E.L.A. v. Abbott House, Inc. et al
Filing
287
OPINION AND ORDER re: 258 LETTER MOTION for Discovery addressed to Magistrate Judge James L. Cott from David S. Rutherford dated February 7, 2020. filed by Stacy Weshifesky, William Bell, City Of New York, Joyce Sayre-Kelly, Claude B. Meyers, Abbott House, John Mattingly, Yusef Graves, Eric Lipps, Jermaine Armstead, 259 MOTION for Sanctions . filed by Roslyn Murov. As set forth above, Murov's motion for sanctions is granted in part and denied i n part. Within 30 days of the date of this Opinion and Order, Plaintiff's counsel shall reimburse Murov for reasonable attorney's fees and costs incurred in connection with Murov's efforts to obtain the documents requested in the Not ice to Produce on December 9, 2019. If Plaintiff's counsel disputes the reasonableness of the attorney's fees and costs, Murov should submit a fee application to the Court within 14 days thereafter (supported by contemporaneous time recor ds, affidavits, and other materials). The Clerk of Court is directed to close docket entries 258 and 259, marking docket entry 258 as denied and docket entry 259 as granted in part and denied in part. (Signed by Magistrate Judge James L. Cott on 9/24/2020) (nb)
9/24/2020
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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E.L.A.,
:
:
Plaintiff,
:
:
-v:
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:
ABBOTT HOUSE, INC., et al.,
:
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Defendants.
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OPINION & ORDER
16-CV-1688 (RMB) (JLC)
JAMES L. COTT, United States Magistrate Judge.
On February 7, 2020, defendant Roslyn Murov, M.D., moved for sanctions
pursuant to Rule 37 of the Federal Rules of Civil Procedure against Plaintiff E.L.A.
(“Plaintiff”) for failure to comply with various discovery orders. For the reasons
that follow, Murov’s motion is granted in part and denied in part.
I.
BACKGROUND
During the course of discovery, Murov served a notice to produce, dated
December 9, 2019, on Plaintiff, requesting two categories of documents: (1) “all
reports or records from any of the codefendants on which [Murov] was copied that
plaintiff claims put [Murov] on notice that plaintiff made complaints of sexual or
physical abuse while living in the [foster parent’s home]”; and (2) “all reports,
records or writings that plaintiff claims put [Murov] on notice that the plaintiff
made any complaints of sexual or physical abuse.” Dkt. No. 260-1 at 1–2. On
January 16, 2020, Murov followed up with Plaintiff about this request and the
parties agreed that Plaintiff would respond by January 21, 2020. Dkt. No. 260-2.
However, Plaintiff failed to do so. Dkt. No. 251 at 2. On January 23, 2020, Murov
submitted a letter motion requesting that the Court compel Plaintiff to provide the
requested discovery, Dkt. No. 251 at 1, and the Court directed Plaintiff to respond
by January 27, Dkt. No. 252. Plaintiff failed to submit a response.
Accordingly, on January 29, Murov again requested that her motion to
compel be granted. Dkt. No. 253. The Court granted her motion by Order dated
January 30 and directed Plaintiff’s counsel “to produce any documents in his
possession that are responsive to Dr. Murov’s December []9, 2019 Notice to Produce,
or affirmatively state that plaintiff does not have any such documents, by February
6, 2020.” Dkt. No. 254. The Court also warned that failure to comply with the
Order could result in sanctions. Id. Plaintiff’s counsel failed to respond by the
deadline in the Court’s Order and Murov moved for sanctions, first by letter dated
February 7, 2020, Dkt. No. 256, and then by formal briefing on February 12, 2020,
Dkt. Nos. 259–61. The Court held a hearing on February 14, at which, inter alia, it
directed Plaintiff to file any opposition to Murov’s motion by February 21, 2020.
Plaintiff’s counsel thereafter filed an attorney declaration in opposition to the
sanctions motion on February 21, Dkt. No. 267, and Murov filed a reply affirmation
on February 24, Dkt. No. 268.
