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Judgment granted as sanction for discovery misconduct.

Byline: Virginia Lawyers Weekly

Plaintiff was granted judgment on liability on a number of consumer claims as a sanction for defendant auto dealer's misconduct during discovery, and he is entitled to more than $164,000 in damages.

Background

In this civil action, plaintiff brings a variety of statutory and common law claims against defendant stemming from defendant's alleged improper conduct in selling plaintiff a vehicle.

After plaintiff filed his complaint to which defendant responded, the court entered a scheduling order allowing discovery to commence. Between September and December 2017, defendant repeatedly failed to respond to plaintiff's appropriate discovery requests and, after the magistrate judge entered an order requiring defendant to provide full and complete responses to plaintiff's discovery requests, defendant filed responses that were both late and "woefully inadequate."

As a result, plaintiff filed a motion for sanctions on Dec. 7, 2017, and, when defendant failed to appear at the Dec. 22 motion hearing, the magistrate judge ordered defendant to provide complete responses to the discovery requests by Dec. 28 or face the entry of a default. When defendant failed to respond by the deadline, plaintiff filed a renewed motion for sanctions, which was set for a hearing on Jan. 5, 2018. The day before the hearing, defendant filed a suggestion of bankruptcy, and the court stayed this litigation pending the outcome of the bankruptcy proceeding.

On April 20, 2018, after defendant's bankruptcy proceeding was terminated without discharge, plaintiff filed a motion to reopen the case, which was granted, and plaintiff filed a renewed motion for sanctions. On July 18, this court entered judgment against defendant on the issue of liability as a sanction for defendant's misconduct during discovery. On Aug. 1, plaintiff filed the pending motion for damages, for which oral argument was held on Aug. 24. Although counsel for defendant appeared, he only requested leave to withdraw, which was granted. No other person appeared on behalf of defendant. As of Oct. 9, 2018, no responsive pleadings or other responses to plaintiff's motion for damages have been filed by defendant or anyone on its behalf.

The magistrate judge issued a report and recommendation on Aug. 31, 2018, which recommended that plaintiff's motion for damages be granted in part and that the court award plaintiff damages in the total amount of $164, 199.01. As of Oct. 9, 2018, no party has filed an objection. The court has reviewed the report, plaintiff's motion for damages, and the case file and adopts the report in full.

Analysis

The court finds that the magistrate judge properly calculated the damages to which plaintiff is entitled. As to the Truth In Lending Act violation, the magistrate judge found that plaintiff had properly alleged actual damages in the amounts of $5,680, which represents what he paid for a warranty he was promised but did not receive, and $3,651, from the processing fee increase, for a total of $9,331.1. In addition, plaintiff is entitled to $1,000 in statutory damages and attorney's fees related to pursuing this claim.

As to plaintiff's claim for damages from defendant's violation of the Fair Credit Reporting Act, plaintiff was unable to establish actual damages, but the magistrate judge found that an award of $1,000 in statutory damages and $10,000 in punitive damages was appropriate. The court agrees with that conclusion.

For the defendant's violation of the Equal Credit Opportunity Act, plaintiff was again unable to establish actual damages, and the magistrate judge found that no further punitive damages were appropriate; however, he also found that plaintiff did establish that defendant's fraudulent promise to provide the warranty caused plaintiff to lose his job, resulting in actual damage of $47,622.67 (comprised of the processing fee and lost wages). As plaintiff cannot recover under both the Virginia Consumer Protection Act and common law fraud, and because the VCPA entitles him to a larger recovery due to its treble damages provision for willful violations, the magistrate judge recommended finding plaintiff entitled to $47,622.67, trebled to $142,868.01 in actual and statutory damages, under the VCPA. The magistrate judge recognized that the award of actual damages overlaps with respect to the award of damages under the TILA and the VCPA but found that "the duties owed to plaintiff under TILA and the VCPA are meaningfully different such that the overlapping damage awards compensate substantively distinct violations of plaintiff's rights." The court agrees.

Motion granted.

Fasusi v. Washington Motorcars, Inc., Case No. 17-cv-812, Oct. 9, 2018. EDVA at Alexandria (Brinkema). VLW 018-3-439. 5 pp.

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Title Annotation:Fasusi v. Washington Motorcars, Inc., U.S. District Court for the Eastern District of Virginia
Publication:Virginia Lawyers Weekly
Date:Oct 28, 2018
Words:767
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