Abante Rooter and Plumbing, Inc. v. Shore Funding Solutions, Inc.

Filing 28

MEMORANDUM OF DECISION & ORDER: On July 27, 2018, the Plaintiff moved for a default judgment against the Defendant pursuant to Federal Rules of Civil Procedure ("Fed. R. Civ. P." or "Rules") 37 and 55 due to the Defendant's failure to comply with a number of orders issued by United States Magistrate Judge A. Kathleen Tomlinson. The Court referred the Plaintiff's motion to Judge Tomlinson for a report and recommendation. For the foregoing reasons, the Court overr ules the Defendant's objections and adopts the 20 R&R in its entirety. The Court denies the Plaintiff's 17 motion for entry of default judgment. Pursuant to Rule 37, the Court awards the Plaintiff's Counsel attorney's fees and costs for the total amount incurred in connection with filing the motion for default judgment. The Plaintiff's Counsel is directed to submit a memorandum, with accompanying affidavits and other appropriate documents, regarding the amount to be reimbursed no later than 30 days from the issuance of this Order. The Defendant's counsel must file any objections to the amount requested no later than 14 days from the filing of the Plaintiffs Counsels memorandum. SEE ATTACHED DECISION for details. So Ordered by Judge Arthur D. Spatt on 5/6/2019. (Coleman, Laurie)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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ABANTE ROOTER AND PLUMBING, INC.,
individually and on behalf of all others similarly
situated,
Plaintiff,
-against-

FILED 
CLERK 

3:53 pm, May 06, 2019

U.S. DISTRICT COURT 
EASTERN DISTRICT OF NEW YORK 
LONG ISLAND OFFICE 

MEMORANDUM OF
DECISION & ORDER
2:17-cv-06499 (ADS)(AKT)

SHORE FUNDING SOLUTIONS, INC.; and
DOES 1 through 10, inclusive.
Defendants.
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APPEARANCES:
DeNittis Osefchen Prince, P.C.
Attorneys for the Plaintiff
315 Madison Avenue 3rd Floor
New York, NY 10017
By:
Ross Howard Schmierer, Esq., Of Counsel.
Law Offices of Clifford B. Olshaker
Attorneys for the Defendants
98-19 37th Avenue 2nd Fl.
Corona, NY 11368
By:
Clifford B. Olshaker, Esq., Of Counsel.
SPATT, District Judge.
On July 27, 2018, the Plaintiff moved for a default judgment against the Defendant
pursuant to Federal Rules of Civil Procedure (“Fed. R. Civ. P.” or “Rules”) 37 and 55 due to the
Defendant’s failure to comply with a number of orders issued by United States Magistrate Judge
A. Kathleen Tomlinson. The Court referred the Plaintiff’s motion to Judge Tomlinson for a report
and recommendation.
On March 6, 2019, Judge Tomlinson issued a Report and Recommendation (“R&R”) that
the Court deny the Plaintiff’s motion for entry of a default judgment and instead impose a lesser

sanction under Rule 37 in the form of requiring the Defendant’s Counsel to reimburse the
Plaintiff’s Counsel the total amount of fees expended, and costs incurred, as a result of filing the
motion. The court refers the parties to the R&R for a recitation of the relevant facts and procedural
background.
Presently before the Court are the Defendant’s Counsel’s objections to the R&R. For the
reasons that follow, the Court adopts the R&R in its entirety.
I. DISCUSSION
A. DISTRICT COURT REVIEW OF A MAGISTRATE JUDGE’S R&R
In the course of its review of a Magistrate Judge’s report and recommendation, the District
Court “may accept, reject, or modify, in whole or in part, the findings or recommendations made
by the magistrate judge.” 28 U.S.C. § 636 (b)(1); see DeLuca v. Lord, 858 F.Supp. 1330, 1345
(S.D.N.Y. 1994). Parties may raise objections to the magistrate judge’s report and
recommendation, but they must be “specific,” “written,” and submitted “[w]ithin 14 days after
being served with a copy of the recommended disposition.” FED. R. CIV. P. 72(b)(2); accord 28
U.S.C. § 636(b)(1)(C). The district court must conduct a de novo review of those portions of the
R&R or specified proposed findings or recommendations to which timely and proper objections
are made. 28 U.S.C. § 636(b)(1)(C); see FED. R. CIV. P. 72(b)(3) (“The district judge may accept,
reject, or modify the recommended disposition; receive further evidence; or return the matter to
the magistrate judge with instructions.”). The Court may adopt those portions of a report and
recommendation to which no timely objections have been made, provided no clear error is apparent
from the face of the record. Lewis v. Zon, 573 F.Supp.2d 804, 811 (S.D.N.Y. 2008); Nelson v.
Smith, 618 F.Supp. 1186, 1189 (S.D.N.Y. 1985).

