Pelgrift et al v. 355 W, 51st Tavern Inc. et al
MEMORANDUM AND ORDER. For the foregoing reasons, Plaintiffs' motion to strike Defendants' Answer is GRANTED. As a result, Defendants are in default. See Oscar De La Renta Ltd. v. Strelitz Ltd., No. 92-CV-3907 (CES), 1993 WL 267341, at *1 (S .D.N.Y. July 12, 1993). The Court will set a schedule for Plaintiffs to file for default judgment by separate order. The final pretrial conference currently scheduled for March 4, 2016 and the trial currently scheduled to commence March 14, 2016 are adjourned sine die. This resolves Dkt. Nos. 35, 36, 38. Denying 35 FIRST LETTER MOTION for Extension of Time to complete a deposition addressed to Judge Alison J. Nathan from Louis F. Chisari dated 11/11/15; Terminating 36 LETTER MOTION for Exten sion of Time to File Response/Reply as to 35 FIRST LETTER MOTION for Extension of Time to complete a deposition addressed to Judge Alison J. Nathan from Louis F. Chisari dated 11/11/15; Granting 38 Motion for Sanctions. (Signed by Judge Alison J. Nathan on 2/23/2016) (rjm)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ILICftOMCALLY . . .
Patrizia Pelgrift et al.,
355 W. 51 st Tavern Inc. et al.,
ALISON J. NATHAN, District Judge:
Plaintiffs Patrizia Pelgrift, Iryna Lutsenko, and Valeriya Kolisnyk have brought this suit
against Defendants 355 W. 51 st Tavern Inc. and David Sheeran alleging wage-and-hour, sexual
harassment, and discrimination claims. Dkt. No. 1. After Defendant Sheeran failed to appear for
his deposition, Plaintiffs filed a motion to strike Defendants' answer pursuant to Federal Rule of
Civil Procedure 37. Dkt. No. 38. For the reasons articulated below, that motion is GRANTED.
Plaintiffs filed this lawsuit on November 10, 2014. Dkt. No. 1. Pursuant to the Court's
April 3, 2015 Civil Case Management Plan and Scheduling Order, depositions were to be
completed by September 1, 2015, fact discovery was to close August 3, 2015, and expert
discovery was to close September 17, 2015. Dkt. No. 16 at 2. On August 21, 2015, Plaintiffs
informed the Court of numerous discovery-related issues. Dkt. No. 19. First, Plaintiffs indicated
that Defendants had not responded to Plaintiffs' interrogatories or requests for document
production in a timely fashion. Id. at 1. Furthermore, Plaintiffs indicated that Defendants had
ignored their attempts to schedule a deposition of Defendant Sheeran. Id. Plaintiffs also noted
that Defendants had not complied with the Court's August 6, 2015 order to meet and confer and
submit a joint letter. See id.; see also Dkt. No. 18. In light of this history, Plaintiffs requested
permission to move to strike Defendants' Answer. Dkt. No. 19 at 2.
At a conference before the Court on October 15, 2015, Plaintiffs reiterated their concerns
about Defendants' pattern of "non-responsive" behavior. Tr. 5:3. In response, Defendants
indicated that they did not possess any documents responsive to Plaintiffs' discovery requests,
did not seek to depose Plaintiffs, and would be willing to arrange for the deposition of Defendant
Sheeran. Id. at 5:18-6:1, 6:8-14. Ultimately, the Court concluded that it would not, at that time,
allow a motion to strike. Id. at 7:9-14. However, the Court ordered that Defendant Sheeran's
deposition be taken within 30 days. Id. at 8:2-4. At that time, the Court warned:
"There will be repercussions either if the deposition doesn't get
scheduled or if the deposition doesn't go forward after it's been
scheduled. And I want to be very clear ... just in light of the history
of the case, there won't be allowances in this case. If it doesn't get
scheduled or doesn't go forward, then I will allow a motion for
discovery sanctions, including a motion to strike the answer."
Id. at 9:8-14.
On October 23, 2015, the parties informed the Court that Defendant Sheeran would be
deposed on November 11, 2015. Dkt. No. 30. On November 11, 2015, the day of the scheduled
deposition, defense counsel wrote requesting "an extension of time to complete the deposition of
the defendant" due to Defendant Sheeran's illness. Dkt. No. 35. The Court did not grant this
request and authorized Plaintiffs to file a motion to strike the answer. Dkt. No. 37. Plaintiffs
filed this motion on December 1, 2015. Dkt. No. 38.
