‘No more,’ judge says in ordering default as discovery sanction

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A Rhode Island home remodeler sued in Massachusetts for breach of contract has been hit with a default judgment after the company and its attorneys exhausted the patience of not one but two federal judges.

U.S. District Court Judge Nathaniel M. Gorton ordered the judgment on Sept. 5 against the defendant in Malaro v. Roger Wilkie, Jr., Builder, Inc.

“The instant action has been pending for almost three years due to defendant’s intransigence and the trial has been postponed several times to afford the parties sufficient time to finalize discovery,” Gorton wrote. “All the while, plaintiffs have continued to incur costs litigating against an opponent who obfuscates and delays. No more.”

The default judgment came on the heels of a decision in the case by U.S. Magistrate Judge Jennifer C. Boal denying the company’s motion for a protective order to prevent discovery of “personal cellular devices” of the defendant’s employees.

In her June 24 decision, Boal also made plain that she had run out of patience with the defendant, awarding the plaintiffs attorneys’ fees and costs.

“In conjunction with the motion practice associated with each of the three previous orders on this topic, the Malaros asked for sanctions, which this Court denied,” Boal wrote. “However, enough is enough. The instant motion was both untimely and frivolous.”

Plaintiffs Magie and Anthony Malaro sued Roger Wilkie Builder in April 2022 for breach of contract, fraudulent misrepresentation, conversion, violations of Chapter 142A (the state law governing home improvement contractors), and unfair trade practices under Chapter 93A.

The plaintiffs alleged the contractor failed to complete a remodeling project at their Westport home that was estimated at $175,000 but ended up costing them nearly $270,000.

Entry of the default judgment dismissed all the defendant’s counterclaims with prejudice while granting judgment to the plaintiffs on each of their claims. Gorton gave the plaintiffs until Oct. 3 to file a memorandum in support of an award of damages.

The plaintiffs are represented by Boston attorneys Jonathon D. Friedmann and Casey A. Sack.

“We will be asking for significant damages,” Friedmann said. “We have a lot of contractual damages. And we also have Chapter 93A and Chapter 142A violations. We will be asking for attorneys’ fees. We expect double or treble damages [for statutory violations] will be awarded. We’re talking high six-figure, possibly into seven-figure [damages].”

[A default judgment is] kind of a last resort for the court in cases of extreme delay. In this case, the defendant had four opportunities to comply with the motion to compel. The court found that [the defendant] didn’t comply with them at any point in time.

— Jonathan Crafts, Wellesley

The defendant is represented by Providence attorneys David M. Campbell and Joseph P. Carnevale IV. Campbell declined to comment other than to confirm that his client is considering an appeal.

Default judgment is uncommon in cases in which both parties are represented by counsel, according to Jonathan Crafts, a commercial litigator in Wellesley.

“In my experience, it is very rare,” Crafts said. “It’s kind of a last resort for the court in cases of extreme delay. In this case, the defendant had four opportunities to comply with the motion to compel. The court found that [the defendant] didn’t comply with them at any point in time.”

Nuclear option

Federal Rule of Civil Procedure 37 provides a wide range of sanctions for a party’s failure to make disclosures or otherwise cooperate in discovery. Gorton issued the order of default under Rule 37(b)(2), which applies to a party’s failure to obey a discovery order.

Gorton’s decision to invoke the nuclear option was precipitated by status reports filed by both parties on Aug. 22 showing that the discovery disputes that had plagued the litigation from the start had still not been resolved.

In an Aug. 18 order, Gorton directed the filing of status reports regarding the defendant’s compliance with a July 17 order requiring the parties to “turn over all discoverable material and comply with all court orders on or before Friday, August 15, 2025.”

In the plaintiffs’ status report, counsel argued that the defendant failed to comply with the July 17 order. The plaintiffs asserted that the defendant had produced only a single text message in response to the July discovery order and four previous discovery orders concerning the discovery of personal mobile phones issued in August 2024, and January, March and June 2025.

“At the end of the day, only one of two things can be true,” plaintiffs’ counsel wrote. “RWB either continues to withhold critical evidence in violation of the Court orders, or RWB destroyed and/or failed to affirmatively preserve critical evidence.”

The status report filed by defense counsel painted a different picture, asserting that a certified forensic examiner had been hired to collect and analyze data from the mobile devices of owner Roger Wilkie Jr. and two of the company’s employees. The defendant attached the results of the forensic investigation as an exhibit.

