United States District Court, S.D. New York
MEMORANDUM AND ORDER
C. FRANCIS IV UNITED STATES MAGISTRATE JUDGE
copyright infringement action, the plaintiff, Patrick
Shipstad, seeks sanctions pursuant to Rule 37(b) of the
Federal Rules of Civil Procedure against defendants One Way
or Another Productions, LLC,  and Princeton Holt (together, the
"defendants") for failure to comply with a
discovery order. The motion is granted.
Complaint alleges copyright infringement on the basis of the
defendants' use of a photograph of the actor Taylor
Negron, taken and copyrighted by Mr. Shipstad in connection
with the promotion of a movie titled Alienated.
(SAC, ¶¶ 24, 29, 37, 121-164). These are the facts
relevant to this motion.
plaintiff propounded his first set of requests for production
of documents (“RFPs”) on December 5, 2016.
(Declaration of Tamara L. Fitzgerald dated March 29, 2017
(“1st Fitzgerald Decl.”), ¶ 5 & Exh. I).
Responses were therefore due on January 4, 2017. See
Fed.R.Civ.P. 34(b)(2)(A). The second set of RFPs were
propounded on December 9, 2016 (1st Fitzgerald Decl., ¶
6 & Exh. I); responses were due on January 9, 2017. The
third set of RFPs were propounded on December 19, 2016 (1st
Fitzgerald Decl., ¶ 7 & Exh. I); responses were due
on January 18, 2107. The first set of interrogatories (which
includes only a single interrogatory) was propounded on
December 30, 2016 (1st Fitzgerald Decl., ¶ 8 & Exh.
I); responses were due on January 30, 2017, see
Fed.R.Civ.P. 33(b)(2). At the time these requests were
served, the defendants were represented by Monroe Mann, who
was relieved as counsel on January 9, 2017, and replaced by
Joshua S. Stevens. (Order dated Jan. 9, 2017).
January 31, 2017, after communicating with Mr. Stevens
regarding the outstanding discovery, the plaintiff filed a
motion to compel responses to the three sets of RFPs and the
single interrogatory, noting that the defendants had so far
produced only ten documents as part of their responses to the
RFPs, and had provided no written responses to either the
RFPs or Interrogatories. (Declaration of Tamara L. Fitzgerald
dated Jan. 31, 2017, ¶¶ 9-15). On March 3, 2017, I
granted the motion as unopposed, ordering the defendants to
“provide complete responses to Plaintiff's First,
Second, and Third Requests for Production and Plaintiff's
First Interrogatories, including production of all responsive
documents” by March 24, 2017. (Order dated March 3,
2017 (“March 3 Order”)).
March 29, 2017, Mr. Shipstad filed this motion for sanctions,
which asserts that, as of that date, the defendants had
produced “no responses, documents or information”
in connection with his discovery requests. (Pl. Memo. at 1).
On April 14, 2017, Wesley M. Mullen filed a Stipulation and
[Proposed] Order for Substitution of Counsel and a Notice of
Appearance on behalf of the defendants. (Stipulation and
[Proposed] Order for Substitution of New Counsel dated April
14, 2017; Notice of Appearance dated April 14, 2017). The
defendants, through Mr. Mullen, opposed the sanctions motion,
contending that, on April 27, 2017, the defendants
“served responses and objections to [Mr.
Shipstad's] written discovery, including a statement,
pursuant to Rule 34(b)(2)(B), explaining [their] intent to
produce documents on a rolling basis as soon as
possible.” (Defendants' Memorandum of Law in
Opposition to Plaintiff's Motion for Discovery Sanctions
(“Def. Memo.”) at 6; Letter of Wesley M. Mullen
dated April 27, 2017, attached as Exh. E to Declaration of
Wesley M. Mullen dated April 28, 2017; Defendants'
Omnibus Reponses and Objections to Plaintiff's First,
Second and Third Requests for Production, attached as Exh. B
to Declaration of Tamara L. Fitzgerald dated May 5, 2017
(“2nd Fitzgerald Decl.”); Defendants'
Objections to Plaintiff's First Set of Interrogatories,
attached as Exh. C to 2nd Fitzgerald Decl.). As of May 5,
2017, the defendants had not produced additional responsive
documents. (Reply at 2).
‘a party . . . fails to obey an order to provide or
permit discovery . . . the court where the action is pending
may issue further just orders.'” Granados v.
Traffic Bar and Restaurant, Inc., No. 13 Civ. 500, 2015
WL 9582430, at *3 (S.D.N.Y. Dec. 30, 2015) (alterations in
original) (quoting Fed.R.Civ.P. 37(b)(2)(A)). Such orders may
include striking pleadings in whole or in part, staying
further proceedings until the order is obeyed, dismissing the
action in whole or in part, or ordering a 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.”).
“Instead of or in addition to” one or more of the
orders listed above, “the court must order the
disobedient party, the attorney advising that party, or both
to pay the reasonable expenses, including attorney's
fees, caused by the failure, unless the failure was
substantially justified or other circumstances make an award
of expenses unjust.” Fed.R.Civ.P. 37(b)(2)(C).
under Rule 37 of the Federal Rules of Civil Procedure serve a
three-fold purpose: (1) to ensure that a party will not
benefit from its failure to comply; (2) to obtain compliance
with the court's orders; and (3) to deter noncompliance,
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). 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) (“[T]he severity of sanction must be
commensurate with the non-compliance.”).
determining the appropriate sanction 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). None of these factors alone is dispositive.
Southern New England Telephone Co. v. Global NAPs
Inc., 624 F.3d 123, 144 (2d Cir. 2010) (“[T]hese
factors are not exclusive, and they need not each be resolved
against the [sanctioned] party.”).