Silva et al v. Cofresi et al

Filing 43

MEMORANDUM AND ORDER: granting in part and denying in part 33 Motion to Strike. For the foregoing reasons, the plaintiff's motion (Docket no. 33) is granted in part and denied in part. As the defendant willfully did not comply with a court or der and provided discovery responses only after the instant motion was filed, the defendant shall pay the attorney's fees and costs associated with filing the motion, as well as the $65.30 incurred by the plaintiff in sending the defendant copies of the outstanding discovery requests. The defendant shall provide substantive responses to the plaintiff's Interrogatories and Second Request for Production by September 2, 2014. Failure to comply shall result in dismissal of the defendant's counterclaims and entry of a default judgment. (Signed by Magistrate Judge James C. Francis on 8/1/2014) Copies Mailed By Chambers. (djc)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
- - - - - - - - - - - - - - - - - -:
JULIAN SILVA, individually and on : 13 Civ. 3200 (CM) (JCF)
behalf of HANDLE WITH CARE
:
PRODUCTIONS, INC.,
:
MEMORANDUM
:
AND ORDER
:
Plaintiffs,
:
:
- against :
:
JOSE VASQUEZ COFRESI, individually,:
:
Defendant,
:
:
and
:
:
HANDLE WITH CARE PRODUCTIONS, INC.,:
A New York Corporation and Nominal :
Defendant,
:
:
Nominal Defendant. :
- - - - - - - - - - - - - - - - - -:
HANDLE WITH CARE PRODUCTIONS, INC.,:
A New York Corporation and Nominal :
Defendant and JOSE VASQUEZ COFRESI,:
individually,
:
:
Counter Claimants, :
:
- against :
:
JULIAN SILVA, individually,
:
:
Counter Defendant. :
- - - - - - - - - - - - - - - - - -:
JAMES C. FRANCIS IV
UNITED STATES MAGISTRATE JUDGE
In this long-simmering dispute over outstanding discovery
demands, the plaintiff, Julian Silva, seeks a court order striking
the defendant’s Answer and Counterclaims and granting judgment by
1

default

to

the

plaintiff,

or,

in

the

alternative,

an

order

compelling the defendant to provide the requested discovery.
Background
This case arises out of a discordant ending to a musical
partnership between Mr. Silva and the defendant, Jose Vasquez
Cofresi.

The parties are former bandmates who wrote and performed

salsa music together in the band La Excelencia.
5, 21, 24).

(Complaint, ¶¶ 4-

At issue here are outstanding discovery demands

initially served by the plaintiff on October 25, 2013. (Memorandum
in Support of Motion for Terminating Sanctions Pursuant to Fed. R.
Civ. Proc. 37 (“Pl. Memo.”), at 1).

After a consented-to 10 day

extension, the defendant’s responses were due on December 6, 2013.
(Pl. Memo. at 1).

At around this time, there was an apparent

breakdown in communication between Mr. Vasquez and his counsel.
(Affidavit of Michael D. Steger dated Dec. 12, 2013 (“Steger
Aff.”), ¶ 3).

On December 5, 2010, Mr. Vazquez’ then-attorney

notified his client of the outstanding discovery responses and
other

pending

deadlines;

the

defendant

terminated

the

representation several days later. (Steger Aff., ¶¶ 3-4; Pl. Memo.
at 2).

The following week, after granting prior counsel’s motion

to be relieved, the Court stayed the case for 60 days to allow the
defendant to retain new counsel.

(Pl. Memo. at 2; Memorandum

Endorsement granting Motion to Withdraw as Counsel dated Dec. 16,
2

2013; Memorandum Endorsement granting Motion to Stay dated Dec. 16,
2013).
On February 18, 2013, the defendant’s current counsel, Lowell
B. Davis, filed an appearance.
Appearance dated Feb. 17, 2014).

(Pl. Memo. at 2; Notice of
Plaintiff’s counsel e-mailed Mr.

Davis, informing him of the outstanding discovery responses and
requesting that the defendant respond by February 21, 2013.
Memo. at 2).
rather

than

(Pl.

