Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Al-Sabah v. Agbodjogbe

United States District Court, D. Maryland

September 17, 2019

JEAN AGBODJOGBE, et al. Defendants.



         In this fraud action, plaintiff Alia Salem Al-Sabah has filed suit against defendants Jean Agbodjogbe; his wife, Nandi A. Scott; and several corporate entities maintained exclusively by Agbodjogbe. The corporate defendants are N&A Kitchen, LLC; 5722 York Road, LLC; 9 Jewels, LLC; and ASA Foundation, Inc. ECF 1 (the “Complaint”). Stated generally, Al-Sabah claims that she gave Agbodjogbe nearly $6 million to pursue charitable endeavors in Baltimore, but he instead used the money to purchase and improve properties in his own name. Id. ¶ 1. This Memorandum concerns defendants' pursuit of sanctions against Al-Sabah for her alleged failure to preserve electronically stored information (“ESI”). ECF 147; ECF 149; ECF 154.

         On June 19, 2019, defendants, pursuant to Fed.R.Civ.P. 37, filed a motion for the imposition of sanctions against plaintiff, alleging the spoliation of ESI. ECF 147 (the “Motion”). Defendants filed the Motion more than a year after the close of discovery, which ended on April 4, 2018. See ECF 92. In short, defendants argued that sanctions were appropriate because Al-Sabah failed to preserve four iPhone photographs of a draft operating agreement between Agbodjogbe and Al-Sabah creating N&A Kitchen, LLC, in which Agbodjogbe and Al-Sabah each had a fifty percent membership interest. ECF 147. The Motion was supported by two exhibits. ECF 147-1; ECF 147-2. Plaintiff opposed the Motion (ECF 148), supported by ten exhibits. ECF 148-1 to 148-10.

         On July 11, 2017, I referred the case to United States Magistrate Judge David Copperthite to manage discovery. ECF 33. In a letter to counsel docketed on July 24, 2019 (ECF 151), Judge Copperthite denied the Motion. He ruled: “The motion for sanctions ECF 147 is DENIED as untimely and violative of the Court's Scheduling Order. Even if considered timely, the Motion is DENIED on the merits as failing to provide any persuasive support that the missing photographs prejudiced the Defendant and that any lack of preservation by Plaintiff was negligent or intentional.” Id. at 2.

         On August 8, 2019, defendants filed an “Objection to The Magistrate Judge's July 24th, 2019 Order.” ECF 154 (the “Objection”). Plaintiff opposed the Objection (ECF 155), supported by one exhibit. ECF 155-1. Further, plaintiff seeks attorney's fees and expenses under Fed.R.Civ.P. 37(a)(5)(B) and 28 U.S.C. § 1927 for the costs incurred in responding to defendants' Motion and Objection. ECF 155. Defendants have replied. ECF 156.

         No hearing is necessary to resolve the Objection. See Local Rule 105(6). For the reasons that follow, I shall deny defendants' Objection. And, I shall grant in part and deny in part plaintiff's request for legal fees.

         I. Procedural Background

         This Court entered a Scheduling Order on May 22, 2017. ECF 26. According to that Order, discovery was to conclude on October 27, 2017. Id. At the request of the parties, the Court extended the discovery deadline three times, ultimately setting a discovery deadline of April 4, 2018. See ECF 73; ECF 89; ECF 92.

         The parties submitted a Joint Status Report on April 4, 2018. ECF 106. In the Report, the parties acknowledged that discovery was not complete due to several outstanding depositions. Id. at 1-2. At the time, defendants did not raise the issue of the photographs or accuse plaintiff of spoliation. See id.

         On May 10, 2019, the parties filed another Joint Status Report. ECF 144. Here, the parties represented that discovery was complete and that “the Parties have no other matters that they wish to bring to the attention of the Court at this time.” Id. at 3.

         As noted, on June 19, 2019, defendants moved for the imposition of sanctions against plaintiff, pursuant to Fed.R.Civ.P. 37. ECF 147. According to defendants, Al-Sabah admitted during the course of her deposition on December 14, 2017, that she had taken four pictures of the draft N&A operating agreement on her iPhone. Id. at 4-6. In the following months, defendants repeatedly requested that plaintiff produce these images, to no avail. Id. at 8. As a result, defendants claimed to have undertaken “needless investigation and wasted resources and time” in attempting to obtain the photographs, and asserted that they had been “prejudiced by the conduct of the Plaintiff” because the “existence or non-existence of any said agreement is critical to the case[.]” Id. Defendants asked the Court to bar plaintiff from introducing any evidence “suggesting that the parties reached or entered into an agreement or mutual understanding.” Id.

         In response, Al-Sabah contended that the Motion should be denied as untimely, pointing out that defendants filed for sanctions more than fourteen months after discovery ended, and they provided no explanation for the delay. ECF 148 at 10-12. Plaintiff also argued that sanctions were not warranted because she had produced a fully executed copy of the operating agreement. Id. at 12-13; see ECF 148-4. Finally, plaintiff asserted that the Motion failed to demonstrate that she acted in bad faith or that defendants were prejudiced by the absence of electronic versions of the photographs, especially given that plaintiff had produced the contested images in PDF format. Id. at 13-15.

         As noted, Judge Copperthite denied the Motion (ECF 147) on July 24, 2019. ECF 151. In reaching his decision, Judge Copperthite first concluded that defendants' Motion was untimely. Id. at 1. He reasoned, id.:

Discovery closed over a year ago. District courts exercise broad discretion over discovery issues. Seaside Farm, Inc. v. United States, 842 F.3d 853, 860 (4th Cir. 2016) (citing Carefirst of Md., Inc. v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390, 402-03 (4th Cir. 2003)). A court's scheduling order “is not a frivolous piece of paper, idly entered, which can be cavalierly disregarded by counsel without peril.” Potomac Elec. Power Co. v. Elec. Motor Supply, Inc., 190 F.R.D. 372, 375-76 (D. Md. 1999) (internal quotations omitted). Properly construed, ‘good cause' means that scheduling deadlines cannot be met despite a party's diligent efforts. Carelessness is not compatible with a finding of diligence and offers no reason for a grant of relief. Id. at 375 (internal quotations omitted). Defendant was on notice from April, 2018 that the four photographs were no longer on the cell phone of Plaintiff. Plaintiff propounded additional discovery specifically inquiring about the loss of the photos in April 2018 (ECF 148-p.8). Defendant had ample opportunity to raise the issue before the Court before the close of discovery or even when providing the status report to the Court. Defendant did not. Defendant has failed to provide good cause why his dilatory motion is now before the Court.

         Further, Judge Copperthite observed that even if the Motion was timely, it was nonetheless ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.