Dimare Ruskin, Inc. v. M & M Produce Inc et al

Filing 300

ORDER granting, in part, 199 MOTION to Compel and/or default for failure to answer interrogatories under oath as to Coosemans Boston, Inc., Grant Stanton Produce Co., Inc., and PacificPro Inc.; granting 209 Motion to Withdraw [199 ] MOTION to Compel and/or default as to Spring Creek Produce; granting 213 Motion to Withdraw 199 MOTION to Compel and/or default as to Molinelli, Inc.; granting 229 Motion to Withdraw 199 MOTION to Compel and/or default as to Dean Tucker Farms; granting 285 Motion to Withdraw 199 MOTION to Compel and/or default as to Arrow Farms, Inc., Capitol Sausage and Provisions, Inc., Community-Suffolk, Inc., Forlizzi & Bimber, Inc., Heart of the Harvest, Inc., J. Bonafede Co., Inc., John Cerasuolo Co., Inc., Peter Condakes Company, Inc., S. Strock & Co., Inc. See attached Order for further details. Signed by Judge Sarah A. L. Merriam on 3/15/2016. (Katz, S.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
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DIMARE RUSKIN, INC.
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v.
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M & M PRODUCE INC. ET AL.
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Civ. No. 3:15CV00289(AWT)

March 15, 2016

ORDER ON PENDING DISCOVERY MOTIONS
Pending before the Court is the motion of defendant Patrick
J. Milio (hereinafter “Milio”) for entry of default against
fifteen parties for failing to provide sworn answers to
interrogatories he propounded on November 16, 2015 [Doc. #199]
(hereinafter the “Motion for Default”).1 Milio has filed four
partial motions to withdraw the Motion for Default. [Doc. ##209,
213, 229, 285]. Responses to Milio’s Motion for Default were due
on or before March 9, 2016. No such responses have been filed.
The Court hereby GRANTS the partial motions to withdraw
[Doc. ## 209, 213, 229, 285], and withdraws the Motion for
Default as to: Arrow Farms, Inc.; Capitol Sausage and
Provisions, Inc.; Community-Suffolk, Inc.; Dean Tucker Farms
Produce, Inc.; Forlizzi & Bimber, Inc.; Heart of the Harvest,
Inc.; J. Bonafede Co., Inc.; John Cerasuolo Co., Inc.; John

Although captioned as a motion for default, the motion was
docketed as a motion to compel. See Doc. #199.
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Molinelli, Inc.; Peter Condakes Company, Inc.; S. Strock & Co.,
Inc.; and Spring Creek Produce, LLC.
With respect to the Motion for Default [Doc. #199], the
Court construes this as a Motion to Compel, and no response in
opposition having been filed by the remaining parties named in
this motion (Coosemans Boston, Inc. (“Coosemans”), Grant Stanton
Produce Co., Inc. (“Grant”), and PacificPro Inc.
(“PacificPro”)), the Court GRANTS the motion, in part. [Doc.
#199]. Parties Coosemans, Grant and PacificPro shall each
provide sworn responses to Milio’s November 16, 2015,
interrogatories on or before March 31, 2016.
The Court declines to enter a default against Coosemans,
Grant and PacificPro at this time. Milio fails to cite any
authority in support of this request, and there is no evidence
of prejudice. Further, Rule 37 permits such a sanction only
after the disobedient party has failed to obey a discovery
order. See Fed. R. Civ. P. 37(b)(2)(A)(vi) (“If a party ...
fails to obey an order to provide or permit discovery ... the
court where the action is pending may issue further just orders.
They may include ... rendering a default judgment against the
disobedient party[.]”). No such discovery order has entered with
respect to the interrogatories at issue.
Nevertheless, in the event that Coosemans, Grant and
PacificPro fail to comply with this Order, the Court will not
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hesitate to impose sanctions if appropriate, including, without
limitation, the dismissal of a parties’ claims and/or the entry
of an order awarding attorney’s fees incurred in bringing of the
Motion for Default. See Fed. R. Civ. P. 37(b)(2)(A)(v);
37(b)(2)(C). On or before the close of business on April 4,
2016, Milio shall file a status report with the Court indicating
whether Coosemans, Grant and PacificPro have complied with this
Order, so that the Court may determine whether sanctions are
warranted.
This is not a Recommended Ruling. This is an order
regarding discovery which is reviewable pursuant to the “clearly
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.
SO ORDERED at New Haven, Connecticut this 15th day of March
2016.
/s/
HON. SARAH A. L. MERRIAM
UNITED STATES MAGISTRATE JUDGE

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