Mr. Davis did respond by the deadline; however,
including

knowledge

of

regarding

any

the

the

discovery

discovery

arrangement

issues

with

the

responses,

and

asked

for

defendant’s

regarding an extension of time to respond.

he

disavowed

information

prior

counsel

(Letter of Lowell B.

Davis dated Feb. 21, 2014 (“Davis 2/21/14 Letter”), attached as
part of Exh. B to Declaration of Peter C. Dee dated June 11, 2014
(“Dee Decl.”)).

In his February 21 letter, Mr. Davis referenced a

letter sent to plaintiff’s counsel on February 19, 2014, requesting
copies of the plaintiff’s discovery requests and proof of service
(Davis 2/21/14 Letter); plaintiff’s counsel states that he never
received such a request and that the letter attached to Mr. Davis’
February 19 e-mail was instead addressed to the defendant’s prior
counsel, dated February 17, 2013, and sought billing information
(Pl. Memo. at 2; E-mail of Lowell B. Davis dated Feb. 21, 2014,
attached as part of Exh. B to Dee Decl.).
3

Plaintiff’s counsel

responded with a letter outlining the history of discovery in the
case, including communications with prior counsel and documentation
of the 10-day extension that expired before the case was stayed; he
did not, however, attach the discovery demands.

(Pl. Memo. at 2-

3; Letter of Peter C. Dee dated Feb. 24, 2014 (“Dee 2/24/14
Letter”), attached as Exh. C to Dee Decl.).

Plaintiff’s counsel

noted that unless the discovery responses were received by February
28, 2014, the plaintiff would file a motion to compel.
2/24/14 Letter).

(Dee

After defendant’s counsel objected that he still

did not have a copy of the discovery requests at issue, plaintiff’s
counsel provided the requests on February 28, 2014.
3).

(Pl. Memo. at

To get discovery on track, a discovery conference was held at

plaintiff’s request on March 25, 2014.

I then issued an order

requiring the plaintiff to provide defendant’s counsel with copies
of all prior discovery requests and responses and requiring the
defendant to serve its responses by May 15, 2014.

(Order dated

March 25, 2014).
On April 15, 2014, the plaintiff provided copies of the
outstanding discovery requests, as well as its responses to the
defendant’s discovery requests.

(Pl. Memo. at 3).

The defendant

responded to the Requests for Admission on April 23, 2014, but did
not respond to the plaintiff’s Interrogatories or Second Request

4

for Production.1

(Pl. Memo. at 3).

After plaintiff’s counsel

inquired about the missing responses, defendant’s counsel responded
that Mr. Vasquez was currently on tour in Russia and that, although
counsel had sent draft responses to Mr. Vasquez, his verifications
or corrections were needed before the responses could be provided.
(Pl. Memo. at 4; Letter of Lowell B. Davis dated May 27, 2014
(“Davis 5/27/14 Letter”), attached as Exh. F to Dee Decl.).
Plaintiff’s counsel alleges that screenshots from social media
websites and other publicly available information in fact showed
that Mr. Vasquez’ salsa troop did not depart for Russia until May
21, 2014, six days after the court-ordered deadline for discovery
responses. (Pl. Memo. at 4; Declaration of Julian Silva dated June
10, 2010 (“Silva Decl.”), ¶¶ 3-6 & Exhs. A-D). Defendant’s counsel
subsequently informed the plaintiff that Mr. Vasquez had returned
from Russia, but by the time this motion was filed on June 11,
2014, no discovery responses had been provided to the plaintiff’s
Interrogatories or Second Request for Production.

(Pl. Memo. at

4).
This dilatory pattern continued when the defendant failed to
oppose the plaintiff’s motion in a timely manner. On July 2, 2014,

1

The plaintiff also notes that the defendant has yet to
reimburse him for the costs associated with providing copies of the
discovery requests and responses, totaling $65.30, as required in
my March 25 order. (Dee Decl., ¶ 14; Order dated March 25, 2014).
5

defendant’s counsel asked to extend the then-expired deadline to
oppose the motion until July 11, 2014.