Under Federal Rule of Civil Procedure 37, the Court may sanction a party who has
disregarded discovery orders or failed to attend a properly noticed deposition. See Fed. R. Civ.
P. 37(b)(2)(A), (d)(l)(A)(i).
Such sanctions may include:
directing that the matters embraced in the order or other designated
facts be taken as established for purposes of the action, as the
prevailing party claims;
(ii) prohibiting the disobedient party from supporting or opposing
designated claims or defenses, or from introducing designated
matters in evidence;
(iii) striking pleadings in whole or in part;
(iv) staying further proceedings until the order is obeyed;
dismissing the action or proceeding in whole or in part;
(vi) rendering a default judgment against the disobedient party; or
(vii) treating as contempt of court the failure to obey any order except
an order to submit to a physical or mental examination.
Fed. R. Civ. P. 37(b)(2)(A), (d)(3). The function of discovery sanctions is both "to penalize
those whose conduct may be deemed to warrant such a sanction" and "to deter those who might
be tempted to such conduct in the absence of such a deterrent." Nat'l Hockey League v. Metro.
Hockey Club, Inc., 427 U.S. 639, 643 (1976).
Here, Plaintiffs request that the Court strike Defendants' Answer. Striking an answer,
like dismissal or entry of default, "is a 'drastic remedy' generally to be used only when the
district judge has considered lesser alternatives." S. New England Tel. Co. v. Glob. NAPs Inc.,
624 F.3d 123, 144 (2d Cir. 2010); see also Mateo v. Universal Language Corp., No. 13-CV-2495
(NGG), 2014 WL 4983697, at *3 (E.D.N.Y. Oct. 6, 2014). Furthermore, this particular remedy
is only appropriate if "failure to comply with discovery orders was due to 'willfulness, bad faith,
or any fault' of the party sanctioned." S. New England Tel. Co., 624 F.3d at 144 (quoting
Salahuddin v. Harris, 782 F.2d 1127, 1132 (2d Cir. 1986)). Before imposing such a sanction, the
court must consider several factors including "whether the non-complaint party had been warned
of the consequences of noncompliance," the duration, willfulness, and reason for noncompliance,
and "the efficacy oflesser sanctions." Id. (quotingAgiwal v. Mid Island Mortg. Corp., 555 F.3d
298, 302 (2d Cir. 2009)). The Court considers these factors below.
Warning of Consequences of Noncompliance
Plaintiffs first requested permission to file a motion to strike Defendants' answer on
August 21, 2015, citing Defendants' failure to timely respond to interrogatories, produce any
responsive documents, or answer their attempts to depose Defendant Sheeran. Dkt. No. 19. The
Court initially declined to permit such a filing, and instead extended the discovery deadline. Tr.
7:9-14. In so doing, the Court ordered that Defendant Sheeran be deposed within 30 days of the
October 15, 2015 conference. Id. at 8:2-4. At this point, the Court clearly indicated to
Defendants that "there will be repercussions ... if the deposition doesn't go forward." Id. at 9:89. The Court further warned: "I want to be very clear . . . in light of the history of the case, there
won't be allowances in this case. If it ... doesn't go forward, then I will allow a motion for
discovery sanctions, including a motion to strike the answer." Id. at 9:10-14. This warning put
Defendants on clear notice of the possibility of striking their answer if Defendant Sheeran failed
to attend his deposition. See Bobal v. Rensselaer Polytechnic Inst., 916 F.2d 759, 766 (2d Cir.
