Bill.com v. Cox

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
BILL.COM, LLC,
Plaintiff/Consol Defendant,
v.
DANIELLE COX,
Defendant/Consol Plaintiff.
REPORT AND RECOMMENDATION
TO GRANT MOTION FOR
DISMISSAL SANCTIONS
(DOC. NO. 108) AND DISMISS
ACTION WITH PREJUDICE
Case No. 2:23-cv-00026
District Judge Howard C. Nielson, Jr.
Magistrate Judge Daphne A. Oberg
Bill.com, LLC, moves for dismissal sanctions against Danielle Cox1 in this
consolidated action involving Bill.com’s allegations of trade secret misappropriation and
Ms. Cox’s claims of discrimination, harassment, and retaliation.2 Bill.com also seeks an
award of attorney fees.3 The court previously entered a permanent injunction resolving
Bill.com’s claims against Ms. Cox,4 leaving only Ms. Cox’s consolidated claims against
1 (Mot. for Dismissal Sanctions and Award of Attorney Fees (Mot.), Doc. No. 108.)
2 (See Compl., Doc. No. 1; Compl. in Cox v. Bill.com, No. 2:24-cv-00380, Doc. No. 2 (D.
Utah May 28, 2024).) Bill.com filed this case against Ms. Cox, which the court later
consolidated with a subsequent action Ms. Cox filed against Bill.com—Cox. v. Bill.com,
2:24-cv-00380. (See Mem. Decision & Order, Doc. No. 64 (granting motion to
consolidate); Docket Text Order, Doc. No. 65 (consolidating the cases).)
3 (Mot. 1–2, Doc. No. 108.)
4 (Permanent Inj., Doc. No. 48.)
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Bill.com pending.5 After Ms. Cox failed to provide Rule 26 initial disclosures or to
respond to Bill.com’s discovery requests, the court granted Bill.com’s motion to compel
and ordered Ms. Cox to provide disclosures and responses by November 21, 2025.6
The court warned Ms. Cox that failure to comply may result in sanctions under the
federal rules—which include possible dismissal.7 Bill.com now moves to dismiss this
case with prejudice, asserting Ms. Cox has failed to comply with the court’s discovery
and scheduling orders and refuses to participate in discovery.8 The deadline to respond
to the motion has passed,9 and Ms. Cox has not filed a response.
Where Ms. Cox has not refuted Bill.com’s assertion that she failed to comply with
the court’s discovery and scheduling orders, she was warned such failure could result in
harsh sanctions such as dismissal, and her failure to comply prevents the case from
proceeding, the undersigned10 recommends the district judge grant Bill.com’s motion
and dismiss this case with prejudice. The undersigned also recommends granting in
part and denying in part Bill.com’s request for attorney’s fees. A fee award is justified in
connection with the present motion, but not previous motions.
5 (See Mem. Decision & Order, Doc. No. 64; Docket Text Order, Doc. No. 65.)
6 (Order Granting Short Form Disc. Mot. (Nov. 7, 2025 Disc. Order), Doc. No. 107.)
7 (Id. at 2.)
8 (Mot. 1, Doc. No. 108.)
9 See DUCivR 7-1(a)(4)(D)(ii) (providing a fourteen-day response deadline).
10 This case and motion are referred to the undersigned magistrate judge under 28
U.S.C. § 636(b)(1)(A). (See Doc. Nos. 15 & 109.)
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BACKGROUND
Bill.com filed this case in 2023 seeking to enjoin Ms. Cox, a former employee,
from misappropriating the company’s trade secrets.11 After entering a permanent
injunction resolving Bill.com’s claims,12 the court consolidated this case with Ms. Cox’s
subsequent action against Bill.com alleging harassment, discrimination, and
retaliation.13 Per the scheduling order, the parties’ Rule 26(a)(1) initial disclosures were
due September 1, 2025.14
According to Bill.com, it provided initial disclosures before the September 1
deadline, but Ms. Cox did not.15 Bill.com also served Ms. Cox with interrogatories and
requests for production of documents on September 2.16 Bill.com emailed Ms. Cox on
September 9, notifying her the disclosures were past due—and sent follow-up emails on
11 (See Compl., Doc. No. 1.)