On March 3, 2020, the Court decided to hold Murov’s sanctions motion in
abeyance so that the record could be more fully developed with respect to Plaintiff’s
continued interest in prosecuting this case. Dkt. No. 274. However, as reflected in
this Court’s Report and Recommendation, dated September 24, 2020 (Dkt. No. 286),
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Plaintiff has failed to advance this case since that time and therefore the motion for
sanctions is now ripe for adjudication.
II.
ANALYSIS
A. Legal Standards
“Federal Rule of Civil Procedure 37 governs the district court’s procedures for
enforcing discovery orders and imposing sanctions for misconduct.” World Wide
Polymers, Inc. v. Shinkong Synthetic Fibers Corp., 694 F.3d 155, 158 (2d Cir. 2012).
Under Rule 37, courts have wide discretion to sanction parties that fail to obey
discovery orders or that fail to respond to a request for inspection under Rule 34.
Fed. R. Civ. P. 37(b)(2)(C) & (d)(3); see, e.g., State of New York v. United States Dep’t
of Commerce, No. 18-CV-2921 (JMF), 2020 WL 2564933, at *6 (S.D.N.Y. May 21,
2020). In deciding which, if any, sanctions are appropriate, courts should consider
several factors, including: “(1) the willfulness of the non-compliant party or the
reason for noncompliance; (2) the efficacy of lesser sanctions; (3) the duration of the
period of noncompliance[;] and (4) whether the non-compliant party had been
warned of the consequences of noncompliance.” Antonmarchi v. Consol. Edison Co.
of New York, 514 F. App’x 33, 35 (2d Cir. 2013) (quoting Agiwal v. Mid Island
Mortg. Corp., 555 F.3d 298, 302 (2d Cir. 2009)). None of these factors is exclusive or
dispositive as the Rule only requires that the court’s order be “just.” Fed. R. Civ. P.
37(b)(2)(C); State of New York, 2020 WL 2564933, at *6 (“[T]he Rule’s bottom-line
requirement, as its text indicates, is ‘only that the district court's orders be just.’”
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(quoting S. New England Tel. Co. v. Global NAPs, Inc., 624 F. 3d 123, 144 (2d Cir.
2010)).
Separately, Rule 37 provides for attorney’s fees and costs incurred by the
moving party as a result of the other side’s violation. Fed. R. Civ. P. 37(b)(2)(C) &
(d)(3). However, unlike the other provisions of Rule 37, courts “must order the
disobedient party, 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.”
Id. (emphasis added). Accordingly, “the burden is on the violator to show that
there was a substantial justification for the violation, or that circumstances would
make it unjust to award reasonable expenses to the moving party.” In re
Doria/Memon Disc. Stores Wage & Hour Litig., No. 14-CV-7990 (RWS), 2018 WL
1353261, at *5 (S.D.N.Y. Mar. 15, 2018) (citing Kizer v. Abercrombie & Fitch Co.,
No. 12-CV-5387 (JS) (AKT), 2016 WL 5338537, at *2 (E.D.N.Y. Sept. 23, 2016)).
Finally, in determining “whether the sanctions should be aimed primarily
against the party or the attorney, it can be important for the [] court to assess the
relative roles of attorney and client in causing the delay, as well as whether a
tactical benefit was sought by the [misconduct].” World Wide Polymers, Inc. v.
Shinkong Synthetic Fibers Corp., 694 F.3d 155, 159 (2d Cir. 2012) (citing Dodson v.
Runyon, 86 F.3d 37, 40 (2d Cir. 1996)).
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B. Sanctions in the Form of Reasonable Fees and Costs Will be Imposed
1.
The Parties’ Arguments
In her moving papers, Murov argues that Plaintiff’s failure to respond to the
December 9, 2019 Notice to Produce and her violation of the Court’s January 30,
2020 order compelling Plaintiff to produce all responsive documents warrant
sanctions in the form of dismissal of all claims against Murov or, alternatively,
preclusion of evidence establishing that Murov “was on notice that plaintiff had
complained to her therapists about having been sexually and/or physically abused.”
