defendant” to “comply with [the] discovery filed to date”

(emphasis added)). Therefore, only Defendant Wilkins has failed to comply with the Court’s

orders. The Court, accordingly, will deny Plaintiff’s motion for discovery sanctions with respect

to Vincent Wilkins, Jr., & Associates. To the extent that Vincent Wilkins, Jr., & Associates

does, in fact, exist as a standalone legal entity and has properly been served in this case, the

appropriate course is for Plaintiff to pursue an entry of default and default judgment using the

procedures outlined in Federal Rule of Civil Procedure 55.

That brings the Court to Plaintiff’s request for an entry of default judgment against

Defendant Wilkins. The D.C. Circuit has set forth “three basic justifications [to] support the use

of dismissal or default judgment as a sanction for misconduct.” Webb,

; see also

9 Shea v. Donohoe Constr. Co.,

(D.C. Cir. 1986). First, the Court “may

decide that the errant party’s behavior has severely hampered the other party’s ability to present

[her] case.” Webb,

. Second, the Court “may take account of 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.’”

(quoting Shea,

). And third, the Court “may

consider the need ‘to sanction conduct that is disrespectful to the court and to deter similar

misconduct in the future.’”

(quoting Shea,

). A default judgment ordered

“pursuant to any of these considerations must be based on findings supported by the record.”

(citing Bonds,

).

Plaintiff contends that default judgment is merited because Defendant has “disobe[yed]

. . . two court orders compelling discovery” and has failed to “provide good cause for [his]

failure” to comply with the Court’s July 21, 2021 deadline. Dkt. 26 at 16. Plaintiff analogizes

this case to Embassy of the Federal Republic of Nigeria v. Ugwuonye, in which this Court

entered default judgment against an experienced attorney, proceeding pro se, for failing to

comply with discovery orders,

, and to Carazani v. Zegarra, in which this Court

similarly entered default judgment against a defendant who “repeatedly failed to obey court

orders to provide or permit discovery,”

(D.D.C. 2013). Dkt. 26 at 15.

Tracking Webb’s justifications for default judgment, Plaintiff argues that Defendant’s failure to

respond to her discovery requests has “severely hampered [her] ability to pursue her case” and

stymied her efforts at mediation. Dkt. 26 at 16–17. Plaintiff also asserts that Defendant’s

conduct has “prolonged this case and placed a burden on the Court.”

. She points out

that, at the time of her motion in July 2021, the case had been pending “for over a year and a

10 half,” and it had been “nearly a year since Defendants were ordered to engage in a meaningful

mediation” and three months since Defendant was ordered to comply with Plaintiff’s discovery

requests, during which time the only action Defendant took in the case was to file a redundant

motion to dismiss.

Moreover, Plaintiff argues, the Court “has been forced to hold status

hearings that Defendants failed to attend without prior notice, enter orders which Defendants

ignored, and listen to the same arguments month after month regarding Defendants’ defiance.”

at 18–19. Finally, Plaintiff maintains that default judgment is necessary to deter similar

conduct in the future because “Wilkins is an attorney with decades of experience who should

understand the importance of complying with court orders.”

Much of Defendant’s opposition brief is off topic and beside the point. He reiterates his

statute of limitations defense, Dkt. 28 at 4, which the Court has already rejected twice at the

motion to dismiss stage. Defendant also raises a number of objections to Plaintiff’s discovery

requests.

, 7–8. However, the time to object to Plaintiff’s requests has come and gone,

and, in any case, briefing on a motion for sanctions is not the proper forum through which to do

so. Defendant does briefly address the merits of Plaintiff’s sanctions motion: he asserts that “he

has responded in good faith and to the best of his ability, given his medical incapacitation” and

states that he “has not been able, due to extremely poor health and the disorientation caused by

medications, to participate in any of the pre-trial conferences.”

. And, although

Defendant acknowledges that he has filed “moving papers” during the period in question, he

explains (somewhat concerningly) that “a former colleague” has been “giving him pro bono

assistance and drafting” the briefs (which Defendant has then filed and signed under his own

name, see Dkt. 21 at 4–5; Dkt. 24 at 4; Dkt. 28 at 9). Dkt. 28 at 5; see also

at 10–11 (Wilkins

Decl. ¶ 8) (“The . . . motion to dismiss filed by me in June of 2020 was done while in medical

11 distress.”) Defendant has also submitted a declaration in which he attests to two hospital

admissions spanning May 6 to May 9, 2021, and May 18 to May 21, 2021; a surgical procedure

on June 15, 2021; and a then-planned surgical procedure on August 12, 2021. Dkt. 28 at 10

(Wilkins Decl. ¶¶ 4–7).

