Lluberes et al v. City of Troy et al

Filing 76

MEMORANDUM-DECISION and ORDER granting in part and denying in part 60 Motion for Summary Judgment; denying 62 Motion for Summary Judgment. ORDERED that plaintiffs' 62 motion for summary judgment is DENIED in its entirety. It is further ORDERED that defendants' 60 motion for summary judgment is GRANTED in part and DENIED in part. ORDERED that all claims against Anderson, Castle, Dean, Hoffman, Pirro, Negron, Evangelista, Salvatore, Sarris, Tutunjian, Troy PD, John and Jane Doe defendants, and individual defendants in their official capacities be dismissed from this action. ORDERED that Gillette's trial will proceed as scheduled on 4/28/2014 at 9:30 a.m. Upon the conclusion of that trial, the Court will set a dat e for Llubere's trial. Signed by Magistrate Judge Christian F. Hummel on 3/21/2014. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O) (dpk)

Broadcast Music, Inc. v. Metro Lounge & Cafe LLC, Not Reported in F.Supp.2d (2012)

2012 WL 4107807
Only the Westlaw citation is currently available.
United States District Court,
N.D. New York.
BROADCAST MUSIC, INC.;
MJ Publishing Trust, Plaintiffs,
v.
METRO LOUNGE & CAFÉ LLC, et al., Defendants.
No. 5:10–CV–1149 (NAM/ATB).

|

July 18, 2012.

Attorneys and Law Firms
Sammer Essi, pro se.
Paul I. Perlman, Esq., for Defendants.
Opinion
ORDER and REPORT–RECOMMENDATION

On January 10, 2012, Mr. Essi appeared before me and stated
that he had not yet been able to retain an attorney, and I
extended his deadline to do so until January 17, 2012. I also
informed him that his past-due discovery responses were due
on January 31, 2012, and his deposition was to be completed
by February 14, 2012, whether or not he retained counsel.
(Text Orders dated Jan. 3 & 10, 2012).
On January 22, 2012, I held a status conference, during which
Mr. Essi stated that he would be representing himself. (Text
Order dated Jan. 22, 2012). I informed defendant Essi that
he could represent himself as an individual, but he could
not represent Metro Lounge, the corporate defendant. (Id.) I
ordered defendant Essi to provide the outstanding discovery,
directed to him individually, by March 31, 2012, and I
informed Mr. Essi that he was responsible for producing
this discovery, notwithstanding any further delay in obtaining
counsel for Metro Lounge. (Id.) I extended the deadline to
complete Mr. Essi's deposition to April 29, 2012, I extended
the deadline for all discovery to May 18, 2012, and I extended
the deadline for dispositive motions to June 26, 2012. (Id.)

ANDREW T. BAXTER, United States Magistrate Judge.
*1 This matter has been referred to me for Report and
Recommendation by the Honorable Norman A. Mordue,
United States District Judge.
This action was filed by plaintiffs Broadcast Music, Inc.
(“BMI”) and MJ Publishing Trust (“MJ”), alleging copyright
infringement against defendants in connection with alleged
public performances of music at the Metro Lounge & Café
(“Metro Lounge”). (Dkt. No. 1). Presently before the court
are plaintiffs' motions for discovery sanctions as against
defendant Sammer Essi, as well as for default as against
Metro Lounge. (Dkt.Nos.34, 37).

I. Background
Defendants filed their answer on February 11, 2011. (Dkt. No.
16). All three of the defendants were originally represented
by the same attorney. In addition to Sammer Essi, and Gabriel
Sande, individually, Metro Lounge was named as an entity.
On January 3, 2012, I granted defense counsel's motion to
withdraw. (Text Order dated Jan. 3, 2012). Mr. Essi was
directed to obtain new counsel. (Id.) Mr. Sande, represented
by new counsel, 1 entered into a settlement agreement with
plaintiffs and was terminated as a defendant on April 11,
2012. (Dkt. No. 32).

