UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ ESMERALDO VILLANUEVA ECHON, JR.; MARIBEL ECHON; JUSTIN ECHON, Plaintiffs - Appellees,

v. WILLIAM SACKETT; LEONIDA SACKETT, Defendan t s - Appellants. No. 19-1099 (D.C. No. 1:14-CV -03420-PAB-NYW) (D. Colo.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before TYMKOVICH , Chief Judge, BACHARACH , and CARSON , Circuit Judges.

________________ _________________ The Echons (Plaintiffs) sued the Sacketts (Defendants) amid a bitter dispute between families. Defendants, appearing pro se in district court, failed to comply with several of the court’s di scovery orders. Consequently , the district court imposed sanctions on Defendants by deeming certain facts established at summary judgment. At trial, the district court also allowed Plaintiffs to question Defendants about their wealth over Defendants’ releva nce objections. Plaintiffs obtained a significant jury verdict. Defendants now appeal the dist rict court’s impositi on of sanctions and

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judica ta, and collateral estoppel. It may be cited, however, for its persuasive value consiste nt with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### April 8, 2020 Christopher M. Wolpert Clerk of Court2 evidentiary rulings. We ex ercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.
I. Plaintiffs sued Defendants in federal court for violations of Colorado and federal law, including the federal Traffick ing Victims Protection Reauthorization Act (TVPRA). Specifically, Plaintiffs alleged that Defendants forced them to perform unpaid labor on Defendants’ fa rm and rental properties after they immigrated to the United States from the Philippines. Defe ndants, who claim to be functionally illiterate, are a seventy-nine-year-old farm er with a third-grade education (Mr. Sackett), and his wife (Mrs. Sackett), a non-native English speaker. Although Defendants had the means to retain c ounsel, they decided counsel was not “necessary” and chose to proceed pro se. 1 The magistrate judge managing discovery in this case repeatedly warned Defendants that they w ould be held to same rules as any represented party. Importantly, she told Defendants that they must adhere to all of the Federal Rules of Civil Procedure (Rul es) and that their pr o se status did not excuse them from responding to Plainti ffs’ interrogatories. But Defendants did not heed the magistrate judge’s warnings. After Defendants repeatedly failed to respond to Pl aintiffs’ interrogatories, Plaintiffs filed three motions to compel discovery. As a sa nction, the magistrate judge recommended deeming factual a llegations established as true if Defendants failed to

1 Plaintiffs, on the other hand, had a te am of lawyers prop ounding discovery requests on Defendants.3 provide related evidence in response to pr operly propounded discove ry requests. The magistrate judge, however, r ecommended denial of Plaintiffs’ request for dispositive sanctions under Rule 37(b)(2)(A). Defe ndants did not object to the magistrate judge’s report and recommendation (R&R), wh ich the district court adopted after finding no clear error. The district court implemented this sa nction through the magistrate judge’s summary judgment R&R, which identified five specific facts that the court deemed established after examining the record. 2 Defendants did not object to this R&R either, which the district cour t adopted after finding no clear error. The final pretrial order further identified the fa cts that the court would treat “as established for the case pursuant to [Rule] 56(g).” The magistrate judge explained this to Defendants during the final pretrial conference and, again, the Defenda nts did not object. 3 During a three-day jury trial, Plainti ffs solicited testimony from Mrs. Sackett about Defendants’ real esta te holdings and alleged wea lth. Defendants argued that their wealth was not relevant to allegati ons regarding uncompensated, forced labor.

2 Namely, the district court deemed th e following five facts established: (1) Defendants paid no more than $3 00 per month for Plai ntiffs’ utilities; (2) Defendants did not pay Plaintiffs Esmeraldo or Maribel Echon for their work and only gave them money a few times after Pl aintiffs begged; (3) Defendants occasionally paid Plai ntiff Justin Echon a small amount; (4) Plaintiffs depended on Defend ants for food and lodging; and (5) Mr. Sackett knew that his wife di d not pay Plaintiffs for their work.

