Shipstad v. One Way or Another Productions, LLC et al

Filing 89

MEMORANDUM AND ORDER granting 59 Motion for Sanctions. For these reasons, the plaintiff's motion for sanctions (Docket no. 59) is granted. The parties (including counsel) shall comply with the provisions outlined above for the plaintiff 9;s application for attorneys' fees, the defendants' production of outstanding discovery, and Mr. Stevens' submission in response to the order to show cause. SO ORDERED. (Signed by Magistrate Judge James C. Francis on 6/6/2017) Copies Transmitted this Date By Chambers. (anc)

Background
The Complaint alleges copyright infringement on the basis of
the defendants’ use of a photograph of the actor Taylor Negron,
taken and copyrighted by Mr. Shipstad in connection with the
promotion of a movie titled Alienated.
164).

(SAC, ¶¶ 24, 29, 37, 121-

These are the facts relevant to this motion. 3

The

plaintiff

production

of

propounded

documents

his

first

(“RFPs”)

on

set

of

requests

December

5,

for

2016.

(Declaration of Tamara L. Fitzgerald dated March 29, 2017 (“1st
Fitzgerald Decl.”), ¶ 5 & Exh. I).
on January 4, 2017.

Responses were therefore due

See Fed. R. Civ. P. 34(b)(2)(A).

The second

set of RFPs were propounded on December 9, 2016 (1st Fitzgerald
Decl., ¶ 6 & Exh. I); responses were due on January 9, 2017.

The

Civil Procedure (Reply Memorandum of Law in Support of Plaintiff’s
Motion for Sanctions Pursuant to F.R.C.P. 37(b)(2)(A) and F.R.C.P.
37(b)(2)(C) (“Reply”) at 5).
3

Each of the submissions on this motion includes extraneous
material. For example, the plaintiff’s opening memorandum begins
with a litany of the defendants’ failures that are largely
unrelated to the order at issue, and continues with a suggestion
of spoliation of evidence (Pl. Memo. at 2-3, 8-9); his Reply
complains of the defendants’ public disclosure of confidential
information. (Reply at 2). These facts could be (or could have
been) the basis for other motions, but they are not relevant here.
For their part, the defendants seem to misunderstand the posture
of this dispute and include in their opposition, for example,
immaterial information about the plaintiff’s damages and his
income. I do not address any of these unnecessary facts in any
substantive way in this opinion.
2

third set of RFPs were propounded on December 19, 2016 (1st
Fitzgerald Decl., ¶ 7 & Exh. I); responses were due on January 18,
2107.

The first set of interrogatories (which includes only a

single interrogatory) was propounded on December 30, 2016 (1st
Fitzgerald Decl., ¶ 8 & Exh. I); responses were due on January 30,
2017, see Fed. R. Civ. P. 33(b)(2).

At the time these requests

were served, the defendants were represented by Monroe Mann, who
was relieved as counsel on January 9, 2017, and replaced by Joshua
S. Stevens.

(Order dated Jan. 9, 2017).

On January 31, 2017, after communicating with Mr. Stevens
regarding the outstanding discovery, the plaintiff filed a motion
to compel responses to the three sets of RFPs and the single
interrogatory, noting that the defendants had so far produced only
ten documents as part of their responses to the RFPs, and had
provided

no

written

Interrogatories.

responses

to

either

the

RFPs

or

(Declaration of Tamara L. Fitzgerald dated Jan.

31, 2017, ¶¶ 9-15).

On March 3, 2017, I granted the motion as

unopposed, ordering the defendants to “provide complete responses
to Plaintiff’s First, Second, and Third Requests for Production
and Plaintiff’s First Interrogatories, including production of all
responsive documents” by March 24, 2017.

(Order dated March 3,

2017 (“March 3 Order”)).
On

March

29,

2017,

Mr.

Shipstad
3

filed

this

motion

for

sanctions, which asserts that, as of that date, the defendants had
produced “no responses, documents or information” in connection
with his discovery requests.

(Pl. Memo. at 1).

On April 14,

2017, Wesley M. Mullen filed a Stipulation and [Proposed] Order
for Substitution of Counsel and a Notice of Appearance on behalf
of

the

defendants. 4

Substitution

of

New

(Stipulation
Counsel

dated

Appearance dated April 14, 2017).

and

[Proposed]

April

14,

2017;

Order
Notice

for
of

The defendants, through Mr.

Mullen, opposed the sanctions motion, contending that, on April
27, 2017, the defendants “served responses and objections to [Mr.
Shipstad’s] written discovery, including a statement, pursuant to
Rule 34(b)(2)(B), explaining [their] intent to produce documents
on a rolling basis as soon as possible.”

