The opinion of the court was delivered by: Leslie G. Foschio United States Magistrate Judge
REPORT and RECOMMENDATION and ORDER
This case was referred to the undersigned by Honorable Richard J. Arcara on August 22, 2011, for all pretrial matters. Pending before the undersigned is Plaintiffs' motion (Doc. No. 17), filed January 9, 2012, for an order striking Defendant's answer as a sanction for failing to comply with discovery, and entry of default judgment, and for summary judgment (Doc. No. 18), filed January 18, 2012.
Plaintiff DISH Network L.L.C. ("DISH Network"), is a multi-channel video provider delivering services to subscribers who pay a fee to receive such services. Plaintiff EchoStar Technologies L.L.C. ("EchoStar"), designs and delivers to DISH Network subscribers the equipment necessary to receive DISH Network satellite programming services, and NagraStar LLC ("NagraStar"), provides DISH Network with the technology forming a proprietary conditional access system, Digital Nagra Advanced Security Process, ("the access system"), which regulates what DISH Network programming DISH Network's authorized subscribers, based on their subscriptions, can receive.
On June 16, 2011, Plaintiffs filed a complaint alleging Defendant Scott Williams ("Williams"), by subscribing to a pirate television service operated by www.dark-angel.ca ("Dark Angel"), located in Canada, unlawfully circumvented DISH Network's security system and received copyrighted, subscription-based DISH Network satellite television programming without authorization by or payment to DISH Network. Plaintiffs assert claims against Defendant under the Digital Millennium Copyright Act, 17 U.S.C. § 1201(a)(1) ("First Claim for Relief"), the Communications Act of 1934, 47 U.S.C. § 605(a) ("Second Claim for Relief"), and the Electronic Communications Privacy Act, 18 U.S.C. §§ 2511(1)(a) and 2520. Defendant's answer (Doc. No. 7), was filed on August 19, 2011.
Plaintiffs' inability to obtain Defendant's cooperation with initial and court-ordered discovery, as well as mediation, caused Plaintiffs to file, on January 9, 2012, the instant motion (Doc. No. 17) ("Plaintiffs' Sanctions Motion") seeking a court order directing Defendant to appear and show cause why sanctions, including the severe sanction of striking the answer and entering default judgment against Defendant, should not be imposed, as well as granting Plaintiffs relief from the required alternative dispute resolution ordered by the Scheduling Order. Plaintiffs' Sanctions Motion is supported by the attached Declaration of Stephen M. Ferguson (Doc. No. 17-1) ("Ferguson Declaration"), with attached exhibits 1 through 8 ("Plaintiffs' Exh(s). __"), and a memorandum of law (Doc. No. 17-2) ("Plaintiffs' Memorandum"). Despite this court's order filed January 23, 2012 (Doc. No. 19), directing Defendant to file his response in opposition to Plaintiffs' Sanctions Motion by February 17, 2012, Defendant did not file any response.
On January 17, 2012, Plaintiffs filed a motion for summary judgment (Doc. No. 18) ("Plaintiffs' Summary Judgment Motion"), for which Defendant, by Order filed January 23, 2012 (Doc. No. 19), was given until February 17, 2012 to file a response. Defendant did not timely file any response to Plaintiffs' Summary Judgment Motion.
On September 4, 2012, Plaintiffs' Sanctions Motion was granted insofar as Defendant was ordered to show cause why the answer should not be stricken as a sanction for failing to comply with discovery and to participate in mediation, which would allow entry of default judgment against Defendant. Order to Show Cause (Doc. No. 20), at 8. In a separate order filed September 4, 2012 (Doc. No. 21) ("Summary Judgment Order"), Defendant was given ten days to file a response in opposition to Plaintiffs' Summary Judgment Motion, and admonished that failure to timely respond could result in granting summary judgment in favor of Plaintiffs. Summary Judgment Order at 2. The undersigned also noted that the entry of default judgment against Defendant would render moot Plaintiffs' Summary Judgment Motion. Id. at 2 n. 1.
By letter dated September 14, 2012 (Doc. No. 22) ("Letter Response"), Defendant explains that he had assumed the instant action was "dropped" by Plaintiff, but that he was still interested in "fighting these allegations." Oral argument was deemed unnecessary.
Based on the following, Plaintiffs' Sanctions Motion (Doc. No. 17) should be GRANTED insofar as Plaintiffs seek to strike the answer and enter default judgment against Defendant; Plaintiffs' Summary Judgment Motion (Doc. No. 18), is DISMISSED as moot, without prejudice.
The district court has wide discretion to impose sanctions against a party for failing to comply with court-ordered discovery, including, the severe sanctions of "striking pleadings in whole or in part" and "rendering a default judgment against the disobedient party . . . .". Fed.R.Civ.P. 37(b)(2)(A)(iii) and (vi). Rule 37 sanctions are applicable in 'extreme circumstances,' where 'a party fails to comply with the court's discovery orders willfully, in bad faith, or through fault." John B. Hull, Inc. v. Waterbury Petroleum Products, Inc., 845 F.2d 1172, 1176 (2d Cir. 1988) (internal citation omitted). See also Bobal v. Rensselaer Polytechnic Institute, 916 F.2d 759, 764 (2d Cir. 1990) ("[D]ismissal with prejudice is a harsh remedy to be used only in extreme situations, and then only when a court finds willfulness, bad faith, or any fault on the part of the prospective deponent." (internal quotation marks and citations omitted)). Factors to be considered by the district court in exercising its discretion to impose Rule 37(b) sanctions include "(1) the willfulness of the noncompliant party or the reason for the noncompliance; (2) the efficacy of lesser sanctions; (3) the duration of the period of noncompliance; and (4) whether the non-compliant party had been warned of the consequences of noncompliance." Agiwal v. Mid Island Mortgage Corporation, 555 F.3d 298, 302 (2d Cir. 2009) (internal quotation marks and alteration omitted).
In the instant case, the record establishes that Defendant has repeatedly failed to comply with court-orders, including court-ordered discovery. Specifically, Defendant has failed to attend the November 3, 2011 scheduling conference, as directed by the September 21, 2011 Order, failed to comply with the November 4, 2011 Scheduling Order (Doc. No. 14) ("Scheduling Order") directing the exchange of Rule 26(a) disclosures by November 17, 2011, establishing that discovery was to conclude by February 16, 2012, and referring the case to mediation with the parties directed to confer and select a mediator, and file a stipulation confirming their selection by December 5, 2011, with the first mediation session to be held by January 17, 2012. Although Plaintiffs served Defendant on November 3, 2011, with their first set of interrogatories requests for production, and requests for admission ("Plaintiffs' discovery demands"), and served Defendant on November 16, ...