On April 25, 2012, I held another status conference. Mr. Essi
attended the conference in-person. Plaintiff's counsel agreed
to send defendant Essi another copy of the discovery requests
because defendant had still failed to respond to discovery.
I gave defendant Essi until May 18, 2012 to respond to the
outstanding discovery. To the extent that documents were
no longer available, defendant Essi was ordered to provide
the plaintiffs' counsel with a sworn affidavit, explaining how
the documents were lost or destroyed. (Text Order dated
April 25, 2012). Defendant Essi also stated that he had been
unable to retain an attorney to represent Metro Lounge. I
granted plaintiffs' counsel leave to file whatever motions he
deemed appropriate regarding the lack of representation for
the corporate defendant. (Id.)
*2 On June 8, 2012, plaintiffs filed a motion requesting
that, if defendant Metro Lounge did not appear by counsel
within fourteen days of an order requiring it to do so,
plaintiffs would be authorized to ask the Clerk to “enter
a Notice of Default” and upon such entry, the plaintiffs
would be authorized to move for a “Default Judgment.” (Dkt.
No. 34). On June 13, 2012, I issued a Text Order, giving
defendant Essi “one final opportunity to fully comply with
this court's 4/24/12 Text Order. In my June 13th Text Order,
I also stated that defendant Essi's failure to comply with
the court's prior orders by June 25, 2012 “MAY RESULT

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Broadcast Music, Inc. v. Metro Lounge & Cafe LLC, Not Reported in F.Supp.2d (2012)

IN THE IMPOSITION OF SANCTIONS AGAINST HIM
INCLUDING THE POSSIBLE ENTRY OF A DEFAULT
JUDGMENT ....“ (Text Order dated June 13, 2012).
On June 26, 2012, defendant Essi attempted to file a letter,
explaining why he could not afford to retain counsel for
Metro Lounge and explaining that some of the documents in
question were no longer available due to a fire and subsequent
water damage at the restaurant. (Dkt. No. 36). The letter was
stricken from the docket because defendant Essi neglected
to include a certificate of service on plaintiffs. (Dkt. No.
36). Also on June 26, 2012, plaintiffs filed a motion for
discovery sanctions, including default, against Mr. Essi as the
individual pro se defendant. (Dkt. No. 37). Defendant Essi has
not responded to the motion for sanctions. 2

II. Discovery Sanctions
A. Legal Standards
Rule 37(b) of the Federal Rules of Civil Procedure provides
that if an individual fails to comply with a court order
regarding discovery, the court may take various steps to
sanction the disobedient party. FED. R. CIV. P. 37(b)(2)(A)
(i-vii). The sanctions include an order establishing facts, an
order precluding evidence, issues or claims, and an order
striking pleadings. Id. Rule 37(b)(2)(A)(vi) authorizes the
court to render a default judgment for failure to comply with
a discovery order.
The imposition of sanctions under Rule 37 is within the
discretion of the district court. See Residential Funding Corp.
v. DeGeorge Fin. Corp., 306 F.3d 99, 107 (2d Cir2002).
A default judgment, the most severe sanction that a court
can apply, should be imposed as a discovery sanction
only in extreme circumstances. See Marfia v. T.C. Ziraat
Bankasi, New York Branch, 100 F.3d 243, 249 (2d Cir.1996)
(citations omitted). The court may consider the full record
in selecting the appropriate sanction. Southern New England
Telephone Co. v. Global NAPs, Inc., 624 F.3d 123, 144 (2d
Cir.2010) (citing Nieves v. City of New York, 208 F.R.D.
531, 535 (S.D.N.Y.2002)). The court should also consider the
willfulness of the non-compliant party; the reasons for the
noncompliance; the efficacy of lesser sanctions; the duration
of the noncompliance; and whether the party has been warned
of the consequences of the noncompliance. Amatangelo v.
National Grid USA Service Co., Inc., No. 04–CV–246, 2007
WL 4560666, at *8 (W.D.N.Y. Dec. 18, 2007) (citing 3801
Beach Channel, Inc. v. Shvartzman, No. 05–CV–207, 2007
WL 2891119, at *4 (E.D.N.Y.2007)). The party in question,

particularly a pro se litigant, must have had prior notice that
violation of the court's order would result in a dismissal or
a default judgment. Woodward v. Beam, No. 07–CV–645,
2008 WL 4998398, at *2 (W.D.N.Y. Nov. 19, 2008) (citations
omitted).
*3 Rule 37(b) (2)(C) provides that instead of, or in addition
to the various sanctions listed in the rule, the court must order
the disobedient party, the attorney for that party, or both to
pay the reasonable expenses, including attorneys fees, caused
by the failure, unless the failure was substantially justified or
other circumstances make the award of expenses unjust.