3 Defendants only expressed opposition on this issue wh en Plaintiffs sought an in limine ruling to preclude Defendants from in troducing evidence that contradicted the established facts.4 The district court allowed this testimony ov er Defendants’ relevance objections. The jury found Defendants liable to Plaintiffs on several cl aims and awarded damages to Plaintiffs in exces s of $350,000. After the trial, Defendants retained counsel and file d a motion for a new trial under Rule 59(a). Therein, Defendants argue d that the district court erred when it deemed certain facts establishe d, but did not challenge the district court’s evidentiary rulings. The district court denied the motion. Defendants now appeal.
II. We review the district court’s impos ition of sanctions pursuant to Rule 37(b)(2) for an abuse of discretion. Ol cott v. Delaware Flood Co., 76 F.3d 1538, 1557 (10th Cir. 1996). We likewise review th e district court’s ev identiary rulings for an abuse of discretion. United States v. Blechman, 657 F.3d 10 52, 1063 (10th Cir. 2011).
III.
A. We first consider whether the district court abused its discretion by deeming certain facts established as a sanction under Rule 37(b)(2 )(A) for Defendants’ failure to respond to Plaintiffs’ inte rrogatories. As excuses for their actions, Defendants cite their literacy limitations, re sponses provided through othe r methods of discovery, and lack of bad faith. Plaintiffs, on the othe r hand, contend that Defendants waived their right to appeal the district court’s impos ition of sanctions and the district court nonetheless acted within its disc retion. We agree with Plaint iffs that the district court5 did not abuse its discretion in this case . We examine whethe r Defendants waived their argument, the interest s of justice exception to the firm waiver rule, and additional considerations pursuant to a dist rict court’s power to impose sanctions in our analysis. As a threshold matter, we observe that Defendants failed to object to the magistrate judge’s R&Rs impos ing and implementing sanctions. 4 We have “a firm waiver rule under which a party who fails to make a timely objection to the magistrate judge’s findings and recommendations waives appellate review of both factual and legal questions .” Morales-Fernandez v. I.N.S., 418 F.3d 1116, 1119 (10th Cir. 2005). “This rule does not apply, however, when (1) a pro se litigant has not been informed of the time period for objecting and the conse quences of failing to object, or when (2) the ‘interests of justice’ require review.” Id.; see also Thomas v. Arn, 474 U.S. 140, 155 (1985) (explaining that “because the rule is a nonjurisdictional waiver provi sion, the Court of Appeals may excuse the default in the interests of justice”). The first exception to the firm waiver rule does not apply in this case. Both of the relevant R&Rs stated plainly that Defe ndants had fourteen days to file written objections and that a failure to make timely objections “will result in a waiver of the right to appeal from a judgment of the di strict court based on the proposed findings

4 Defendants’ argument relies heavily on their ignorance of the judicial process, but Defendants demons trated that they underst ood how to object to an R&R because they did so earlier in the case.6 and recommendations of the magistrate judge.” Thus, the magistrate judge “attempted to apprise [Def endants] of the conseque nces of a failure to object.” Morales-Ferna ndez, 418 F.3d at 1119. Next, we consider whether “to exercise our discretion under the interests of justice exception to overlook the waiver ru le in the instant matter.” Id. The “interests of justice” excepti on to the firm waiver rule “i s a rather elusive concept.” Id. at 1119–20. But we have recognized that the interests of jus tice analysis, “which expressly includes review of a litigant’ s unobjected-to substa ntive claims on the merits, is similar to re viewing for plain error.” 5 Id. at 1120 (recognizing that both Supreme Court and Tenth Circuit precedent support the “notion that the plain error and interests of justices analyses are simila r” (citing United States v. Olano, 507 U.S. 725, 736 (1993)). We have also enumerated several factors to determine whether to invoke the exception. Id. at 1120. “For in stance, a pro se litigan t’s effort to comply, the force and plausibility of the explana tion for his failure to comply, and the importance of the issues raised are all relevant considerati ons in this regard.” Id. Regardless of the specifics of the standard, we determine that the interests of justice exception does not preclude the impositi on of sanctions in this case. The interests of justice generally afford district courts “v ery broad discretion to use sanctions where nece ssary” to ensure “the expe ditious and sound management

