United States District Court, S.D. New York
JULIAN SILVA, individually and on behalf of HANDLE WITH CARE PRODUCTIONS, INC., Plaintiffs,
JOSE VASQUEZ COFRESI, individually, Defendant, and HANDLE WITH CARE PRODUCTIONS, INC., A New York Corporation and Nominal Defendant, Nominal Defendant. HANDLE WITH CARE PRODUCTIONS, INC., A New York Corporation and Nominal Defendant and JOSE VASQUEZ COFRESI, individually, Counter Claimants,
JULIAN SILVA, individually, Counter Defendant.
MEMORANDUM AND ORDER
JAMES C. FRANCIS, IV, Magistrate Judge.
In this long-simmering dispute over outstanding discovery demands, the plaintiff, Julian Silva, seeks a court order striking the defendant's Answer and Counterclaims and granting judgment by default to the plaintiff, or, in the alternative, an order compelling the defendant to provide the requested discovery.
This case arises out of a discordant ending to a musical partnership between Mr. Silva and the defendant, Jose Vasquez Cofresi. The parties are former bandmates who wrote and performed salsa music together in the band La Excelencia. (Complaint, ¶¶ 4-5, 21, 24). At issue here are outstanding discovery demands initially served by the plaintiff on October 25, 2013. (Memorandum in Support of Motion for Terminating Sanctions Pursuant to Fed. R. Civ. Proc. 37 ("Pl. Memo."), at 1). After a consented-to 10 day extension, the defendant's responses were due on December 6, 2013. (Pl. Memo. at 1). At around this time, there was an apparent breakdown in communication between Mr. Vasquez and his counsel. (Affidavit of Michael D. Steger dated Dec. 12, 2013 ("Steger Aff."), ¶ 3). On December 5, 2010, Mr. Vazquez' then-attorney notified his client of the outstanding discovery responses and other pending deadlines; the defendant terminated the representation several days later. (Steger Aff., ¶¶ 3-4; Pl. Memo. at 2). The following week, after granting prior counsel's motion to be relieved, the Court stayed the case for 60 days to allow the defendant to retain new counsel. (Pl. Memo. at 2; Memorandum Endorsement granting Motion to Withdraw as Counsel dated Dec. 16, 2013; Memorandum Endorsement granting Motion to Stay dated Dec. 16, 2013).
On February 18, 2013, the defendant's current counsel, Lowell B. Davis, filed an appearance. (Pl. Memo. at 2; Notice of Appearance dated Feb. 17, 2014). Plaintiff's counsel e-mailed Mr. Davis, informing him of the outstanding discovery responses and requesting that the defendant respond by February 21, 2013. (Pl. Memo. at 2). Mr. Davis did respond by the deadline; however, rather than including the discovery responses, he disavowed knowledge of any discovery issues and asked for information regarding the arrangement with the defendant's prior counsel regarding an extension of time to respond. (Letter of Lowell B. Davis dated Feb. 21, 2014 ("Davis 2/21/14 Letter"), attached as part of Exh. B to Declaration of Peter C. Dee dated June 11, 2014 ("Dee Decl.")). In his February 21 letter, Mr. Davis referenced a letter sent to plaintiff's counsel on February 19, 2014, requesting copies of the plaintiff's discovery requests and proof of service (Davis 2/21/14 Letter); plaintiff's counsel states that he never received such a request and that the letter attached to Mr. Davis' February 19 e-mail was instead addressed to the defendant's prior counsel, dated February 17, 2013, and sought billing information (Pl. Memo. at 2; E-mail of Lowell B. Davis dated Feb. 21, 2014, attached as part of Exh. B to Dee Decl.). Plaintiff's counsel responded with a letter outlining the history of discovery in the case, including communications with prior counsel and documentation of the 10-day extension that expired before the case was stayed; he did not, however, attach the discovery demands. (Pl. Memo. at 2-3; Letter of Peter C. Dee dated Feb. 24, 2014 ("Dee 2/24/14 Letter"), attached as Exh. C to Dee Decl.). Plaintiff's counsel noted that unless the discovery responses were received by February 28, 2014, the plaintiff would file a motion to compel. (Dee 2/24/14 Letter). After defendant's counsel objected that he still did not have a copy of the discovery requests at issue, plaintiff's counsel provided the requests on February 28, 2014. (Pl. Memo. at 3). To get discovery on track, a discovery conference was held at plaintiff's request on March 25, 2014. I then issued an order requiring the plaintiff to provide defendant's counsel with copies of all prior discovery requests and responses and requiring the defendant to serve its responses by May 15, 2014. (Order dated March 25, 2014).
On April 15, 2014, the plaintiff provided copies of the outstanding discovery requests, as well as its responses to the defendant's discovery requests. (Pl. Memo. at 3). The defendant responded to the Requests for Admission on April 23, 2014, but did not respond to the plaintiff's Interrogatories or Second Request for Production. (Pl. Memo. at 3). After plaintiff's counsel inquired about the missing responses, defendant's counsel responded that Mr. Vasquez was currently on tour in Russia and that, although counsel had sent draft responses to Mr. Vasquez, his verifications or corrections were needed before the responses could be provided. (Pl. Memo. at 4; Letter of Lowell B. Davis dated May 27, 2014 ("Davis 5/27/14 Letter"), attached as Exh. F to Dee Decl.). Plaintiff's counsel alleges that screenshots from social media websites and other publicly available information in fact showed that Mr. Vasquez' salsa troop did not depart for Russia until May 21, 2014, six days after the court-ordered deadline for discovery responses. (Pl. Memo. at 4; Declaration of Julian Silva dated June 10, 2010 ("Silva Decl."), ¶¶ 3-6 & Exhs. A-D). Defendant's counsel subsequently informed the plaintiff that Mr. Vasquez had returned from Russia, but by the time this motion was filed on June 11, 2014, no discovery responses had been provided to the plaintiff's Interrogatories or Second Request for Production. (Pl. Memo. at 4).