B. Application
In this case, plaintiffs move for a default judgment as a
sanction for Mr. Essi's failure to answer plaintiffs' request
for discovery after being ordered to do so several times by
the court. (Dkt. No. 37). Plaintiffs served their document
requests, interrogatories, and requests for admissions on
September 22, 2011. (Pls.' Exs. 1, 2) (Dkt. No. 37–1).
Defendant Essi did not respond to the discovery request, and
plaintiffs sent a second request on October 28, 2011. (Pls.'
Ex. 3). On November 8, 2011, plaintiffs served a notice to
take defendant Essi's deposition on December 9, 2011. (Pls.'
Ex. 4). Defendant Essi has never responded to the plaintiffs'
interrogatories at all.
At the same time that the court granted defendant Essi's
counsel's motion to withdraw, the court reminded defendant
Essi that the “[o]utstanding interrogatories and document
requests must be provided to new counsel, and that defendant
Essi must advise his new attorney that the responses were due
by January 31, 2012. (Text Order Dated Jan. 3, 2012). On
January 10, 2012, after defendant Essi told the court that he
had been unable to retain new counsel, I gave the defendant
an extension of time to do so, but told him that the “previously
set” deadlines for providing “past-due” discovery responses
and to submit to a deposition “remain in effect .” (Text Order
dated Jan. 10, 2012).
Defendant Essi did not respond to the discovery, and on
February 22, 2012, I told plaintiffs' counsel to provide
defendant with “another copy” of the interrogatories and
document requests “the responses to which are delinquent.” I
ordered defendant Essi to respond to those discovery requests
by March 31, 2012, notwithstanding his inability to locate an
attorney. I also told defendant Essi that he must submit to a
deposition on or before April 29, 2012. On March 30, 2012,
defendant served an incomplete response to the plaintiffs' first

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Broadcast Music, Inc. v. Metro Lounge & Cafe LLC, Not Reported in F.Supp.2d (2012)

request for documents. (Pls.' Ex. 6). The “response” consisted
of the plaintiffs' papers, with defendant Essi's handwritten
responses to some of the requests.
There were brief penciled-in responses to Requests Nos. 8–
14, which were not “documents,” but were statements of
what the documents might contain. Request No. 8 asked
for all documents reflecting the maximum lawful capacity
of the entire Metro Lounge. Defendant simply penciled-in
“101 capacity.” Although defendant's penciled-in responses
for Requests Nos. 9, 11–12, state that documents were
“enclosed,” plaintiffs state that no documents were attached.
Defendant stated that there were no records reflecting the
music performed or provided at the Metro Sushi Lounge on
November 6, 2009 and November 7, 2009. In response to the
question asking about documents reflecting ownership of the
building, defendant penciled-in that the building was “owned
by uncle.” Plaintiffs requested a copy of the defendant's
ASCAP licensing agreements from 2007 until the present,
and defendant answered that the “bill” was enclosed “what we
could salvage.” However, plaintiffs claim that no document
was attached to the responses. Defendant Essi does not claim
otherwise.
*4 On April 25, 2012, I held another status conference, and
I ordered the plaintiffs to provide defendant Essi “another
copy” of the discovery requests for which the responses
were still outstanding, including sworn responses to plaintiffs'
interrogatories. (Text Order dated April 25, 2012). I told
plaintiff to provide “any other available documents,” and to
the extent that the documents were no longer available, he was
to provide an affidavit, explaining the circumstances under
which the relevant documents were lost or destroyed as a
result of a fire and/or other events at the Metro Lounge.
Notwithstanding my April 25, 2102 order, defendant Essi
failed to provide the requested material, and failed to provide
a sworn statement, attesting to the unavailability of the
documents requested. On June 12, 2012, plaintiffs filed
a letter, asking the court to “reissue” its April 25, 2012
Text Order, giving defendant Essi another chance to comply
with discovery requests or suffer the consequences of a
potential default judgment. (Dkt. No. 35). On June 13, 2012,
I issued another Text Order, giving defendant Essi “one
final opportunity” to fully comply with this court's prior
order. (Text Order dated June 13, 2012). In my June 13th
Order, I specifically warned defendant Essi that his failure
to comply with the court's orders by June 25, 2012 could
result in the imposition of sanctions “INCLUDING THE

