United States District Court, S.D. New York
OPINION & ORDER
WILLIAM H. PAULEY III, United States District Judge:
Keep on Kicking Music, Ltd. and Third Party Defendant Marc
Antoine Chetata (together, the “Movants”) move
for sanctions against Defendants Frederick
“Toots” Hibbert, Toots Music, Inc., and Alla Son
Music, Inc. (together, “Hibbert”). Movants also
seek to enjoin Hibbert from pursuing a separate but related
action in Jamaica. Finally, Movants seek an order of
attachment against Hibbert. For the following reasons,
Movants' motion is granted in part and denied in part.
dispute stems from Hibbert's repeated failures to produce
documents and appear for deposition. In September 2016,
Movants served interrogatories, document requests, and a
notice of deposition on Hibbert. After Hibbert failed to
respond, Movants re-served the same requests in December
2016. In January 2017, Hibbert finally responded, seeking an
extension to comply with the requests and serving his own set
of discovery demands on Movants. In February 2017, after
denying Hibbert's extension request, Movants filed a
pre-motion conference letter seeking leave of court to file a
pre-motion conference, based on Hibbert's representations
that he would fully comply with the discovery demands and
appear for deposition by the end of March 2017, Movants
withdrew their request for sanctions. Despite his assurances,
however, Hibbert did not produce a single document or appear
for deposition. Consequently, in May 2017, this Court
permitted Movants to file this motion.
Rule 37, Movants seek drastic relief: (1) striking
Hibbert's answer and counterclaims; (2) granting
declaratory relief for their remaining claims; and (3)
directing an inquest on damages. Such relief, if granted,
would effectively end this action. In order to strike a
pleading and render a default judgment as a discovery
sanction, this Court must find that Hibbert defied this
Court's orders willfully or in bad faith. See Webb v.
Bermudez, 1996 WL 599673, at *1 (S.D.N.Y. Oct. 17,
1996); Burns v. Imagine Films Entertainment, Inc.,
1996 WL 808065, at *2 (W.D.N.Y. Oct. 10, 1996). Dismissal of
an action is “pungent, rarely used, and conclusive. A
district judge should employ it only when he is sure of the
impotence of lesser sanctions.” Dodson v.
Runyon, 86 F.3d 37, 39 (2d Cir. 1996).
his extensive travel schedule as a performing artist, Hibbert
concedes that he has been careless throughout the discovery
process. He also claims that his former manager, who was
tasked with overseeing this litigation, failed to keep him
abreast of these discovery issues. (Affirmation of Frederick
Hibbert at ¶¶ 7-8, ECF No. 68.) Hibbert maintains
that these repeated lapses were neither willful nor in bad
supervised discovery in this case and conducted several
conferences with counsel, this Court concludes that sanctions
are appropriate. Hibbert places much of the blame on the
nature of his work and his manager's failure to inform
him of the developments in this action, but none of these
reasons excuse Hibbert-a defendant and third party plaintiff
in this action-from fulfilling his obligations. Because of
his failures, discovery has lagged for almost a year.
type of sanctions Movants seek, at least at this juncture in
the litigation, are too severe. Hibbert was never warned that
his failures could result in dismissal of the action. Such
remedies are appropriate as sanctions where, for example, a
party “repeatedly failed to heed discovery orders, [ ]
delaying resolution of [the] case for more than three
years.” Mahon v. Texaco Inc., 122 Fed.
App'x 537, 539 (2d Cir. 2005); Neufeld v.
Neufeld, 172 F.R.D. 115, 118 (S.D.N.Y. 1997) (party
canceled deposition and failed to re-schedule it, refused to
appear for a subsequent court-ordered deposition, and only
appeared after being informed that case would be dismissed if
she did not appear). And while Hibbert's lapses have been
frustrating and inexplicable, this Court finds that they were
not motivated by bad faith or in willful defiance of this
Court's orders. Nevertheless, Hibbert is now on notice
that any future failure to timely and completely respond to
Movants' discovery requests may result in more severe
sanctions, including striking his answer and dismissing his
third party claims.
in determining the appropriate measure of sanctions, this
Court must first consider that “there is no indication
that lesser sanctions will not be effective in ensuring
[Hibbert's] compliance with further orders of this
Court.” Dragon Yu Bag Manufacturing Co. Ltd. v.
Brand Science, LLC, 282 F.R.D. 343, 345 (S.D.N.Y. 2012).
Monetary sanctions, “coupled with an order requiring
[Hibbert] to sit for depositions . . . at this stage fulfill
the purpose of sanctions under Rule 37, namely to ensure that
a party will not benefit from its own failure to comply, as
well as specific and general deterrence.” Dragon
Yu, 282 F.R.D. at 345.
Hibbert is sanctioned in the amount of $12, 500, which he
should pay directly to Movants. This sanction reflects a
portion of the attorneys' fees incurred by Movants in
bringing this motion, and takes into account that Movants
were only partially successful in securing the relief they
sought. In this Court's discretion, the sanctions
represent “an award of costs and attorney's fees
and sanctions” that are “related
causally-and not simply temporally-to the
sanctionable conduct.” Virginia Props., LLC v.
T-Mobile Northeast LLC, ---F.3d ----, 2017 WL 3197539,
at *2 (2d Cir. July 28, 2017) (citing Goodyear Tire &
Rubber Co v. Haeger, 137 S.Ct. 1178, 1186 (2017)).
Indeed, sanctions “beyond that are punitive rather than
compensatory and therefore may not be imposed without
procedural guarantees applicable in criminal cases, such as a
beyond a reasonable doubt standard of proof.”
Virginia Props., 2017 WL 3197539, at *2.
Hibbert is directed to respond to all outstanding discovery
requests and appear for deposition consistent with ...