If the defendant fails to comply with the order compelling discovery, the next step is to file a motion for sanctions against the defendant. The range of sanctions permitted is described in Tex. R. Civ. P. 215. If contempt is sought, section 26.7 in this manual should be consulted. A motion for contempt is at form 26-12.
Prepare both this motion for sanctions and the order at form 18-29. Once the court has set a hearing, ensure that the notice of hearing is complete and send a copy of the motion and notice to the defendant or his attorney. Local practice or rules may vary on whether a judge must sign the order setting the hearing or whether the signature by the court clerk or attorney is sufficient and in the procedure for setting the hearing and filing the certificate of service.
[Caption. See § 3 of the Introduction in volume 1 of this manual.]
Plaintiff’s Motion for Sanctions
1.Parties. Plaintiff is [name of plaintiff]. Defendant is [name of defendant].
2.Facts. Plaintiff served [interrogatories/requests for admissions/requests for production/notice of intention to take oral or written deposition] on Defendant in the time and manner required by the Texas Rules of Civil Procedure. On [date], this Court ordered Defendant to [specify, e.g., prepare and forward to Plaintiff, by and through this attorney of record, a full and complete sworn set of written answers to Plaintiff’s interrogatories in full compliance with rule 197 of the Texas Rules of Civil Procedure]. However, as of this date, Defendant has failed to comply with the order as described above.
3.Grounds. Pursuant to rule 215 of the Texas Rules of Civil Procedure, Plaintiff requests the Court to set this matter for hearing and that the Court
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Select one or more of the following. |
disallow any further discovery by Defendant.
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And/Or |
disallow any further discovery through [state particular type of discovery, e.g., interrogatories] by Defendant.
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And/Or |
charge [all/a portion of] [discovery/taxable court costs] against [Defendant/Defendant’s attorney] as follows: [set forth and identify items to be charged against the defendant or his attorney].
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And/Or |
order that the following facts be taken as established for purposes of this lawsuit: [list facts].
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And/Or |
refuse to allow Defendant to [support/oppose] the following [claims/defenses]: [list claims or defenses].
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And/Or |
prohibit Defendant from introducing into evidence the following: [list matters sought to be prohibited].
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And/Or |
strike the following pleadings or portions of pleadings: [identify pleadings or portions of pleadings to be struck].
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And/Or |
stay further proceedings in this cause.
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And/Or |
dismiss [with/without] prejudice the following actions or proceedings: [identify with specificity the actions or proceedings].
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And/Or |
enter default judgment against Defendant.
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And |
enter all orders in regard to Defendant’s failure as the Court deems just.
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Continue with the following. |
4.Attorney’s Fees and Expenses. Defendant’s failure to [state appropriate grounds, e.g., answer interrogatories] has made it necessary for Plaintiff to employ the undersigned attorney to bring this proceeding for sanctions. Under rule 215.2(b)(8) of the Texas Rules of Civil Procedure, Plaintiff is entitled to recover reasonable expenses, including reasonable attorney’s fees, incurred in obtaining an order for sanctions. These fees are recoverable either from Defendant or his attorney, or both. Reasonable attorney’s fees for the services rendered and to be rendered in this regard are at least $[amount]. In addition, Plaintiff has incurred expenses of at least $[amount].
5.Prayer. Plaintiff prays that—
a.the Court set this matter for hearing;
b.after notice and hearing, the Court impose sanctions on Defendant in accordance with rule 215 of the Texas Rules of Civil Procedure;
c.Plaintiff be granted reasonable attorney’s fees from Defendant or his attorney, or both, in the amount of at least $[amount] incurred in obtaining the Court’s order; and
d.Plaintiff be granted all further relief to which Plaintiff may be entitled.
[Name]
Attorney for Plaintiff
State Bar No.:
[E-mail address]
[Address]
[Telephone]
[Telecopier]
Certificate of Conference
I certify that a reasonable effort has been made to resolve the discovery dispute without the necessity of court intervention and has failed.
[Name]
Attorney for [name of movant]