POSSIBLE ENTRY OF A DEFAULT JUDGMENT....” (Id.)
The warning to defendant was crystal clear.
Defendant Essi's, June 26, 2012 “attempted” filing
requested assistance from the court in proceeding toward
“settlement.” (Dkt. No. 36). The letter explained defendant
Essi's problems with the business and noted that his “partner”
was able to settle with plaintiffs for considerably less than
they were asking from him. Defendant attached a four page
document, purportedly a letter, addressed to BMI. In the letter
addressed to the court, defendant also mentioned his problems
with insurance and other issues. The document was not sworn
to as the court had directed, and there was no certificate of
service upon plaintiffs. 3 Defendant still failed to obey the
court's orders regarding discovery. I ordered that the letter be
stricken because of the deficiencies. (Dkt. No. 38). He has
also failed to respond to the motion for discovery sanctions.
Based upon the entire record and upon defendant Essi's
continued failure to abide by the court's orders, the court finds
that a default judgment would be appropriate. Defendant has
willfully failed to produce the relevant documents after at least
four orders to do so by the court. When he “responded” to
the document requests, he neglected to attach the documents
that he stated he was attaching to the response. The court
understood that some of the documents could be unavailable
and afforded defendant the opportunity to submit an affidavit,
explaining why he could not produce these documents.
Defendant also failed to comply with that order.
*5 Defendant states that the reason for the noncompliance
is because the documents may not be available due to a
fire and subsequent water damage at the Metro Lounge.
However, as stated above, defendant listed some documents
in the response he sent to plaintiffs without attaching the
relevant documents. If that had been a mistake, he could
have corrected it by sending the documents by separate cover,
but he has not done so even after the plaintiffs pointed it
out in their motion for discovery sanctions. When given
the opportunity to submit an affidavit, attesting that certain
documents were no longer available to him, he failed to
comply. Thus, although the court was somewhat sympathetic
to his stated plight and his lack of funds, defendant has not
acted in good faith with respect to plaintiffs' attempts at
discovery, nor has he acted in good faith in complying with
the court's orders.
The defendant's failure to comply has now lasted since
September of 2011, when plaintiffs first requested the

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Broadcast Music, Inc. v. Metro Lounge & Cafe LLC, Not Reported in F.Supp.2d (2012)

discovery. It does not appear that defendant will ever send the
documents to the plaintiff. “Lesser” sanctions are ineffective
because it is unclear that defendant could pay monetary
sanctions, and prohibiting him from presenting evidence
is tantamount to a default judgment in this case. Finally,
defendant was specifically warned that his continued failure
to abide by the court's orders could result in the entry of a
default judgment against him. Thus, this court recommends
that a default judgment be entered as to liability.
The court notes that Rule 37 also provides for attorneys fees
and costs in addition to or in lieu of any other sanction,
unless the court finds such an award to be unjust. Fed.R.Civ.P.
37(b)(2) (C). Based upon this court's finding that a default
judgment should be entered in this case and if so, defendants
will be assessed damages for the statutory violations, the court
finds that to award additional fees at this time would be unjust,
and given defendant Essi's stated financial status, awarding
further expenses would be futile.

*6 Although Metro Lounge initially appeared through
counsel, the attorney withdrew, leaving the company
unrepresented. Mr. Essi was told numerous times that the
company could not proceed without counsel, and he initially
told the court that he would attempt to retain new counsel
for the company. However, it is clear from Mr. Essi's later
representations that he was not able to, and will not be able to
retain new counsel to defend on behalf of the company.
The appropriate action for the court to take when a defendant
corporation does not appear through counsel is to enter a
default judgment against the defendant. See Grace, 443 F.3d
at 192. In this case, plaintiffs' motion asks only that defendant
be given another two weeks within which to appear by
counsel. However, this court finds that defendant has been
well-aware of the requirement for quite some time, and that,
an additional two weeks would not solve the defendant's
problem. Thus, this court will recommend that a default
judgment be entered against Metro Lounge based on its
continued failure to appear through counsel after its original
attorney withdrew.