(Letter of Lowell B. Davis

dated July 2, 2014 (“Davis 7/2/14 Letter”)). Mr. Davis represented
that Mr. Vasquez had recently returned to the United States, that
the two had “beg[u]n working on responses and searching for
documents when he returned,” and that such responses would be emailed to the plaintiff on July 7, 2014.

(Davis 7/2/14 Letter).

The

2014,

opposition

was

served

on

July

16,

along

with

the

responses to the requested discovery, and I accepted it nunc pro
tunc.

(Order dated July 18, 2014).

The opposition consists of a

declaration submitted by Mr. Davis outlining objections to the
requested discovery and defenses to the action itself; the appended
discovery responses consist entirely of objections, and ultimately
no documents were produced.

(Undated Declaration of Lowell B.

Davis in Opposition to Plaintiff’s Motion for Relief Pursuant to
F.R.C.P. 37 (“Davis Decl.”)).
Discussion
Where “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. 37(b)(2)(A).

Such

orders include striking pleadings in whole or part, staying further
proceedings until the order is obeyed, dismissing the action in
whole or part, and ordering default judgment.
6

Fed. R. Civ. P.

37(b)(2)(A); see also Agiwal v. Mid Island Mortgage Corp., 555 F.3d
298, 302 (2d Cir. 2009) (noting that party’s failure to comply with
court-ordered discovery may result in terminating sanctions); Daval
Steel Products v. M/V Fakredine, 951 F.2d 1357, 1365 (2d Cir. 1991)
(“When

a

party

seeks

to

frustrate

[discovery]

by

disobeying

discovery orders, thereby preventing disclosure of facts essential
to

an

adjudication

appropriate.”).

on

the

merits,

severe

sanctions

are

Indeed, “[e]ven in the absence of a discovery

order, a court may impose sanctions on a party for misconduct in
discovery under its inherent power to manage its own affairs.”
Residential Funding Corp. v. DeGeorge Finanacial Corp., 306 F.3d
99, 106–07 (2d Cir. 2002); accord Hawley v. Mphasis Corp., No. 12
Civ. 592, 2014 WL 3610946, at *7 (S.D.N.Y. July 22, 2014).
Disciplinary

sanctions

under

Rule

37

serve

a

three-fold

purpose: (1) ensuring that a party will not benefit from its
failure to comply; (2) obtaining compliance with the Court’s
orders; and (3) serving as a deterrent both in the particular case
and

in

litigation

in

general.

Update

Art,

Inc.

v.

Modiin

Publishing, Ltd., 843 F.2d 67, 71 (2d Cir. 1988); accord Aliki
Foods, LLC v. Otter Valley Foods, Inc., 726 F. Supp. 2d 159, 178
(D. Conn. 2010); Richardson v. New York City Health & Hospitals
Corp., No. 05 Civ. 6278, 2007 WL 2597639, at *5 (S.D.N.Y. Aug. 31,
2007).

Harsh sanctions, such as default judgments, are reserved
7

for extreme situations.

See Agiwal, 555 F.3d at 302; see also

Shcherbakovskiy v. Da Capo Al Fine, Ltd., 490 F.3d 130, 140 (2d
Cir. 2007) (noting that “the severity of the sanction must be
commensurate with the non-compliance”).
When determining the appropriate sanction to impose under Rule
37, courts in this Circuit weigh several factors, including “(1)
the willfulness of acts underlying noncompliance; (2) the efficacy
of lesser sanctions; (3) the duration of noncompliance; and (4)
whether the noncompliant party was on notice that it faced possible
sanctions.”

Sentry Insurance A Mutual Co. v. Brand Management,

Inc., 295 F.R.D. 1, 5 (E.D.N.Y. 2013) (citing Agiwal, 555 F.3d at
302–03); Peterson v. Apple Inc., No. 12 Civ. 6467, 2013 WL 3963456,
at *2 (S.D.N.Y. Aug. 1, 2013). None of these factors is dispositive
by itself.

