United States District Court

EASTERN DISTRICT OF TEXAS

SHERMAN DIVISION

JORGE LUIS GUEDEZ BORGES a/k/a 

WALTER BLANCO,

 Plaintiff,

vs. 

GIDI BAR-N-GRILL LIMITED 

LIABILITY COMPANY and 

MARTIN FAYOMI,

 Defendants.

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Civil Action No. 4:23-CV-00897

Judge Mazzant

MEMORANDUM OPINION AND ORDER

Pending before the Court is Plaintiff Jorge Luis Guedez Borges a/k/a Walter Blanco’s 

Motion for Sanctions Against Defendant Martin Fayomi Pursuant to FRCP 37(b)(2)(C) (Dkt. 

#31). Having considered the motion and the relevant pleadings, the Court finds that the motion 

should be GRANTED.

BACKGROUND

Plaintiff filed suit against Defendants Martin Fayomi (“Fayomi”) and Gidi Bar-N-Grill 

Limited Liability Company (“Gidi”) (collectively the “Defendants”) alleging willful violations of 

the Fair Labor Standards Act (“FLSA”) (Dkt. #17 at p. 1). Plaintiff alleges he worked for 

Defendants as a cook and kitchen supervisor from August 2021 until November 2022 and again 

from February 2023 until April 16, 2023 (Dkt. #17 at p. 3). Plaintiff claims Defendants regularly 

scheduled and directed Plaintiff to work in excess of 40 hours per week; however, Defendants did 

not pay Plaintiff at the overtime rate required by the FLSA (Dkt. #17 at p. 3). Fayomi, appearing 

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pro se, disagrees (See Dkt. #9; Dkt. #18).1 Though unclear, Fayomi seems to argue that “Mr. 

Walter Blanco was not known as Jorge Luis Guedez Borges at the time he was employed at Gidi 

Bar-N-Grill,” and thus, Plaintiff’s claims fail (Dkt. #18 at p. 2–3).

On May 29, 2024, the Court ordered Defendants to “respond to Borges’ First Set of 

Interrogatories and First Set of Document Requests within twenty-one (21) days following the 

entry of the Order” (Dkt. #28 at p. 5). Defendants did not respond to the interrogatories or the 

documents requests. On July 1, 2024, Plaintiff filed its Motion for Sanctions Against Defendant 

Martin Fayomi Pursuant to FRCP 37(b)(2)(C) (“Motion for Sanctions”) urging the Court to strike 

Fayomi’s answer and hold him in default (Dkt. #31 at p. 5). Fayomi did not file a response. 

Further, on the same day, Plaintiff filed his Motion for Clerk to Enter Order of Default against 

Defendant Bar-N-Grill Limited Liability Company Pursuant to Federal Rule of Civil Procedure 

55(a) (“Motion for Default”) (Dkt. #32).2 Defendants did not file a response.

LEGAL STANDARD

The Court has the power to sanction a party under both Federal Rule of Civil Procedure 37 

and the Court’s inherent authority. See Olivarez v. GEO Grp., Inc., 844 F.3d 200, 203 (5th Cir. 

2016). Rule 37(b) provides the appropriate vehicle for sanctions for a party’s failure to comply 

with a discovery order. Smith & Fuller, P.A. v. Cooper Tire & Rubber Co., 685 F.3d 486, 490 (5th 

Cir. 2012). Although the Court has “broad discretion under Rule 37(b) to fashion remedies suited 

to the misconduct,” this discretion is limited in two important ways. Id. at 488 (quoting Pressey v. 

1 The Court construes the filings liberally because Fayomi is proceeding pro se. Eller v. Cole, No. 23-50018, 2023 WL 

7268221, at *1 (5th Cir. 2023). Nonetheless, Fayomi “must still comply with the law and procedural rules.” 

Washington v. East Baton Rouge Par. Sch. Sys., 471 F. App’x 306, 306 (5th Cir. 2012). 

2 Plaintiff’s Motion for Default lists both Defendants Gidi and Fayomi (Dkt. #32). Plaintiff’s Motion for Sanctions, 

however, only mentions Fayomi (See Dkt. #31). Accordingly, the Court construes the Motion for Sanctions only 

against Fayomi.