This dilatory pattern continued when the defendant failed to oppose the plaintiff's motion in a timely manner. On July 2, 2014, defendant's counsel asked to extend the then-expired deadline to oppose the motion until July 11, 2014. (Letter of Lowell B. Davis dated July 2, 2014 ("Davis 7/2/14 Letter")). Mr. Davis represented that Mr. Vasquez had recently returned to the United States, that the two had "beg[u]n working on responses and searching for documents when he returned, " and that such responses would be e-mailed to the plaintiff on July 7, 2014. (Davis 7/2/14 Letter). The opposition was served on July 16, 2014, along with the responses to the requested discovery, and I accepted it nunc pro tunc. (Order dated July 18, 2013). The opposition consists of a declaration submitted by Mr. Davis outlining objections to the requested discovery and defenses to the action itself; the appended discovery responses consist entirely of objections, and ultimately no documents were produced. (Undated Declaration of Lowell B. Davis in Opposition to Plaintiff's Motion for Relief Pursuant to F.R.C.P. 37 ("Davis Decl.")).
Where "a party... fails to obey an order to provide or permit discovery... the court where the action is pending may issue further just orders." Fed.R.Civ.P. 37(b)(2)(A). Such orders include striking pleadings in whole or part, staying further proceedings until the order is obeyed, dismissing the action in whole or part, and ordering default judgment. Fed.R.Civ.P. 37(b)(2)(A); see also Agiwal v. Mid Island Mortgage Corp. , 555 F.3d 298, 302 (2d Cir. 2009) (noting that party's failure to comply with court-ordered discovery may result in terminating sanctions); Daval Steel Products v. M/V Fakredine , 951 F.2d 1357, 1365 (2d Cir. 1991) ("When a party seeks to frustrate [discovery] by disobeying discovery orders, thereby preventing disclosure of facts essential to an adjudication on the merits, severe sanctions are appropriate."). Indeed, "[e]ven in the absence of a discovery order, a court may impose sanctions on a party for misconduct in discovery under its inherent power to manage its own affairs." Residential Funding Corp. v. DeGeorge Finanacial Corp. , 306 F.3d 99, 106-07 (2d Cir. 2002); accord Hawley v. Mphasis Corp., No. 12 Civ. 592, 2014 WL 3610946, at *7 (S.D.N.Y. July 22, 2014).
Disciplinary sanctions under Rule 37 serve a three-fold purpose: (1) ensuring that a party will not benefit from its failure to comply; (2) obtaining compliance with the Court's orders; and (3) serving as a deterrent both in the particular case and in litigation in general. Update Art, Inc. v. Modiin Publishing, Ltd. , 843 F.2d 67, 71 (2d Cir. 1988); accord Aliki Foods, LLC v. Otter Valley Foods, Inc. , 726 F.Supp.2d 159, 178 (D. Conn. 2010); Richardson v. New York City Health & Hospitals Corp., No. 05 Civ. 6278, 2007 WL 2597639, at *5 (S.D.N.Y. Aug. 31, 2007). Harsh sanctions, such as default judgments, are reserved for extreme situations. See Agiwal , 555 F.3d at 302; see also Shcherbakovskiy v. Da Capo Al Fine, Ltd. , 490 F.3d 130, 140 (2d Cir. 2007) (noting that "the severity of the sanction must be commensurate with the non-compliance").
When determining the appropriate sanction to impose under Rule 37, courts in this Circuit weigh several factors, including "(1) the willfulness of acts underlying noncompliance; (2) the efficacy of lesser sanctions; (3) the duration of noncompliance; and (4) whether the noncompliant party was on notice that it faced possible sanctions." Sentry Insurance A Mutual Co. v. Brand Management, Inc., 295 F.R.D. 1, 5 (E.D.N.Y. 2013) (citing Agiwal , 555 F.3d at 302-03); Peterson v. Apple Inc., No. 12 Civ. 6467, 2013 WL 3963456, at *2 (S.D.N.Y. Aug. 1, 2013). None of these factors is dispositive by itself. SEC v. Razmilovic , 738 F.3d 14, 25 (2d Cir. 2013) (noting that "these factors are not exclusive, and they need not each be resolved against the [sanctioned] party").
When evaluating willfulness, the court considers whether the order at issue was clear, whether the party to be sanctioned understood the order, and whether non-compliance was due to "factors beyond the party's control." See In re Fosamax Products Liability Litigation, No. 06 MD 1789 , 2013 WL 1176061, at *2 (S.D.N.Y. March 21, 2013). "[A] party's persistent refusal to comply with a discovery order presents sufficient evidence of willfulness, bad faith or fault." Handwerker v. AT & T Corp. , 211 F.R.D. 203, 209 (S.D.N.Y. 2002) (internal quotation marks omitted). The March 25, 2014 order could not be clearer. I directed the defendant to provide responses to the outstanding discovery by May 15, 2014. (Order dated March 25, 2014). At no point did the defendant, who was represented by counsel, seek an extension of that deadline. Finally, that deadline had ...