Memorandum of Law in Support of the Motion for Sanctions by Defendant Roslyn
Murov, M.D., dated February 12, 2020, Dkt. No. 261 (“Def. Mem.”) at 7. Murov
acknowledges that she seeks severe sanctions but contends that they are
appropriate in light of the factors courts consider when evaluating relief under Rule
37: (1) Plaintiff’s failure to comply with the order was “undeniably willful” given the
duration of her failure and the numerous opportunities Plaintiff’s counsel had to
respond to the document requests (Id. at 7); (2) lesser sanctions would not be
effective as “Plaintiff’s counsel has had a history of ignoring [D]efendants’ discovery
demands” (Id. at 8); (3) the duration of non-compliance was more than two months
(Id.); and (4) Plaintiff was warned of the consequences of noncompliance (Id.).
Murov separately contends that the Court must award reasonable attorney’s fees
and costs under Rule 37. Id. at 8–9.
In response, Plaintiff’s counsel observes that he served the response to the
Notice to Produce on February 21 and argues that “[t]he uncertainties of [his]
client’s current status and the status of [their] attorney client relationship was the
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cause of the delay in not responding sooner” and, therefore, it would be “unjust to
impose sanctions or attorney fees under these circumstances.” Declaration of Bruce
A. Young in Opposition to Defendant Murov’s Motion to Dismiss, Preclude or Other
Sanctions, dated February 21, 2020, Dkt. No. 267 (“Young Decl.”) ¶¶ 3, 6–7.
In her reply papers, Murov counters that Plaintiff’s opposition failed to
address any of the relevant factors or explain “why the application of those factors
should prevent this Court from imposing sanctions.” Reply Declaration of Gregory
J. Radomisli, dated February 24, 2020, Dkt. No. 268 (“Radomisli Decl.”) ¶ 3.
Moreover, Murov contends that counsel’s justification for his failure to respond to
the Notice to Produce “makes no sense” and fails to provide any detail about “how
those circumstances prevented him from complying with [the document requests]
that have been in his possession since the inception of this action.” Id. ¶ 7.
As discussed below, the Court denies Murov’s requests for dismissal and
preclusion of evidence, but grants the request for reasonable attorney’s fees and
costs, to be paid by Plaintiff’s counsel.
2.
Plaintiff’s Violation of Court Orders and Failure to Timely Respond to
Document Requests Warrant Sanctions
It is undisputed that Plaintiff’s counsel failed to timely disclose documents in
response to Murov’s Notice to Produce and then violated the January 30 Order—
which ordered Plaintiff’s counsel to produce documents, or otherwise respond to,
Murov’s Notice to Produce by February 12, 2020—by serving responsive documents
more than a week later on February 21, 2020. Dkt. No. 254; Young Decl. ¶ 3.
Plaintiff’s counsel does not contend otherwise. These violations are particularly
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concerning given the backdrop of his (and his client’s) repeated failures to abide by
their discovery obligations and to comply with the Court’s other orders in this case.
See, e.g., Dkt. Nos. 223 (Murov’s letter compiling attempts to obtain requested
discovery from Plaintiff), 226 at 2 (letter noting Plaintiff’s counsel’s failure to
produce discovery by court-imposed deadline). 1
To satisfy her burden on a motion for sanctions involving a failure to disclose
documents a party was required to produce, as here, Murov “must demonstrate: (1)
that the party having control over the evidence had an obligation to timely produce
it; (2) that the party that failed to timely produce the evidence had ‘a culpable state
of mind’; and (3) that the missing evidence is ‘relevant’ to the party’s claim or
defense such that a reasonable trier of fact could find it would support that claim or
defense.” Doug’s Word Clocks.com Pty Ltd. v. Princess Int’l, Inc., 323 F.R.D. 167, 172
(S.D.N.Y. 2017) (internal citations omitted). Murov has established all three
requirements: Plaintiff’s counsel had an obligation to timely disclose the documents
at issue as Murov specifically requested those documents in her Notice to Produce
(and the Court ordered their production); counsel decided not to timely produce the
evidence despite agreeing to a deadline by which to respond to Murov’s requests
(thus necessitating a court-imposed additional deadline); and, as stated in Murov’s
papers, the evidence is relevant as it goes “to the heart of [P]laintiff’s allegation that
A detailed recitation of the lengthy procedural history, including Plaintiff’s prior
violations of court orders and failures to respond to discovery requests, is set forth
in my Report and Recommendation recommending dismissal of this case for failure
to prosecute, dated September 24, 2020. Dkt. No. 286.
