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United States District Court, Southern District of New York

May 9, 2003


The opinion of the court was delivered by: Henry Pitman, United States Magistrate Judge

Plaintiffs in this putative class "move" for an Order striking defendant Elite's opposition to plaintiffs' motion for class certification. For the reasons set forth below, the "motion" is denied in part with prejudice and denied in part without prejudice.

The alleged facts giving rise to this action are set forth in detail in the Opinion and Order of the Honorable Harold Baer, United States District Judge, dated January 17, 2003, which granted in part and denied in part defendants' motion to dismiss the complaint. Masters v. Wilhelmina Model Agency, Inc., 02 Civ. 4911 (HB), 2003 WL 145556 (S.D.N.Y. Jan. 17, 2003). Familiarity with Judge Baer's decision is assumed. For present purposes, it is sufficient to note that plaintiffs, who are current and former models, allege that defendant modeling agencies colluded among themselves to fix the commissions and other fees charged to models, in violation of the federal antitrust and other laws.

The current dispute arises out of Elite's alleged failure to produce a 30(b)(6) witness properly prepared to testify about certain topics that I had previously ruled were appropriate deposition topics. Specifically, plaintiffs claim that Elite's 30(b)(6) witness was unable to testify to the commissions and fees actually paid to Elite by the models for whom contracts and other documents had been produced. Plaintiffs did not raise the dispute in a motion pursuant to Rule 37. Rather, plaintiffs first made their application in a declaration submitted in further support of their motion for class certification (Docket Item 98). Although plaintiffs annexed all 317 pages of the Elite 30(b)(6) deposition transcript to the declaration, they did not specify the pages where the alleged failures to answer occurred.*fn1 Plaintiffs also claim that Elite failed to produce an index concerning the contracts produced.

Plaintiffs' application is flawed both Procedurally and substantively. First, plaintiffs have not a made a formal motion for Rule 37 sanctions. Rather, they merely submitted an affidavit in connection with a motion that was already pending seeking relief unrelated to the relief they now seek. If plaintiffs wished to amend their motion to add this new application, they should have either served an amended notice of motion or served a new motion. Simply submitting an affidavit seeking a new type of interlocutory relief is not a procedure permitted by the Federal Rules of Civil Procedure.

Second, since the dispute is, in essence, a discovery dispute, plaintiffs were obligated by Local Civil Rule 37.2 to first request an informal conference to resolve the dispute.*fn2 Plaintiffs failed to do so.

Third, plaintiffs have failed to submit a memorandum of law, as required by Local Civil Rule 7.1, in support of their motion. Plaintiffs' counsel has recently made a feeble attempt to explain the default, claiming that "Plaintiffs have refrained from citing the law on this area on the understanding that the Court is well aware of the range of penalties that may be imposed on a party or its counsel who intentionally fail to comply with Court-ordered discovery" (Letter of Andrew W. Hayes, Esq., dated April 16, 2003, at 2). This justification, however, is as hollow as a schoolchild's request that his or her teacher repeat a question. There is an extensive body of case law in this Circuit concerning the nature of the sanctions to be imposed in response to a particular discovery failure. See generally Bambu Sales, Inc. v. Ozak Trading Inc., 58 F.3d 849, 853-54 (2d Cir. 1995); National Communications Ass'n, Inc. v. American Tel. & Tel. Co., 92 Civ. 1735 (LAP), 1998 WL 118174 at *3 (S.D.N.Y. March 16, 1998); Sullivan v. City of New York, 94-CV-1643 (PB), 1997 WL 642321 at *2 (E.D.N.Y. Sept. 3, 1997); Jeanette Coquette Co. v. Hartford Fire Ins. Co., 93 Civ. 4417 (DAB), 1997 WL 527874 at *1-*2 (S.D.N.Y. Aug. 22, 1997); Fritter v. Dafina, Inc., 176 F.R.D. 60, 63 (N.D.N.Y. 1997); Edwards v. American Airlines, Inc., 95 Civ. 5356 (SAS), 1996 WL 432472 at *2-*3 (S.D.N.Y. Aug. 1, 1996); Starbrite Waterproofing Co. v. Aim Const. & Contracting Corp., 164 F.R.D. 378, 381-82 (S.D.N.Y. 1996); 2 Michael C. Silberberg, Civil Practice in the Southern District of New York Chap. 26 (2d ed. 2002). Although the award of sanctions pursuant to Rule 37 is committed to the judge's discretion, the principle of stare decisis requires that that discretion be exercised in accordance with these and other applicable precedents. Thus, plaintiffs' failure to address this body of law and to apply it to the facts of this case leaves the Court to do basic research and analysis that should be done by counsel in the first instance.

