Vineyard Vines, LLC v. Macbeth Collection, LLC

Filing 50

RULING granting 37 Motion to Compel and Scheduling Order. See ruling and order for set deadlines. Signed by Judge Sarah A. L. Merriam on 5/8/15. (Esposito, A.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

VINEYARD VINES, LLC
v.
MACBETH COLLECTION, LLC,
MACBETH COLLECTION BY
MARGARET JOSEPHS, LLC,
MACBETH DESIGNS LLC,
MARGARET JOSEPHS, and
Various JOHN DOES, JANE DOES
and XYZ COMPANIES
[unidentified]

:
:
:
:
:
:
:
:
:
:
:
:
:
:
:
:

CIV. NO. 3:14CV1096 (JCH)

RULING ON PLAINTIFF’S MOTION TO COMPEL [DOC. #37]
Plaintiff Vineyard Vines, LLC seeks an order compelling
defendants to respond to plaintiff’s First Request for
Production and Interrogatories dated February 11, 2015, disclose
the identity of various 30(b)(6) witnesses, designate and
produce the witnesses for attendance at the properly noticed
depositions and for sanctions pursuant to Federal Rule of Civil
Procedure 37(a)(3), (c)(1) and (d)(1-3). A telephone status
conference was held on May 6, 2015.

For the reasons that

follow, plaintiff’s Motion to Compel [Doc. #37] is GRANTED.
A district court has wide discretion to impose sanctions
under Federal Rule of Civil Procedure 37, and its ruling will be
reversed only if it constitutes an abuse of discretion.

Design

Strategy, Inc. v. Davis, 469 F.3d 284, 294 (2d Cir. 2006).
party requesting sanctions under Rule 37 bears the burden of
1

The

showing that the opposing party failed to timely disclose
information required by Rule 26.

“[A] complete failure by a

party to appear at his or her deposition, or to respond to
interrogatories or requests for production, in that no answers,
objections, or responses of any kind are served, and no motion
for protective order is filed, then the moving party has
immediate access to a wide range of sanctions, provided that the
party has attempted in good faith to secure a response through
negotiation.”
§37.03

7 James Wm. Moore, Moore’s Federal Practice

(3d ed. 2014); see Fed. R. Civ. P. 37(d).

Plaintiff has satisfied its burden to obtain Rule 37
sanctions by establishing that defendants failed to respond to
requests for production and interrogatories within thirty days
of service and plaintiff made a good faith effort to meet and
confer in an attempt to resolve the discovery issues. [Sharinn
Aff. ¶26-27]; see D. Conn. L. Civ. R. 37(a)(meet and confer
obligation).

Defendants’ counsel “admits that [he] mistakenly

failed to calendar the response dates for the discovery” and
“informed plaintiff that the recent transition to a solo
practice had impacted its resources (namely an over-extension of
time), but that responses would be forthcoming.” [Doc. #45 at
3].

It is undisputed that defendants’ responses to plaintiff’s

First Request for Production of Documents and Interrogatories
dated February 11, 2015, were due on March 16, 2015,1 and that

After a meet and confer on March 20, 2015, plaintiff agreed to
extend the deadline to March 24, 2015. Notwithstanding,
defendants’ counsel sent an email on March 25, 2015, stating “I
am in the process of finalizing the multiple discovery responses
1

2

defendants failed to file a timely response or objection.

[Doc.

#37-1, Sharinn Aff. ¶15]. In addition, Notices of Deposition
were electronically served on February 11 and 12, 2015, for
30(b)(6) depositions of the corporate defendants and the
individual defendant on March 4-7, 2015. [Sharinn Aff. ¶¶18-19].
Despite repeated efforts by plaintiff’s counsel to get responses
to discovery requests and to reschedule the depositions, and
despite repeated assurances by defendants’ counsel that
compliance was forthcoming, discovery responses and dates for
the four noticed depositions were not provided.2 [Sharinn Aff.
¶¶20-30]. Plaintiff’s Motion to Compel was filed on April 14,
2015. [Doc. #37]. Defendants stated in the response to the
Motion to Compel, dated May 5, 2015, that they were “serving
under separate cover responses to discovery . . . to each of the
eight (8) sets of discovery.” [Doc. #45 at 1]. Defendants failed
to state whether they have responded to the outstanding Notices
of Deposition and rescheduled the depositions. Notwithstanding
this representation, the parties reported in a Joint Status
Report on May 7, 2015, that defendants did not produce any
responses to discovery, nor have they responded to the Notices
for Deposition. [Doc. #46 at 6].

