Young v. Premier Recovery Group, Inc. et al

Filing 41

DECISION AND ORDER DENYING Plaintiff's 37 MOTION for Sanctions without prejudice to renew should it appear that defendants are currently in contempt of the court's discovery orders. The court will set a date for a status telephone conference by separate text order. Signed by Hon. John T. Curtin on 1/6/2016. (JEC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

MARY JULIENNE YOUNG,
Plaintiff,
-vs-

12-CV-1090C

PREMIER RECOVERY GROUP, INC., and
JOEY YOUNGER,
Defendants.

Currently before the court is plaintiff’s motion for sanctions. Item 37. Plaintiff
commenced this action pursuant to the Fair Debt Collection Practices Act, 15 U.S.C.
1692 et seq. (“FDCPA”) and the Telephone Consumer Protection Act of 1991 (“TCPA”)
with the filing of a complaint on November 8, 2012. Item 1. Defendants interposed an
answer on December 5, 2012. Item 5. After an unsuccessful attempt to mediate the
dispute, the parties proceeded to discovery. Thereafter, plaintiff served the defendants
with discovery demands and deposition notices. Defendants did not respond to the
discovery demands, did not respond to plaintiff’s subsequent motion to compel (Item
25), and did not respond to the court’s order granting the motion and directing the
defendants to respond to plaintiff’s discovery demands. Item 27. On June 21, 2015,
new counsel appeared on behalf of the defendants and, upon consent of all parties, the
court granted a motion to substitute counsel. Items 29 - 34.
Following the substitution of counsel, at a status conference on September 9,
2015, defense counsel advised the court that he was unable to retrieve the case file
from defendants’ previous counsel.

On September 23, 2015, plaintiff filed this motion

for sanctions, seeking, inter alia, attorney’s fees occasioned by her attorney’s efforts to
obtain discovery, including the motions to compel and for sanctions. Item 37.
Defendants filed a response to the motion for sanctions on October 22, 2015,
blaming prior counsel for the delay in their production of discovery responses. Item 40.
They recognized that discovery responses were overdue, but stated that discovery has
now been served. In an effort to retrieve the case file, defendants were required to
serve a subpoena on their previous attorney, who has been censured by the Appellate
Division of New York State Supreme Court for improper representation of other clients.
Defendants argue that the imposition of sanctions on them, for the conduct of their
previous counsel, would be unjust.
Federal Rule of Civil Procedure 37 “provides a non-exclusive list of sanctions
that may be imposed on a party for failing to obey an order to provide or permit
discovery.” Martinelli v. Bridgeport Roman Catholic Diocesan Corp., 179 F.R.D. 77, 80
(D.Conn. 1998) (citing Werbungs Und Commerz Union Austalt v. Collectors' Guild, Ltd.,
930 F.2d 1021, 1027 (2d Cir. 1991) Fed.R.Civ.P. 37(b)(2)(A)(i)-(vii). “Provided that there
is a clearly articulated order of the court requiring specified discovery, the district court
has the authority to impose Rule 37(b) sanctions for noncompliance with that order.”
Daval Steel Products, a Div. of Francosteel Corp. v. M/V Fakredine, 951 F.2d 1357,
1363 (2d Cir.1991) (citation omitted). In this case, it is within the court’s discretion to
impose a monetary sanction, as requested by plaintiff, including “attorney's fees,
caused by the failure.” Fed.R.Civ.P. 37(b)(2)(C), (c)(1)(A).
Numerous factors are relevant to a district court's exercise of its broad discretion
to order sanctions under Rule 37, including: (1) the willfulness of the non-compliant
2

party or the reason for the noncompliance; (2) the efficacy of lesser sanctions; (3) the
prejudice to the other party; (4) the duration of the period of noncompliance, and (5)
whether the non-compliant party had been warned of the consequences of his
non-compliance. Handwerker v. AT & T Corp., 211 F.R.D. 203, 208 (2d Cir. 2002)
(citations omitted). In addition, an award of sanctions under Rule 37 should effectuate
its three purposes: (1) ensuring the disobedient party does not benefit from
non-compliance; (2) obtaining compliance with discovery orders; and (3) providing a
general deterrent in the particular case and litigation in general. Id.
The court is aware of the problems caused by previous defense counsel in this
and other cases. While it would be within the court’s discretion to impose a monetary
sanction for the defendants’ failure to comply with the court’s discovery order, such a
sanction under the circumstances of this case is unwarranted. Discovery has been
served and the case appears to be progressing in a satisfactory manner with substitute
counsel. Moreover, the defendants have not benefitted from their earlier noncompliance with discovery deadlines. Accordingly, the motion for sanctions is denied
without prejudice to renew should it appear that defendants are currently in contempt of
the court’s discovery orders. Additionally, the court will conduct a telephone status
conference to establish a further schedule in the case, the date and time of which will
be transmitted by separate text order.
So ordered.
_____\s\ John T. Curtin______
JOHN T. CURTIN
United States District Judge
Dated: January 6, 2016
3