Callen et al v. ILKB LLC et al
MEMORANDUM & ORDER - For the stated reasons, IT IS HEREBY ORDERED that Plaintiffs' Motion to Strike the Answer of Defendants Michael Parrella and ILKB, LLC, and for Entry of Default Judgment against them (ECF No. 66) is GRANTED to the extent t hat the Defendants' Answer (ECF No. 54) IS HEREBY STRICKEN, and the Clerk of the Court is directed to issue certificates of default against Defendants. Plaintiffs shall have 30 days from the issuance of the certificates of default to move for de fault judgment pursuant to the procedure outlined in EDNY Local Civil Rule 55.2. IT IS FUTHER ORDERED that Plaintiffs are to serve Defendants with a copy of this Memorandum & Order at their respective last known addresses of record and file proof of such service to ECF forthwith. So Ordered by Judge Joanna Seybert on 5/19/2023. (CV)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
THOMAS CALLEN, COURTNEY CALLEN
and GOLDEN POLAR BEAR, LLC.,
MEMORANDUM & ORDER
-againstILKB LLC, MICHAEL PARRELLA, RYAN
HEALY, and SCOTT FERRARI, each
individually; and ILKB TOO, LLC,
DANIEL CASTELLINI, and SHAUN
YORK, each as successor by merger
to ILKB LLC,
John D. Giampolo, Esq.
Justin Scott Weitzman, Esq.
Rosenberg & Estis, P.C.
733 Third Avenue, 12th Floor
New York, New York 10017
ILKB LLC & Michael
SEYBERT, District Judge:
Thomas Callen, Courtney Callen, and Golden Polar Bear,
LLC (hereafter the “Plaintiffs”) move, pursuant to Rule 37(b) of
the Federal Rules of Civil Procedure (hereafter “Rule”), to strike
the answer of Defendants Michael Parrella (“Parrella”) and ILKB,
LLC (“ILKB” and, together with Parrella, the “Defendants”) and
enter default judgment against them (hereafter, the “Motion”).
(See Motion, ECF No. 66; see also Pls.’ Letter, ECF No. 65, at 2.)
Since the Defendants have failed to submit any opposition to the
Motion the Court deems it to be unopposed.
(See Dec. 6, 2022,
Elec. Order to Show Cause (hereafter the “OTSC”).) For the reasons
that follow, Plaintiffs’ Motion is GRANTED to the extent that the
Defendants’ answer (ECF No. 54) is stricken and the Clerk of Court
is directed to enter certificates of default against them.
The Court presumes the parties’ familiarity with the
factual background of this case which is detailed in Judge Hurley’s
Defendants’ motion to dismiss. 2
See Callen v. ILKB, LLC, No. 20-
CV-3345, 2022 WL 2079651 (E.D.N.Y. June 9, 2022). 3
As such, the
Court provides only those facts necessary to adjudicate the present
against, inter alia, the Defendants.
(See Compl., ECF No. 1.)
Plaintiffs filed an Amended Complaint on August 31, 2020, (Am.
The facts are primarily drawn from the Declaration of John
Giampolo and attached exhibits (see Giampolo Decl., ECF No. 68),
and from the Court’s own review of the Case Docket.
The Defendants were also joined in their Motion to Dismiss by
defendants ILKB, Too, LLC; Daniel Castellini; and Shaun York.
Judge Hurley’s Memorandum & Order is also available on the case
Docket at ECF No. 51.
Herein, when citing to the Memorandum &
Order, the Court uses the Westlaw citation.
Compl., ECF No. 15), and a Second Amended Complaint (hereafter the
“SAC”) on October 23, 2020 (SAC, ECF No. 18.)
“In response to the
Complaint . . . Defendants, ILKB and Parrella, [both] appeared in
this action through counsel” Gordon Rees Scully Mansukhani, LLP
(hereafter, “Gordon Rees.”)
(Giampolo Decl. at ¶ 6; see also
Notice of Appearance, ECF No. 13.)
