Taylor v. Fechnay

1 Because Defendant did not appear for the hearing on the Motion, I allowed both parties
to make a record on Affidavits with documentary support. I also take judicial notice of the docket
of this adversary proceeding and the Orders entered therein. Fed. R. Evid. 201.
UNITED S TATES B ANKRUPTCY COURT
FOR T HE E ASTERN DISTRICT O F PENNSYLVANIA
In re 	: 	Chapter 7
:
BRUCE L. FECHNAY, 	: 	Bankruptcy No. 07-14418DWS
:
Debtor. 	:
:
LYNETTE TAYLOR, 	: 	Adversary No. 08-0060
:
Plaintiff, 	:
:
v. 	:
:
BRUCE FECHNAY, 	:
:
Defendant. 	:
MEMORANDUM OPINION
BY: DIANE WEISS SIGMUND, United States Bankruptcy Judge
Before the Court is Plaintiff’s Motion to Strike Answer and/or Entry of an Order for
Sanctions (the “Sanctions Motion”).1 For the reasons that follow, the Motion shall be
granted in part.
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2 From statements of counsel, I understand that Plaintiff has filed a complaint in the state
court, but that it has not progressed beyond the pleading stage as a result of the automatic stay.
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BACKGROUND
This 	adversary 	proceeding 	was 	initiated 	by 	Lynette 	Taylor 	(“Plaintiff”) 	on
March 18, 2008 against Debtor/Defendant Bruce Fechnay (“Defendant”). The gravamen
of the complaint is that Defendant, a clinical psychologist, engaged in inappropriate
sexual conduct while Plaintiff was his patient in 2005.2 The Complaint alleges that
Defendant’s conduct was malicious and intentional and that Plaintiff’s claim for resulting
injury should therefore be excepted from discharge pursuant to 11 U.S.C. § 523(a)(6).
Defendant filed an Answer to the Complaint denying all the substantive allegations of the
Complaint.
On April 28, 2008 with the matter joined, I entered a pretrial order which, inter alia,
set a discovery schedule, a date for the filing of a joint pretrial statement and a final
pretrial/settlement conference. 	Doc. No. 5. 	On April 29, 2008, the day after the initial
pretrial order was entered Plaintiff served Interrogatories and Request for Documents.
Certification of Plaintiff’s counsel, Timothy P. Duggan, Esq., (“Duggan Cert.”) ¶ 5,
Exhibits A-B. 	Defendant’s deposition was initially scheduled for June 17, 2008.
Duggan Cert. ¶ 6, Exhibit C. 	On June 9, 2008 with the discovery cut-off imminent,
Defendant requested that the deposition be adjourned. Plaintiff agreed on the condition that
a firm rescheduled date would be fixed and the pretrial schedule extended. The deposition
was rescheduled by agreement to July 10, 2008. 	Duggan Cert. ¶ 7, Exhibits D-F.
On June 12, 2008 	a consent order was filed providing an additional thirty days to the
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3 A second letter sent the same day noticed Defendant’s deposition and urged interrogatory
answers and document production prior to that event. Duggan Cert., Exhibit C.
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overall schedule. Doc. No. 7. Under the amended pretrial order, the discovery cut-off date
was July 25, 2008 and the joint pretrial statement was due August 8, 2008. Id.
On June 2, 2008, the response date for the April 29, 2008 discovery, Plaintiff’s
counsel sent the first letter reminding of the outstanding discovery; asking that if there
was a valid reason for noncompliance, counsel be informed and noting that otherwise
failure to respond would result in a motion to compel. Duggan Cert., Exhibit G.3 There was
apparently no response but no motion was then filed. In a subsequent letter to Defendant’s
counsel dated June 24, 2008 confirming the July 10 deposition date agreed to by Defendant,
Plaintiff’s counsel noted the Defendant’s failure to respond to the previously served
interrogatories and document requests and again allowed further time for compliance to
be had within the following week. Duggan Cert., Exhibit F. The subject was revisited by
e-mail on July 1 when Duggan noted the non-receipt of the discovery and the imminence of
the deposition for which they were necessary. 	Production was demanded by the end of
business the following day or a motion would be filed. Duggan Cert., Exhibit H.