12 (Permanent Inj., Doc. No. 48.)
13 (See Mem. Decision & Order, Doc. No. 64 (granting motion to consolidate); Docket
Text Order, Doc. No. 65 (consolidating the cases); see also Cox v. Bill.com, 2:24-cv-380
(Compl., Doc. No. 2).) After entering the permanent injunction, the court entered an
order stating: “If either party wishes to assert additional claims or seek further relief,
other than attorneys’ fees, that party shall promptly file a motion for leave to amend or
other appropriate motion.” (Docket Text Order, Doc. No. 51.) Ms. Cox then moved for
leave to file counterclaims in this action similar to her claims in Cox v. Bill.com. (Mot. for
Leave to File Countercl., Doc. No. 52.) The court denied her motion and instead
consolidated Cox v. Bill.com with this action—leaving only Ms. Cox’s claims against
Bill.com pending. (See Doc. Nos. 64, 65.)
14 (Scheduling Order 2, Doc. No. 93.) The fact discovery deadline is January 30, 2026.
(Id. at 4.)
15 (Mot. 2, Doc. No. 108.)
16 (Id.)
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September 19 and 30 regarding the same.17 Ms. Cox did not reply to these
communications.18 And she did not respond to Bill.com’s discovery requests by the
October 2 deadline.19
On October 10, Bill.com emailed Ms. Cox requesting to meet and confer on her
failure to serve initial disclosures or discovery responses.20 Ms. Cox responded one
week later, stating she would “get all of the information” to Bill.com by October 21 “at
the latest.”21 However, Ms. Cox did not serve her disclosures or discovery responses
by then (and she still has not done so).22 On October 22, Bill.com filed its motion to
compel Ms. Cox’s initial disclosures and discovery responses.23 Ms. Cox did not
respond to that motion.
On November 7, 2025, the court granted Bill.com’s motion to compel.24 The
court ordered Ms. Cox to provide her Rule 26 initial disclosures and to fully respond to
Bill.com’s first set of interrogatories and requests for production of documents by
17 (Id. at 2–3.)
18 (Id.)
19 (Id.) Although Bill.com does not identify this deadline in its motion, responses to
interrogatories and requests for production are due thirty days after the requests are
served. Fed. R. Civ. P. 33(b)(2); Fed. R. Civ. P. 34(b)(2)(A).
20 (Mot. 3, Doc. No. 108.)
21 (Id.)
22 (Id.)
23 (Short Form Disc. Mot., Doc. No. 96.)
24 (Nov. 7, 2025 Disc. Order, Doc. No. 107.)
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November 21, 2025.25 The court also warned Mr. Cox that her failure to provide initial
disclosures and discovery responses as ordered “may result in the imposition of
sanctions under Rule 37(b)(2)(A), Rule 37(c)(1), and/or Rule 41(b) of the Federal Rules
of Civil Procedure.”26
On November 25, 2025, Bill.com filed the present motion, asserting Ms. Cox
failed to comply with the court’s order to provide initial disclosures and discovery
responses by November 21.27 Bill.com notes that as of the date of its motion, Ms. Cox
still had not provided initial disclosures or discovery responses.28 Bill.com seeks
dismissal with prejudice and attorney fees under Rule 16(f)(1)(C), Rule 37(b)(2)(A),
Rule 37(c)(1)(A), and Rule 41(b).29 Ms. Cox has not responded to Bill.com’s motion.
ANALYSIS
A. Dismissal Sanctions
To start, dismissal of Ms. Cox’s consolidated claims against Bill.com is warranted
based on Ms. Cox’s failure to comply with the federal rules governing discovery and the
court’s scheduling order and November 7, 2025 discovery order. Under Rule
16(f)(1)(C) of the Federal Rules of Civil Procedure, “the court may issue any just orders,
including those authorized by Rule 37(b)(2)(A)(ii)–(vii), if a party or its attorney . . . fails
25 (Id. at 2.)