III. Default and Dismissal
A. Legal Standards
It is well-settled that a person who has not been admitted to
practice law may not represent anyone other than himself. 4
Lattanzio v. COMTA, 481 F.3d 137, 139–40 (2d Cir.2007).
See also 28 U.S.C. § 1654. In Berrios v. N.Y. City Housing
Authority, 564 F.3d 130, 133 (2d Cir.2009), the court made
it clear that the rule prohibiting an entity from proceeding
pro se applies to a corporation of which the individual is
the sole shareholder; a limited liability company of which he
is the sole member; a partnership of which he is a partner;
a co-party in the litigation; an estate that has beneficiaries
or creditors other than the lay litigant; or a minor child. Id.
Courts have also disapproved any circumvention of this rule
by the “procedural device” of assigning the corporation's
claims to the lay individual. See Sanchez v. Walentin, No.
10–CV–7815, 2012 WL 336159 (S.D.N .Y. Jan. 31, 2012)
(citing cases). A corporation may not take any action “pro se,”
including the execution of a stipulation of settlement. Grace
v. Bank Leumi Trust Co. of NY, 443 F.3d 180, 192–93 (2d
Cir.2006) (citations omitted). In Guest v. Hansen, 603 F.3d
15, 20 (2d Cir.2010), the Second Circuit stated that the court
has a responsibility to ensure appropriate representation for
the parties appearing before it, even if those parties do not
raise the issue.

IV. Damages
The plaintiffs' motion did not include an assessment of the
damages in this case. Although the damages are statutory,
there are costs and attorneys fees requested in the complaint.
(Dkt. No. 1). The court must ensure that there is a reasonable
basis for the damages specified in a default judgment. J
& J Sports Productions, Inc. v. Imperial Lounge & Sports
Bar, Inc., No. CV 08–2061, 2012 WL 1356598, at *1–
2 (E.D.N.Y. March 30, 2012) (Report–Recommendation)
(citations omitted). Thus, although I recommend the entry of
a default judgment as to liability for both defendants based
on the record, damages must be determined at a later date.
Fed.R.Civ.P. 55(b)(2)(B). The court need not necessarily hold
a hearing on damages if the court may rely upon detailed
affidavits and documentary evidence. See United States v..
Cafolla, No. 5:12–CV–127, 2012 WL 2469968, at *5–6 & n.
3 (N.D.N.Y. June 27, 2012) (citations omitted).
WHEREFORE, based on the findings above, it is
RECOMMENDED, that plaintiffs' motion for discovery
sanctions in the form of a default judgment against individual
defendant Sammer Essi (Dkt. No. 37) be GRANTED, and
that a default judgment be entered with respect to liability
against the defendant, and it is

B. Application

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Broadcast Music, Inc. v. Metro Lounge & Cafe LLC, Not Reported in F.Supp.2d (2012)

RECOMMENDED, that plaintiffs' motion for an Order
giving defendant Metro Lounge fourteen (14) more days
within which to obtain an attorney (Dkt. No. 34) be DENIED
AS MOOT, and it is
RECOMMENDED, that a default judgment with respect to
liability be entered against defendant Metro Lounge based
upon its failure to appear through counsel, and it is
RECOMMENDED, that if the court adopts this
recommendation, the court hold a damage inquest by affidavit
or otherwise, to determine the amount of damages in this case,
and it is

ORDERED, that the Clerk serve copies of this Report–
Recommendation upon defendants.
*7 Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule
72.1(c), the parties have FOURTEEN (14) DAYS within
which to file written objections to the foregoing report.
Any objections shall be filed with the Clerk of the Court.
FAILURE TO OBJECT TO THIS REPORT WITHIN
FOURTEEN DAYS WILL PRECLUDE APPELLATE
REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir.1993)
(citing Small v. Secretary of Health and Human Services, 892
F.2d 15 (2d Cir.1989)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P.
6(a), 6(e), 72.

Footnotes

1
2
3
4

New counsel for Mr. Sande filed a notice of appearance on February 7, 2012. (Dkt. No. 27).
Defendant Essi cannot respond to the motion for the plaintiffs' June 8, 2012 motion for default because it is addressed to defendant
Metro Lounge, and defendant Essi may not respond on behalf of the LLC.
Although in the letter, plaintiff states that he was “forwarding” a copy to BMI and “would like a confirmation they received it in
writing,” it did not contain a proper certificate of service. (Dkt. No. 36).
An limited exception exists if an individual appears for an estate in which there are no other beneficiaries or creditors. See Guest v.
Hansen, 603 F.3d 15, 20 (2d Cir.2010). The exception is not applicable to this case.

End of Document

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