In addition, “[t]o the extent . . . that the party makes only conclusory or general arguments,
or simply reiterates the original arguments, the Court will review the [R&R] strictly for clear
error.” IndyMac Bank, F.S.B. v. Nat'l Settlement Agency, Inc., No. 07-cv-6865, 2008 WL 4810043,
at *1 (S.D.N.Y. Nov. 3, 2008); see also Toth v. N.Y. City Dep't of Educ., No. 14-cv-3776, 2017
WL 78483, at *7 (E.D.N.Y. Jan. 9, 2017) (“Reviewing courts should review a report and
recommendation for clear error where objections are merely perfunctory responses, argued in an
attempt to engage the district court in a rehashing of the same arguments set forth in the original
petition.” (quoting Ortiz v. Barkley, 558 F.Supp.2d 444, 451 (S.D.N.Y. 2008))), vacated on other
grounds sub nom. Toth on behalf of T.T. v. City of New York Dep't of Educ., ––– Fed.Appx. ––––
, No. 17-cv-383, 2018 WL 258793 (2d Cir. Jan. 2, 2018); Frankel v. City of N.Y., Nos. 06-Civ.5450, 07-cv-3436, 2009 WL 465645, at *2 (S.D.N.Y. Feb. 25, 2009) (“When a party makes only
conclusory or general objections, or simply reiterates the original arguments, the Court will review
the [R&R] strictly for clear error.”); Pall Corp. v. Entergris, Inc., 249 F.R.D. 48, 51 (E.D.N.Y.
2008) (holding that if the objecting party “makes only conclusory or general objections, ... the
Court reviews the [R&R] only for clear error” (internal citations omitted)).
“The goal of the federal statute providing for the assignment of cases to magistrates is to
increase the overall efficiency of the federal judiciary.” McCarthy v. Manson, 554 F.Supp. 1275,
1286 (D. Conn. 1982) (internal citations omitted), aff'd, 714 F.2d 234 (2d Cir. 1983). “There is no
increase in efficiency, and much extra work, when a party attempts to relitigate every argument
which it presented to the Magistrate Judge.” Toth, 2017 WL 78483, at *7 (quoting Camardo v.
Gen. Motors Hourly-Rate Emps. Pension Plan, 806 F.Supp. 380, 382 (W.D.N.Y. 1992)).

B. APPLICATION TO THE FACTS OF THIS CASE.
“Federal Rule of Civil Procedure 37 ‘provides a non-exclusive list of sanctions that may
be imposed on a party for failing to obey an order to provide or permit discovery.’” Fossil Indus.,
Inc. v. Onyx Specialty Papers, Inc., 302 F.R.D. 288, 293 (E.D.N.Y. 2014) (quoting Martinelli v.
Bridgeport Roman Catholic Diocesan Corp., 179 F.R.D. 77, 80 (D.Conn.1998)). Potential
sanctions extend from payment of expenses and similar monetary sanctions at one end of the
spectrum to default judgment on the other. See generally ; Fed.R.Civ.P. 37(b)(2)(A)(i)-(vii).
“The imposition of sanctions under Rule 37 is within the discretion of the district court.”
John B. Hull, Inc. v. Waterbury Petroleum Products, Inc., 845 F.2d 1172, 1176 (2d Cir.1988)
(citation omitted). As the Second Circuit has stated,
[d]isciplinary sanctions under Rule 37 are intended to serve three purposes. First, they
ensure that a party will not benefit from its own failure to comply. Second, they are specific
deterrents and seek to obtain compliance with the particular order issued. Third, they are
intended to serve a general deterrent effect on the case at hand and on other litigation,
provided that the party against whom they are imposed was in some sense at fault.
Update Art, Inc. v. Modiin Publ'g, Ltd., 843 F.2d 67, 71 (2d Cir. 1988). In effectuating these
purposes and determining whether and which sanctions under Rule 37 are appropriate, courts
consider several well-known, non-exhaustive factors, including: “‘(1) the willfulness of the noncompliant party or the reason for noncompliance; (2) the efficacy of lesser sanctions; (3) the
duration of the period of noncompliance, and (4) whether the non-compliant party had been warned
of the consequences of . . . noncompliance.’” Agiwal v. Mid Island Mortg. Corp., 555 F.3d 298,
302–03 (2d Cir. 2009) (quoting Nieves v. City of New York, 208 F.R.D. 531, 535 (S.D.N.Y. 2002)).
Here, Judge Tomlinson found default judgment to be an inappropriate sanction under the
circumstances, but that it was “clear . . . some form of sanction under Rule 37 [was] appropriate”
due to the conduct of the Defendant’s Counsel, which Judge Tomlinson described as “among other

