Silva et al v. Cofresi et al

Filing 58

MEMO ENDORSEMENT re: 56 Report and Recommendations. ENDORSEMENT: I have reviewed the "objections". They are entirely without merit in view of the excellent and convincing Report of Judge Francis. I adopt the Report as the opinion of the Court, strike the answer and counterclaims, and direct entry of judgment for plaintiff by default. The clerk will enter judgment and close the case. (Signed by Judge Colleen McMahon on 11/19/2014) (kgo)

I
UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK
-

-· -

-

- - - - -

-

(JCF)

13 Civ. 3200 (CM)

JULIAN SILVA, individually and on
behalf of HANDLE WITH CARE
PRODUCTIONS, INC.,

REPORT AND
RECOMMENDATION

Plaintiffs,
- against JOSE VASQUEZ COFRESI, individually,:

USDS SDNY
DOCUMENT
ELECTRONICALLY FILED

Defendant,
and
HANDLE WITH CARE PRODUCTIONS, INC.,:
A New York Corporation and Nominal
Defendant,
Nominal Defendant.

- - - - - - -

-

-

-

DOC#:~~~~--.-~~

i l DATE FILED: -1-<>....,_..~......__.___

-·

HANDLE WITH CARE PRODUCTIONS, INC.,:
A New York Corporation and Nominal :
Defendant and JOSE VASQUEZ COFRESI,:
individually,

USDC

SD~V

I

DOCU~JE'\T

Counter Claimants,

1

ELEC" RO'dC\LLY FILED·

against

IJOC#

D.\TEl

JULIAN SILVA, individually,

El>":

I

I

II,~,,~

. I'

Counter Defendant.
TO THE HONORABLE COLLEEN McMAHON, U.S.D.J.:
For the second time in a year- long discovery dispute,
plaintiff,
defendant's

Julian
answer

Silva,
and

default to the plaintiff.

seeks

a

court

counterclaims

striking

and granting

For the foregoing reasons,

that the plaintiff's motion be granted.
Background

order

judgment

the
the
by

I recommend

partnership between Mr.
The

Cofresi.

Silva and the defendant,

partners

are

former

band-mates

who

wrote

and

(Complaint, ~~ 4-5,

performed together in the band La Excelencia.
21, 24).

Jose Vasquez

At issue here are outstanding discovery demands initially

served by the plaintiff on October 25,

(Memorandum in

2013.

Support of Motion for Terminating Sanctions Pursuant to Fed. R.
Civ. Proc. 37 ("Pl. Memo.") at 2; Reply Memorandum in Support of
Motion to Strike and Motion for Default Judgment ("Reply") at 5-7) .
After

many

months

of

delays,

compounded

by

the

defendant's

termination and replacement of counsel, I issued an order on March
25, 2014 requiring, among other things, that the defendant respond

to the plaintiff' s discovery demands by May 15,
dated March 25, 2014
when

the

("March 24 Order")).

pl~·in.'¥~££~",:'liie~ his

first

2o14 . 1

(Order

As of June 11, 2014,

motion

for

terminating

sanctions, the defendant had responded to the plaintiff's Requests
"'

for Adfuf ksion but not to
Production.

Silva,

th~

Interrogatories or Second Request for

2014 ~ 3809095,
\'
,,

at *2.

When the defendant

c,<'"\T

belatedly answered the motion, he attached discovery responses that
consisted entirely of objections.

Silva, 2014 WL 3809095, at *2.

On August 1, 2014, I deemed the defendant's objections waived
because

they

responses

by

were

untimely,

September

plaintiff's attorneys'

2,

ordered him
2014,

and

to

ordered

serve
him

substantive
to

pay

the

fees and costs associated with filing the

1

The details of the discovery disputes and delays prior to
the March 25, 2014 order are included in my August 1, 2014 order.
See Silva v. Cofresi, No. 13 Civ. 3200, 2014 WL 3809095, at *l-2
(S.D.N.Y. Aug. 1, 2014).
2

motion. Id. at *6.
The

second motion for

September 16, 2014.
plaintiff

asserts

"[d] efendant

has

terminating sanctions was

(Notice of Motion dated Sept. 16, 2014).
that

since

again

failed

outstanding

discovery,"

defendant's

counterclaims

and

the

(incorrectly)

outstanding

discovery

for

be

2014

any

response

an

directing

interprets
to

1,

to provide

moves

and

August

default judgment for the plaintiff.
defendant

filed on

limited

to

the

to

the
the

clerk

(Pl. Memo.
the

order,

striking

order

the

The

to

at 2,

plaintiff's

enter
5).