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Patterson, 898 F.2d 1018, 1021 (5th Cir. 1990)). First, sanctions under Rule 37(b) must be “just” 

and “specifically related to the particular ‘claim’ which was at issue in the order to provide 

discovery.” Ins. Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 707 (1982). In 

addition, before imposing litigation-ending sanctions (sometimes called “death penalty” 

sanctions), the Court must find that: (1) the discovery violation was committed willfully or in bad 

faith; (2) the client, rather than counsel, is responsible for the violation; (3) the violation 

substantially prejudiced the opposing party; and (4) a lesser sanction would not “substantially 

achieve the desired deterrent effect.” See, e.g., L. Funder, L.L.C. v. Munoz, 924 F.3d 753, 758–59 

(5th Cir. 2019) (cleaned up). Ultimately, in imposing sanctions under Rule 37, the Court must 

“hold the scales of justice even.” Guidry v. Cont’l Oil Co., 640 F.2d 523, 533 (5th Cir. 1981)

(citation omitted).

In sum, the Court enjoys considerable discretion in imposing discovery sanctions, but the 

Fifth Circuit has cautioned that “sanctions should not be used lightly.” E.E.O.C. v. General 

Dynamics Corp., 999 F.2d 113, 119 (5th Cir. 1993). And, in cases in which sanctions are appropriate, 

courts should generally impose the “least onerous sanction appropriate.” Brown v. Oil States 

Skagit Smatco, 664 F.3d 71, 79 (5th Cir. 2011).

ANALYSIS

I. Rule 37(b)(2) Sanctions Generally

Under Rule 37(b)(2) any sanction must be just and specifically related to the particular 

claim that was the subject of the discovery violation. See Compaq Comput. Corp. v. Ergonome Inc., 

387 F.3d 403, 413 (5th Cir. 2004) (citation omitted). First, sanctions are just and the entry of a 

default judgment is appropriate because Fayomi has failed to comply with the Court’s previous 

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order for months by not providing responses to Plaintiff’s requests for discovery (See Dkt. #28; 

Dkt. #31). As such, Plaintiff’s case has grinded to a halt and is incapable of proceeding. Further, 

Fayomi’s inaction has forced Plaintiff to exert resources and time to enforce the Court’s order.

Second, sanctioning Fayomi by entering a default judgment is related to the particular claim that 

was the subject of the discovery violation. Plaintiff sought responses to interrogatories and 

production of documents to develop its case for trial (See Dkt. #24; Dkt. #28 at p. 5). Fayomi, 

however, has not participated in the discovery process and impeded Plaintiff’s ability to gather 

information to substantiate its claims. As such, Fayomi leaves Plaintiff with no other avenue for 

relief. Accordingly, the Court finds that sanctions, particularly the entry of a default judgment, 

satisfies the requirements of Rule 37(b)(2). 

Since the entry of a default judgment is a litigation-ending sanction, the Court must now 

analyze four additional factors. See, e.g., L. Funder, L.L.C., 924 F.3d at 758–59 (cleaned up).

II. Litigation-Ending Sanctions

Under the circumstances, the Court finds that litigation-ending sanctions are appropriate

against Fayomi. To impose such sanctions, the Court must find that: (1) the discovery violation 

was committed willfully or in bad faith; (2) the client, rather than counsel, is responsible for the 

violation; (3) the violation substantially prejudiced the opposing party; and (4) a lesser sanction 

would not “substantially achieve the desired deterrent effect.” See, e.g., L. Funder, L.L.C., 924 

F.3d at 758–59 (cleaned up). As explained below, each factor is satisfied.

