Crist v. Fareri et al

Filing 88

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,

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Plaintiff,
V.
JOHN J. FARERI, et al.,
Defendants.

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"),
John

Fareri

and

Louis

Contadino,

alleging

Copyright Act, 17 U.S.C. §§ 101 et seq.

violation

requests

an

order

the

Pending before the court

is Andrews Farm's "cross motion for sanctions."
defendant

of

compelling

(Doc. #75.)

responses

to

The

certain

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.
I.

Oath
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

oral argument,

defendant

the

court

agrees

with

the

that the

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
document

is

given

under

penalty

of

perjury

and

is

true

and

failed

to

correct.")
II.

Discovery Requests
The

defendant

next

argues

that

the

plaintiff

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

2

as moot.
The

defendant

maintains,

however,

that

the

plaintiff's

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
sanctions.
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."

(Pl's

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
the

Clapboard

Ridge

Design

are

substantially

similar.

The

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.

The

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.

3

The

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).
defendant

clarified that

it

is

During oral argument, the

seeking

evidence as

to these

elements, including evidence as to whether the plaintiff has a
valid copyright.

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
order.1

The court has "wide discretion in imposing sanctions under

Rule 37."

Shcherbakovskiy v. Da Capo Al Fine, Ltd., 490 F.3d 130,

135 (2d Cir. 2007).
denied.

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,
2011.
_________/s/__________________
Donna F. Martinez
United States Magistrate Judge

1

The court previously granted the defendant's motion to compel
and awarded fees. See doc. #71.
4