(Defendants’ Memorandum

of Law in Opposition to Plaintiff’s Motion for Discovery Sanctions
(“Def. Memo.”) at 6; Letter of Wesley M. Mullen dated April 27,
2017, attached as Exh. E to Declaration of Wesley M. Mullen dated
April 28, 2017; Defendants’ Omnibus Reponses and Objections to
Plaintiff’s

First,

Second

and

Third

Requests

for

Production,

attached as Exh. B to Declaration of Tamara L. Fitzgerald dated
May 5, 2017 (“2nd Fitzgerald Decl.”); Defendants’ Objections to
Plaintiff’s First Set of Interrogatories, attached as Exh. C to

4

The Stipulation and [Proposed] Order for Substitution of
Counsel has not been “so ordered.”
4

2nd Fitzgerald Decl.).

As of May 5, 2017, the defendants had not

produced additional responsive documents.

(Reply at 2).

Discussion
A.

Legal Standard

“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.’”

Granados

v.

Traffic

Bar

and

Restaurant, Inc., No. 13 Civ. 500, 2015 WL 9582430, at *3 (S.D.N.Y.
Dec. 30, 2015) (alterations in original) (quoting 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 the action in whole or in part, or ordering a default
judgment.

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 on the
merits, severe sanctions are appropriate.”).

“Instead of or in

addition to” one or more of the orders listed above, “the court
must order the disobedient party, the attorney advising that party,
or both to pay the reasonable expenses, including attorney’s fees,
5

caused

by

the

failure,

unless

the

failure

was

substantially

justified or other circumstances make an award of expenses unjust.”
Fed. R. Civ. P. 37(b)(2)(C).
Sanctions

under

Rule

37

of

the

Federal

Rules

of

Civil

Procedure serve a three-fold purpose: (1) to ensure that a party
will

not

benefit

from

its

failure

to

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.

Update

Art, Inc. v. Modiin Publishing, Ltd., 843 F.2d 67, 71 (2d Cir.
1988).
extreme

Harsh sanctions such as default judgments are reserved for
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) (“[T]he severity of sanction must be commensurate with
the non-compliance.”).
When determining the appropriate sanction 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).

None of these factors alone is dispositive.

Southern

New England Telephone Co. v. Global NAPs Inc., 624 F.3d 123, 144
6

(2d Cir. 2010) (“[T]hese factors are not exclusive, and they need
not each be resolved against the [sanctioned] party.”).
B.

Analysis
1.

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, 40203 (S.D.N.Y. 1996), aff’d, 111 F.3d 2 (2d Cir. 1997)).
3 Order could not have been clearer.

The March

But the defendants assert

that they were unaware of it because of the “lack of communication
between [them] and their counsel during the month of March.”

(Def.

Memo. at 10; Declaration of Princeton Holt dated April 25, 2017
(“Holt Decl.”), ¶ 9).
“Normally, the conduct of an attorney is imputed to his
client, for allowing a party to evade ‘the consequences of the
acts or omissions of []his freely selected agent’ ‘would be wholly
inconsistent with our system of representative litigation, in
which each party is deemed bound by the acts of his lawyer-agent.’”
S.E.C. v. McNulty, 137 F.3d 732, 739 (2d Cir. 1998) (alterations
in original) (quoting Link v. Wabash Railroad Co., 370 U.S. 626,
7

633–34 (1962)).

Accordingly, “where the attorney’s conduct has

been found to be willful, the willfulness will be imputed to the
party himself where he makes no showing that he has made any
attempt to monitor counsel’s handling of the lawsuit.”
740.

Here,

the

defendants’

attempts

to

Id. at

oversee

counsel’s

compliance with discovery obligations came too late.

Mr. Holt

asserts that he “convened meetings with [his] counsel to discuss
the [alleged discovery] deficiencies” and thereafter retained a
new attorney (Holt Decl., ¶¶ 10-12), but all this came only after
the time to comply with the March 3 Order had passed and the
plaintiff had filed the current motion seeking sanctions.

The

violation was therefore willful.
2.

Duration of Noncompliance

The March 3 Order required production by March 24, 2017.

On

April 27, 2017 -- just over thirty days later -- the defendants
began to respond to the plaintiff’s discovery requests.

By May

5, 2017, however, no additional documents had been produced.
Neither the plaintiff nor the defendants have updated me on the
progress of the defendants’ production since then.

Although the

delay outlined in the plaintiff’s submissions is objectionable, it
is not of a duration that requires a severe sanction.
3.

Notice of Possible Sanctions

The March 3 Order did not indicate that failure to comply
8

might result in termination or other harsh sanctions, such as a
preclusion order.

The defendants were, however, aware of the

possibility of monetary sanctions, as Rule 37(b)(2)(C) requires
payment of expenses where a party has failed to comply with a
discovery order without substantial justification or a showing
that the award would be unjust.
4.

