United States District Court, E.D. New York
MEMORANDUM AND ORDER
GLASSER, SENIOR UNITED STATES DISTRICT JUDGE
Horti Americas, LLC (“Horti” or
“Plaintiff”) alleges violations of the Perishable
Agricultural Commodities Act (“PACA”), 7 U.S.C.
§ 499a et seq., breach of contract and breach
of fiduciary duty against defendants Steven Produce King,
Inc. (“SPK”) and Shy Yosofov (together, the
“Defendants”). This Court granted Plaintiff's
unopposed motion to dismiss Defendants' second
counterclaim, alleging fraud and material misrepresentation.
Horti Americas, LLC v. Steven Produce King, Inc.,
No. 16-CV-889, 2016 WL 6872624 (E.D.N.Y. Nov. 21, 2016).
SPK's counterclaim for breach of contract survives.
now seeks discovery sanctions following Defendants'
failure to respond to three discovery requests. For the
reasons stated herein, the motion is GRANTED.
facts of this case are set forth in Horti Americas,
2016 WL 6872624, familiarity with which is assumed. On August
12, 2016, Plaintiff duly served Defendants with three
separate discovery requests: 1.) Plaintiff's First
Requests for Admissions, pursuant to Fed.R.Civ.P. § 36,
2.) Plaintiff's First Set of Interrogatories, pursuant to
Fed.R.Civ.P. § 33, and 3.) Plaintiff's First Request
for the Production of Documents, pursuant to Fed.R.Civ.P.
§ 34. See ECF 22-2, 22-3, 22-4. The deadline to
respond was extended to September 19, 2016. ECF 22-1 at
status conference before Magistrate Judge Reyes on September
8, 2016, the parties discussed a consent judgment and
Defendants indicated they would timely answer the discovery
requests. ECF 30. Defendants never answered the requests.
Over the next two months, Plaintiff's counsel attempted
to negotiate a consent judgment and repeatedly noted the
unanswered discovery requests in emails to Defendants'
counsel and in letters to the Magistrate Judge. ECF 18; ECF
20; ECF 29 at ¶¶ 5-6. On a number of occasions,
counsel indicated that Defendants lacked funds to defend the
action or pay a judgment. ECF 29 at ¶¶ 4, 13; ECF
30. A settlement conference was held on October 26, 2016.
See ECF Entry dated Oct. 26, 2016. Defendants and
their counsel failed to appear, as ordered by the Magistrate,
and had to be tracked down via telephone. ECF 29 at ¶
13. The case was not settled and Plaintiff stated an
intention to move for discovery sanctions because of
Defendants' failure to respond to the discovery requests.
discovery deadline was November 21, 2016. On December 1,
2016, Plaintiff filed this motion. Plaintiff seeks sanctions
in the form of an order that the following facts are
1. Horti's Admission requests are admitted.
2. SPK failed to maintain records required by PACA
regulations to determine profits or losses on re-sale of
Persian pickles supplied by Horti, which are the subject of
3. SPK sustained no provable damages as a result of the
quality or condition of the subject Persian pickles supplied
by Horti to SPK relating to this case.
4. SPK sustained no economic losses as a result of its
transactions with Horti with respect to the Persian pickle
shipments at issue.
5. Defendants failed at all relevant times to maintain
sufficient freely available inventories and proceeds of
produce sales to pay Horti in full.
6. Yosofov transferred to himself SPK's proceeds of
produce sales in an amount greater than $143, 455.00 plus
interest and any attorney's fees due to Horti during the
period when Horti was unpaid for the Persian pickles at
See ECF 22-5, Memo of Law, pp. 5-6. Defendants
opposed the motion, alleging that they do not possess any
responsive documents, that they never received the request
for admissions, and that the motion was untimely and ...