United States District Court, D. Oregon, Portland Division
TRUSTEES OF THE OREGON AND SOUTHWEST WASHINGTON PAINTERS PENSION TRUST FUND, et al., Plaintiffs,
BRAD PETERSON, dba Commercial Wallcovering, Defendant.
FINDINGS AND RECOMMENDATION
DENNIS J. HUBEL, Magistrate Judge.
This matter comes before the Court on Plaintiffs' motion (Docket No. 14) for an order to show cause regarding contempt and sanctions.
Plaintiffs filed this action against Defendant on June 2, 2014, alleging a single cause of action for breach of a collective bargaining agreement and violation of the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. §§ 1001-1461. Among other things, Plaintiffs sought a decree and judgment requiring Defendant to make available to an auditor "all books, payroll records, information, data, reports and other documents necessary for [an] auditor to determine whether Defendant has made all required fringe benefit contributions on behalf of all individuals performing work covered by the collective bargaining agreement from January 1, 2011, through the date this lawsuit [wa]s filed[.]" (Compl. at 6, ¶ 1.)
A summons was returned executed by Plaintiffs showing service of the summons and complaint on Defendant on June 12, 2014. Plaintiffs' counsel served their first request for production of documents on Defendant that same day, June 12, 2014. (Cadonau Decl. [Docket No. 7] ¶ 3.) On July 18, 2014, six days after the response to the request for production was due, Plaintiffs' counsel, Cary Cadonau, "spoke with [D]efendant on the phone at which time he assured [Cadonau] that the responsive documents would be produced within two weeks[.]" (Cadonau Decl. ¶ 3.) On August 7, 2014, Plaintiffs filed a motion to compel production of documents, namely, documents that would allow Plaintiffs "to conduct a payroll verification examination to determine whether [D]efendant accurately reported all bargaining-unit work for the time period of January 1, 2011, to date." (Cadonau Decl. ¶ 2.)
During a telephone hearing held on October 9, 2014, the Court granted Plaintiffs' motion to compel production of documents, denied Plaintiffs' request for attorney's fees, ordered Defendant (who failed to appear for the hearing) to produce the requested documents by October 24, 2014, and set a status conference for November 5, 2014. After Defendant failed to comply with the Court's order on Plaintiffs' motion to compel, Plaintiffs filed a motion for an order to show cause regarding contempt and sanctions on October 31, 2014.
By way of a scheduling order dated November 5, 2014, the Court ordered both parties to appear in person for a December 15, 2014 hearing on Plaintiffs' motion for an order to show cause regarding contempt and sanctions. In addition to mailing copies of this Court's scheduling order and Plaintiffs' moving papers to Defendant, the Clerk of Court also made two attempts to contact Defendant using a telephone number provided by Plaintiffs' counsel. Both attempts to contact Defendant by telephone were unsuccessful, however.
On December 15, 2014, Plaintiffs filed an affidavit of service indicating that Defendant had been personally served with the Court's November 5, 2014 scheduling order and Plaintiffs' moving papers on November 23, 2014. Despite the foregoing, Defendant failed to comply with the Court's order to appear in person on December 15, 2014, for the hearing on Plaintiffs' motion for an order to show cause regarding contempt and sanctions.
At the outset, the Court notes Plaintiffs' service of a discovery request simultaneously with service of the summons and complaint. Both Federal Rule of Civil Procedure ("Rule") 26(d) and Local Rule 26-1 require the parties to complete the discovery planning conference required by Rule 26(f) before engaging in discovery. This was not done in this case. However, an argument can be made that the conversation Plaintiffs refer to between their attorney and Defendant by telephone on July 18 either satisfied this requirement or was a waiver of it by Defendant. In granting the motion to compel filed by Plaintiffs for this discovery, the Court had ordered discovery to proceed on this record, and the Court notes that Defendant's consistent failure to respond is ample reason to allow discovery to proceed.
During the telephonic hearing held on November 5, 2014, the Court expressed concern as to whether it could properly order a defendant to produce documents in response to a request for production when, as here, the defendant has not appeared in the lawsuit. To that end, Plaintiffs filed a reply brief in support of their motion for an order to show cause regarding contempt and sanction, which addressed that issue. Citing Blazek v. Capital Recovery Associates, Inc., 222 F.R.D. 360 (E.D. Wisc. 2004), and Jules Jordan Video, Inc. v. 144942 Canada Inc., 617 F.3d 1146 (9th Cir. 2010), Plaintiffs contend that
where, as here, the defendant has not been declared to be in default, the defendant retains all the rights, and thus obligations, of a party. Accordingly, despite his lack of appearance in this case, Defendant remains a party, and thus should and must be held to account for his continued failure to comply with plaintiffs' discovery requests and this Court's discovery orders.
(Pls.' Reply Br. at 5.)
In Blazek, the clerk entered the defendant's default after it failed to answer or otherwise appear. Blazek, 222 F.R.D. at 360. Since the district court had authorized the plaintiff to engage in discovery prior to entry of default, and since the defendant failed to respond to the plaintiff's interrogatories, the plaintiff sought an order compelling the now-defaulted defendant to do so. See id. The plaintiff "wishe[d] to take discovery of [the] defendant in order to determine the composition of the class and ...