The opinion of the court was delivered by: Hon. Hugh B. Scott
Before the Court is defendant Brisbane Realty Associates LLC ("Brisbane") motion to compel discovery from plaintiff (Docket No. 36*fn1 ). Also pending is Brisbane's motion to dismiss (Docket No. 35), considered in a separate Report & Recommendation (Docket No. 51).
This is a diversity subrogation action wherein plaintiff Travelers Indemnity Company seeks to recover money expended due to a water pipe break in the basement of the Brisbane Building, 403 Main Street, Buffalo, New York (Docket No. 14, Am. Compl. ¶ 11), in December 2002 (see Docket No. 35, Brisbane Memo. of Law at 1), leased by defendant Brisbane. Subrogor Lumsden & McCormick, LLP ("Subrogor"), is a tenant, leasing space in the basement of the Brisbane Building (Docket No. 35, Brisbane Atty. Affirm. ¶ 9, Ex. C, Lease, Ex. B, Schedule D, at 17). Plaintiff Travelers paid over $124,000 to Subrogor for loss sustained by the Subrogor between December 14 and 16, 2002, due to water damage from corrosion of the plumbing system in the Brisbane Building (Docket No. 14, Am. Compl. ¶ 2; see Docket No. 1, Compl. ¶ 2 (date of loss December 14, 2002))*fn2 . Plaintiff anticipated that the loss would go beyond the $124,000 already paid to the Subrogor (Docket No. 14, Am. Compl. ¶¶ 3-4). Prior to December 14, 2002, defendant Joseph Davis Inc. was hired to install, maintain and service this plumbing system (id. ¶ 10). Plaintiff believes that before December 14, 2002, one of the pipe fittings ruptured, causing water damage throughout the Subrogor's business and causing the plumbing system to malfunction between December 14 and 16, 2002 (id. ¶¶ 13-14).
Plaintiff filed its Complaint on or about December 13, 2005 (Docket No. 1), suing defendants for negligence and breach of contract (see Docket No. 14, Am. Compl. ¶¶ 16-18, 19-22). Brisbane answered and asserted a cross-claim against co-defendant Joseph Davis Inc. (Docket Nos. 7, 12) and Joseph Davis Inc. answered (Docket No. 9). Plaintiff then filed an Amended Complaint (Docket No. 14), changing the date of loss alleged in the Complaint (Docket No. 15, Stipulation to allow amendment). Joseph Davis Inc. answered the Amended Complaint and Brisbane's cross-claims (Docket No. 21). Brisbane initially answered the Amended Complaint on March 23, 2006 (Docket No. 20*fn3 ), realleging its cross-claims against Joseph Davis Inc.
Brisbane's Motion to Compel
On April 11, 2006, Brisbane served its interrogatories and document production demands (Docket No. 36, Brisbane Atty. Affirm., ¶ 4, Ex. A). The deadline to respond had passed and Brisbane's counsel wrote to plaintiff's counsel on May 10, 2006, requesting a response (id. ¶ 5, Ex. B). Plaintiff responded on May 31, 2006 (id. ¶ 6, Ex. C). Brisbane, however, contends that these responses were incomplete and inadequate because plaintiff referred back to its initial disclosures (for Interrogatories 3-7, 11, 13, 17, 21-24) and plaintiff objected to questions and failed to respond to them (to Interrogatories 3-10, 12, 14-15, 18) (id. ¶ 7). Brisbane argues that this violated Federal Rule 33(b)(1) and (2) (id. ¶ 9). Because plaintiff's objections were not timely (and absent a stipulation extending the time for an objection), Brisbane concludes that these asserted objections were waived (id. ¶¶ 15-18). Brisbane noted that the responses were untimely and inadequate (id. ¶ 25, Ex. D), followed by additional correspondence (id. ¶ 27, Ex. E). Brisbane submitted an affirmation of its good faith efforts to resolve this discovery dispute prior to making this motion (Docket No. 27; Docket No. 36, Brisbane Atty. Affirm. ¶ 28). To date, Brisbane complains that plaintiff has not supplemented or amended its responses (Docket No. 36, Brisbane Atty. Affirm. ¶ 30).
Plaintiff responds that Brisbane received all the discovery documentation in this case and is ready to proceed with depositions (Docket No. 45, Pl. Atty. Affirm. ¶¶ 3-4). Plaintiff explains that it did not immediately object to the interrogatories because Brisbane had, at one point, two different law firms representing it and plaintiff was delayed by two weeks in avoiding making duplicate responses (id. ¶ 5). After the motion was filed, plaintiff supplemented its responses to some of the interrogatories (id. ¶ 6, Attachment). Plaintiff claims that the responses to these interrogatories involved reviewing extensive claims files that were previously exchanged (id. ¶ 7) or were overbroad (id. ¶ 8).
Brisbane replies that its counsel made it clear that it was representing defendant and that a second firm was monitoring the case for Brisbane's insurer, One Beacon (Docket No. 48, Brisbane Atty. Reply Affirm. ¶ 9).
Responses to this motion were due by October 6, 2006, and any replies were due by October 16, 2006 (Docket No. 39). As with Brisbane's pending motion to dismiss, the discovery deadline previously set (see Docket No. 39) was held in abeyance while the pending motions were being determined (Docket No. 42).
Federal Rule of Civil Procedure 37(a) allows a party to apply to the Court for an order compelling discovery, with that motion including a certification that the movant in good faith conferred or attempted to confer with the party not making the disclosure to secure that disclosure without court intervention. Fed. R. Civ. P. 37(a)(2)(A). Imposition of Rule 37(d) sanctions for failure to comply with discovery demands (here, failure to serve answer to interrogatories or objections to interrogatories, Fed. R. Civ. P. 37(d)(2), or serving an incomplete answers to these interrogatories, see id. R. 37(a)(3)) must be weighed in light of the full record. Cine Forty-Second Street Theatre Corp. v. Allied Artists Pictures, 602 F.2d 1063, 1068 (2d Cir. 1979). Rule 37(d) calls upon the Court to make such orders in regard to disclosure failures as are just. This Court has wide discretion to impose sanctions and determine the type of sanction to be imposed under Rule 37(d). See Reilly v. NatWest Markets Group Inc., 181 F.3d 253, 267 (2d Cir. 1999). The rule lists various sanctions including preclusion or dismissal of claims. Fed. R. Civ. P. 37(d), (b)(2)(B) (refusing to allow disobedient party to support claim or defense), (C) (striking pleadings), or (D) (contempt ...