The

claims

Interrogatories

a

of

10-17

(Memorandum of Law in Opposition to Fed. R. Civ. Pro. 37 Motion to
Strike Defendant's Counterclaim and Answer ("Def. Memo.") at 1),
and argues on that basis that any sanctions should be limited to
the defendant's counterclaims (Def. Memo. at 4).
Discussion
fails to obey an order to provide or

Where "a party
permit discovery .

the court where the action is pending may

issue further just orders."

Fed. R. Civ.

P. 37(b) (2) (A).

Such

orders may include striking pleadings in whole or in part, staying
further proceedings until

the

order

is

obeyed,

dismissing

action in whole or in part, and ordering default judgment.

the

Fed. R.

Civ. P. 37(b) (2) (A); see also Agiwal v. Mid Island Mortgage Corp.,
555 F.3d 298, 302
comply with

(2d Cir. 2009)

(noting that party's failure to

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]
3

by disobeying discovery orders, thereby preventing disclosure of
facts essential to an adjudication on the merits, severe sanctions
are appropriate.").

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 Financial Corp., 306 F.3d 99,
106-07 (2d Cir. 2002); accord Hawley v. Mphasis Corp., _

F.R.D.

, 2014 WL 3610946, at *7 (S.D.N.Y. 2014).
Sanctions

under

Rule

37

of

the

Procedure serve a three-fold purpose:
will

not

benefit

from

its

Federal
(1)

failure

to

Rules

of

Civil

to ensure that a party
comply;

(2)

to

obtain

compliance with the Court's orders; and (3) to deter noncompliance,
both in the particular case and in litigation in general.
Art,

Inc. v.

Modiin Publishing,

Ltd.,

843 F.2d 67,

71

Update
(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. OS Civ. 6278, 2007 WL 2597639, at *5
(S.D.N.Y.

Aug.

31,

2007).

Harsh

sanctions

such

judgments are reserved for extreme situations.

as

default

See Agiwal,

555

F.3d at 302; see also Shcherbakovkiy v. Da Capo Al Fine, Ltd., 490
F.3d 130, 140 (2d Cir. 2007)

(noting that "the severity of 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,
the willfulness of acts underlying noncompliance;
of lesser sanctions;

(3)

including "(1)
(2) the efficacy

the duration of noncompliance; and
4

(4)

whether the noncompliant party was on notice that it faced possible
sanctions."

Sentry Insurance A Mutual Co.

Inc., 295 F.R.D. 1, 5 (E.D.N.Y. 2013)

v.

Brand Management,

(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.

dispositive.

1,

2013).

None of these factors alone is

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 noncompliance was due to "factors
beyond the party's control."

See Davis v. Artuz, No. 96 Civ. 7699,

2001 WL 50887, at *3 (S.D.N.Y. Jan. 19, 2001)

(citing Baba v. Japan

Travel Bureau International, Inc., 165 F.R.D. 398, 402-03 (S.D.N.Y.
1996), aff'd, 111 F.3d 2 (2d Cir. 1997)).
refusal

to

comply

with

a

discovery

"[A] party's persistent

order

evidence of willfulness, bad faith or fault."
Corp.,

211 F. R. D.

203,

209

(S. D. N. Y.

2002)

presents

sufficient

Handwerker v. AT&T
(internal quotation

marks omitted) .
My August 1, 2014 order was indisputably clear.

I directed

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

Silva, 2014 WL 3809095, at *6.

defendant had "willfully

[failed to]

Further, noting that the

comply with

[the March 25,

2014] court order and provided discovery responses only after the
5

[first]
that

motion

[for terminating sanctions]

"[fJailure

to

comply

shall

was filed,

result

in

I warned

11

dismissal

of

defendant's counterclaims and entry of a default judgment."

the
Id.

At no point did the defendant, who continues to be represented by
counsel,

seek an extension of

opposition

to

the

motion

for

the

September 2

terminating

deadline.

sanctions

His

gives

no

indication that the noncompliance was due to "factors beyond the
party's control."

Davis, 2001 WL 50887, at *3.

I therefore find

that the defendant's noncompliance was willful,

which weighs in

favor of sanctions.
B.

Efficacy of Lesser Sanctions

A court should always seek to impose the least harsh sanction
that will remedy the discovery violation and deter such conduct in
the future.

See Hawley,

~

F.R.D. at

, 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.

In this case,

the plaintiff argues that

"only terminating

sanctions can remedy the [defendant's] noncompliance,

11

both because

of the willfulness of the defendant's conduct and the prejudice
suffered by the plaintiff.

