Default judgment entered after discovery violations

Where the trial court entered a default judgment and awarded compensatory and punitive damages against appellant as a sanction for not responding to discovery requests, even though the court ordered appellant to do so, there was no abuse of discretion.

Appellant responded to the discovery request after the court’s 10-day deadline expired and 209 days after interrogatories and document requests were initially served.

Analysis

“Although we lack a transcript of the March 18, 2022 hearing at which the circuit court denied [appellant] Pine Hill’s motion to reconsider the sanctions order, we cannot say that the court abused its discretion. [Appellee] Nass could have sought more severe sanctions under Rule 4:12(d) when Pine Hill failed at the outset to respond to Nass’s discovery requests.

“Instead, Nass sought and the court granted an order compelling Pine Hill to respond to its discovery requests, without objection, within ten days. Nass included in its proposed order a provision that Pine Hill’s failure to respond as ordered would result in a default judgment against it without further order of the court.

“The judge struck through that language but wrote that the deletion was ‘without prejudice’ to such future relief. That order was endorsed by Pine Hill’s original counsel before he was allowed to withdraw.

“On November 12, 2021, after Pine Hill violated the order, the circuit court struck Pine Hill’s answer and entered a default judgment for Nass on liability. As of that date, Pine Hill’s discovery responses were 120 days overdue.

“The order reflects that Augustine M. Kim, the ‘Manager’ of Pine Hill, was ‘present without counsel.’ By the time Pine Hill obtained new counsel and responded to the interrogatories and document requests, the discovery responses were 209 days overdue. …

“We disagree with Pine Hill that a trial court abuses its discretion if it imposes a default judgment as a discovery sanction when the opposing party has not been prejudiced by the delay. A trial court may conclude that the lack of prejudice warrants a lesser sanction than the striking of a pleading or the entry of a default judgment.

“For instance, an award of attorney fees may be appropriate ‘[i]n lieu of’ such a sanction. Rule 4:12(b). But our Supreme Court has never required that prejudice must be shown before the most severe sanctions may be imposed for disobeying a discovery order. …

“We decline Pine Hill’s request to extend to the Rule 4:12 context the provision in Rule 3:19 allowing a defendant ‘for good cause shown’ to be relieved of a default if the defendant moves for relief before the court enters a default judgment. …

“The failure to file a responsive pleading by the deadline imposed by court rules is different in kind from disobeying a court order compelling discovery, entered after the disobedient party has already violated a deadline imposed by court rules.

“Rule 4:12 contains no similar ‘for good cause shown’ language and, as just explained, our Supreme Court has squarely rejected claims that the movant must show prejudice before the court enters the severest discovery sanctions.

“A trial court’s discretion to impose ‘just’ sanctions under Rule 4:12 is not unlimited. … But the circuit court here could properly find that Pine Hill failed to justify its failure to respond to Nass’s discovery requests, particularly during the months in which Pine Hill was represented by its original counsel.

“The circuit court also did not act precipitously or without warning. Under the 2018 amendment to Rule 4:12(d), the court could have struck Pine Hill’s answer and entered a default judgment as a sanction for not responding to Nass’s discovery requests.

“The court ordered Pine Hill instead ‘to file full and responsive responses, without objections,’ within ten days. The circuit court even declined Nass’s proposal that the default be automatic if Pine Hill failed to respond as ordered.

“It was only after Pine Hill missed that deadline and Nass moved for default judgment that the circuit court granted that relief as a sanction under Rule 4:12(b)(2).”

Pine Hill Group v. Nass Group, Record No. 0626-22-4, Jan. 10, 2022. CAV (published opinion) (Raphael). From the Circuit Court of Fairfax County (Devine). J. Chapman Petersen for appellant. Jerome P. Friedlander II for appellee. VLW 023-7-002, 8 pp.