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Keep on Kicking Music, Ltd. v. Hibbert

United States District Court, S.D. New York

July 31, 2017

KEEP ON KICKING MUSIC, LTD., Plaintiff,
v.
FREDERICK “TOOTS” HIBBERT, et al., Defendants.

          OPINION & ORDER

          WILLIAM H. PAULEY III, United States District Judge:

         Plaintiff 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.

         BACKGROUND

         This 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 sanctions motion.

         At the 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.

         DISCUSSION

         I. Sanctions

         Under 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).

         Citing 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 faith.

         Having 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.

         But the 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.

         Moreover, 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.

         Accordingly, 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.

         Finally, Hibbert is directed to respond to all outstanding discovery requests and appear for deposition consistent with ...


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