things, disdainful and inappropriate towards the Court and opposing counsel.” R&R at 13.
Accordingly, Judge Tomlinson recommended the lesser sanction of requiring the Defendant’s
Counsel to reimburse the Plaintiff’s Counsel for attorney’s fees and costs incurred as a result of
filing the motion for default judgment. The Defendant’s Counsel objects: first, that his noncompliance with the discovery schedule was substantially justified (and not willful) in light of the
Plaintiff’s failure to execute the Confidentiality Stipulation, and second, that sanctioning him
would have the effect of punishing him for continuing to represent his client.
Starting with the first objection, the Court notes that the Defendant’s Counsel raised this
argument almost verbatim before Judge Tomlinson, ECF 20 at 7, 9, who explained that that his
excuse failed to justify the failure to respond to eight e-mails and several telephone calls, R&R at
13–14. As the Defendant’s Counsel puts forward nothing overlooked or misunderstood by Judge
Tomlinson, the Court applies clear error review to her determination that he acted willfully.
Finding none, the Court concurs with Judge Tomlinson’s reasoning. The Court reiterates Judge
Tomlinson’s admonition that the parties have an obligation to confer in good faith to resolve
discovery issues. The proper response to the Plaintiff’s failure to execute the Confidentiality
Stipulation was to raise the issue with the Plaintiff’s Counsel and, if necessary, the Court. In no
situation could it warrant defense counsel’s apparent five-month lapse in communication.
As to the second objection, the Court reviews Judge Tomlinson’s determination in this
regard de novo but nonetheless concurs with the R&R. In a conclusory fashion, the Defendant’s
Counsel argues that awarding attorney’s fees in connection with filing the default motion “is
indistinguishable from sanctioning [him] for remaining as Defendant’s attorney and . . . an
encroachment upon [his] client’s right to hire (or retain) the attorney of their choosing as
guaranteed by the Sixth Amendment.” ECF 26 at 9. The Court reminds the Defendant’s Counsel

that “[i]t is settled law that the Sixth Amendment right to counsel does not apply in civil cases.”
Waterbury v. Liberty Life Assur. Co., 202 F. App'x 477, 479 (2d Cir. 2006). Regardless, the
Defendant’s Counsel mischaracterizes the nature and effect of the sanction recommended. Judge
Tomlinson did not suggest attorney’s fees to punish him for continuing to represent his client.
Rather, the proposed punishment arose from his decision to “remain counsel of record without
notifying the Court” after a sustained period of inactivity and non-responsiveness, notwithstanding
“being warned of the consequences.” R&R at 16–17 (emphasis added). The Court finds that Judge
Tomlinson adequately appraised the Defendant’s Counsel of the potential for Rule 37 sanctions
and properly found that his conduct warranted the lesser sanction of attorney’s fees in connection
with the default judgment motion.
Therefore, the Court overrules the Defendant’s objections.
II. CONCLUSION
For the foregoing reasons, the Court overrules the Defendant’s objections and adopts the
R&R in its entirety. The Court denies the Plaintiff’s motion for entry of default judgment. Pursuant
to Rule 37, the Court awards the Plaintiff’s Counsel attorney’s fees and costs for the total amount
incurred in connection with filing the motion for default judgment. The Plaintiff’s Counsel is
directed to submit a memorandum, with accompanying affidavits and other appropriate
documents, regarding the amount to be reimbursed no later than 30 days from the issuance of this
Order. The Defendant’s counsel must file any objections to the amount requested no later than 14
days from the filing of the Plaintiff’s Counsel’s memorandum.

SO ORDERED.
Dated: Central Islip, New York
May 6, 2019.
___/s/ Arthur D. Spatt_____
ARTHUR D. SPATT
United States District Judge