SEC v. Razmilovic, 738 F.3d 14, 25 (2d Cir. 2013)

(noting that “these factors are not exclusive, and they need not
each be resolved against the [sanctioned] party”).
A. Willfulness
When evaluating willfulness, the court considers whether the
order at issue was clear, whether the party to be sanctioned
understood

the

order,

and

whether

“factors beyond the party’s control.”

non-compliance

was

due

to

See In re Fosamax Products

Liability Litigation, No. 06 MD 1789, 2013 WL 1176061, at *2
(S.D.N.Y. March 21, 2013).

“[A] party’s persistent refusal to
8

comply with a discovery order presents sufficient evidence of
willfulness, bad faith or fault.”

Handwerker v. AT & T Corp., 211

F.R.D. 203, 209 (S.D.N.Y. 2002) (internal quotation marks omitted).
The March 25, 2014 order could not be clearer.

I directed the

defendant to provide responses to the outstanding discovery by May
15, 2014.

(Order dated March 25, 2014).

At no point did the

defendant, who was represented by counsel, seek an extension of
that deadline.

Finally, that deadline had passed before the

defendant embarked on the international travel that he asserts as
an excuse for the delay. I therefore consider the defendant’s noncompliance

to

be

willful,

which

weighs

in

favor

of

severe

sanctions.
B. Efficacy of Lesser Sanctions
The plaintiff argues that the only appropriate sanction is
dismissal

of

the

defendant’s

counterclaims,

both

due

to

the

willfulness of the defendant’s conduct and the prejudice suffered
by

the

plaintiff

as

a

result

of

the

defendant’s

delay

in

responding. (Pl. Memo. at 8-9). Indeed, even if the plaintiff had
not expended both time and money in seeking this discovery, the
Second Circuit has “consistently rejected the ‘no harm, no foul’
standard for evaluating discovery sanctions.”

South New England

Telephone Co. v. Global NAPs, Inc., 624 F.3d 123, 148-49 (2d Cir.
2010).

However, a court should always seek to impose the least
9

harsh sanction that will remedy the discovery violation and deter
such conduct in the future.

See Hawley, 2014 WL 3610946, at *7;

R.F.M.A.S., Inc. v. So, 271 F.R.D. 13, 24 (S.D.N.Y. 2010).

Severe

sanctions such as dismissal and default judgment are to be applied
sparingly, where no other sanction will suffice.

See Agiwal, 555

F.3d at 302.
The defendant has demonstrated a pattern of delay and failure
to

appreciate

the

seriousness

of

arguably continues to this day.

the

discovery

process

that

However, he has now provided

responses to the discovery requests in some form.

Although the

plaintiff notes that the current case management schedule will
preclude any necessary follow-up discovery (Pl. Memo. at 9), this
prejudice can be remedied by modifying the scheduling order to
allow the parties additional time to pursue discovery. Under these
circumstances, terminating sanctions may not be necessary to meet
the underlying purposes of Rule 37.
C. Duration of Non-Compliance
Almost four months elapsed between the court-ordered March 25
deadline and the service of the defendant’s responses to the
plaintiff’s Interrogatories and Second Request for Production on
July 16. Even before the March 25 conference, the defendant was on
notice that his discovery responses were overdue.

On December 5,

2013, Mr. Vasquez was informed by his former counsel of all pending
10

case deadlines, including discovery deadlines (Steger Aff., ¶ 4),
and he nonetheless did not provide responses by the agreed-to
deadline of December 6, 2014.

When the case was revived after Mr.

Vasquez engaged new counsel, plaintiff’s counsel communicated to
defendant’s counsel that there was outstanding discovery, informed
defendant’s counsel that he was considering filing a motion to
compel, and provided copies of the discovery requests at issue.
(Pl. Memo. at 2-3; Dee 2/24/14 Letter). Although the defendant has
now provided responses to the plaintiff’s discovery demands, a
party’s “hopelessly belated compliance should not be accorded great
weight,”

as

“[a]ny

other

conclusion

would

encourage

dilatory

tactics, and compliance with discovery orders would come only when
the backs of counsel and the litigants were against the wall.”
South New England Telephone Co., 624 F.3d at 149 (quoting Cine
Forty-Second Street Theatre Corp. v. Allied Artists Pictures Corp.,
602 F.2d 1062, 1068 (2d Cir. 1979)).