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Dr. Murov was or should have been aware that [P]laintiff told her therapists that
she was being abused.” Def. Mem. at 3–4.
Accordingly, sanctions are warranted under Rule 37.
3.
Sanctions in the Form of Dismissal Are Duplicative and Sanctions in
the Form of Preclusion of Evidence Are Not Appropriate Under the
Circumstances
As noted, in determining what sanction to impose, courts consider the
following four factors: “(1) the willfulness of the non-compliant party or the reason
for noncompliance; (2) the efficacy of lesser sanctions; (3) the duration of the period
of noncompliance[;] and (4) whether the non-compliant party had been warned of
the consequences of noncompliance.” Antonmarchi, 514 F. App’x at 35 (quotation
omitted). Murov contends these factors weigh in favor of a sanction of dismissal or,
alternatively, preclusion of evidence, where, as here, Plaintiff’s violations were
“undeniably willful,” lesser sanctions would not be effective given counsel’s “history
of ignoring defendants’ discovery demands,” the duration of non-compliance was
more than two months, and the Court gave notice of the consequences of
noncompliance. Def. Mem. at 7–8. Plaintiff does not rebut or otherwise address
any of these factors in her opposition papers.
As to the first factor, the Court finds that counsel’s failure to respond timely
to his adversary’s discovery request and to comply with the January 30 discovery
order was willful. Plaintiff’s counsel attributes his violations to the difficulties—or
what he describes as “uncertainties”—with his client. Young Decl. ¶ 3. But
Plaintiff’s pattern of non-compliance cannot be characterized as anything other than
willful. Indeed, the record reflects similar reports of counsel having “trouble with
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his client,” Dkt. No. 223, and a deterioration in Plaintiff’s willingness to advance
this litigation as Defendants have had to repeatedly seek the Court’s assistance to
obtain discovery or to receive a response from Plaintiff, see, e.g., Dkt. Nos. 217
(requesting Court’s assistance regarding authorization forms); 223 (same); 226–29
(same); 234 (requesting Court’s assistance regarding deficient authorization forms).
Given the circumstances, the Court finds that counsel’s failure to respond timely to
Murov’s document requests was willful.
While the Court is mindful of counsel’s purported difficulties in
communicating with his client, counsel himself remained fully capable of at least
informing Defendants and the Court as to the delays caused by his client. Instead,
counsel left unanswered Murov’s initial document request (December 9, 2019), Dkt.
No. 260-1, and then the Court’s orders (January 25, 2020 and January 30, 2020),
Dkt. Nos. 252, 254, for a substantial period of time without explanation. It was not
until the February 14 hearing in this case that Plaintiff’s counsel provided some
clarity around his delay and, even then, it took him until February 21 to finally
respond to Murov’s discovery requests, see Dkt. No. 264; Young Decl. ¶ 3.
With respect to the fourth factor, counsel was specifically warned of the
consequences of failing to comply with the Court’s January 30 Order addressing this
discovery issue, including the same sanctions Murov seeks here. Dkt. No. 254
(failure to comply with court order may result in dismissal of plaintiff’s claims
against Murov).