26 (Id.)
27 (Mot. 4, Doc. No. 108.)
28 (Id.)
29 (Id. at 1–2, 4, 10.)
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to obey a scheduling or other pretrial order.”30 Under Rule 37(b)(2)(A), if a party “fails to
obey an order to provide or permit discovery,” courts “may issue further just orders,”
including “dismissing the action . . . in whole or in part.”31 Similarly, under Rule 41(b),
“[i]f the plaintiff fails to prosecute or comply with [the federal] rules or a court order, a
defendant may move to dismiss the action or any claim against it.”32 When
contemplating dismissal with prejudice under these rules, courts consider the five
Ehrenhaus factors: (1) “the degree of actual prejudice to the defendant,” (2) “the amount
of interference with the judicial process,” (3) “the culpability of the litigant,” (4) “whether
the court warned the party in advance that dismissal of the action would be a likely
sanction for noncompliance,” and (5) “the efficacy of lesser sanctions.”33 These factors
are not exhaustive, nor are they necessarily of equal weight.34
30 Fed. R. Civ. P. 16(f)(1)(C).
31 Fed. R. Civ. P. 37(b)(2)(A)(v).
32 Fed. R. Civ. P. 41(b).
33 Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir. 1992) (internal quotation marks
omitted); see also Blackburn v. Webb, No. 24-6206, 2025 U.S. App. LEXIS 11078, at
*3–5 (10th Cir. 2025) (unpublished) (holding the district court did not err in applying the
Ehrenhaus factors in granting a motion for dismissal sanction under Rules 16(f)(1)(C),
37(b)(2)(A), and 41(b)); Brigham Young Univ. v. Pfizer, Inc., 282 F.R.D. 566, 569–70 (D.
Utah 2012) (explaining that, in general, before dismissing a case with prejudice as a
sanction, courts should consider the Ehrenhaus factors).
34 See Chavez v. City of Albuquerque, 402 F.3d 1039, 1044 (10th Cir. 2005); see also
Lee v. Max Int’l, LLC, 638 F.3d 1318, 1323 (10th Cir. 2011) (“The Ehrenhaus factors are
simply a non-exclusive list of sometimes-helpful ‘criteria’ or guide posts the district court
may wish to ‘consider’ in the exercise of what must always remain a discretionary
function.”).
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As described above, Ms. Cox did not provide initial disclosures or respond to
discovery requests. In doing so, she failed to comply with her obligations under the
Federal Rules of Civil Procedure and the court’s scheduling and discovery orders. First,
under Rule 26(a)(1), parties must provide certain initial disclosures to the opposing
party, including identifying witnesses and documents they may use to support their
claims and providing a computation of damages.35 Parties must provide these within
fourteen days of the parties’ Rule 26(f) conference or by a deadline set in a court
order—in this case, September 1, 2025.36 Second, Rules 33 and 34 require parties to
respond to interrogatories and requests for production within thirty days.37 Ms. Cox did
not do so.38 Finally, even after the court ordered Ms. Cox to provide initial disclosures
and discovery responses by November 21, 2025, she failed to comply.
Each Ehrenhaus factor favors dismissal. First, Ms. Cox’s refusal to participate in
discovery even after being ordered to do so has prejudiced Bill.com. Without initial
disclosures and discovery from Ms. Cox, Bill.com cannot fully investigate or defend
against Ms. Cox’s claims.39 Second, Ms. Cox has substantially interfered with the
judicial process. Her refusal to comply with discovery obligations and court orders
35 Fed. R. Civ. P. 26(a)(1)(A)(i)–(iii).
36 See Fed. R. Civ. P. 26(a)(1)(C); (Scheduling Order 2, Doc. No. 93).
37 Fed. R. Civ. P. 33(b)(2); Fed. R. Civ. P. 34(b)(2)(A).
38 (Mot. 2–3, Doc. No. 108.)
