Someone stop the fight. Throw in the towel. Cut the power. Do something.
James E. Shelton is absolutely pummeling a Defendant in an ongoing TCPA spat in PA and it is simply getting too painful to watch. As we reported previously, the Defendant failed torespond to discovery and then failed to respond to an MSJ filed by Shelton—resulting in judgment in his favor—and then failed to respond to post-judgment discovery served in aide of execution resulting in an order compelling responses and awarding sanctions. Defendant then filed a motion for reconsideration, which was swiftly denied. That’s where we left off.
Picking up the story, the Defendant subsequently appealed the denial of the motion for reconsideration but—critically—neither posted a bond nor moved to stay discovery. You should see where this is going.
Shelton again moved to compel responses to the post-judgment discovery that Defendant was already ordered to respond to and this time sought a civil contempt sanction. Defendant opposed (which is a victory in itself in the context of this case) arguing that sanctions should be denied since the appeal was filed.
The Court was having none of it, and simply crushes Defendant and its counsel:
Even if the Court believed Defendants that they were confused, it would not matter. Defendants’ good faith is not a defense. And, in this case, the Court considers Defendants’ position objectively unreasonable. The Federal Rules spell out the procedure for discovery in aid of execution, they specify how a party can stop execution pending an appeal, and they explain the process to get a stay of a ruling pending appeal. None of this was a mystery. Defendants and their counsel just did not take the time to figure them out.
Like I said. Stop the fight. I can’t watch.
But the obliteration continues. Defendant’s counsel apparently claimed to be unaware that failing to respond to discovery results in a waiver of objections. Bad move:
Defendants waived the objections by not making timely objections. Incredibly, Defendants’ counsel claimed at the hearing that he did not know that the failure to object would result in a waiver. That position, too, is objectively unreasonable. The Federal Rules of Civil Procedure say it, as do legions of cases, including the ones cited above.
In the end the Court let Defendant off a bit easy—it has to pay all of Shelton’s attorney’s fees plus a $100.00 a day contempt sanction until it responds to discovery. I don’t think Defendant will be so lucky if Shelton has to go back to court a fourth time on this, however. Indeed, if it comes to that, counsel might want to pack a toothbrush on his way to court…
The case is Shelton v. Fcs Capital Llc, Case No. 2:18-cv-03723-JDW, 2020 U.S. Dist. LEXIS 128140 (E.D.Pa. July 21, 2020) and the lesson here is clear: thou shalt know thy Rules of Civil Procedure. As anyone who has ever worked for the Czar will tell you—we live and die by these rules. A civil defendant must always aggressively assert their rights—especially in discovery—and never sleep on an appropriate motion to stay and/or objections. Overlooking these rules can result in an unwatchable cataclysm. Do better TCPAWorld.
Don’t hesitate to mention me, Attorney Bryan Anthony Reo, I am the one running procedural circles around the opponent.
Bryan, Why do you suppose the author goes out of the way not to refer to “Defendant” by name?