Moreover, even if the procedural defects in plaintiffs' application were overlooked and I were to assume that Elite did fail to produce a properly prepared 30(b)(6) witness, the sanction of striking Elite's opposition to plaintiffs' motion for class certification would be inappropriate.

First, sanctions should be proportional to the violation alleged. Bulkmatic Transport Co. v. Pappas, 99 Civ. 12070, 2002 WL 975625 at *2 (S.D.N.Y. May 9, 2002) (RMB) (JCF); A.I.A. Holdings. S.A. v. Lehman Bros., Inc., 97 Civ. 4978 (LMM) (RLE), 2000 WL 98315 at *4 (S.D.N.Y. Jan. 27, 2000). In this case, the sanction sought — striking Elite's opposition to plaintiffs' motion for class certification — goes far beyond the violation alleged — the failure to provide information concerning the fees paid by unnamed class members and the failure to produce an index concerning the contracts produced by Elite. Class certification turns on a number of factors, most of which have no logical relationship to the violation alleged. For example, defendant's alleged discovery violation has no relationship to the issues of numerousity, adequacy of the class representatives or adequacy of plaintiffs counsel. Striking Elite's opposition in its entirety is simply out of proportion to the violation alleged. See Frame v. S-H, Inc., 967 F.2d 194, 202-03 (5th Cir. 1992) (Striking defendant's pleadings appropriate where defendant engaged in repeated and manifold discovery abuses, including willful destruction and alteration of documents after beginning of suit) Ehret v. New York City Dep't of Social Servs., 102 F.R.D. 90, 92 (E.D.N.Y. 1984) ("[Plaintiffs'] behavior . . . did not rise to the level of presenting a complete or near complete barrier to effective discovery or otherwise threatening the judicial system. Accordingly, there is no basis for striking of plaintiffs' pleadings as a Rule 37 sanction.")

Second, the sanction of striking Elite's opposition to plaintiffs' motion for class certification is inappropriate here because of the potential effect on third parties. A class action is unique because it invests the court with the power to bind non-appearing class members, even if the judgment is adverse to those individuals. Because of this unique aspect of class actions, Rule 23 establishes requirements that must be met before an action can proceed as a class action. As the Court of Appeals for the Third Circuit has pointed out:

Despite the potential benefits of class actions, there remains an overarching concern — that absentees' interests are being resolved and quite possibly bound by the operation of res judicata even though most of the plaintiffs are not the real parties to the suit. The protection of the absentees' due process rights depends in part on the extent the named plaintiffs are adequately interested to monitor the attorneys (who are, of course, presumed motivated to achieve maximum results by the prospect of substantial fees), and also on the extent that the class representatives have interests that are sufficiently aligned with the absentees to assure that the monitoring serves the interests of the class as a whole. In addition, the court plays the important role of protector of the absentees' interests, in a sort of fiduciary capacity, by approving appropriate representative plaintiffs and class counsel.
The drafters designed the procedural requirements of Rule 23, especially the requisites of subsection (a), so that the court can assure, to the greatest extent possible, that the actions are prosecuted on behalf of the actual class members in a way that makes it fair to bind their interests. The rule thus represents a measured response to the issues of how the due process rights of absentee interests can be protected and how absentees' represented status can be reconciled with a litigation system premised on traditional bipolar litigation. . .
In re General Motors Corp. Pick-Up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d 768, 784-85 (3rd Cir. 1995). Thus, the requirements of Rule 23 must be met in order to protect the rights of non-appearing class members.

The conceptual problem with striking Elite's opposition to class certification as a discovery sanction is that it creates an increased risk of an incorrect resolution of the certification issue. If plaintiffs' application were granted, their motion for class certification with respect to Elite would be unopposed, and the Court would only have the benefit of plaintiffs' submissions concerning such issues as numerousity, commonality of factual and legal issues, typicality and adequacy of representation. Since the court has an independent duty to ensure that Rule 23's requirements are met, 7B Charles A. Wright, Arthur R. Miller, Mary K. Kane, Federal Practice & Procedure § 1785 at 89-90 (2d ed. 1986), it appears that the court could not grant certification on default. However, the court's consideration of the certification issue with only plaintiffs' submissions would be considerably more difficult and would increase the risk of an incorrect resolution, to the potential detriment of absentee class members.

Thus, even if plaintiffs' application were free of procedural defects and plaintiffs had established that a discovery order had been violated, the striking of Elite's opposition to plaintiffs' motion for class certification would still be an inappropriate remedy.

Accordingly, plaintiffs' application to strike Elite's opposition to plaintiffs' motion for class certification is denied with prejudice. Plaintiffs may renew their motion for a lesser sanction on papers that conform with all applicable procedural requirements. To avoid any misapprehension, I emphasize this Opinion and Order does not constitute a determination that Elite has or has not failed to comply with my Orders concerning discovery.


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