Crist v. Fareri et al
ORDER granting in part and denying in part 75 defendant Andrew Farm's Motion for Sanctions. See attached ruling. Signed by Judge Donna F. Martinez on 12/13/11. (Constantine, A.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
ARIS G. CRIS, AIA,
JOHN J. FARERI, et al.,
CASE NO. 3:10CV1926(RNC)
RULING ON DEFENDANT'S CROSS MOTION FOR SANCTIONS
The plaintiff brings this action against the defendants,
Gateway Development Group, 37 Andrews Farm LLC ("Andrews Farm"),
Copyright Act, 17 U.S.C. §§ 101 et seq.
Pending before the court
is Andrews Farm's "cross motion for sanctions."
discovery requests and an award of attorney's fees incurred in the
making of the motion.
After oral argument, the defendant's motion
is granted in part and denied in part.
The defendant first argues that the plaintiff's verification
of his interrogatory responses does not comply with Fed. R. Civ. P.
33(b) which provides that interrogatories must be responded to
"separately and fully in writing under oath."
As indicated during
plaintiff has not adequately sworn that his answers are true.
"Requiring a party to sign interrogatory responses under oath
serves the critical purpose of ensuring that the responding party
attests to the truth of the responses."
Inc., 266 F.R.D. 207, 211
Villareal v. El Chile,
(N.D. Ill. 2010).
The plaintiff must
provide a proper oath attesting to the truth of his interrogatory
responses served upon the defendant such as "Under penalties of
perjury, I certify that the foregoing responses to interrogatories
are true and correct."
See Deseret Management Corp. v. U.S., 75
Fed. Cl. 571, 575 (Fed. Cl. 2007) (same); see also Steptoe v. City
of Syracuse, No. 5:09CV1132(NPM/DEP), 2011 WL 6012941, at *5
(N.D.N.Y. Nov. 1, 2011)("The courts that have addressed the issue
of the form that an interrogatory oath must take appear to be in
agreement that the oath requirement may be satisfied either by
having the statement affirming the responses sworn to before a
notary public or by providing a declaration pursuant to 28 U.S.C.
§ 1746. . . . If the latter course is selected, an unverified
statement may suffice provided that it specifically states that the
adequately respond to its discovery requests. Counsel informed the
court that they have resolved their dispute as to interrogatories
1, 4 and 6 and all of the defendant's requests for production.
Accordingly, the defendant's motion as to these requests is denied
responses to interrogatories 7, 8, 9 and 12 are deficient and that
the plaintiff should be ordered to fully respond to these requests.
In addition, the defendant requests that the court impose monetary
Interrogatory 7 asks the plaintiff to identify the protectable
elements of his work and the factual basis of the plaintiff's
allegation of "substantial similarity."
dispute that the information is relevant.
The plaintiff does not
Rather, he argues that
the information is obvious and refers the defendant to the plans
themselves as evidence of "the similarity of the two."
Interr. Response.) The defendant is entitled to have the plaintiff
identify precisely what he claims is protected and the factual
basis of his allegation that the completed Andrews Farm project and
defendant's motion is granted as to interrogatory 7.
Interrogatories 8 and 9 ask the plaintiff to identify the
elements he alleges the defendant copied and whether each such
element is protectable.
The plaintiff responds, inter alia, that
the defendant copied the total concept and overall feel.
requested information is relevant and the defendant is entitled to
pin down the plaintiff's specific infringement contentions.
defendant's motion as to these requests is granted.
Interrogatory 12 asks the plaintiff to identify the facts and
evidence in support of his allegation that the Gateway defendants
infringed on the plaintiff's copyright as alleged in the complaint.
The plaintiff's response refers the defendant to the plans, which
he states demonstrate substantial similarity. A plaintiff alleging
copyright infringement must establish two elements: "(1) ownership
of a valid copyright, and (2) copying of constituent elements of
the work that are original."
Feist Publ'ns, Inc. v. Rural Tel.
Serv. Co., 499 U.S. 340, 361 (1991).
During oral argument, the
elements, including evidence as to whether the plaintiff has a
The motion as to interrogatory 12 is granted and
the plaintiff shall supplement his response.
The defendant seeks fees pursuant to Fed. R. Civ. P. 37(b)(2)
on the grounds that the plaintiff failed to comply with the court's
The court has "wide discretion in imposing sanctions under
Shcherbakovskiy v. Da Capo Al Fine, Ltd., 490 F.3d 130,
135 (2d Cir. 2007).
The defendant's motion for sanctions is
Upon consideration of all of the circumstances, the court
has determined that an award of costs would be unjust.
SO ORDERED at Hartford, Connecticut this 13th day of December,
Donna F. Martinez
United States Magistrate Judge
The court previously granted the defendant's motion to compel
and awarded fees. See doc. #71.
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