Case 2:19-cv-00071-wks Document 51 Filed 01/21/20 Page 1 of 5

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
ALBIN MELI, CHARLIE MELI,
and JEREMIE MELI,
Plaintiffs,
v.
CITY OF BURLINGTON, VERMONT,
BRANDON DEL POZO, JASON
BELLAVANCE, and CORY
CAMPBELL,
Defendants.

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Case No. 2:19-cv-71

ORDER
This case centers on Plaintiffs’ claims of excessive force.
In the course of discovery, Plaintiffs asked Defendants to
produce information about their social media accounts and other
online communications, as well as any legal proceedings in which
Defendants had been either a party or a witness.

Plaintiffs now

move the Court to impose punitive sanctions and enter partial
default judgment because Defendants Brandon del Pozo and the City
of Burlington reportedly failed to disclose all such information.
For the reasons set forth below, the motion is denied.
Factual Background
On September 26, 2019, Plaintiffs sent Defendants
interrogatories and requests to produce.

The interrogatories

sought information about, among other things, social media
activities and any civil, criminal, or administrative proceedings
in which Defendants had been involved as either parties or

 Case 2:19-cv-00071-wks Document 51 Filed 01/21/20 Page 2 of 5

witnesses.

Defendants, including Mr. del Pozo, identified

certain online accounts and stated that none of those accounts
had been deleted.

Mr. del Pozo also reported being named as a

witness in a civil case brought against the City of Burlington.
On December 12, 2019, an article in the Burlington-area
press revealed that Mr. del Pozo had made use of an anonymous
Twitter account and, as a result, was the subject of an internal
investigation.

The Twitter account and the internal

investigation were not disclosed in response to Plaintiffs’
interrogatories.

Mr. del Pozo resigned from his position as

Chief of the Burlington Police Department on December 16, 2019.
Plaintiffs filed the instant motion on the day of Mr. Del
Pozo’s resignation, citing the incomplete responses to their
discovery requests.

For relief, Plaintiffs ask the Court to

impose punitive monetary sanctions and enter a default judgment
in their favor on the matter of Defendants’ liability in this
case.

Shortly after receipt of Plaintiffs’ motion, Defendants

supplemented their discovery responses.

Defendants now contend

that sanctions are not warranted, that the requested information
has been provided, and that Mr. del Pozo’s social media activity
is not relevant to the claims in this case.

Defendants also

submit that the internal investigation of Mr. del Pozo did not
constitute the sort of civil, criminal, or administrative
proceeding described in Plaintiffs’ discovery requests.

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Discussion
This matter constitutes a discovery dispute.

Plaintiffs

requested information in discovery, and that information was not
initially disclosed.

Instead of immediately moving for severe

sanctions, counsel for Plaintiffs was required by Local Rule
26(c)(1) to confer in good faith with opposing counsel in an
effort to resolve the dispute.

Plaintiffs’ counsel failed to

comply with the Local Rule, and that failure alone provides a
basis for denying Plaintiffs’ motion.
Furthermore, Plaintiffs’ reliance on Fed. R. Civ. P. 37 is
misplaced.

Rule 37 states that “[i]f a party or a party’s

officer, director, or managing agent--or a witness designated
under Rule 30(b)(6) or 31(a)(4)--fails to obey an order to
provide or permit discovery, including an order under Rule 26(f),
35, or 37(a), the court where the action is pending may issue
further just orders.”
37(b)(2)(A)(vi).

Fed. R. Civ. P. 37(b)(2)(A); id. at

Here, the Court issued no such order to obey,

provide or permit discovery.

Rule 37 also allows for entry of a

default judgment where a party fails to disclose or supplement
requested information.

Id. at 37(c)(1).

As discussed above,

attorneys in this District are required to confer in good faith
after a failure to disclose.

If those good faith efforts fail,

sanctions may issue “unless the failure was substantially
justified or is harmless.”

Id.

Here, Plaintiffs have failed to

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show any discernable harm resulting from Defendants’ initial
failure to disclose.1
Furthermore, “[d]ismissal under Fed. R. Civ. P. 37 is a
drastic remedy that should be imposed only in extreme
circumstances.”
Cir. 1986).

Salahuddin v. Harris, 782 F.2d 1127, 1132 (2d

Dismissal is usually imposed as a sanction only

“after consideration of alternative, less drastic sanctions.”
John B. Hull, Inc. v. Waterbury Petroleum Prod., Inc., 845 F.2d
1172, 1176 (2d Cir. 1988); see also World Wide Polymers, Inc. v.
Shinkong Synthetic Fibers Corp., 694 F.3d 155, 159 (2d Cir.
2012).

A district court has “wide discretion in imposing

sanctions under Rule 37.”

Shcherbakovskiy v. Da Capo Al Fine,

Ltd., 490 F.3d 130, 135 (2d Cir. 2007).

Plaintiffs in this case

are seeking both monetary sanctions and a default judgment on the
issue of Defendants’ liability.

In light of Defendants’

supplementation of their responses immediately after Plaintiffs
filed the instant motion, and in the absence of any discernable
prejudice, the Court declines to impose such sanctions at this
time.
Conclusion
For the reasons set forth above, Plaintiffs’ motion for

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Plaintiffs’ reliance in Fed. R. Civ. P. 60(b)(3) is also
misplaced, as Rule 60(b) provides for relief from a final
judgment, order, or proceeding. There has been no final order in
this case from which Plaintiffs may obtain relief.
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punitive sanctions and default judgment (ECF No. 36) is denied.
The parties shall each bear their own fees and costs with respect
to this motion.
DATED at Burlington, in the District of Vermont, this 21st
day of January, 2020.
/s/William K. Sessions III
William K. Sessions III
District Court Judge

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