39 See Blackburn, 2025 U.S. App. LEXIS 11078, at *4 (explaining parties’ “failure to
participate in discovery and comply with the Federal Rules of Civil Procedure,” which
prevented the opposing party “from effectively trying the case,” supported dismissal).
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prevents the case from proceeding at all.40 Third, Ms. Cox is highly culpable where she
has offered no explanation or excuse for failing to comply with discovery obligations,
even after demonstrating an awareness and capacity to comply.41 Fourth, the court
warned Ms. Cox she could be sanctioned under Rule 37(b)(2)(A) or Rule 41(b), both of
which permit dismissal, if she failed to comply with the November 7, 2025 order. And
finally, lesser sanctions would be ineffective in obtaining compliance. Even after the
court ordered Ms. Cox to comply, she still has not provided any initial disclosures or
discovery responses. She did not even respond to Bill.com’s motion for sanctions.
Dismissing this case is warranted where all five Ehrenhaus factors favor doing so.
In addition, dismissal is warranted because Ms. Cox’s noncompliance was willful.
No doubt, dismissal is an “extreme sanction” which “should be used as a weapon of
last, rather than first, resort.”42 “Only when the aggravating factors outweigh the judicial
system’s strong predisposition to resolve cases on their merits is dismissal an
appropriate sanction.”43 Because of this strong preference, a dismissal sanction order
40 See, e.g., Burgi v. Awolf Fitness, No. 2:19-cv-00151, 2021 U.S. Dist. LEXIS 35993, at
*11 (D. Utah Feb. 25, 2021) (unpublished) (explaining a party “interferes with the judicial
process when it fails to abide by discovery orders”).
41 (See Mot. 3, Doc. No. 108 (noting Ms. Cox’s counsel agreed to “get all of the
information” to Bill.com by October 21 “at the latest” but failed to do so without
explanation).) Cf. Blackburn, 2025 U.S. App. LEXIS 11078, at *4 (explaining that
noncompliant parties “knew of their responsibilities to follow procedural rules and
proved that they had the capacity to follow” them but did not, which supported
dismissal).
42 Ehrenhaus, 965 F.2d at 920 (internal quotation marks omitted).
43 Id. at 921.
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“should be predicated on willfulness, bad faith, or some fault rather than just a simple
inability to comply.”44
This dismissal recommendation is predicated on Ms. Cox’s willful
noncompliance, not an inability to comply. After ignoring Bill.com’s many requests for
disclosures and discovery responses, Ms. Cox agreed to provide them but did not. This
shows purposeful inaction. And her unresponsiveness continues. She failed to
respond to the motion to compel, failed to comply with the court’s discovery order, and
offered no response to the present motion. This demonstrates Ms. Cox’s willful refusal
to participate in discovery. Where she has been warned noncompliance could result in
harsh sanctions under Rule 37(b)(2)(A) or Rule 41(b), dismissal is appropriate.
B. Attorney’s Fees
Finally, Bill.com’s request for attorney’s fees should be granted in part and
denied in part. Bill.com generally requests attorney’s fees incurred in connection with
its prior motion to compel and the present motion for dismissal sanctions.45 Without
offering substantive argument, Bill.com appears to request fees for the motion to
compel under Rule 37(c)(1)(A) and fees for the present motion under Rule 37(b)(2).46
While a fee award for the present motion is justified, no fee award should be granted for
the previous motion to compel.
44 Lee v. Max Int’l, LLC, 638 F.3d 1318, 1321 (10th Cir. 2011) (citation modified).
45 (Mot. 1–2, Doc. No. 108.)
46 (Id.)
