IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

TARRIER STEEL COMPANY, INC., 

Plaintiff, 

 Case No. 2:18-cv-528 

 Judge Algenon L. Marbley 

 v. Chief Magistrate Judge Elizabeth P. Deavers 

 

WESEX CORPORATION, et al., 

 Defendants. 

OPINION AND ORDER 

This matter is before the Court for consideration of Defendant and Cross-Claim Plaintiff 

CCL Label, Inc.’s (“CCL”) Motion to Compel. (ECF No. 30.) For the reasons that follow, 

CCL’s Motion to Compel is DENIED. 

I. 

 CCL is the owner of a construction project located in Licking County, Ohio (the 

“Project”). (ECF Nos. ¶¶ 1, 3.) Defendant and Counter Defendant Wesex (“Wesex”) served as 

the general contractor for the Project. (Id. at ¶ 2.) Plaintiff Tarrier Steel Company, Inc. (“Tarrier 

Steel”) later contracted with Wesex to furnish and install certain materials for the Project. (Id.; 

Exhibit A, attached thereto.) Thereafter, a dispute arose between Wesex and CCL regarding the 

responsibility for change orders on the Project and application of payments made. (ECF No. 11 

at ¶ 6.) Because of this dispute, CCL stopped issuing payments to Wesex and Wesex stopped 

issuing payments to its subcontractors, including Tarrier Steel. (Id. at ¶ 7.) 
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 On March 8, 2018, Tarrier Steel filed an action against CCL and Wesex in the Court of 

Common Pleas for Delaware County, Ohio, which was removed to this Court on May 30, 2018, 

on the basis of diversity jurisdiction, 28 U.S.C. § 1332. (ECF No. 1.) After removal, CCL 

asserted a claim for breach of contract against Wesex. (ECF No. 6.) Wesex, a corporation that is 

not represented by counsel, failed to respond to either the Complaint or CCL’s claim. (ECF No. 

18.) On October 17, 2018, the Court directed the Clerk to enter default against Wesex on these 

claims. (ECF No. 20.) On October 23, 2018, the Clerk entered default against Wesex as 

ordered. (ECF No. 22.) 

 On October 24, 2019, the Court issued a Scheduling Order pursuant to Federal Rule of 

Civil Procedure 16(b), ordering, inter alia, that all non-expert fact discovery be completed by 

March 30, 2019. (ECF No. 23 at 2.) Upon motion (ECF No. 27), the Court later extended the 

deadline for completing this discovery to April 30, 2019. (ECF No. 28.) 

 CCL represents that it served written discovery on Wesex on October 29, 2019, pursuant 

to Rules 26 and 34. (ECF No. 30-1 at 2; Exhibit A, ECF No. 30-2.) CCL also represents that on 

October 30, 2018, it served a notice of a Rule 30(b)(6) deposition on Wesex, setting a deposition 

date of December 4, 2018, which it later rescheduled, by amended notice dated November 14, 

2018, to December 6, 2018. (ECF No. 30-1 at 2; Exhibit B, ECF No. 30-3; Exhibit C, ECF No. 

30-4.) The certificates of service reflect that these documents were served “on all counsel of 

record and parties via electronic mail and/or U.S. mail, postage prepaid.” (Exhibit A, ECF No. 

30-2 at PAGEID # 454; Exhibit B, ECF No. 30-3 at PAGEID # 458; Exhibit C, ECF No. 30-4, at 

PAGEID # 464.) In its Motion, however, CCL further represents that it also served these 

discovery requests and deposition notices via email on Gregory Koledin, Wesex’s registered 

agent. (ECF No. 30-1 at 2–3 (citing Exhibit D, ECF No. 30-5; Exhibit E, ECF No. 30-6; Exhibit 
3 

F, ECF No. 30-7).) According to CCL, Wesex did not appear for the Rule 30(b)(6) deposition 

noticed for December 6, 2018, and has not responded to the written discovery requests. (ECF 

No. 30-1 at 3.) 

On March 18, 2019, CCL filed its Motion to Compel, seeking an order compelling 

Wesex to respond to CCL’s written discovery requests and compelling the attendance of 

Wesex’s authorized representative for a Rule 30(b)(6) deposition on April 15, 2019. (ECF No. 

30-1.) CCL also asks this Court to “hold a hearing concerning, or issue an Order finding, that 

any of Wesex’s and/or Mr. Koledin’s failure to appear for the deposition as required shall result 

in a finding of contempt[.]” (Id.) Finally, CCL seeks costs and fees incurred in preparing the 

present Motion and incurred as a result of Wesex’s failure to appear at CCL’s first scheduled 

deposition. (Id.) 

II. 

Federal Rule of Civil Procedure 37 permits a party to file a motion for an order 

compelling discovery if another party fails to respond to discovery requests, provided that the 

motion to compel includes a certification that the movant has, in good faith, conferred or 

attempted to confer with the party failing to respond to the requests. Fed. R. Civ. P. 37(a)(1); see 

also S.D. Ohio Civ. R. 37.1 (same). Having reviewed the record and documents supporting 

CCL’s Motion, the Court is satisfied that, under the particular circumstances in this case, this 

requirement is satisfied. 

III. 