(Pl. Memo.

at 5-7).

The plaintiff

notes that the prejudice he has suffered (with respect to both his
ability to

litigate his

own claims

and his

ability

to

defend

against the counterclaims) cannot be overcome by further scheduling
extensions,

as

I

ordered on August
6

14,

2014

that

no

further

extensions would be granted.
maintaining

the

that

Interrogatories

10-17 2

(Pl.

Memo.

are

claims

plaintiff's
(Def.

The defendant ,

Memo. at 6)

at

1),

argues

limited
that

to

"[a] ny

appropriate sanction of preclusion should be limited to defendant's
counterclaim [sic]."

(Def. Memo. at 4).

Lesser sanctions have proved ineffective in this case.

The

defendant was warned that further noncompliance would result in the
dismissal of his counterclaims and entry of a default judgment in
favor of the plaintiff.

Silva, 2014 WL 3809095, at *6.

Further,

he was ordered to pay the attorney's fees and costs incurred by the
plaintiff

as

a

result

of

his

Id.

noncompliance.

at

*5-6.

Nonetheless, the defendant persisted in his refusal to comply with
court orders and to appreciate the seriousness of the discovery
process.

It therefore appears that terminating sanctions are the

least harsh sanction that will remedy the discovery violation and
deter such conduct in the future.
2014 WL 3610946, at *7.

See Hawley,

~

F.R.D. at

This would be true even if the plaintiff

had not expended both time and money in seeking the discovery in
question, as 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, 14849 (2d Cir. 2010).

2

As the plaintiff makes clear, the outstanding discovery is
not so limited.
(Reply at 5- 7) .
While the prior motion for
terminating sanctions specifically highlighted some infirmities
with the defendant's responses to Interrogatories 10-17, the
presently outstanding discovery includes all substantive responses
ordered by the court on August 1, 2014.
7

C.

Duration of Noncompliance

On March 25, 2014, I ordered the defendant to respond to all
outstanding discovery requests by May 15, 2014.
Over

two

months

defendant

served

objections.

after

this

discovery

deadline,
responses,

on

(March 25 Order).

July

16,

consisting

2014,

the

entirely

of

(Undated Declaration of Lowell B. Davis in Opposition

to Plaintiff's First Motion for Relief Pursuant to F.R.C.P. 37).
Nearly two months after the September 2, 2014 deadline, by which
the

defendant

plaintiff's

was

to

provide

substantive

responses

Interrogatories and Second Request

for

to

Production,

Silva,

2014 WL 3809095, at *6, he still has not done so.

Memo.

at

2;

Reply

at

5-7).

These

more

recent

the

periods

(Pl.
of

noncompliance were preceded by the defendant's failure to adhere to
the original, agreed-upon discovery deadline of December 6, 2013,
and

failure

counsel.

to

remedy

this

failure

once

he

had

retained new

Silva, 2014 WL 3809095, at *4.

The defendant's long-standing refusal to comply with discovery
obligations,

both before and after court orders,

favor of sanctions.

See Gurvey v.

Cowan,

also weighs in

Liebowitz & Lathman,

P.C., No. 06 Civ. 1202, 2014 WL 715612, at *6 (S.D.N.Y. Feb. 25,
2014)

(finding noncompliance that "has lasted months and is still

ongoing" to weigh 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)

(dismissing case where plaintiff's interrogatory responses

were still outstanding approximately one year after interrogatories
served and one month after latest court-ordered deadline) .
8

D.

Notice of Possible Sanctions

As stated in the order itself, my August 1, 2014 order put the
defendant "on notice that non-compliance with court orders raises
the possibility of case-ending sanctions," explicitly warning that
"[f]ailure to comply shall result in dismissal of the defendant's
Silva,

counterclaims and entry of a default judgment."
3809095, at *4, *6.
of sanctions.

2014 WL

This factor therefore weighs strongly in favor

See Nieves v. City of New York, 208 F.R.D. 531, 536

(S.D.N.Y. 2002)

(dismissing case where party's "flagrant disregard

for discovery orders"

continued despite

"repeated and explicit

warnings" ) .
Appropriate Sanctions

E.

1.
Based
sanctions

Dismissal of
Judgment
on

are

the
the

Counterclaims

factors
least

discussed

harsh

and Entry of

above,

sanction

that

Default

case-terminating
will

remedy

the

persistent discovery violations in this case and deter such conduct
in the future.