Efficacy of Lesser Sanctions

I am not convinced that severe penalties are appropriate here.
The defendants have retained new counsel who has at least begun to
respond to the discovery requests.

This undermines the rationale

for an adverse inference instruction at this time.
the

plaintiff

asserts

he

has

been

hampered

And, although
in

formulating

litigation strategy because of the lack of discovery responses
(Pl. Memo. at 7-8), the discovery schedule will be extended (Order
dated May 1, 2017 (“May 1 Order”)), so that neither summary
judgment motions nor trial are imminent. 5
Shipstad will therefore be allayed.

Any prejudice to Mr.

And the defendants’ failures,

although (as noted above) unsuitable, are not so severe as to
warrant default or preclusion.

5

Instead, requiring the defendants

The plaintiff’s suggestion that the schedule cannot be
extended because in a previous order I indicated that no further
extensions would be granted (Reply at 8) is obviously subverted by
my instruction in the May 1 Order that the parties agree on just
such an extension.
9

to pay the plaintiff’s expenses is sufficient to enforce Rule 37’s
three-fold purpose.
5.

The Defendants’ Other Arguments

The defendants contend that this motion should be denied
because the plaintiff failed to meet and confer.

Specifically,

they complain that this motion, which they characterize as “[a]
motion for . . . failure to answer or respond to interrogatories,”
did not “include a certification that the movant has in good faith
conferred or attempted to confer with the party failing to act in
an effort to obtain the answer or response without court action.”
(Def. Memo. at 7 (quoting Fed. R. Civ. P. 37(d)(1)(B)).

However,

this is a motion under Rule 37(b)(2)(A) for failure to obey a
discovery order.
interrogatories

The motion complaining of the failure to answer
has

already

been

granted.

(March

3

Order).

Moreover, plaintiff’s counsel attests that she communicated with
Mr. Stevens about the possibility of a sanctions motion prior to
filing it and that she conferred with Mr. Mullen about the motion
on

April

13,

appearance.

2017,

two

days

before

he

filed

(2nd Fitzgerald Decl., ¶¶ 16, 18).

his

notice

of

Thus, there was

an effort to resolve the dispute to obviate the need for the Court
to address this motion.
The defendants also argue that before this motion is granted,
the

Court

must

analyze

whether
10

the

discovery

requested

was

proportional to the needs of the case.

(Def. Memo. at 2-4).

Again, the defendants misunderstand the posture here.

Rule 26

does require that discovery be “proportional to the needs of the
case.”

Fed. R. Civ. P. 26(b)(1).

compel has already been granted.

But the plaintiff’s motion to

Thus, the time for the defendants

to make a proportionality argument has passed.
6.

Sanctions and Other Orders

Mr. Shipstad contends that “[m]onetary and other sanctions
are utterly appropriate here.”

(Reply at 8).

As discussed above,

I find that harsh sanctions are not warranted.

However, as the

defendants have not shown that their position was substantially
justified or that an award of expenses would be unjust, the
defendants

shall

pay

the

“reasonable

expenses,

including

attorneys’ fees, caused by the failure” to comply with the March
3 Order.

Within fourteen days of the date of this Order, the

plaintiff shall file a statement of such expenses, including
contemporaneous attorney time records.

The defendants may object

to the amount of fees requested within seven days of the date the
plaintiff’s application is filed.

Any reply shall be filed within

four days of the date the defendants’ objections are filed.
In addition, within fourteen days of the date of this Order,
the defendants shall comply fully with the March 3 Order.

I note

that this requires them to produce all documents responsive to the
11

first three sets of RFPs and to respond fully to the first set of
interrogatories, as all objections have been waived. 6

See, e.g.,

Cohalan v. Genie Industries, Inc., 276 F.R.D. 161, 163-64 (S.D.N.Y.
2011) (noting that courts deem objections waived where, as here,
“there is no showing of good cause for the late response” or “where
a party has not responded to discovery requests despite court
intervention”).

Failure

to

comply

may

result

in

additional

sanctions, including default judgments against these defendants.
Finally, the defendants lay much of the blame for their
repeated failures at the feet of Mr. Stevens (who has not, I note,
been relieved as counsel).

Although that does not excuse the

defendants’ conduct, see, e.g., McNulty, 137 F.3d at 739, Rule
37(b)(2)(C)

expressly

contemplates

that

“the

disobedient

part[ies’] attorney” may be required to pay the moving party’s
expenses.

Therefore, within fourteen days of the date of this

Order, Mr. Stevens is ordered to show cause why he should not be
required
expenses.

to

pay

fifty

percent

of

the

plaintiff’s

reasonable

Failure to comply will result in additional sanctions.

Any interested party may respond to Mr. Stevens’ submission within
seven days of its filing.

6

This is not a sanction, as it follows directly from the
defendants’ failures to respond in a timely manner to the discovery
requests and the March 3 Order.
12