As of July 2, 2008, Defendant’s counsel Christopher Pfaff, Esquire (“Pfaff”), reported
to Duggan that he had still not received Defendant’s responses or documents, and inquired
if the upcoming deposition would go forward. Duggan Cert., Exhibit I. Duggan confirmed
that the deposition would go forward on July 10 due to the upcoming discovery deadline of
July 25 and asserted: 	“We will be filing a discovery motion ASAP.” 	Id. 	Duggan Cert.
¶¶ 10-11, Exhibits F-I. 	Defendant called Duggan the morning of the deposition and said
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he could not appear. Duggan Cert. ¶12. However, it appears that Pfaff had not gotten the
message as he appeared at Plaintiff’s counsel’s office. A discussion he allegedly had with
Edward Shensky, Esquire, the lead partner on this matter, provides Defendant with his
other excuse for non-compliance. According to Defendant’s lead counsel, David A. Scholl,
Esquire (“Scholl”), by reason of a hearsay communication from Pfaff of that conversation,
he believed that notwithstanding the Plaintiff’s written insistence to obtain his discovery,
the availability of insurance coverage was going to determine whether Plaintiff would
pursue the litigation further. Certification and Argument in Opposition to Plaintiff’s Motion
for Sanctions by Counsel for the Debtor David A. Scholl (“Scholl Cert.”) ¶ 7.
On July 22, 2008, Plaintiff filed the Motion that his counsel had advised would
follow based on Defendant’s failure to respond to Interrogatories and a Notice to Produce
Documents and failure to appear at his deposition. It was listed for hearing originally on
August 19, 2008. However, the subject was addressed at the previously scheduled August 12
pretrial conference where Scholl reported that Defendant was not responding to inquiries
from 	his 	own 	counsel, 	and 	stated 	that 	Defendant 	was 	experiencing 	emotional 	or
psychological issues. Whether this statement is based upon any professional diagnosis or
counsel’s own perceptions is simply unclear. 	In any case, no evidence was proffered
then or at the subsequent hearing on the Sanctions Motion. The conference was rescheduled
to September 2, the same date as the hearing on the Sanctions Motion.
On September 2, Defendant’s counsel reported that Defendant had been hospitalized
over the weekend. 	This fact has been corroborated by a letter from his physician to
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4 Notably there is no affidavit from Defendant, and the Court has never heard from him on
any of these matters.
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Scholl dated August 28, 2008. Exhibit A to Scholl Cert. Once again Plaintiff’s counsel
agreed to postpone the hearings, i.e., to October 7, 2008. 	However, on October 7,
Defendant again failed to appear, despite having advised his counsel that he would be
present. 	At approximately 12:45 p.m., upon completion of the morning’s hearing list,
Defendant had still not appeared and his counsel was before another judge in this Court.
After a colloquy with Plaintiff’s counsel and having completed the morning’s hearings,
I took the Sanctions Motion under advisement and allowed both parties the opportunity
to file supplemental documents and affidavits. 	At approximately 2:00 p.m., Defendant’s
counsel returned to my courtroom for trial on a separate matter and stated that his client
had appeared somewhere in the courthouse. No explanation was then provided as to why
Defendant did not come to my courtroom, which was clearly identified on Notice of Motion,
nor did Defendant appear with his counsel at 2:00 p.m. to personally explain his absence.
Defendant’s counsel now states that in his absence, Defendant did not think he should
enter the courtroom. Scholl Cert. ¶ 12.4
Defendant's counsel has provided a certification attesting that Defendant has now
complied with the written discovery requests, attaching as evidence a cover letter dated
October 17, 2008. 	Scholl Cert. ¶ 14 and Exhibit B. 	This appears to be supported by
the supplemental certification of Plaintiff’s counsel, Tyler Tomlinson, Esq. (“Tomlinson
Cert.”), dated October 20, 2008, which states: 	“Today, certain documents were dropped
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5 Rule 37 is made applicable in adversary proceedings by Federal Rule of Bankruptcy
Procedure 7037.
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off at my office. 	I have not had an opportunity to review them.” 	Tomlinson Cert. ¶ 7.
Neither party has stated whether any attempt has been made to reschedule Defendant's
deposition.