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As to Murov’s request for sanctions in the form of dismissal, such relief is
duplicative of what has already been recommended in my Report and
Recommendation, which proposes that this entire action be dismissed with
prejudice for failure to prosecute. Dkt. No. 286. The bases for that recommendation
includes Plaintiff’s failure to abide by the discovery obligations and orders at issue
here. Id. at 13–14. But it also considers Plaintiff’s other actions and specifically
her failure to personally attend a conference to discuss her willingness to litigate
this case. Id. at 14–15. Therefore, dismissal of this case is addressed more
appropriately in my Report and Recommendation and, as such, Murov’s request for
this sanction is denied as moot. 2
Murov alternatively requests that this Court preclude Plaintiff “from offering
documentary evidence that Dr. Murov was on notice” of plaintiff’s complaints of
sexual and physical abuse, Def. Mem. at 7, which in effect would preclude Plaintiff
from using the documents that were untimely produced. Courts have made clear
that “harsher remedies, such as preclusion of certain evidence, while permitted
On February 7, 2020, defendants Abbott House and its current and former
employees Claude B. Meyers, Joyce Sayre-Kelly, Jermaine Armstead, Yusef Graves,
and Stacy Weshifesky, and the City of New York and its current and former
employees Eric Lipps, William Bell, and John Mattingly, submitted a letter motion
requesting the Court compel Plaintiff’s counsel to produce his client for a deposition
or, alternatively, to dismiss Plaintiff’s claims against them due to her failure to
attend her deposition or her counsel’s failure to provide alternative dates on which
to depose her. Dkt. No. 258. The Court denied this application as premature given
the procedural posture of the case at that time. Dkt. No. 263. To the extent that
this motion is still pending before the Court and is now ripe given the current state
of the proceedings, the Court denies this motion as moot for the same reasons that
Murov’s motion to the extent it seeks dismissal as a sanction is denied, namely the
requested relief is the same as that recommended in my Report and
Recommendation.
2
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under Rule 37, ‘should be imposed only in rare situations,’” such as circumstances
involving willful or bad faith violations of court orders. Gurvey v. Cowan, Liebowitz
& Lathman, P.C., No. 06-CV-1202 (LGS) (HBP), 2014 WL 715612, at *5 (S.D.N.Y.
Feb. 25, 2014) (quoting Update Art, Inc. v. Modiin Publ’g, Ltd., 843 F.2d 67, 71 (2d
Cir. 1988)). “Before [granting] the extreme sanction of preclusion,” the Court
“should inquire more fully into the actual difficulties which the violation causes,
and must consider less drastic responses.” Koch v. Greenberg, No. 07-CV-9600
(BSJ) (DF), 2012 WL 13063553, at *3 (S.D.N.Y. June 1, 2012) (citing Outley v. New
York, 837 F.2d 587, 591 (2d Cir. 1988)), adopted by 2012 WL 13063624 (S.D.N.Y.
Aug. 23, 2012).
While the actions taken by Murov for more than two months before receiving
a response from Plaintiff’s counsel are not insubstantial, see Ramdomisli Decl. ¶¶ 5–
9, 11, the difficulties she encountered do not warrant a sanction as severe as
preclusion of evidence. Nor do other circumstances in this case weigh in favor of
such a sanction. At the outset, this is not a case of non-disclosure. The fact that
Plaintiff produced the requested documents—albeit belatedly and 14 days after the
court-ordered deadline (but before summary judgment motions or trial)—weighs
against the preclusion of evidence. See, e.g., Scantibodies Lab., Inc. v. Church &
Dwight Co., No. 14-CV-2275 (JGK) (DF), 2016 WL 11271874, at *34 (S.D.N.Y. Nov.
4, 2016) (denying request to preclude evidence produced after discovery stage but
before summary judgment motions and trial), adopted by 2017 WL 605303
(S.D.N.Y. Feb. 15, 2017). Moreover, the evidence that Murov wishes to preclude is
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significant as it relates to her alleged liability and knowledge of the abuse allegedly
suffered by Plaintiff. See Def. Mem. at 2–3. Courts have recognized that “the casedispositive nature of the requested sanction[, as here,] and the strong judicial
preference for a party’s claims to be resolved on their merits, rather than through a
discovery sanction,” tend to weigh against preclusion of evidence. Scantibodies
Lab., Inc., 2016 WL 11271874, at *34. Finally, preclusion of evidence would exact a
penalty against Plaintiff with whom at least some, but certainly not all, of the
responsibility lies. The Court instead finds that it is more appropriate to impose
sanctions against her counsel personally, who had an obligation to communicate the
reasons for the delay in the production of discovery both to Defendants and the
Court so as not to cause more than a two-month long attempt to prompt a response
from him. See, e.g., World Wide Polymers, Inc., 694 F.3d at 160 (remanding for
reconsideration of dismissal of case where facts before court “suggest that sanctions
should be imposed on the attorney, and not bar [plaintiff] from a full presentation of
its case”). In sum, preclusion of evidence is not a “just” sanction given the
circumstances and, accordingly, this requested relief is also denied.
4.