(1) “filed a motion to dismiss the Complaint for failure to state
a claim on or before August 21, 2020” (see ECF Nos. 11, 12);
(2) “filed pre-motion letters on September 14, 2020, and October
28, 2020” (see ECF Nos. 16, 20); (3) filed a second “motion to
dismiss . . . on March 12, 2021” (see ECF No. 28); (4) “filed
of . . . ILKB
Parrella on December 6, 2021” (see ECF No. 43); and (5) “served
written responses and objections to Plaintiffs’ demand for answers
to interrogatories and to Plaintiffs’ demand for production of
documents” on February 18, 2022.
(Giampolo Decl. at ¶ 6.)
adjudication of the Defendants’ motion to dismiss, on June 23,
2022, the Defendants filed an Answer to the SAC.
(Id. at ¶ 9; see
On July 6, 2022, “Defendants’ counsel moved to withdraw
from [the] case.”
(Giampolo Decl. at ¶ 10; see also Am. Motion to
Withdraw as Attorney, ECF No. 59 (hereafter, the “Withdrawal
In the Withdrawal Motion, Gordon Rees explained that
“[a] conflict of interest ha[d] arisen between the parties, which
necessitate[d] that  Parrella and ILKB have separate counsel”
from the other defendants in the case.
(Withdrawal Motion at 1-
The Withdrawal Motion further noted that, while the other
defendants had secured substitute counsel, “Parrella and ILKB
(Id. at 1.)
On July 12, 2022, the Court directed
ILKB to retain counsel on or before August 12, 2022, because
“corporate entities are not permitted to appear pro se.”
July 12, 2022 Min. Order, ECF No. 58.) As ILKB’s owner and founder,
substitute counsel for ILKB.
See Callen, 2022 WL 2079651, at *1,
*11 (identifying Michael Parrella as ILKB’s founder and owner).
Additionally, the July 12 Order adopted a discovery schedule
containing deadlines for document discovery and the conclusion of
(July 12, 2022 Min. Order.)
On July 18, 2022,
the Court granted the Withdrawal Motion and again reiterated that
ILKB must obtain substitute counsel by August 12, 2022, since ILKB
would not be permitted to proceed pro se.
(See July 18, 2022 Elec.
Copies of the July 18, 2022, Electronic Order were served
upon Defendants Parrella and ILKB by outgoing counsel via overnight
(See Certificate of Service, ECF No. 61.)
On September 7, 2022, after the deadline for ILKB to
retain substitute counsel had expired, the Court entered another
Electronic Order noting that “[t]o date, ILKB  has failed to
notify the Court that it has retained counsel or put in a notice
(Sept. 7, 2022 Elec. Order).
To that end, the
Court, again, directed the Defendants to “advise the Court no later
The Court directed the Clerk of Court
to “mail a copy of [the] Order upon Defendants Parrella and ILKB.”
On September 15, 2022, the Court’s Order was returned as
Vacant; Unable to Forward.”
(See ECF Nos. 63, 64.)
the Court directed Plaintiffs to advise the Court as to how they
wished to proceed.
(See Sept. 20, 2022 Elec. Order).
Plaintiffs indicated that they intended “to proceed against [the
Defendants] by filing motions to strike their Answer and enter
default judgment against them for refusal to comply with Court
Orders [regarding] discovery” and in failing to appear in this and
other related cases.
(See Pls.’ Letter at 2.)
On October 31, 2022, Plaintiffs filed their Motion and
(See Case Docket.)
Plaintiff served its
Motion on the Defendants via “regular mail, certified mail and
email.” (Affidavit/Declaration, ECF No. 70.) The Defendants filed
no objection to Plaintiffs’ Motion; consequently, on December 6,
2022, the Court issued an OTSC as to why Plaintiffs’ Motion should
not be granted.
(See Dec. 6, 2022 Elec. OTSC.)