Although Plaintiff raises substantial concerns about Defendant’s respect for this Court’s

orders and the resulting damage that Defendant’s failure to respond has done to Plaintiff’s ability

to pursue her case, the Court is mindful of the D.C. Circuit’s admonishment that default

judgment is serious medicine and thus should only be used as a “last resort” when “less onerous

methods . . . will be ineffective or obviously futile.” Webb,

. The question is a

somewhat close one, but on this record, the Court concludes that the circumstances of this case

do not yet merit the drastic remedy of default judgment.

Defendant has attested, under penalty of perjury, that a health condition he suffered

beginning in May 2021 has caused him pain and discomfort and resulted in two hospitalizations

in May, a surgery in June, and a planned second surgery in August 2021. Dkt. 28 at 10 (Wilkins

Decl. ¶¶ 4–7). Crucially, this period roughly coincides with the Court’s first order compelling

discovery on May 11, 2021, the Court’s second order compelling discovery on June 9, 2021, and

the three hearings Defendant missed, without advanced notice, on May 11, 2021, June 4, 2021,

and July 26, 2021.

Plaintiff analogizes this case to Ugwuonye and Carazani, see Dkt. 26 at 15, but both

cases are distinguishable from the circumstances here. Neither involved a situation where the

party that failed to comply with court orders suffered medical emergencies that, at least partly,

affected his ability to litigate the case. Moreover, in Ugwuonye, the Court had previously

sanctioned the defendant to no avail.

.

12 This is not to say, of course, that Defendant is absolved of all responsibility for his failure

to respond to the Court’s orders on May 11, 2021, and June 9, 2021, and his failure to appear at

the status conferences on May 11, 2021, June 4, 2021, and July 26, 2021. For one, at least on the

present record, the Court is unconvinced that Defendant’s health condition is so debilitating that

it reasonably prevented him from responding to Plaintiff’s discovery requests sometime during

the seventy-one days between the Court’s first order on May 11, 2021, and the second order’s

deadline of July 21, 2021. Defendant attests only that he was hospitalized between May 6 and

May 9, 2021, and again between May 18 and May 21, 2021, though he states that he was in

“extreme pain and disorientation” between those hospitalizations. Dkt. 28 at 10 (Wilkins Decl.

¶¶ 4–5). Thus, Defendant’s failure to appear at the May 11, 2021 conference is excusable.

Defendant did notify the Court that he had been hospitalized in advance of the May 21, 2021

hearing, which prompted the Court to vacate that hearing. However, Defendant filed a later

response on May 19, 2021, notifying the Court of his intent to “make an oral motion to dismiss

this case” at the hearing on May 21, 2021. Dkt. 17 at 3. Consequently, the Court directed the

parties to contact the Deputy Clerk to set a new hearing date, which the Court eventually

scheduled for June 4, 2021. It later turned out that the date was selected without Defendant’s

input, and Defendant sent a notice informing the Court that he could not attend. The Court will

not excuse Defendant’s failure to attend, however, because Defendant had failed to contact the

Deputy Clerk to arrange a hearing date, as directed, Min. Order (May 24, 2021), and, as an

experienced attorney, Defendant should have anticipated that the notice he mailed to the Court

on June 2, 2021, regarding his inability to attend the hearing, see Dkt. 19 at 3, would not be

received before the 10:00 a.m. hearing on June 4. See Dkt. 20 at 3. Finally, Defendant failed to

appear at the Court’s July 26, 2021 hearing and has not offered any good cause for his failure to

13 do so, even though he received a month-and-a-half’s notice of the hearing date and was directed

to “notify the Court and opposing counsel as soon as possible, in advance of the hearing” if he

could not attend. Id. at 4.

The Court is also troubled by Defendant’s failure to comply with its two orders

compelling discovery in this case. The Court’s May 11, 2021 order directed Defendant to

“promptly respond to the discovery filed to date” and permitted Defendant to “seek

reconsideration” of that order. Min. Order (May 11, 2021). Although Defendant filed a

response to that order on May 19, 2021, the response did not request reconsideration of the

Court’s discovery order. Dkt. 17. And while the Court is sympathetic that Defendant’s medical

troubles in May 2021 might have made it difficult for him to respond to discovery in May,

Defendant has much less of an excuse when it comes to responding to the Court’s June 9, 2021

order compelling discovery. That order afforded Defendant forty-two days to respond to

Plaintiff’s discovery request. Defendant did not do so, and instead filed a redundant motion to

dismiss on June 16, 2021, Dkt. 21, and a reply brief on July 14, 2021, Dkt. 24. Defendant now

claims that the “motion to dismiss . . . was done while in medical distress” and that “a family

friend and retired litigator . . . assist[ed] [Defendant] pro bono.” Dkt. 28 at 10 (Wilkins Decl.

¶ 8). That representation raises eyebrows since Defendant alone signed the briefs in question.