In defense of the Sanctions Motion, Defendant, by his counsel, asserts his compliance,
albeit late, with the 	interrogatories and document requests and willingness to sit for
his deposition. The Tomlinson Certification indicates receipt of documents on October 20,
the date before the submissions were due from the Movant/Plaintiff. 	According to
Defendant’s counsel, the discovery was finally prepared during two extended visits to
counsel’s office following the October 7 hearing. Scholl Cert. ¶ 14. Scholl thus argues that
the filing of the Sanctions Motion, without further discussion or effort to reschedule the
deposition, was premature.
DISCUSSION
Plaintiff seeks relief pursuant to Rule 37(d) of the Federal Rule of Civil Procedure,5
Party's Failure to Attend Its Own Deposition, Serve Answers to Interrogatories, or Respond
to a Request for Inspection, which states:
(1) In General.
(A) Motion; Grounds for Sanctions. The court where the action
is pending may, on motion, order sanctions if:
(I) a party or a party's officer, director, or managing agent--or a
person designated under Rule 30(b)(6) or 31(a)(4)--fails, after
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being served with proper notice, to appear for that person's
deposition; or
(ii) a party, after being properly served with interrogatories
under Rule 33 or a request for inspection under Rule 34, fails to
serve its answers, objections, or written response.
. . .
(3) Types of Sanctions. Sanctions may include any of the orders listed in
Rule 37(b)(2)(A)(i)-(vi). Instead of or in addition to these sanctions, the court
must require the party failing to act, the attorney advising that party, or both
to pay the reasonable expenses, including attorney's fees, caused by the failure,
unless the failure was substantially justified or other circumstances make an
award of expenses unjust.
Fed. R. Civ. P. 37(d). 	Subsection (b)(2)(A) is non-exclusive list of potential sanctions,
including the relief requested by Plaintiff: striking of the Answer to the Complaint and
default judgment. Fed. R. Civ. P. 37(b)(2)(A)(iii) and (vi). These sanctions are somewhat
entwined in that the striking of the Answer would result in the well pled averments of
the Complaint to be admitted and presumably give rise to a judgment by default under
Fed. R. Civ. P. 55(a), incorporated here by Fed. R. Bankr. P. 7055.
The Third Circuit Court of Appeals has held that dismissals with prejudice or
judgments by default, while a matter of discretion by the trial court, are nevertheless
“extreme sanctions” that should be applied sparingly. Poulis v. State Farm Fire and Casualty
Co., 747 F.2d 863, 868 (3d Cir.1984). Courts should consider the following factors before
imposing such a sanction:
(1) the extent of the party's personal responsibility; (2) the prejudice to the
adversary caused by the failure to meet scheduling orders and respond to
discovery; (3) a history of dilatoriness; (4) whether the conduct of the party or
the attorney was willful or in bad faith; (5) the effectiveness of sanctions other
than dismissal, which entails an analysis of alternative sanctions; and (6) the
meritoriousness of the claim or defense.
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Id. As applied to the facts above, I make the following findings.
(1) Defendant’s personal responsibility. This factor looks to whether the discovery
failures are attributable to the Defendant as opposed to his counsel. Defendant attributes his
over four months of delay in compliance with discovery obligations to certain illness,
medical as well as emotional and psychological. The only support Defendant offers for a
medical problem is a letter from his physician regarding his hospitalization for acute renal
failure in September. Scholl Cert. ¶ 12 and Exhibit A. While this excuses his attendance at
the September 2 hearing, it is wholly insufficient to justify his failure to attend the deposition
two months earlier, which had already been rescheduled then at his request. I cannot help
but note Defendant’s complete and utter failure to explain his inaction, either at the hearing
on the Motion or through a supplemental affidavit. The justifications and explanations are
provided by Scholl. How easily it would have been for Defendant to submit an affidavit
setting forth the relevant facts. His disengagement in this process continued through this
Sanctions Motion. As such, I must disregard his counsel’s unsupported assertion of mental
and/or emotional problems. Moreover, given Defendant’s sudden ability to complete the
discovery in two meetings between October 7 (the date of the hearing) and October 20
(the date of production), it is clear that timely compliance could have been obtained by
July 22, 2008, the date the Sanctions Motion was filed. Moreover, it appears that only the
Sanctions Motion prompted him to do what he was required to do under discovery rules and
Orders of this Court. In this sense, I find that the failures are attributable to the Defendant
personally.