The OTSC warned
that “Defendants ILKB , and  Parrella are ON NOTICE: Failure
to respond to this [OTSC] BY January 3, 2023, will result in the
Court deeming Plaintiffs’ Motion to be unopposed.”
service of the OTSC, (see Certificate of Service, ECF No. 72),
neither Parrella nor ILKB responded.
(See Case Docket, in toto.)
To date ILKB has failed to secure substitute counsel and
Parrella has failed to respond to the Court’s orders or provide an
updated mailing address.
[or] . . . documents
Furthermore, neither of the Defendants
production of documents.”
(Giampolo Decl. at ¶ 11.)
neither Defendant has attended or participated in court-mandated
conferences held in this case to resolve outstanding discovery
(See Dec. 2, 2022 Min. Order for Proceedings, ECF No.
71 (noting “No Appearance” for Parrella or ILKB); see also Jan. 5,
2023 Min. Order for Proceedings, ECF No. 75 (same).)
While unopposed, the Court notes that Plaintiffs’ Motion
is presented in a procedurally improper manner.
Pursuant to Local
memorandum of law, setting forth the cases and other authorities
relied upon in support of the motion.”
EDNY Local Civil Rule
Plaintiffs’ Motion contains no memorandum of law.
fact, Plaintiff’s Motion and corresponding motion papers contain
no legal argument or analysis whatsoever.
Motion relies entirely upon the information and record citations
contained in the Giampolo Declaration.
Nevertheless, in its
discretion the Court “has decided to proceed without the Memorandum
Team Kasa, LLC v. Humphrey, No. 17-CV-1074, 2018 WL
1867117, at *5 (E.D.N.Y. Jan. 24, 2018) (citing Holbert v. CohenGallet, No. 05-CV-1281, 2006 WL 47452, at *1 (E.D.N.Y. Jan 9,
Rule 37 states that “[i]f a party . . . fails to obey an
order to provide or permit discovery . . . the court where the
action is pending may issue further just orders.”
FED. R. CIV. P.
Among the available sanctions are: (1) the “striking
[of] pleadings in whole or in part;” and (2) “rendering a default
P. 27(b)(2)(A)(iii), (vi).
“Pursuant to Rule 37 . . . a court
‘has broad discretion to impose sanctions’ when a party engages in
Silverman & Silverman, LLP v. Pacifica
Found., No. 11-CV-1894, 2014 WL 3724801, at *3 (E.D.N.Y. July 25,
2014) (quoting Fleming v. City of N.Y., No. 01-CV-8885, 2006 WL
2322981, at *5 (S.D.N.Y. Aug. 9, 2006)); see also Stirrat v. Ace
(E.D.N.Y. Sept. 24, 2004) (“The imposition of sanctions under Rule
37 lies within the discretion of the district court.” (citing Bobal
However, “Rule 37 sanctions are  ‘a harsh remedy to be
used only in extreme situations.’”
Kantor v. Air Atl. Med., P.C.,
No. 19-CV-3597, 2020 WL 7130732, at *2 (E.D.N.Y. Sept. 23, 2020)
(quoting Agiwal v. Mid. Island Mort. Corp., 555 F.3d 298, 302 (2d
The purpose of Rule 37 sanctions is to “‘protect
other parties to the litigation from prejudice resulting from a
party’s noncompliance;’ additionally, Rule 37 sanctions ‘serve
other functions unrelated to the prejudice suffered by individual
litigants[,]’ including specific and general deterrence.”
(quoting S. New Eng. Tel. Co. v. Glob. NAPs Inc., 624 F.3d 123,
149 (2d Cir. 2010)).
In determining whether Rule 37 sanctions are
The Second Circuit has articulated [s]everal
factors [that] may be useful in evaluating a
district court's exercise of discretion to
including: (1) the willfulness of the noncompliant
noncompliance; (2) the efficacy of lesser
sanctions; (3) the duration of the period of
noncompliance, and (4) whether the noncompliant party had been warned of the
consequences of . . . noncompliance
Id. (citing Agiwal, 555 F.3d at 302-03).
