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Community Association Underwriters of America, Inc. v. Queensboro Flooring Corp.

United States District Court, Middle District of Pennsylvania

April 6, 2015

COMMUNITY ASSOCIATION UNDERWRITERS OF AMERICA, INC., a/s/o VILLAGE AT CAMELBACK PROPERTY OWNER ASSOCIATION, et al., Plaintiffs,
v.
QUEENSBORO FLOORING CORP., Defendants.

MEMORANDUM OPINION

KAROLINE MEHALCHICK, United States Magistrate Judge.

This is a consolidated action concerning property damage and personal injury claims arising out of an explosion and fire in July 2009 that occurred during construction work at a townhouse located in Tannersville, Pennsylvania. Several cases have been consolidated into this one action. The present dispute concerns the parties originally named in Pozarlik v. Camelback Associates, Inc., No. 3:11-CV-1349, which was joined into this consolidated action on March 15, 2012. (Doc. 31). Arkadiusz Piotr Pozarlik and Agnieszka Zofia Pozarlik (the “Plaintiffs”), assert negligence and loss of consortium claims against several defendants, including the Village at Camelback Property Owners Association, Inc., and its property manager, Kathleen Simoncic (together, the “Defendants”).

Now before the Court is Plaintiffs’ motion for Rule 37 sanctions (Doc. 194). The motion has been fully briefed, and oral argument on both motions was held on March 24, 2015.

In their motion, Plaintiffs request the imposition of sanctions in the form of a default judgment against the Defendants for a variety of transgressions that have violated a total of five discovery orders and have purportedly continued to transpire even after the Court’s July 3, 2014, Order, including failure to timely disclose or produce certain discoverable information or documents, failure to preserve audio and tape recordings, concealment of various discoverable documents, sanitization of various files, and general dilatoriness, lack of candor, and lack of good faith in responding to discovery and in discovery-related motions practice before the Court. See 28 U.S.C. § 1927; Fed.R.Civ.P. 26(g)(3); Fed.R.Civ.P. 30(d)(2); Fed.R.Civ.P. 37(a); Fed.R.Civ.P. 37(b)(2); Fed.R.Civ.P. 37(c)(1).

This motion addresses several different categories of alleged improper behavior on the part of the Defendants.

I. Categories of Discovery

A. Kathleen Simoncic’s Personnel and Home File

Plaintiffs recently discovered through the August 12, 2014, deposition of the newly installed President of the Board of Directors John Chironna, and through the October 28, 2014, re-deposition of Kathleen Simoncic, that Simoncic was terminated in 2008 and rehired in 2009 as a result of “misconduct.” (Doc. 194, at 10). At this deposition, Chironna revealed that the topic of Simoncic’s firing was discussed at a June 14, 2009, board meeting. (Doc. 194-10, at 2). Both Chironna and Simoncic testified at their depositions that any documentation pertaining to Simoncic’s firing should be located in her personnel file. (Doc. 194-16, at 6). Simoncic also testified that she maintained a “home” file that contained information pertaining to her unemployment appeals, including certain email correspondence between Simoncic and the Board. (Doc. 194-14, at 3).

Plaintiffs contest that this discoverable information should have been disclosed prior to this Court’s July 3, 2014 Order. (Doc. 194, at 9). Specifically, Plaintiffs rely on Simoncic’s October 28, 2014, deposition in which she reveals that there was no justification for her failure to disclose her termination at her December 11, 2013, deposition, Simoncic’s affidavit swearing that she made an exhaustive search of all documents requested by Plaintiffs and at all times produced what she had, as well as the board meeting minutes initially produced, which were extensively redacted to omit any reference to the circumstances of Simoncic’s termination, as evidence of a pattern of purposeful concealment of documents that support the theory of their case. (Doc. 194, at 9-12). Moreover, Plaintiffs advance the argument that Defendants are presently withholding documents pertaining to Simoncic’s firing in 2008 that are referenced in the Board meeting minutes, including “her claim, hearing, denial, and appeal regarding unemployment benefits.” (Doc. 194, at 11). Plaintiffs argue that the personnel file produced on August 6, 2013, does not contain said documentation despite Chironna’s and Simoncic’s assurances that the documents would be located in her file. Moreover, Plaintiffs currently contest that the “home” file produced is an exact copy of the personnel file but with different Bates numbers. (Doc. 224, at 8). Plaintiffs conclude that they were deprived of utilizing these documents in their deposition of Carl Karchner, the maintenance supervisor, which has caused them significant prejudice. (Doc. 224, at 7).

Defendants offer a number of responses to Plaintiffs’ arguments. Defendants argue that Simoncic’s termination is not relevant and would not lead to the discovery of more admissible evidence, as other testimony has revealed that she was not terminated for “misconduct, ” but rather for “political” reasons. (Doc. 201, at 11; Doc. 224, at 11). Nevertheless, Defendants maintain that they have fully complied with this Court’s July 3, 2014, Order by producing an additional thousand documents, including unredacted copies of the board minutes for November and December of 2008, and January, February, and March of 2009, and by declaring to Plaintiffs that they produced the entire personnel file on August 6, 2013. (Doc. 224, at 13). As for the purportedly missing documents, Defendants argue that Chironna and Simoncic merely testified that any documentation relating to Simoncic’s termination should be located in Simoncic’s employment file, and moreover, that Simoncic could not oversee the filing system during that period that her file would have been supplemented with these documents as she was no longer employed with The Village. (Doc. 201, at 12). With respect to Simoncic’s “home” file, Defendants cannot explain the disappearance of the e-mail correspondence from the home file, but they assure the Court that if these documents existed they would produce them, given this Court’s “substantial” sanction on July 3, 2014. (Doc. 224, at 12).

B. Board Meeting Minutes with Attached Documents

On August 1, 2013, this Court entered an Order denying Plaintiffs’ motion to compel Defendants to produce all board meeting minutes and attached documentation from August, 2005, to the present, based on Defendants’ representation to this court that everything within their possession was produced in response to the initial discovery request. (Doc. 116). However, on September 11, 2014, after prompting from Plaintiffs’ counsel, and after this Court’s imposition of sanctions on July 3, 2014, Defendants produced Board meeting minutes for November and December of 2008, as well as from January, February, and March 2009. (Doc. 194, at 13).

Plaintiffs now argue that the various documents referenced in the board meeting minutes should be attached to those board meeting minutes, and that the same have been withheld. In response, Defendants submit that all documents in their possession have been produced.

C. Employment/Personnel Manuals, Security Personnel Manuals and Job Descriptions

During the July 28, 2014, depositions of Dave Kalucki and Christopher Travis, maintenance employees for The Village, Plaintiffs discovered that Defendants possessed employment manuals that were distributed to employees upon hire. (Doc. 194-23, at 3; Doc. 194-24, at 3). In response to this deposition testimony, Plaintiffs requested that Defendants produce all employment manuals, handbooks or orientation packages. (Doc. 194-7). On September 2, 2014, Defendants ...


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