1990) (dismissal under Rule 37 was appropriate where defendant failed to appear for a
deposition after the Court warned it would "entertain a motion to dismiss [her] case" if she failed
Duration and Willfulness of Noncompliance
Defendants' noncompliance with their discovery obligations began in approximately May
2015 and lasted through November 2015, a period of about six months. See Dkt. No. 19 at 1;
Dkt. No. 25; Dkt. No. 36 at 2. During this time, Defendants were largely nonresponsive to
Plaintiffs' interrogatories, document requests, and attempts to schedule a deposition of
Defendant Sheeran; failed to comply with a court order to submit a joint letter before a status
conference; and failed to appear for a properly noticed Deposition. See Dkt. Nos. 18. 19, 25, 35,
Defendants provide no explanation for their repeated failures to respond to Plaintiffs'
discovery requests in a timely fashion, nor do they explain their failure to submit the Courtordered joint letter. However, Defendants argue that Defendant Sheeran failed to appear for his
deposition because he was ill. Dkt. No. 35; Dkt. No. 43 if 8. When Defendants first rep01ied this
to the Court, they provided no documentation of Defendant Sheeran's illness. Dkt. No. 35. In
both their November 12, 2015 letter to the Court and December 1, 2015 motion for sanctions,
Plaintiffs noted this absence of documentation. Dkt. No. 36 at 3; Br. at 6. Despite Plaintiffs
having raised the issue multiple times, Defendants failed to provide any documentation of
Defendant Sheeran's illness in its opposition to this motion. In fact, Defendants have not even
provided a sworn affidavit from Defendant Sheeran attesting that he was ill. In the absence of
any evidence to the contrary, the Court finds that Defendant Sheeran's failure to attend his
deposition was willful, a fact weighing in favor of the requested sanction. See Shiu v. New
Peking Taste, Inc., 11-CV-1175 (NGG), 2013 U.S. Dist. LEXIS 185347, *9 (E.D.N.Y. Oct. 24,
2013) ("While counsel sought to justify [Defendant's] absence by claiming that [Defendant] was
in poor health, no documentation or other evidence of [Defendant's] illness was presented to the
Efficacy of Lesser Sanctions
The Court finds that the nature of Defendants' defense of this action renders any lesser
sanction inadequate here. Since the outset of the case, Defendants have participated minimally
in the proceedings. Not only have Defendants indicated that they possess no information
responsive to Plaintiffs' discovery requests, but they also made clear that they had no intention of
deposing Plaintiffs or other witnesses. Tr. 5:18-20, 6:8-14. Most recently, Defendants indicated
in the parties' joint pretrial report that they would not be calling any witnesses, presenting any
evidence, or objecting to any of Plaintiffs' evidence. Dkt. No. 47. Because Defendants will not
be putting on a case to defend themselves against Plaintiffs' allegations, there is no less severe
discovery sanction that the Court can impose to meaningfully respond to Defendant Sheeran's
willful failure to attend a court-ordered deposition.
In addition, Defendants will be obligated to pay a financial penalty. See J.M
Cleminshaw Co. v. City ofNorwich, 93 F.R.D. 338, 349 (D. Conn. 1981) (Cabranes, J.) (quoting
Cine Forty-Second St. Theatre Corp. v. Allied Artists Pictures Corp., 602 F.2d 1062, 1066 (2d
Cir. 1979)) ("The award of fees and expenses is the 'mildest' of the sanctions authorized by Rule
37."). Pursuant to Rule 37, when a party fails to appear for a deposition, "the court must require
the party failing to act, the attorney advising that party, or both to pay the reasonable expenses,
including attorney's fees, caused by the failure, unless the failure was substantially justified or
other circumstances make an award of expenses unjust." Fed. R. Civ. P. 37(d)(3) (emphasis
added). As noted above, Defendant Sheeran's justification for his non-appearance at the
deposition was his illness, but "no documentation or other evidence of [his] illness was presented
to the Court." Shiu, 2013 U.S. Dist. LEXIS 185347, *9. As a result, the Court finds that his
failure to appear was not justified, nor do any other circumstances make payment of reasonable
expenses unjust. Thus, Defendant Sheeran and defense counsel shall split the cost to "pay the
reasonable expenses, including attorney's fees, caused by [Defendant Sheeran's] failure" to
attend his deposition. Fed. R. Civ. P. 37(d)(3).
Discovery sanctions that effectively terminate the case are a "drastic penalty which
should be imposed only in extreme circumstances." Salahuddin, 782 F.2d at 1132. Here,
Defendant Sheeran's willful failure to attend his deposition follows a pattern of Defendants
failing to respond to Plaintiffs' discovery requests and court orders. Because Defendants have
indicated that they will not introduce any evidence at trial, there is no sanction short of striking
their answer that will both "penalize [their] conduct" and "deter those who might be tempted to
such conduct in the absence of such a deterrent." Nat'! Hockey League, 427 U.S. at 643. These
"extreme circumstances" justify striking Defendants' answer in this context. Salahuddin, 782
F.2d at 1132.
For the foregoing reasons, Plaintiffs' motion to strike Defendants' Answer is
GRANTED. As a result, Defendants are in default. See Oscar De La Renta Ltd. v. Strelitz Ltd.,
No. 92-CV-3907 (CES), 1993 WL 267341, at *1 (S.D.N.Y. July 12, 1993). The Court will set a
schedule for Plaintiffs to file for default judgment by separate order. The final pretrial
conference currently scheduled for March 4, 2016 and the trial currently scheduled to commence
March 14, 2016 are adjourned sine die.
This resolves Dkt. Nos. 35, 36, 38.
Dated: February _ _, 2016
New York, New York
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