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Smith v. Sanders

United States District Court, N.D. Texas, Dallas Division

March 5, 2019

LAWRENCE M. SMITH, and UNITED STATES OF AMERICA, ex rel Plaintiffs,
v.
DEION L. SANDERS, Individually, ET AL., Defendants.

          FINDINGS, CONCLUSIONS, AND RECOMMENDATION

          IRMA CARRILLO RAMIREZ UNITED STATES MAGISTRATE JUDGE.

         By standing order of reference dated June 8, 2015 (doc. 126), this case was referred for full case management, including the determination of non-dispositive motions and issuance of findings of fact and recommendations on dispositive motions. Before the Court for determination is Plaintiffs' Second Amended Motion for Sanctions and Contempt of Court Against Pro Se Defendant, Deion L. Sanders, filed June 11, 2018 (doc. 425). After consideration of the relevant filings and applicable law, the motion should be GRANTED in part and DENIED in part.

         I. BACKGROUND

         On October 31, 2012, Lawrence Smith (Relator)[1] filed suit against several defendants on behalf of the United States of America for violations of the False Claims Act, 21 U.S.C. §§ 3729-30 (the Act) in United States ex rel. Smith v. Sanders, No. 3:12-CV-4377-M. (doc. 2.) He alleges that several defendants “committed several acts and omissions that contributed to and resulted in the making of false and fraudulent statements and claims to obtain federal grant funds” through the National School Lunch Program and Summer Food Service Program. (doc. 89 at 10-12.)

         Relator filed another action on August 7, 2013 in United States ex rel. Smith v. Wallace, No. 3:13-CV-3106-M (the Related Action) against some of the same defendants as in this case, as well as others. (See doc. 2, Related Action.)[2] His claims related to the charter school application and grant applications for Prime Prep Academy (the Academy). (See doc. 2, Related Action; doc. 172 at 8.) On May 27, 2015, the Court consolidated both cases. (doc. 122 at 1; doc. 46, Related Action.) After consolidation, Relator amended the complaint he originally filed in the Related Action. (See doc. 172.) Relator alleges that several defendants, including Deion L. Sanders (Defendant), made material false representations and statements in the Academy's charter application to obtain grant funds under the federally funded No Child Left Behind (NCLB) Act. (Id. at 3, 6-7.) He also alleges that the defendants received large sums of money through the Texas Education Agency, which administered the NCLB program in Texas. (Id. at 3.)

         During the course of the litigation, Defendant has wholly failed to participate or cooperate with discovery, and he has violated the following court orders without satisfactory explanation[3]:

Docket No.

Action Ordered

#266

Produce discovery responses by 6/5/17. (See Order, doc. 303.)

#303

Produce discovery responses by 7/12/17. (See Order, doc. 346.)

#293

Appear for settlement conferences on 7/17/17 and 7/20/17. (See Order, doc. 319)

#285

Participate in mediation and in filing joint status report by 7/23/17. (See docs. 319, 320.)

#318

Appear in person for hearing on 8/11/17 concerning failure to produce discovery responses. (See Order, doc. 346.)

#346

Pay fees and costs incurred by Relator in filing a discovery motion and produce discovery responses by 8/25/17. (See Order, doc. 350.)

#350

Appear for show cause hearing on 9/1/17 as to why his pleadings should not be stricken and default judgment rendered for failure to comply with discovery orders

         Based on Defendant's alleged failure to respond to them, other than to state that he did not have time to respond to discovery requests, Defendant's attorneys moved to withdraw from representing him in this case on August 1, 2017, and their motion was granted on August 11, 2017. (See docs. 338, 348.) After his attorneys were allowed to withdraw, the Court ordered that all orders issued on August 11, 2017, be served on Defendant by email at the email address which his counsel and Relator agreed was the most current viable means of reaching him, and by mail at various physical addresses provided by Relator. (See docs. 351, 352.) Defendant acknowledged email receipt of the orders by return email and copied an attorney on the email on that same date. (See doc. 354-1.) Relator now seeks to have Defendant held in contempt and sanctioned under Fed.R.Civ.P. 37(b) by having his pleadings stricken and default entered against him. (See doc. 425 at 9.)

         II. RULE 37(b)

Rule 37(b)(2)(A) provides that if a party fails to obey an order to provide or permit discovery, the court may issue “further just orders, ” including
(i) directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims;
(ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence;
(iii) striking pleadings in whole or in part;
(iv) staying further proceedings until the order ...

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