Case 3:12-cv-01068-RNC Document 26 Filed 02/27/13 Page 1 of 4

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT ) ) ) ) ) ) ) ) ) ) )

SECURITIES AND EXCHANGE COMMISSION, Plaintiff, v. JERRY S. WILLIAMS, MONKS DEN, LLC, and FIRST IN AWARENESS, LLC, Defendants.

No. 3:12-cv-01068-RNC

MEMORANDUM OF LAW IN SUPPORT OF MOTION TO COMPEL AND FOR CONTINGENT SANCTIONS AGAINST WILLIAMS FOR FAILURE TO PROVIDE INITIAL DISCLOSURES OR TO SERVE INTERROGATORY ANSWERS Plaintiff Securities and Exchange Commission (Commission) respectfully requests this Court issue an order (i) compelling defendant Jerry Williams to provide initial disclosures and to submit answers to interrogatories, and further (ii) providing that Williams failure to meet this court-ordered deadline will result in a default judgment entering against him. In support of this motion, the Commission states as follows: 1. The parties held their discovery conference with Magistrate Judge Martinez on

December 11, 2012. Pursuant to Rule 26(a)(1) of the Federal Rules of Civil Procedure (Federal Rules), Williams initial disclosures were due fourteen days later, or December 26, 2012. Williams did not meet this deadline and has never served any initial disclosures. 1

The Commission served its initial disclosures several weeks earlier on October 17, 2012.

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2.

On December 18, 2012, the Commission served Williams with a set of

interrogatories by first class mail. 2 A copy of the interrogatories is attached as Exhibit A to this memorandum. 3. Williams answers to these interrogatories were due on Monday, January 21,

2013. See Fed. R. Civ. P. 6(d) & 33(b)(2) (2013). 4. A week after the January 21st deadline, on January 28, 2013, Commission

counsel contacted defendant Williams by email and requested a date for completion. Defendant Williams responded two days later, stating he was working toward completion and hop[ed] to be able to send it out by the weekend. A copy of this correspondence is attached as Exhibit B to this memorandum. 5. Commission counsel waited another week. On February 6, 2013, Commission

counsel sent a follow up email to Williams requesting an update on the status of the answers. A copy of this email is attached as Exhibit C. Williams has never responded to this email. 6. It has now been over two months since the Commission served its interrogatories

and over two weeks since the Commissions last request for Williams voluntary cooperation. 7. Rule 37(a)(3) of the Federal Rules provides that [i]f a party fails to make a

disclosure required by Rule 26(a), any other party may move to compel disclosure and for appropriate sanctions. Rule 37(d) further provides that, on motion, the Court may order sanctions if a party, after being properly served with interrogatories under Rule 33 . . . fails to serve its . . . written response. Here, Williams has failed to provide any initial disclosures. He has also failed to serve any written response to the Commissions interrogatories. Moreover, Williams has now failed to respond to inquiries from opposing counsel or to provide a date by
2

The Commission also served Williams with a set of requests for admission as well as requests for the production of documents. Williams has similarly failed to respond to either of these requests. For the present, the Commission is moving to compel only the interrogatory answers.

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which he will provide written answers to the interrogatories. Williams willful failure to provide discovery clearly warrants judicial intervention and the possibility of sanctions. 8. Williams failure to provide both initial disclosures and interrogatory responses

means that he has effectively refused to provide any discovery since the beginning of this action. To remedy this situation, the Commission respectfully requests the issuance of a discovery order (i) setting a date by which defendant Williams must provide initial disclosures and answer the Commissions interrogatories, and (ii) providing that Williamss failure to meet the courtimposed deadline will result in the rendering of a default judgment against him. See, e.g., Brewer v. Technicolor, No. 05-2791, 2007 WL 712414, *2 (W.D. Tenn. Mar. 6, 2007) (describing court-ordered deadline for pro se plaintiffs late initial disclosures and interrogatory answers). WHEREFORE, the Commission respectfully requests this Court issue a discovery order (i) setting a date by which defendant Williams must provide initial disclosures and answer the Commissions interrogatories, and (ii) further providing that Williamss failure to meet this court-imposed deadline will result in the rendering of a default judgment against him.

Respectfully submitted, SECURITIES AND EXCHANGE COMISSION, By its attorney, /s/ R.M. Harper II Richard M. Harper II (PHV #05528) Senior Trial Counsel U.S. Securities and Exchange Commission 33 Arch Street, 23rd Floor Boston, Massachusetts 02110 (617) 573-8979 (Harper) (617) 573-4590 (Facsimile) HarperR@sec.gov February 27, 2013 3

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CERTIFICATE OF SERVICE I hereby certify that on February 27, 2013 I served the foregoing document on following unrepresented parties by First Class Mail: Jerry S. Williams 3123 North 82nd Way Mesa, Arizona 85207

/s R.M. Harper II Richard M. Harper II