Moreover, defense counsel raised the concern that the client had been placed in a quandary because of “overlapping” discovery orders in the case. Gorton’s most recent orders demanded the defendant’s compliance with outstanding discovery orders. But counsel pointed out that the client had objected to Boal’s denial of its motion for a protective order, and Gorton had yet to rule on that objection, even though Boal had stayed her award of attorneys’ fees to the plaintiff pending Gorton’s ruling.

“These overlapping directives, combined with the still-pending Rule 72(a) review of the Protective Order, have created inconsistent obligations,” lawyers for the defendant wrote.

They argued that their client had nevertheless complied with the court’s orders.

But Gorton was not swayed, finding earlier this month that “all factors” weighed in favor of ordering a default judgment against the defendant.

First and foremost, Gorton wrote, the court had put Roger Wilkie Builder on notice that default judgment would result if the defendant continued to “ignore” its discovery obligations after the Aug. 15 deadline.

Gorton went on to explain that the “seriousness” of the defendant’s violations were underscored by the fact that Roger Wilkie Builder had only been able to identify a single text message in response to the plaintiffs’ discovery requests concerning mobile devices.

“Such a result strains credulity in an action arising out of a multi-year renovation project for which the defendant served as prime contractor,” Gorton wrote. “RWB’s search results were all the more untrustworthy in light of the screenshots, provided by the plaintiffs, of multiple text messages between themselves and defendant’s employees, none of which were identified in RWB’s ‘search.’ Consequently, either RWB is withholding relevant messages or it did not preserve them.”

Friedmann said he believes the entry of default judgment was driven by the fact that information helpful to his clients was in the possession, custody and control of the defendant.

“And so the normal remedies of an order precluding documents that weren’t produced from being used at trial would have punished our clients as opposed to the recalcitrant party,” Friedmann said. “I think part of what must have gone into the court’s reasoning was that the sanction was appropriate because [the keepers] of the information wouldn’t give the information because they knew it was harmful to them.”

Sack said another reason for the harsh sanctions was the fact that the court had already exhausted lesser remedies, to no avail.

Contentious renovation

In their 2022 complaint, the plaintiffs claimed that the defendant failed to provide them with a written contract, in violation of Chapter 142A, when they hired the contractor in 2020 to renovate several rooms in their home. Instead, the defendant allegedly provided a “scope of work” document for the project, with a completion date of April 2021.

The plaintiffs further claimed that, during the project, the defendant was uncommunicative and failed to make sufficient progress. The plaintiffs also alleged that certain work the defendant performed was defective.

According to the plaintiffs, the renovation still had not been completed by February 2022, and cost overruns for the project exceeded $77,000 as of April 2022.

The defendant responded with counterclaims for unjust enrichment, breach of contract, violations of Chapter 142A, and violation of Chapter 93A, §9. It asserted the plaintiffs owed the company more than $111,000 and sought a trebling of those damages.

In its answer and counterclaim, the defendant asserted that it had fully performed its obligations under the terms of the agreement with the plaintiffs.

“Despite repeated demands, the Malaros refuse, or are otherwise unable, to fairly pay RWB for its labor and materials in accordance with the Agreement and RWB applications for payment,” the counterclaim states.

During the course of the litigation, discovery disputes resulted in the court issuing discovery orders pertaining to searches of the electronic devices of the defendant’s personnel in August 2024, and January and March 2025.

In April, the defendant moved for a protective order regarding the personal mobile devices of its employees.

After denying the defendant’s motion for the protective order in June, Boal on Aug. 20 awarded the plaintiffs attorneys’ fees in the amount of $14,942.50.

Just deserts?

Sack said the record clearly supports Gorton’s decision to order a default judgment.

“There were four court orders that were outstanding where [the defendant] refused to produce really any communications with the relevant personnel on the project,” she said. “The crux of the claim was overbilling on the project, deficient work and delay. The project communications would have spoken to all of those things.”

Boston civil litigator Scott A. Spencer said the default judgment seems appropriate.

“The federal rule and the analogous state rule provide a pretty good range of potential sanctions,” he said. “But with something this egregious, it seems like the appropriate route.”

Crafts agreed.

“It does not appear that defense counsel made efforts to comply with these orders until the very last minute,” he said. “That’s the real takeaway here: You only get so many bites at the apple before the court will get tired of it.”

Spencer said another takeaway is that it is incumbent on counsel to tell clients, “particularly our defendants, that though [discovery] may be a burden and an inconvenience, these are our obligations.”

He added that what happened in Malaro would be more understandable if the case involved an unrepresented client.

“With someone who is represented [by counsel], this should have been explained to them that this is going to be the eventual result,” Spencer said. “And if your client is OK with that, then maybe there’s a different motion you need to file. You might want to step away from that case.”