5 “Plain error occurs when th ere is (1) error, (2) that is plain, which (3) affects substantial rights, and which (4) seriously affects the fairness, integrity, or public reputation of judicial pr oceedings.” Morales-Fern andez, 418 F.3d at 1122–23.7 of the preparation of cases for trial.” Lee v. Max Int’l, LLC, 638 F.3d 1318, 1320 (10th Cir. 2011). Of course, the determination “of the correct sanction for a discovery violation is a fact-specific inquiry that the district court is best qualified to make.” Ehrenhaus v. Reyn olds, 965 F.2d 916, 920 (10t h Cir. 1992). And even pro se litigants are not immune from sanctions for failing to obey a discovery order. See Klein-Becker USA, LLC v. Engler t, 711 F.3d 1153, 1159 (10th Cir. 2013) (affirming a district’s court imposition of a “default judgm ent against the disobedient party” as a Rule 37 sanction even thou gh the offending party appeared pro se (quoting Fed. R. Civ. P. 37(b)(2)(A)(vi))) . Specifically, Rule 37(b)(2)(A)(i) gives courts the authority to deci de “that the matters embra ced in the order or other designated facts be taken as established for purposes of the action” as a sanction for a party’s failure to comply with a discovery order. Fed. R. Civ. P. 37(b)(2)(A)(i). And under Rule 56(g), a district court may “enter an order stating any mate rial fact . . . is not genuinely in dispute and treating the fact as established in the case.” Fed. R. Civ. P. 56(g); see also Chambers v. NASCO, In c., 501 U.S. 32, 42 n. 8 (1991) (explaining that courts may act sua sponte to impose sanctions under Rule 56(g)). In this case, Defendants offer many excuse s, but lack authority to justify their failure to comply with the di strict court’s discovery orde rs. Defendants contend that the magistrate judge should have rec ognized their “inability to provide written narrative responses to the overbroad” in terrogatories. But the district court sua sponte narrowed the scope of several interr ogatories after a he aring on one of Plaintiffs’ motions to compel and reiterated that the Ru les required Defendants to8 respond to the interrogatories. Indeed, the magistrate judge advised Defendants four
times that the law required them to adhere to the same ru les as represented parties, and ordered Defendants to respond to Plaintiffs’ discovery requests three times

. A district court’s gatekeep ing function in discovery doe s not equate “to that of a micro-manager.” Gardner By & Through Gardner v. Ch rysler Corp., 89 F.3d 729, 739 (10th Cir. 1996) (“If a pa rty is disadvantaged or di ssatisfied with discovery [requests], it is the party’s re sponsibility to particularize the basis of the [objection] so that the court can properl y evaluate the arguments and exercise its discretion.”). And despite the magistrate judge’s numerous warnings that Defendants must adhere to the same rules as represented parties, Defendants chose not to object or respond to Plaintiffs’ interrogatories during the discovery process. 6 Thus, we conclude that Defendants did not put forth th e requisite effort to comply with the district court’s discovery orders, nor did they offer a plausi ble explanation to excu se their failure to heed the magistrate judge’s repeated warni ngs of sanctions. See Morales-Fernandez, 418 F.3d at 1119. Such conduct weighs agai nst the application of the interests of justice exception. Additionally, Defendants argue on appeal that the interests of justice exception should excuse their waiver due to the severity of the sanctions impos ed by the district court. The district court here, like ma ny other district cour ts within the Tenth