No factor is exclusive or dispositive “[b]ecause the
text of the rule requires only that the district court’s orders be
‘just,’” and “because the district court has ‘wide discretion in
imposing sanctions under Rule 37[.]’” S. New Eng. Tel. Co., 624
F.3d at 144 (quoting Shcherbakovskiy v. Da Capo Al Fine, Ltd., 490
F.3d 130, 135 (2d Cir. 2007)). Additionally, “[t]he district court
is free to consider ‘the full record in the case in order to select
the appropriate sanction.’”
Id., 624 F.3d at 144 (quoting Nieves
v. City of N.Y., 208 F.R.D. 531, 535 (S.D.N.Y. 2002)).
finds that striking the Defendants’ Answer and directing entry of
certificates of default against Defendants is appropriate in this
A. Willfulness and Duration of Non-Compliance
“repeated and unexplained failure to respond to  discovery
requests in any meaningful way, comply with court orders, [or]
appear in a scheduled hearing to defend” itself.
Vargas v. Jet
(E.D.N.Y. March 14, 2018) (citing Microsoft Corp. v. Comput. Care
Ctr., Inc., No. 06-CV-1429, 2008 WL 4179653, at *5 (E.D.N.Y. Sept.
(E.D.N.Y. Mar. 28, 2018)). “Noncompliance with a court’s discovery
order is willful when the order is clear, the party understood the
order, and the failure to comply is not due to factors beyond the
Ramgoolie v. Ramgoolie, 333 F.R.D. 30, 35
(E.D.N.Y. Sept. 10, 2019) (citing Joint Stock Co. Channel One Russ.
Worldwide v. Infomir LLC, No. 16-CV-1318, 2017 WL 3671036, at *21
(S.D.N.Y. July 18, 2017)).
having initially participated in it by, inter alia, filing a motion
to dismiss and, subsequently, by filing an Answer to the Amended
Similarly, both Defendants have failed to
communicate whatsoever with Plaintiffs regarding their outstanding
Regarding Parrella, mail sent to him by
this Court has been returned undeliverable such that Parrella has
effectively become unreachable.
When warned that the Court would
entertain case-ending sanctions due to the Defendants’ failures,
neither Parrella nor ILKB responded.
Similarly, after Plaintiffs’
Motion was ultimately filed, neither of the Defendants filed any
Defendants again of the consequences of not responding.
willfulness merits case-ending sanctions.
See e.g., Gesualdi v.
(E.D.N.Y. Nov. 29, 2016) (striking defendants’ answer and entering
default judgment against defendant for failing to comply with the
court’s discovery orders); Campos v. Quentin Mkt. Corp., No. 16CV-5303, 2017 WL 9253412, at *3 (E.D.N.Y. Nov. 21, 2017) (striking
corporate defendant’s answer where it “willfully ignored a court
conferences, despite repeated warnings from the Court that their
failure . . . would result in an entry of default); Castillo v.
Zishan, Inc., No. 16-CV-6166, 2017 WL 3242322, at *2 (S.D.N.Y.
defendant’s failure to comply with court orders was willful where
defendants were aware of the lawsuit, failed to seek new counsel
for the corporate defendant, and “refused to respond to the order
to respond to the motion seeking a default judgment against them”).
B. Efficacy of Lessor Sanctions
“[D]istrict courts are not required to exhaust possible
lesser sanctions before imposing dismissal or default if such
sanction is appropriate on the overall record.”
S. New Eng. Tel.
Co., 624 F.3d at 148 (citing John B. Hull, Inc. v. Waterbury
Petroleum Prods., Inc., 845 F.2d 1172, 1176–77 (2d Cir. 1988)).
Moreover, “[w]here defendants willfully abandon their defense of
the case, case-ending sanctions are appropriate.”
Xin Hao Liu v.
Millenium Motors Sports, LLC, No. 17-CV-6438, 2020 WL 7028924, at
*4 (E.D.N.Y. Nov. 5, 2020) (citing Montblanc-Simplo GmhH v. Colibri
recommendation adopted, 2020 WL 7024378 (E.D.N.Y. Nov. 30, 2020).
