United States District Court, E.D. Wisconsin
DENYING PLAINTIFF'S MOTION TO STRIKE DEFENDANT
OCHERENTNER'S ANSWER AND ENTER DEFAULT JUDGMENT (DKT. NO.
78) AND GRANTING PLAINTIFF'S ALTERNATIVE MOTION TO COMPEL
OCHERENTER'S DISCOVERY RESPONSES (DKT. NO. 78), GRANTING
JOINT MOTION FOR JUDGMENT (DKT. NO. 82), GRANTING SECOND
MOTION FOR DEFAULT JUDGMENT AS TO GUTHRIE & FREY (DKT.
NO. 83), GRANTING PLAINTIFF'S MOTION FOR REFERRAL OF
PENDING DISCOVERY MOTIONS AND FUTURE NONDISPOSITIVE PRETRIAL
MATTERS TO MAGISTRATE JUDGE (DKT. NO. 75) AND DENYING AS MOOT
DEFENDANT GOROKHVOSKY'S MOTION FOR PROTECTIVE ORDER (DKT.
PAMELA PEPPER CHIEF UNITED STATES DISTRICT JUDGE.
plaintiff filed this case to reduce to judgment federal
income tax assessments against defendant Vladimir Gorokhovsky
and to enforce its federal tax liens against two real
properties located in Mequon and Brown Deer. Dkt. No. 1.
Wells Fargo Bank, Larissa Ocheretner, Vladimir M. Gorokhovsky
and Gorokhovsky Imports and Investment Group LLC filed
answers. Dkt. Nos. 7, 16, 24. This court granted default
judgment as to the Office of Lawyer Regulation and Leonard J.
Kutchera, denied without prejudice the motion for default
judgment as to Guthrie & Frey, and granted Attorney Kyle
Jesinki's motion to withdraw from his representation of
Ocheretner. Dkt. No. 65. After the plaintiff moved to compel,
dkt. no. 66, and defendant Gorokhovsky filed a motion (and an
amended motion) for a protective order, dkt. nos. 69, 74, the
plaintiff asked the court to refer all discovery and
non-dispositive motions to a magistrate judge, dkt. no. 75.
The plaintiff also has filed a motion to strike
Ocheretner's answer (or alternatively compel), dkt. no.
78, a joint motion for consent judgment with the Wisconsin
Department of Revenue, dkt. no. 82, and a second motion for
default against Guthrie & Frey, dkt. no. 83. This order
addresses potentially dispositive issues and refers the case
to a magistrate judge to handle the two pending discovery
motions and future nondispositive pretrial motions.
Plaintiff's Motion to Strike Defendant Larissa
Ocheretner's Answer and Enter Default Judgment Pursuant
to Rule 37(d), or in the Alternative, Compel Ocheretner's
Discovery Responses (Dkt. No. 78)
September 12, 2019, the plaintiff filed a motion under Rule
37(d), asking the court to strike Ocheretner's answer and
to enter default judgment because she failed to respond to
the plaintiff's interrogatories and requests for
production of documents. Dkt. No. 78. Ocheretner, who is
defendant Vladimir Gorokhovsky's ex-wife, holds the title
to the Mequon property at issue in the suit. Id. at
2. The plaintiff served its first set of requests for
production of documents on May 21, 2019, seeking documents
about the ownership of the real property at issue. It
included interrogatories regarding Gorokhvosky's spending
and finances during his marriage to Ocheretner. Id.
Ocheretner failed to respond by June 20, 2019, Id.
at 3; discovery closed September 13, 2019- the day after the
plaintiff filed this motion. Along with the motion, the
plaintiff filed a declaration to which it attached the
discovery requests, emails from Ocheretner, and a summary of
Ocheretner's statements in a phone conversation with
plaintiff's counsel during which she said she had no
plans to respond and believed it would be
“useless” to participate in this lawsuit. Dkt.
No. 79 at 2.
has not responded to the plaintiff's motion. Despite not
being its target, Gorokhovsky did respond, asking the court
to deny the motion and to “set up an evidentiary
telephonic hearing on all legal and factual issues.”
Dkt. No. 80. He claims that Ocheretner is not represented by
counsel and “not fully capable of understanding and
comprehending legal English drafting and does not possess any
skills required to prepare and to file any legal document
with this court.” Id. at 1. Gorokhovsky
indicated that while he is a lawyer, he was not filing the
response as counsel for Ocheretner, but “as the Friend
of this Court in order to advise this Honorable Court of
complexity of situation, which is not being fully disclosed
to this Court by plaintiff's counsel, Atty.
Nygaard.” Id. at 2.
party-even one who does not have a lawyer-may ignore the
rules. McNeil v. United States, 508 U.S. 106, 113
(1993) (“[W]e have never suggested that procedural
rules in ordinary civil litigation should be interpreted so
as to excuse mistakes by those who proceed without
counsel.”). Ocheretner is a party to this case. The
rules require that she must respond to discovery requests
unless the court has ordered otherwise.
said, striking the answer and entering default is a drastic
sanction in this case. Rule 12(f) of the Federal Rules of
Civil Procedure allows the court to strike from a pleading
any redundant, immaterial, impertinent or scandalous matter.
Fed.R.Civ.P. 12(f). It does not vest the court with the power
to strike an answer in its entirety. Agstar Financial
Services, PCA v. Union Go-Dairy, LLC, No.
1:10-cv-00145-SEB-MJD, 2011 WL 772754, *1 (S.D. Ind. Feb. 25,
2011). The court's authority to strike an answer arises
from “the control necessarily vested in courts to
manage their own affairs so as to achieve the orderly and
expeditious disposition of cases.” Link v. Wabash
R. Co., 370 U.S. 626, 630-31 (1962).
court did not terminate counsel's representation of
Ocheretner until July 8, 2019. Dkt. No. 65. Although it
appears from the declaration filed by plaintiff's counsel
that Ocheretner does not intend to participate in the case,
Ocheretner has not said as much to this court, or on the
record. The court will order Ocheretner to respond to the
discovery requests in 30 days. If Ocheretner fails to respond
or comply with the rules, the plaintiff may renew its motion
Plaintiff and Wisconsin Department of Revenue's Joint
Motion for Judgment (Dkt. No. 82)
October 4, 2019, the plaintiff and the Wisconsin Department
of Revenue filed a motion for entry of consent judgment. Dkt.
No. 82. They have resolved the claims in Counts Two and Three
and argue there is no just reason for delay under Rule 54(b).
Id. at 1.
54(b) allows the court to direct entry of a final judgment as
to one or more of the parties only if there is no just reason
for delay. Fed.R.Civ.P. 54(b). The court finds no just reason
for delay and will enter the consent judgment.
Plaintiff's Second Motion for Default Judgment as to
Guthrie & Frey (Dkt. No. 83)
court denied without prejudice the plaintiff's first
motion for default judgment against Guthrie & Frey
because the court could not determine whether service was
proper. Dkt. No. 65. The plaintiff has filed a second motion
for default judgment as to Guthrie & Frey, along with ...