Given the defendant’s long-

standing refusal to comply with discovery obligations, both before
and after the court order, this factor also weighs in favor of
sanctions.

See Gurvey v. Cowan, Liebowitz & Lathman, P.C., No. 06

Civ. 1202, 2014 WL 715612, at *6 (S.D.N.Y. Feb. 25, 2014) (finding
non-compliance that “has lasted months and is still ongoing”
weighed in favor of sanctions); Martin v. City of New York, No. 09
Civ. 2280, 2010 WL 1948597, at *2, *4 (S.D.N.Y. May 11, 2010)
11

(dismissing action where interrogatory responses still outstanding
one month after court-ordered deadline, and two and one-half months
after initial deadline).
D. Notice of Possible Sanctions
The defendant has not been formally notified that a violation
of his discovery obligations may subject his counterclaims to
dismissal

or

a

default

judgment.

Although

parties

have

no

“absolute entitlement to be warned that they disobey court orders
at their peril,” Daval Steel, 951 F.2d at 1366 (internal quotation
marks omitted), providing such notice is customary, Nieves v. City
of New York, 208 F.R.D. 531, 536 (S.D.N.Y. 2002) (imposing sanction
of dismissal only where party’s “flagrant disregard for discovery
orders” continued despite “repeated and explicit warnings.”). This
factor

thus

weighs

against

severe

sanctions.

However,

the

defendant is now on notice that non-compliance with court orders
raises the possibility of case-ending sanctions.
E. Fee Shifting
Where a party fails to comply with a court order to provide
discovery,

“the

court

must

order

the

disobedient

party,

the

attorney advising that party, or both to pay the reasonable
expenses, including attorney’s fees, caused by that failure.” Fed.
R. Civ. P. 37(b)(2)(C).

This cost-shifting is mandatory “unless

the failure was substantially justified or other circumstances make
12

an award of expenses unjust.”

Fed. R. Civ. P. 37(b)(2)(C); see

Novak v. Wolpoff & Abramson LLP, 536 F.3d 175, 178 (2d Cir. 2008)
(per curiam) (“The use of the word ‘shall’ certainly suggests that
an award of expenses is mandatory unless one of the two exceptions
-- substantial justification or other circumstances -- applies.”).
The same standard applies where a party provides the sought-after
discovery after a motion to compel has been filed.
37(a)(5).
relatively

Indeed,

“attorney

moderate

sanction”

permissible under Rule 37.

fee-shifting
in

the

Fed. R. Civ. P.

is

considered

spectrum

of

a

sanctions

Lopa v. Fireman’s Fund Insurance Co.,

No. 11 CV 2973, 2014 WL 2041822, at *3 (E.D.N.Y. May 16, 2014); see
also Cine Forty–Second St. Theatre, 602 F.2d at 1066 (describing
reimbursement

as

mildest

sanction

for

failure

to

cooperate);

R.F.M.A.S., 271 F.R.D. at 22 (listing available sanctions in order
of severity, with cost shifting as second mildest).
A party’s conduct is substantially justified if “‘there was a
genuine dispute or if reasonable people could differ as to the
appropriateness of the contested action.’”

Klein v. Torrey Point

Group, LLC, 979 F. Supp. 2d 417, 442 (S.D.N.Y. 2013) (quoting
Underdog Trucking, L.L.C. v. Verizon Services Corp., 273 F.R.D.
372, 377 (S.D.N.Y. 2011)).

The non-compliant party bears the

burden of proof in showing that his failure to comply was justified
or that an award of expenses would be unjust.
13

See Novak, 536 F.3d

at 178; accord John Wiley & Sons, Inc. v. Book Dog Books, LLC, 298
F.R.D. 145, 148 (S.D.N.Y. 2014).
The defendant’s opposition is utterly devoid of any claim of
substantial justification or unjust circumstances.