Here, the Court finds that the Defendants have willfully
appeared at any court-mandated discovery conferences since Gordon
Rees’ withdrawal; similarly, neither Defendant has attempted to
communicate with the Court or Plaintiff whatsoever since July 2022.
Even after the filing of Plaintiffs’ Motion, neither Parrella nor
ILKB filed any opposition to the Motion despite the Court’s OTSC
warning them of the consequences of non-response.
As such, the
Court finds this factor weighs in favor of granting Plaintiffs’
See Kantor, 2020 WL 7130732, at *3 (finding defendants
had “essentially abandoned the case and become unreachable,” and
therefore anything less than striking their answer “would be ‘an
exercise in futility.’” (quoting Koch v. Rodenstock, No. 06-CV6586, 2010 WL 2010892, at *7 (S.D.N.Y. Apr. 23, 2010) report &
recommendation adopted, 2010 WL 2010900 (S.D.N.Y. May 18, 2010))).
C. Duration of Non-Compliance
“Periods of noncompliance as brief as a few months may
(collecting cases). Moreover, “periods of greater than five months
favor such sanctions even more heavily.”
Id. (collecting cases).
Since the Withdrawal Motion was granted in July 2022,
neither of the Defendants have appeared, participated or responded
approximately eight months later.
In that time, the Defendants
have: ignored Court orders warning that ILKB may not appear pro se
due to its corporate status; failed to appear for court-ordered
conferences; failed to communicate with the Court or opposing
counsel regarding Plaintiffs’ outstanding discovery requests; and
failed to oppose Plaintiffs’ Motion despite the Court’s OTSC
warning them failure to do so would result in the Court deeming
the Motion unopposed.
D. History of Warnings
“[S]evere sanctions like dismissal or default should be
imposed only if the party has been warned that such a sanction
will follow from continued noncompliance and has nevertheless
refused to comply.”
Urbont v. Sony Music Ent., No. 11-CV-4516,
2014 WL 6433347, at *3 (S.D.N.Y. Nov. 6, 2014).
warnings that it cannot proceed pro se and must retain counsel.
Yet despite these warnings, ILKB has consistently failed to heed
Both Defendants have been on notice since September 27,
2022, that Plaintiffs would seek to strike their Answer and have
entries of default entered against them for ILKB’s failure to
retain counsel, and for Parrella’s failure to maintain a current
mailing address. On September 30, 2022, in response to Plaintiffs’
letter, the Court ordered that “the anticipated motions to strike
the Answers and enter default judgment against  Parrella and
ILKB” were to be filed on or before October 31, 2022.
Court’s warnings and Plaintiffs’ subsequent filing of the Motion,
neither of the Defendants responded.
In December 2022, the Court
Plaintiffs’ Motion . . . should not be granted;” again, neither
Defendant responded to the Court’s OTSC.
As such, the Court finds
this factor weighs in favor of granting Plaintiffs’ Motion. Accord
Sanchez v. Jyp Foods Inc., No. 16-CV-4472, 2018 WL 4502008, at *4
defendants had been warned that failure to appear would result in
the court permitting plaintiffs to move to strike their answer and
seek a default judgment against them).
concludes that striking the Answer of the Defendants and directing
the Clerk of the Court to enter certificates of default against
Defendants are appropriate sanctions in this case.
Plaintiffs’ Motion to Strike the Answer of Defendants Michael
Parrella and ILKB, LLC, and for Entry of Default Judgment against
them (ECF No. 66) is GRANTED to the extent that the Defendants’
Answer (ECF No. 54) IS HEREBY STRICKEN, and the Clerk of the Court
is directed to issue certificates of default against Defendants.
Plaintiffs shall have 30 days from the issuance of the certificates
of default to move for default judgment pursuant to the procedure
outlined in EDNY Local Civil Rule 55.2.
respective last known addresses of record and file proof of such
service to ECF forthwith.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated: May 19, 2023
Central Islip, New York
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