Simmons v. Ferrigno, II et al

Filing 82

ORDER granting in part 69 Motion to Compel. That portion of Simmons's motion that seeks reimbursement of his fees and costs 69 is GRANTED, and the City Defendants are directed to reimburse Simmons's attorneys' fees and costs incur red in making this motion. The parties are directed to promptly meet and confer regarding the amount of attorneys' fees and costs to be reimbursed; in the event that no agreement is reached by June 9, 2021, plaintiff shall file a sworn affidavi t by that date attesting to the amount of attorney' fees and costs incurred in connection with the motion. To the extent the City Defendants contest these amounts, they must file an affidavit in opposition by no later than June 16, 2021. The City Defendants' request for an extension until June 23, 2021, to produce all responsive documents 81 is granted. Signed by Hon. Marian W. Payson on 5/26/21.(CMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________
SILVON S. SIMMONS,
Plaintiff,
v.

DECISION & ORDER
17-CV-6176G

JOSEPH M. FERRIGNO, II, et al.,
Defendants.
_______________________________________

On March 17, 2021, Silvon S. Simmons (“Simmons”) filed his third motion to
compel, for sanctions, and for an extension of the scheduling order (Docket # 60), which was
opposed by the City of Rochester, and its employees Joseph M. Ferrigno, II, Samuel Giancursio,
Mark Wiater, Christopher Muscato, Robert Wetzel, and Michael L. Ciminelli (collectively, the
“City Defendants”) (Docket # 76). The Court held oral argument on the motion on May 18,
2021, and on that same day entered an order granting the motion in part, denying it in part, and
reserving in part. (Docket ## 79, 80). This Decision and Order addresses the reserved portion of
the motion relating to Simmons’s request for sanctions.
“[D]istrict judges enjoy wide discretion in sanctioning litigants appearing before
them.” Novak v. Wolpoff & Abramson LLP, 536 F.3d 175, 177 (2d Cir. 2008) (citing Design
Strategy, Inc. v. Davis, 469 F.3d 284, 295 (2d Cir. 2006)). Indeed, Rules 37(a)(5)(A) and
37(b)(2)(C) of the Federal Rules of Civil Procedure contemplate the imposition of costs and fees
incurred in connection with successful motions to compel production or compliance with a
previous court order. The imposition of fees under Rule 37 may be denied, however, where the

failure to comply was “substantially justified” or “other circumstances make an award of
expenses unjust.” Fed. R. Civ. P. 37(a)(5)(A) and 37(b)(2)(C).
The record before me, including consideration of the breadth and volume of the
discovery that has been provided to date, does not justify the requested sanction of striking the
City Defendants’ answer (Docket # 69-1 at ¶ 57). See Richard v. Dignean, 2017 WL 3083916,
*4 (W.D.N.Y. 2017) (“dismissal of a lawsuit, or its analogue, striking an answer, is appropriate if
there is a showing of willfulness, bad faith, or fault on the part of the sanctioned party; however,
because it is a drastic remedy it should be imposed only in extreme circumstances, usually after
consideration of alternative, less drastic sanctions”) (internal quotations, brackets, and alterations
omitted). Yet, this is the third motion brought by Simmons in order to compel the City
Defendants to produce the requested documents (Docket ## 55, 60, 69), and nothing in the
record before me suggests that the City Defendants’ failure to comply with their discovery
obligations and my previous order (Docket # 68) was substantially justified, nor does the record
suggest that an award of Simmons’s expenses would be unjust. Rather, in view of the City
Defendants’ admission that voluminous documents remain to be produced (documents
numbering “in the tens of thousand[s]” (Docket # 81 at ¶ 6)), an award of attorneys’ fees and
costs in connection with the motion is warranted.
Accordingly, that portion of Simmons’s motion that seeks reimbursement of his
fees and costs (Docket # 69) is GRANTED, and the City Defendants are directed to reimburse
Simmons’s attorneys’ fees and costs incurred in making this motion. The parties are directed to
promptly meet and confer regarding the amount of attorneys’ fees and costs to be reimbursed; in
the event that no agreement is reached by June 9, 2021, plaintiff shall file a sworn affidavit by
that date attesting to the amount of attorneys’ fees and costs incurred in connection with the
2

motion. To the extent the City Defendants contest these amounts, they must file an affidavit in
opposition by no later than June 16, 2021. The City Defendants’ request for an extension until
June 23, 2021, to produce all responsive documents (Docket # 81) is granted.
IT IS SO ORDERED.

s/Marian W. Payson
MARIAN W. PAYSON
United States Magistrate Judge

Dated: Rochester, New York
May 26, 2021

3