The defendant provides no explanation for his

failure to comply with the August 1,
Rather,

he focuses,

terminating

2014 order.

(Def . Memo . ) .

as in his opposition to the last motion for

sanctions,

Silva,

2014

WL

3809095,

at

*5,

on his

objections to the plaintiff's discovery requests (Def. Memo. at 24).

But those objections have long since been waived.

Id. at *6.

The defendant has repeatedly, willfully violated court orders in
the face of the lesser sanction of fee shifting and despite a clear
warning

that

sanctions.

further

violations

Accordingly,

would

result

in

terminating

the defendant's counterclaims should be
9

dismissed, and a default judgment should be entered in favor of the
plaintiff.
2.

Fee Shifting

Where a party fails to comply with a court order to provide
discovery,
attorney

"the

court

advising

must

that

order

party,

or

the

disobedient

both

to

pay

party,

the

reasonable

expenses, including attorney's fees, caused by that failure."
R. Civ. P. 37(b) (2) (C).

the

Fed.

This cost-shifting is mandatory "unless

the failure was substantially justified or other circumstances make
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)

(noting

that

language

of

subsection

"certainly

suggests that an award of expenses in mandatory unless one of the
two exceptions -- substantial justification or other circumstances
applies").

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."
Group,

LLC,

979 F.

Supp.

quotation marks omitted) .

2d 417,

442

Klein v. Torrey Point

(S. D. N. Y.

2013)

(internal

The noncompliant party bears the burden

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

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).
Peter
attorneys'

Dee,

counsel

for

the

plaintiff,

asserts

that

the

fees and costs associated with the plaintiff's second
10

motion for terminating sanctions totaled $2,508.

c.

Peter
2).

Dee, Esq. dated Oct. 14, 2014

(Declaration of

("Dee 10/14/14 Deel.") at

This total includes 2.45 hours of work by Mr. Dee, at a rate

of $340 per hour, and 6.7 hours of work by Mr. Dee's co-counsel,
Nicholas Ranallo, at a rate of $250 per hour.
at 2) .

As discussed above,

(Dee 10/14/14 Deel.

the defendant's opposition does not

provide any explanation for his failure to comply with the August
1, 2014 order, let alone a claim of substantial justification or
unjust circumstances.

(Def.

Memo.) .

In light of this,

and in

light of the reasonableness of the time spent and rate charged by
the plaintiff's counsel,

monetary sanctions totaling $2,508 are

both mandatory and appropriate. 3
Conclusion
For the foregoing reasons,

I recommend that the plaintiff's

motion to dismiss the defendant's counter-claims and enter judgment
for the plaintiff by default (Docket no. 47) be granted.

Because

the defendant willfully did not comply with a court order,

the

defendant shall pay the $2,508 in attorneys' fees associated with
filing the motion,

as well as the $5,898 incurred in filing the

3

The defendant was previously ordered to pay the attorneys'
fees associated with the plaintiff's first motion for terminating
sanctions.
Silva, 2014 WL 3809095, at *6.
The defendant is
advised that he is still obligated to pay those costs and fees in
addition to the $2,508 related to the instant motion. Although not
specified in my August 1, 2014 order, the total owed by the
defendant in attorney's fees from the first motion for terminating
sanctions is $5, 898, based on the same rates described above.
(Declaration of Peter C. Dee, Esq. dated July 25, 2014, at 2).
11

previous motion, for a total of $8,406. 4
Pursuant to 28

u.s.c.

§

636(b) (1) and Rules 72, 6(a), and 6(d)

of the Federal Rules of Civil Procedure,
fourteen

(14)

the parties shall have

days from this date to file written objections to

this Report and Recommendation.

Such objections shall be filed

with the Clerk of the Court, with extra copies delivered to the
chambers of the Honorable Colleen McMahon, Room 1640, and to the
chambers of the undersigned, Room 1960, 500 Pearl Street, New York,
New York 10007.

Failure to file timely objections will preclude

appellate review.

Respectfully submitted,

c)

J.J. i.J,4

e.~ r>..v..rJ TL'

JAMES C. F
CIS IV
UNITED STATES MAGISTRATE JUDGE

Dated: New York, New York
October 31, 2014
Copies mailed this date:
Peter C. Dee, Esq.
Mavronicolas & Dee, LLP
415 Madison Ave., 18th Floor
New York, NY 10017
Lowell B. Davis, Esq.
One Old Country Road
Carle Place, NY 11514

4

Any dispute between the defendant and his counsel as to the
apportionment of this payment shall be brought to my attention for
resolution.
·

12