A. The Discovery Violation was Willful

“Willfulness may be demonstrated by a party’s ‘failure to comply with the court’s 

discovery order even after he was personally instructed to do so . . . and stated that he understood 

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what was required of him.’” Bell v. Texaco, Inc., 493 F. App’x 587, 593 (5th Cir. 2012) (quoting 

Chisesi v. Auto Club Family Ins. Co., 374 F. App’x 475, 477 (5th Cir. 2010). Notably, the “district 

court is permitted to ‘rely on its complete understanding of the parties’ motivations.’” Id. (citing 

Smith v. Smith, 145 F.3d 335, 344 (5th Cir. 1998)). Here, Fayomi willfully failed to comply with 

the Court’s order. In its Order dated May 29, 2024, the Court noted that although Fayomi emailed 

Plaintiff’s counsel, the email did not constitute a response to Plaintiff’s interrogatories or 

document requests (See Dkt. #28 at p. 4). Consequently, the Court ordered Fayomi to respond to 

Plaintiff’s requests within 21 days following the entry of the Order on May 29, 2024 (See Dkt. #28 

at p. 5). Fayomi did not comply with the Court’s order and ignored the Court entirely by not 

responding to Plaintiff’s interrogatories or requests for production (See Dkt. #31 at p. 2). As such, 

Fayomi failed “to comply with the court’s discovery order even after he was personally instructed 

to do so . . . .” Chisesi, 374 F. App’x at 477. Thus, the Court finds this factor is satisfied.

B. The Client—Fayomi—is responsible for the Violation

The Court also finds that Fayomi, rather than counsel, is responsible for the violation 

because Fayomi is appearing pro se (See Dkt. #9). Here, the buck stops with Fayomi since there is 

no other party the violation can be attributed to. Thus, the Court finds this factor is satisfied.

C. The Violation Substantially Prejudiced the Other Party

Plaintiff was substantially prejudiced by Fayomi’s failure to comply with the Court’s 

discovery order. Plaintiff was prejudiced by not being able to conduct any discovery or prepare for 

trial. See Chisesi, 374 F. App’x at 477 (finding a party was prejudiced when “[i]t was denied 

discovery any for months, was prejudiced in its ability to prepare for trial, and was forced to spend 

time and money attempting to coerce discovery”). Further, Plaintiff “was forced to spend time 

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and money attempting to coerce discovery” from Fayomi. Id. As such, the Court finds this factor 

is satisfied.

D. A Lesser Sanction Would Not Substantially Achieve the Desired Deterrent Effect

The Court finds that a lesser sanction would not achieve the “desired deterrent effect.” L. 

Funder, L.L.C., 924 F.3d at 758–59. Not only has Fayomi failed to comply with the Court’s Order 

dated May 29, 2024, (See Dkt. #28; Dkt. #31 at p. 2), Fayomi has not filed a response to any of 

Plaintiff’s motions (See Dkt. #29; Dkt. #31; Dkt. #33; Dkt. #34) or filed any pleading since 

December 21, 2023 (See Dkt. #19). All available information indicates that if the Court were to 

issue a lesser sanction, Fayomi would ignore it like the Court’s previous order. Such an order is 

unwarranted since it would expend limited judicial resources and cost Plaintiff additional time and 

resources to conduct discovery when Fayomi has been provided ample opportunity to respond to 

Plaintiff’s discovery requests. Thus, the Court finds the final factor is satisfied.

CONCLUSION

It is therefore ORDERED that Plaintiff Jorge Luis Guedez Borges a/k/a Walter Blanco’s 

Motion for Sanctions Against Defendant Martin Fayomi Pursuant to FRCP 37(b)(2)(C) (Dkt. #31)

is GRANTED. 

As a sanction, Defendant Martin Fayomi’s Answer (Dkt. #18) is stricken. Accordingly, 

Plaintiff is entitled to a default judgment against Defendant Martin Fayomi. 

Plaintiff is ORDERED to file documents in support of the default judgment within twentyone (21) days of the entry of this order.

Further, Defendant Gidi Bar-N-Grill Limited Liability Company shall obtain 

representation from a licensed attorney and show cause as to why the Court should not issue 

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sanctions and enter a default judgment against it. Defendant Gidi Bar-N-Grill Limited Liability 

Company is WARNED that if it does not respond within fourteen days (14) of the entry of this 

Order, the Court will enter a default judgment against Defendant.

IT IS SO ORDERED. 

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