(Davis Decl.).

As discussed above, the defendant instead focuses on objecting to
the propounded discovery, going so far as to argue that federal
question jurisdiction may not exist because other bands also use
the “La Excelencia” name.

(Davis Decl.).

As noted in the

plaintiff’s Reply, a failure to serve answers to interrogatories or
respond to a request for inspection “‘is not excused on the ground
that the discovery sought was objectionable,’” absent a pending
motion for a protective order.

(Reply Memorandum in Support of

Motion to Compel at 4 (quoting Fed. R. Civ. P. 37(d)(2))).
Even the justifications offered by defendant’s counsel in his
communications with plaintiff’s counsel are insufficient.
defendant’s

trip

to

Russia

does

not

constitute

The

substantial

justification for the delay in responding to the requests.

The

defendant was aware, through both prior and current counsel, of the
discovery requests at issue.

At the time the case was stayed in

December 2013, those requests were already outstanding and overdue.
Pursuant to my March 25 Order, those responses were due on May 15,
2014, before Mr. Vasquez’ trip to Russia.
substantial

justification

or

unjust
14

Without any indicia of

circumstances,

monetary

sanctions in the form of attorney’s fees and costs are both
mandatory and appropriate.
More severe sanctions, however, are not warranted.

The

prejudice experienced by the plaintiff can be largely remedied by
an extension of the discovery schedule and the reimbursement of
attorney’s fees and costs expended in pursuing this discovery.
Moving

forward,

however,

Mr.

Vasquez

and

his

attorney

are

admonished to honor all discovery obligations scrupulously.
In addition, due to the belated nature of the defendant’s
responses, all objections are deemed waived and the defendant is
ordered to serve substantive responses and documents in response to
the plaintiff’s Interrogatories and Second Request for Production.2
Fed. R. Civ. P. 33(b)(4) (requiring that objections not stated in
a timely manner are waived “unless the court, for good cause,
excuses the failure”); see also Gropper v. David Ellis Real Estate,
L.P., No. 13 Civ. 2068, 2014 WL 518234, at *3 (S.D.N.Y. Feb. 10,
2014); Sudolfsky v. Fiesta Products, LLC, 252 F.R.D. 143, 154
(E.D.N.Y. 2008); Horace Mann Insurance Co. v. Nationwide Mutual
Insurance Co., 238 F.R.D. 536, 538 (D. Conn. 2006) (deeming

2

I also note the inconsistency between the defendant’s
relevance objections to discovery related to contractual
relationships and the defendant’s own counterclaims for breach of
contract and intentional interference with contractual relations.
(Defendants’ Answer to Complaint and Counterclaims).
15

attorney-client privilege objections waived when asserted 22 days
after consented-to deadline); Smith v. Conway Organization, Inc.,
154 F.R.D. 73, 76 (S.D.N.Y. 1994)

(deeming work-product objections

waived when asserted nearly four months after document request was
served) .

No good cause has been provided here for accepting the

belated objections.
Conclusion
For the foregoing reasons, the plaintiff's motion (Docket no.
33)

is granted

in part and denied

in part.

As

the

defendant

willfully did not comply with a court order and provided discovery
responses only after the instant motion was filed,

the defendant

shall pay the attorney's fees and costs associated with filing the
motion, as well as the $65.30 incurred by the plaintiff in sending
the defendant copies of the outstanding discovery requests.

The

defendant shall provide substantive responses to the plaintiff's
Interrogatories and Second Request for Production by September 2,
2014.

Failure

to

comply

shall

result

in

dismissal

defendant's counterclaims and entry of a default judgment.

SO ORDERED.

~
l,,)~~~D

c.~~E:
C. FRANCIS IV
STATES MAGISTRATE JUDGE

16

of

the

Dated: New York, New York
August l, 2014
Copies mailed this date:
Peter C. Dee, Esq.
Mavronicolas Mueller & Dee, LLP
950 Third Ave., 10th Floor
New York, NY 10022
Lowell B. Davis, Esq.
One Old Country Road
Carle Place, NY 11514

17