CCL contends that the Court should grant its Motion to Compel because Wesex has not 

complied with its discovery obligations and “Wesex has no excuse for failing to either attend its 

deposition or respond to CCL’s written discovery requests.” (ECF No. 30-1 at 4.) 
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CCL’s arguments are not well taken. As previously noted, the Clerk entered default 

against Wesex on CCL’s claim on October 23, 2018. (ECF No. 22.) “‘Federal courts have 

consistently held that a defaulting defendant should be treated as a non-party with respect to any 

discovery sought.’” Paisley Park Enter., Inc. v. Boxill, No. 17-cv-1212, 2019 WL 1036059, at 

*2 (D. Minn. Mar. 5, 2019) (quoting La Barbera v. Pass 1234 Trucking, Inc., No. 2004-cv-1364, 

2008 WL 2564153 *1 (E.D. N.Y. June 25, 2008)); see also Jules Jordan Video, Inc. v. 144942 

Canada, Inc., 617 F.3d 1146, 1159 (9th Cir. 2010) (“[A] defaulted party should be treated as a 

non-party.”); Allied Enter., Inc. v. Brillcast, Inc., No. 1:15-cv-749, 2015 WL 13122945, at *3 

(W.D. Mich. Nov. 17, 2015) (“For discovery purposes, courts treat a defaulting defendant as a 

non-party.”); Harco Nat. Ins. Co. v. Sleegers Eng’g, Inc., No. 06-cv-11314, 2014 WL 5421237, 

at *4 (E.D. Mich. Oct. 22, 2014) (“[N]on-parties who were originally parties—for example, a 

defaulting defendant—is nonetheless still treated as a non-party.”); Standard Mut. Ins. Co. v. 

Barkley, No. 1:10-cv-251, 2012 WL 13081715, at *3 (N.D. Ind. Apr. 4, 2012) (After the clerk 

entered default against [defendant] Starks, he was a non-party for purposes of discovery.”). The 

reason for such treatment has been explained as follows: 

Under the federal rules, a defaulting defendant loses many of the rights of a party, 

such as the right to receive notice of future proceedings (except when the defendant 

has appeared in the action), the right to present evidence on issues other than 

unliquidated damages, and the right to contest the factual allegations in the 

complaint. . . . Thus, by defaulting, a defendant can reasonably be regarded as 

having given up most of the benefits that status as a party confers. A defendant may 

chose to default for any number of reasons including, for example, cost, . . . or, as 

plaintiff in the present case points out, for reasons of strategy. However, once a 

defendant has made the decision to default and become, as it were, a non-party, it 

would not seem fair to force such defendant to participate in an action to a greater 

degree than could be required of other non-parties. 

Blazek v. Capital Recovery Assoc., Inc., 222 F.R.D. 360, 361 (E.D. Wis. 2004) (internal citations 

omitted); accord Jules Jordan, 617 F.3d at 1159 (adopting Blazek’s reasoning and noting that 
5 

“[i]t stands to reason that if a defaulted defendant cannot answer allegations of the complaint, it 

also cannot respond to requests for admissions, at least until the default is vacated”). 

In addition, “[t]he Federal Rules of Civil Procedure distinguish between parties and nonparties in establishing available discovery devices.” Jules Jordan, 617 F.3d at 1158. For 

example, Rule 34 specifically limits to parties a request to produce documents. Fed. R. Civ. P. 

34(a) (“A party may serve on any other party a request within the scope of Rule 26(b)[.]”) 

(emphasis added). Conversely, “a nonparty may be compelled to produce documents and 

tangible things or to permit an inspection” through a subpoena pursuant to Rule 45. Fed. R. Civ. 

P. 34(c) (emphasis added); see also Fed. R. Civ. P. 45. Notably, Rule 30(b)(6) authorizes a party 

to name a nonparty deponent through a subpoena. 

Here, because the Clerk entered default against Wesex on CCL’s claim (ECF No. 22), the 

Court treats Wesex as a non-party as it relates to discovery. Paisley Park Enter., Inc., 2019 WL 

1036059, at *2; Allied Enter., Inc., 2015 WL 13122945, at *3; Standard Mut. Ins. Co., 2012 WL 

13081715, at *3. CCL sought discovery from Wesex pursuant to Rules 30(b)(6) and 34 after 

Wesex defaulted and CCL has not established or even alleged that it sought information from 

Wesex pursuant to Rule 45. (See generally ECF No. 30-1.) Based on this record, the Court 

therefore cannot compel discovery from Wesex, a non-party for purposes of discovery. Shipes v. 

Amurcon Corp., No. 10-14943, 2012 WL 1183686, at *1 (E.D. Mich. Apr. 9, 2012) (“[T]he 

Court ultimately agrees with Defendant on its first, most basic argument—Plaintiffs’ motion [to 

compel] is procedurally improper because the Court cannot grant a motion to compel discovery 

from a non-party when no underlying subpoena exists.”); Blazek, 222 F.R.D. at 361–62 (denying 

motion to compel discovery from a defaulted defendant where the plaintiff did not seek the 

requested information through a subpoena pursuant to Rule 45); see also Allied Enter., Inc., 2015 
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WL 13122945, at *3 (authorizing the plaintiff “to conduct discovery [of a defaulting defendant] 

in accordance with the rules governing non-party witnesses”); IBEW Local Union 82 v. Union 

Lightning Protection, No. 3:11-cv-208, 2011 WL 5190684, at *2 (S.D. Ohio Oct. 31, 2011) 

(“Further, insofar as Plaintiffs seek an Order directing [defaulted] Defendants to provide certain 

records, the Court concludes that such request is premature. Plaintiffs have failed to show that 

they have sought any discovery from ULP pursuant to the Civil Rules.”) (citing Blazek, 222 

F.R.D. at 360–62; Fed. R. Civ. P. 34(c) and 45). 

IV. 

For the foregoing reasons, CCL’s Motion to Compel (ECF No. 30) is DENIED. 

IT IS SO ORDERED. 

Date: April 11, 2019 /s/ Elizabeth A. Preston Deavers 

 ELIZABETH A. PRESTON DEAVERS 

 CHIEF UNITED STATES MAGISTRATE JUDGE