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Shipstad v. One Way or Another Productions, LLC

United States District Court, S.D. New York

June 6, 2017

PATRICK SHIPSTAD, Plaintiff,
v.
ONE WAY OR ANOTHER PRODUCTIONS, LLC, PRINCETON HOLT, ONE WAY OR ANOTHER PRODUCTIONS, L.L.C., GRAVITAS VENTURES, LLC, and MONICA TROMBLEY, Defendants.

          MEMORANDUM AND ORDER

          JAMES C. FRANCIS IV UNITED STATES MAGISTRATE JUDGE

         In this 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, [1] and Princeton Holt (together, the "defendants") for failure to comply with a discovery order.[2] The motion is granted.

         Background

         The 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.[3]

         The 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).

         On 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”)).

         On 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.[4] (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).

         Discussion

         A. Legal Standard

         “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.'” 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).

         Sanctions 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.”).

         When 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.”).

         B. Analysis

         1. ...


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