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First, Bill.com’s request for attorney’s fees incurred in connection with the present
motion should be granted. Where a party fails to comply with a discovery order under
Rule 37(b)(2)(A), “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, unless the failure was substantially justified or other circumstances make an
award of expenses unjust.”47 Ms. Cox’s failure to comply with the court’s November 7,
2025 discovery order was not justified, and nothing suggests a fee award for this failure
would be unjust. Indeed, Ms. Cox fails to respond to the present motion entirely.
Accordingly, in addition to dismissing this case, the court should order Ms. Cox to pay
Bill.com’s reasonable attorney’s fees for the present motion.48
Second, Bill.com’s request for attorney’s fees incurred in connection with the
prior motion to compel should be denied. Rule 37(c) provides that “[i]f a party fails to
provide information or identify a witness as required by Rule 26(a) or (e), the party is not
allowed to use that information or witness to supply evidence on a motion, at a hearing,
or at a trial, unless the failure was substantially justified or is harmless.”49 After giving
the party an opportunity to be heard, the court may order payment of attorney’s fees
47 Fed. R. Civ. P. 37(b)(2)(C).
48 Rule 37(b)(2)(C) requires payment of expenses “[i]nstead of or in addition to” an order
imposing sanctions under Rule 37(b)(2)(A). Fed. R. Civ. P. 37(b)(2)(C). Because
imposing fees instead of dismissal would be ineffective in quelling Ms. Cox’s
noncompliance with the court’s orders and the federal rules of procedure, she should
bear Bill.com’s expenses for the present motion and the action should be dismissed.
49 Fed. R. Civ. P. 37(c)(1).
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“[i]n addition to or instead of” exclusion.50 But Bill.com has not moved for exclusion of
information Ms. Cox failed to provide.51 And dismissal (as recommended here) would
subsume any exclusion order. In other words, requesting fees in addition to or instead
of exclusion is unwarranted because exclusion is unnecessary where this case should
be dismissed.52 Bill.com’s request for attorney’s fees for its prior motion to compel
should be denied.
* * *
For these reasons, the undersigned recommends the district judge grant
Bill.com’s motion for dismissal sanctions and dismiss this case with prejudice pursuant
to Rule 37(b)(2)(A) and Rule 41(b). The undersigned also recommends the district
judge grant in part and deny in part Bill.com’s request for attorney’s fees and order Ms.
Cox to pay Bill.com’s reasonable attorney’s fees incurred in connection with the present
motion but not the prior motion to compel.
50 Fed. R. Civ. P. 37(c)(1)(A).
51 In its motion to compel, Bill.com sought permission “to file a motion under DUCivR
54-2(f) for an award” under Rule 37(c)(1)(A). (Short Form Disc. Mot. 1–2, Doc. No. 96.)
The court explained that this local rule does not exist, but permitted Bill.com to file a
motion for attorney’s fees as permitted by the relevant procedural rules. (Nov. 7, 2025
Disc. Order 1 n.1, Doc. No. 107.)
52 Exclusion would be an ineffective sanction, given Ms. Cox continues to not participate
in this litigation and has ignored her obligations under the federal rules and the court’s
orders.
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RECOMMENDATION
The undersigned recommends the district judge (1) grant Bill.com’s motion for
dismissal sanctions;53 (2) grant in part and deny in part Bill.com’s request for attorney’s
fees; (3) order Ms. Cox to pay Bill.com’s reasonable attorney’s fees incurred in
connection with the present motion but not the prior motion to compel; and (4) dismiss
this case with prejudice pursuant to Rule 37(b)(2)(A) and Rule 41(b) based on Ms.
Cox’s failure to comply with the federal rules and this court’s November 7, 2025 order.
The parties have the right to object to this Report and Recommendation within
fourteen days, and failure to object may be considered a waiver of objections.54
DATED this 30th day of January, 2026.
BY THE COURT:
_____________________________
Daphne A. Oberg
United States Magistrate Judge
53 (Doc. No. 108.)
54 See 28 U.S.C. § 636(b)(1); Fed R. Civ. P. 72(b).
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