Murov’s Motion for Attorney’s Fees and Costs is Granted
Rather than dismissal or preclusion, the Court concludes that sanctions in
the form of reasonable attorney’s fees and costs caused by Plaintiff’s failure to
respond to the Notice to Produce and her violation of the January 30 Order are
appropriate. Id. at 8–10. Such sanctions are considered “the mildest” when a party
fails to meet its discovery obligations. Underdog Trucking LLC v. Verizon Services
Corp., 273 F.R.D. 372, 379 (S.D.N.Y. 2011) (citation omitted). Indeed, the Court
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must grant these sanctions unless Plaintiff’s counsel establishes that his “failure
was substantially justified or other circumstances make an award of expenses
unjust.” Fed. R. Civ. P. 37(b)(2)(C); see Silva v. Cofresi, No. 13-CV-3200 (CM) (JCF),
2014 WL 3809095, at *5 (S.D.N.Y. Aug. 1, 2014) (“This cost-shifting is mandatory
[under Rule 37(b)(2)(C)] ‘unless the failure was substantially justified or other
circumstances make an award of expenses unjust.’” (citing Fed. R. Civ. P.
37(b)(2)(C)). He has demonstrated neither. In his declaration in opposition to the
sanctions motion, Plaintiff’s counsel simply asserts that it would be “unjust to
impose sanctions or attorney fees” given his client’s circumstances, but fails to
provide the Court with any further detail or basis for this conclusory statement.
Young Decl. ¶ 7. Nor does Plaintiff make any attempt to establish that her
violations were “substantially justified.” Indeed, there is no reason to think—and
Plaintiff’s counsel provides none—that he did not have in his possession the very
documents he ultimately produced throughout the period of delinquency.
Given the circumstances, a monetary sanction against Plaintiff’s counsel for
reasonable attorney’s fees and costs in connection with Murov’s efforts to obtain the
requested discovery after serving the Notice to Produce is warranted. See, e.g.,
Richard Green (Fine Paintings) v. McClendon, 262 F.R.D. 284, 292 (S.D.N.Y. 2009)
(“Monetary sanctions are appropriate ‘to punish the offending party for its actions
[and] to deter the litigant’s conduct, sending the message that egregious conduct
will not be tolerated.’” (citing In re WRT Energy Securities Litigation, 246 F.R.D.
185, 201 (S.D.N.Y.2007)); Yeboah v. United States, No. 99-CV-4923 (JFK) (THK),
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2000 WL 1576886, at *4 (S.D.N.Y. Oct. 20, 2000) (monetary sanctions imposed
against counsel personally because “his own conduct, including misrepresentations
and repeated dishonored commitments, wasted the time and resources of the
Government and the Court”). These “monetary sanctions are appropriate both to
deter [her counsel] from similar conduct in the future and to compensate [Murov]
for the expenses [she] incurred to obtain the discovery to which [she was] entitled.”
Syntel Sterling Best Shores Mauritius Ltd. v. TriZetto Grp., 328 F.R.D. 100, 124
(S.D.N.Y. 2018).
In imposing this lesser sanction, the Court does not mean to downplay
Plaintiff’s and her counsel’s dilatory conduct in this case. Indeed, the seriousness of
their failure to advance this case, including timely responding to discovery requests
and the Court’s orders, is reflected in my Report and Recommendation that I have
issued today proposing dismissal of this action in its entirety.
III.
CONCLUSION
As set forth above, Murov’s motion for sanctions is granted in part and denied
in part. Within 30 days of the date of this Opinion and Order, Plaintiff’s counsel
shall reimburse Murov for reasonable attorney’s fees and costs incurred in
connection with Murov’s efforts to obtain the documents requested in the Notice to
Produce on December 9, 2019. If Plaintiff’s counsel disputes the reasonableness of
the attorney’s fees and costs, Murov should submit a fee application to the Court
within 14 days thereafter (supported by contemporaneous time records, affidavits,
and other materials).
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The Clerk of Court is directed to close docket entries 258 and 259, marking
docket entry 258 as denied and docket entry 259 as granted in part and denied in
part.
SO ORDERED.
Dated: September 24, 2020
New York, New York
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