and will have the same to you shortly. Before there are any
accusations of purposeful delay on the part of my client, please
understand that the additional time is the result of my schedule
and limited resources/man power.” [Doc. 37-1, Ex. R]. No
responses were filed and plaintiff filed this Motion to Compel
on April 14, 2015.
2
Beginning in August 2014, plaintiff has sought documentation
promised by defendants to support their contention that they
were not engaging in infringing conduct. [Sharinn Aff. ¶¶4-14].
3

On May 7, 2015, during a telephonic status conference, the
Court indicated that the Court planned to grant the plaintiff’s
Motion to Compel and ordered defendant to produce responses to
plaintiff’s First Request for Production and Interrogatories
dated February 11, 2015, disclose the identity of various
30(b)(6) witnesses, designate and produce the witnesses for
attendance at the properly noticed depositions in response to
the Notices for Deposition dated February 11 and 12, 2015, by
Wednesday, May 13, 2015 at 12:00 PM.

Plaintiff will report back

to the Court by the close of business on May 13, 2015, regarding
the status of defendants’ production. Defendants have offered no
explanation for failing to provide this discovery despite
repeated well-documented assurances to plaintiff and in filings
to the Court.
Plaintiff seeks reasonable attorneys’ fees and costs
incurred in filing the motion to compel and “such other
sanctions that this Court deems appropriate including, but not
limited to, exclusion of defendants’ evidence concerning
liability, intent and willfulness.” [Doc. #37 at 2].
Upon finding that the moving party has carried its
burden under Rule 37, Fed. R. Civ. P., the court
should endeavor to impose a sanction that will
restore the parties to the position they would
have occupied but for the breach of discovery
obligations and deter future misconduct.
In re September 11th Liability Ins. Coverage Cases,

243 F.R.D.

114, 131-32 (2d Cir. 2007) (internal citation omitted).
Appropriate sanctions may include payment of “reasonable
expenses, including attorney's fees, caused by the failure” to
answer interrogatories and requests for production. Fed. R. Civ.
4

P. 37(d); 7 Moore’s Federal Practice

§37.90 (“The misconduct at

which [Rule 37](d) is directed consists of a party’s complete
failure to respond, by way of appearance, objection, answer, or
motion for protective order, to a discovery request.” (emphasis
added)).
Defendants have made no showing that their failure to file
a timely response to plaintiff’s Request for Production and
Interrogatories was “substantially justified” or that “other
circumstances make an award of expenses unjust.” Fed. R. Civ. P.
37(d)(3).
CONCLUSION
Accordingly, plaintiff’s Motion to Compel [Doc. #37] is
GRANTED.
Plaintiff will file a motion for attorney’s fees and costs
with supporting documentation by May 21, 2015. Defendants’
response is due on or before June 4, 2015.
The Court reserves decision on further sanctions until
after defendants respond to the First Set of Requests for
Production and Interrogatories and Notices of Deposition.
Defendants’ compliance is due on May 13, 2015 by 12:00PM.
Failure to comply with this ruling and order may result in
the entry of further sanctions.
The deadline for the close of discovery is July 15, 2015.
Dispositive motions and the Joint Trial Memoranda are due by
August 12, 2015.
This is not a recommended ruling. This is a discovery
ruling and ruling on a motion for attorney’s fees which is
5

reviewable pursuant to the Aclearly erroneous@ statutory standard
of review. 28 U.S.C. ' 636(b)(1)(A); Fed. R. Civ. P. 72(a); and
D. Conn. L. Civ. R. 72.2. As such, it is an order of the Court
unless reversed or modified by the district judge upon motion
timely made.
Entered at New Haven this 8th day of May 2015.
_____/s/___________________
SARAH A. L. MERRIAM
UNITED STATES MAGISTRATE JUDGE

6