6 Mr. Sackett’s remarks at the final pretrial conferen ce provide a glimpse into Defendants’ attitude towards the discovery process: “I thought if I give them any information at all, it would be detrimenta l to my case, . . . so I didn’t give them anything.”9 Circuit, applied the Ehrenhaus factors to a ssess the appropriateness of its sanctions. See, e.g., Gates Rubber Co. v. Bando Chem. Indus., Ltd., 167 F.R.D. 90, 102 (D. Colo. 1996) (observing that while Ehrenhaus lists five factors that a court should consider before imposing dispositive sanctions, we did not “res trict trial courts to a consideration of these factors in onl y those cases which involve dispositive sanctions”). The Ehrenhaus factors are: (1) the degree of act ual prejudice to the defendant; (2) the amount of interference with the judicial process; (3) the culpability of the litigant; (4) whet her the court warned the party in advance that dismissal of the action would be a likely sanction for noncomp liance; and (5) the efficacy of lesser sanctions. Ehrenhaus, 965 F. 2d at 921. Even assuming the Ehrenhaus factors influence our analysis, we conclude that those factors support the district court’s imposition of sanctions. Indeed, all five Ehrenhaus factors support the imposition of sanctions in this case. As to the first factor, Defendants ar gue that Plaintiffs did not suffer prejudice by way of Defendants’ failure to respond to interrogatori es because Plaintiffs got access to similar informati on through document production and depositions. But, as the magistrate judge warned, the law is “well-se ttled that methods of discovery are complementary, rather than alternative or exclusive.” In re Dana Corp., 574 F.3d 129, 150 (2d Cir. 2009) (opining that “t he various discovery methods are more complementary than fungible” and “[n]o one type of discovery is necessarily an adequate substitute for another”). As to the second factor, De fendants unreasonably multiplied proceedings by imposing a bur den on Plaintiffs and the court to10 respectively file and consid er several motions to comp el discovery. See Dominion Video Satellite, Inc. v. Echostar Satellite L.L.C., 430 F.3d 1269, 1279 n.6 (10th Cir. 2005) (concluding that a di strict court does not abus e its discretion by imposing sanctions for unreasonably multiplying proceedi ngs without a finding of bad faith). Defendants’ noncompliance restricted Plaintiffs’ access to discovery and unnecessarily occupied Plaintiffs’ and the district court’s time with motions to compel discovery, which interfered with the judicial process. See Ehrenhaus, 965 F.2d at 921. As to the third and fourth Ehrenhaus factors, Defendants refused to answer Plaintiffs’ interrogatories in spite of the magistrate judge’s repeated warnings. Thus, Defendants had actual knowledge of their cu lpability and the possible consequences of their noncompliance. See id. Finally, Defendants contend that attorney’s fees alone provided a sufficient sanction, but th e district court gave Defendants “no fewer than three chances to make good their discovery obligation. ” Lee, 638 F.3d at 1321. “And three strikes are more than enough to a llow the district cour t to call a litigant out,” rather than first impose lesser sanctions. Id. (opini ng that a district court does not abuse its discretion by “dismissing the case or entering default as [a] sanction” after giving a litigant three ch ances to comply w ith its discovery obligations (id. at 1324)). Thus, the district court did not abuse its discretion by imposing stringent but non-dispositive sanctions in li ght of the Ehrenhaus factor s. See Ehrenhaus, 965 F.2d at 921.11 Accordingly, the interests of justice exception to the firm waiver rule does not preclude the imposition of sanctions in this case. Morales-Fernandez, 418 F.3d at 1119. The firm waiver rule therefore bars the relief Defendants seek. And, in any event, we observe that the di strict court acted well within its discretion to impose the sanctions at issue under Rule 37(b)(2)(A).
B. We also consider whether the district court abused its di scretion by allowing testimony about Defendants’ real estate holdings ove r Defendants’ relevance objections. Defendants contend that Plainti ffs elicited irreleva nt information about their wealth at trial, contrary to Federa l Rule of Evidence 401. Fed. R. Evid. 401 (“Evidence is relevant if . . . it has any tendency to make a fact more or less probable than it would be without the evidence.”). Plaintiffs, on the othe r hand, contend that the district court correctly overruled Defendants’ re levance objections because testimony about Defenda nts’ wealth was relevant fo r the consideration of punitive damages on Plaintiffs’ federal TVPRA claim. And the jury in fact awarded Plaintiffs punitive damages under the TVPRA. On appeal, Defendants argue that Co lorado state law excludes evidence of wealth for the purpose of a ssessing punitive damages. But this case involved a federal TVPRA claim. And the Supreme Court has said that “evidence of a tortfeasor’s wealth is traditionally admissible as a measure of the amount of punitive damages that should be awarde d.” City of Newport v. F act Concerts, Inc., 453 U.S. 247, 270 (1981). Consistent with City of Newport, we have also held that “the12 wealth and size of the defenda nt are relevant considera tions” for the imposition of punitive damages in fede ral civil rights claims. 7 Deters v. Equifax Credit Information Services, 202 F.3d 1262, 1273 (10th Ci r. 2000); see also Garrick v. City & Cty. of Denver, 652 F.2d 969, 971 (10t h Cir. 1981) (reasoning that “[f]ederal standards govern the determination of damages under the federal civil rights statutes”). Moreover, Defendants conced ed on appeal that the TVPRA allowed Plaintiffs to present a punitiv e damages argument to the jury. We thus conclude that the testimony about Defendant s’ real estate holdings a nd alleged wealth provided relevant evidence for Plaintiffs’ le gitimate punitive damages argument. Because the district court’s ruling was not “arbitrary, capri cious, whimsical or manifestly unreasonable,” United States v. Banks, 761 F.3d 11 63, 1197 (10th Cir. 2014), we conclude that the district cour t did not abuse its discretion through its evidentiary rulings in this case. 8

7 To the extent that Defendants cont end City of Newpor t’s Tenth Circuit progeny were wrongly decided, we note th at a “three-judge panel may not overrule circuit precedent.” United States v. Marquez-Gallegos, 217 F.3d 1267, 1270 (10th Cir. 2000).

8 Defendants also contend a federal statute, 42 U.S.C. § 1988(a), dictates that a federal district court should apply state law when adjudicating federal civil rights claims. But we do not need to analyze this argument in any depth because we have previously rejected it. Ka rnes v. SCI Colorado Funeral Services, Inc., 162 F.3d 1077, 1082 (10th Cir. 1998) (rejecting the proposed application of 42 U. S.C. § 1988(a) in relation to punitive damages).13 AFFIRMED.

Entered for the Court

Joel M. Carson III Circuit Judge