But, in any event, Defendant does not claim that he was hospitalized during this period—outside

of a surgery on June 15, 2021—and he was apparently well enough to coordinate the submission

of two briefs in support of a redundant, discretionary motion. Defendant does not explain why

he could not have received assistance from the same individual in complying with the Court’s

order.

14 In the end, however, “disposition . . . on the merits is generally favored,” Webb,

, and Defendant’s health problems give the Court some reason to believe that other

remedies, short of default judgment, might still be effective in inducing Defendant’s compliance.

Defendant responded to the Court’s order to file an opposition in this case, Dkt. 27, and

apparently was in good-enough health to do so. Accordingly, the Court will afford Defendant

one final opportunity to respond to Plaintiff’s discovery requests. However, as a result of

Defendant’s failure to comply with the Court’s two orders compelling discovery, failure to

timely object to Plaintiff’s requests, and failure to “seek reconsideration” of the Court’s initial

order compelling Defendant to respond to Plaintiff’s outstanding requests, see Min. Order (May

11, 2021), the Court will treat Defendant as having waived any objections to Plaintiff’s discovery

requests. See Fed. R. Civ. P. 37(b)(2)(A)(ii); Webb,

(identifying “issue-related

sanctions” as permissible, “less onerous” remedies than default judgment). Defendant is also

cautioned that further disregard for the Court’s orders without good cause will result in a default

judgment.

The Court further concludes that an award of reasonable expenses is warranted. See

Ugwuonye,

(awarding attorney’s fees under Rule 37(b)(2)(C) against an

experienced attorney proceeding pro se); see also Klayman v. Judicial Watch, Inc.,

(D.D.C. 2009). Unlike the sanction of default judgment, which is generally committed

to the discretion of the Court and should only be used as a last resort, Rule 37(b)(2)(C) makes an

award of reasonable expenses, including attorney’s fees, mandatory upon a party’s failure to

comply with a discovery order, unless the Court finds that “the failure was substantially justified

or other circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(b)(2)(C). Here,

for the reasons discussed above, the Court concludes that Defendant’s failure to attend the June

15 4, 2021, and July 26, 2021 status conferences and to comply with the Court’s May 11, 2021 and

June 9, 2021 orders compelling discovery was not substantially justified, and that an award of

expenses associated with those failures would not be unjust. Accordingly, the Court will order

Defendant to reimburse Plaintiff’s reasonable expenses caused by Defendant’s failure to attend

those hearings and to comply with those orders, including reasonable expenses incurred in

briefing the present motion. The Court will excuse Defendant’s failure to attend the May 11,

2021 hearing, however, given its close proximity to his hospitalization.

In her motion, Plaintiff calculated attorney’s fees associated not just with Defendant’s

failure to attend the Court’s hearings and failure to comply with the Court’s discovery orders, but

also expenses caused by Defendant’s failure to respond to Plaintiff’s discovery requests before

the Court’s involvement in May 2021. See Dkt. 26-2 at 4 (Rodriguez Decl. ¶ 24) (requesting

expenses related to “the mediation, discovery requests, demand letters, the three hearings which

Defendants failed to attend, responding to the frivolous motion to dismiss, and the preparation of

this Motion for Sanctions.”). Since Defendant had not yet failed to comply with a discovery

order issued by the Court, those expenses fall outside the scope of Rule 37. Similarly, the Court

will not award expenses associated with responding to Defendant’s motion to dismiss, which was

not meaningfully caused by Defendant’s failures to comply with the Court’s orders. The Court

will, accordingly, require Plaintiff to submit a supplemental declaration outlining reasonable

expenses associated only with the present motion; Defendant’s failure to comply with the

Court’s May 11, 2021, and June 9, 2021 orders; and Defendant’s failure to appear at the June 4,

2021, and July 26, 2021 hearings.

16 CONCLUSION

For the foregoing reasons, Plaintiff’s motion for sanctions, Dkt. 26, is hereby

GRANTED in part and DENIED in part. Defendant Vincent Wilkins Jr. is ORDERED to

respond to all Plaintiff’s outstanding discovery requests on or before March 1, 2022, or provide

good cause for his failure to do so. Defendant is cautioned that, absent good cause, the Court

will permit Plaintiff to renew her motion for default judgment under Rule 37(b)(2)(A)(vi) if

Defendant fails once again to respond. It is further ORDERED that Plaintiff shall submit a

supplemental declaration on or before February 4, 2022, providing an account of the reasonable

expenses associated with her motion for sanctions; Defendant’s failure to comply with the

Court’s May 11, 2021, and June 9, 2021 orders; and Defendant’s failure to appear at the June 4,

2021, and July 26, 2021 hearings.

SO ORDERED.

/s/ Randolph D. Moss RANDOLPH D. MOSS United States District Judge

Date: January 26, 2022

17