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On this record, it is hard to assess what role counsel’s asserted but misguided views
of Defendant’s responsibilities contributed to the problem, In his Certification, Scholl
states his belief, gleaned through his associate Pfaff, that Plaintiff would not proceed
with the litigation absent confirmation of insurance, presumably to pay a judgment on a
non-dischargeable claim. 	While not a valid justification, if this was communicated to
Defendant as a basis for non-compliance, his personal responsibility would be lessened.
However, as Defendant has never averred that to be the case and given Scholl’s statements
to me that his client had not been in contact with him notwithstanding his outreach, I cannot
shift the blame to counsel. Moreover, the alleged conversation between Pfaff and Shensky
regarding insurance occurred on July 10, when the discovery was already long overdue.
(2) 	Prejudice. 	Examples of prejudice under the Poulis factors include “the
irretrievable loss of evidence, the inevitable dimming of witnesses' memories, or the
excessive and possibly irremediable burdens or costs imposed on the opposing party.”
Scarborough v. Eubanks, 747 F.2d 871, 876 (3d Cir. 1984). 	This factor weighs against
Plaintiff who has simply failed to identify any prejudice that must be ameliorated by the
sanction that she seeks. While the efforts that her counsel has had to expend to secure
the discovery responses finally obtained were more costly than should have been the case,
in the absence of showing that they are incomplete, the appropriate sanction is monetary.
Given the Defendant’s recent enlightenment to his discovery obligations as evidence by
the October document production, I cannot conclude at this juncture that he will not appear
for his deposition. Scholl Cert., Joint Pretrial Statement.
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(3) 	History of dilatoriness. 	Plaintiff’s submissions reflect repeated efforts by her
counsel to obtain the needed discovery and a clear indication that the deposition was to
proceed even if the Defendant continued to fail to comply with the written discovery
requests. Duggan Cert. ¶¶ 10-11, Exhibits F-I. Plaintiff demonstrated restraint by taking
repeated informal steps to secure her requested discovery but when pressed with an already
extended discovery cut-off and no discovery, she was compelled to file the Sanctions Motion.
(4) Bad Faith Conduct. Defendant’s unexplained failures certainly raise questions
as to his good faith. Lack of Respect for the Federal Rules and Court Orders that govern
litigation implicate the integrity of the judicial process, burden opposing parties and the
Court and cannot be tolerated. 	While Defendant explained his failure to appear at the
September 2 hearing with a doctor’s note, his last minute cancellation of his attendance at
the rescheduled deposition and inaccessibility to his attorneys has never been documented
or supported to this day.
(5) Meritorious of Defense. With respect to the merits of this adversary, the state of
the record is inconclusive. 	Given that the allegations of the Complaint involve conduct
occurring in the privacy of a counseling sessions, the outcome will clearly turn on the
credibility of the parties’ testimony.
(6) Availability of Alternative Sanctions. Finally and most significantly in this case,
as suggested above, I cannot conclude that lesser sanctions will not be effective to
address the discovery abuses I have found. Plaintiff has sought no other relief save for the
extraordinary 	sanction 	of 	striking 	the 	Complaint 	and 	entering 	a 	default 	judgment.
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Adversary No. 08-0060
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Weighing the Poulis factors, I do not find that 	such a grave sanction is warranted.
However, Defendant has demonstrated a cavalier attitude toward his obligations as a party
to this action and therefore some sanction is warranted to ensure his future compliance.
Defendant’s counsel has certified that his client is willing to attend a deposition. Scholl Cert.
¶ 14. He will do so by a date certain or he will be precluded from testifying on his behalf
at trial. 	Nor should Plaintiff have to bear the expenses of this Sanctions Motion which
was necessary to gain discovery compliance after many informal requests were made.
Thus, I will order Defendant to pay the attorneys’ fees and costs of this Motion.
Should Defendant not appear at the court-scheduled deposition and Plaintiff have to file
a further motion to preclude his testimony, Defendant will pay for those costs as well.
An Order consistent with this Memorandum Opinion shall be entered.
DIANE WEISS SIGMUND
United States Bankruptcy Judge
Dated: November 12, 2008
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