United States District Court, D. Connecticut
RULING ON DEFENDANT GROCERY HAULERS, INC.'S
MOTION FOR SANCTIONS (Dkt. #86)
Glazer Margolis United States Magistrate Judge
with this Court's Ruling on Defendant's Motion to
Compel (Dkt. #75), filed on October 11, 2017 [“October
2017 Discovery Ruling”] is presumed. On December 1,
2017, defendant filed the pending Motion for Sanctions (Dkt.
#86), with exhibits in support, in response to which
plaintiff filed a brief in opposition, with exhibits in
support (Dkt. #89) on December 20, 2017. On January 3, 2018,
defendant filed its reply brief with exhibits in support.
(Dkt. #90). Discovery is scheduled to close in this case on
January 18, 2018, and the dispositive motion deadline is
February 20, 2018. (12/4/17 CM/ECF entry).
pending motion, defendant asserts that plaintiff failed to
supplement “fully and fairly” his responses to
Interrogatory Nos. 4, 7(a), 7(c), 7(d), 8, 12, 13(d),
13(e)(ii), 15(c) and 15(f), and Requests for Production Nos.
2, 8, 11, 12, and 20 by the October 31, 2017 deadline set
forth in the Court's October 2017 Discovery Ruling. (Dkt.
#86). On November 21, 2017, plaintiff served additional
supplemental responses, and after further correspondence
between counsel, on November 29, 2017, plaintiff provided
supplemental compliance to all of the foregoing except
Interrogatory No. 7(d) and Request for Production No. 28.
(Dkt. #86, at 1; Dkt. #86, Brief at 2-3, 5-7). Two days
later, defendant filed the pending motion asserting that
plaintiff “should be penalized” for his
“dilatory tactics[.]” (Dkt. #86, at 2). Defendant
contends that plaintiff failed to supplement his responses to
Interrogatory 7(d), in which plaintiff was asked if he was
paid hourly or on a salary basis, the compensation rate or
salary, and the amount earned from each source for whom
plaintiff worked since October 1, 2014; defendant's
request at this stage specifically refers to the amount
plaintiff earned while employed at UPS and Uber. (Dkt. #86,
Brief at 6 & Exh. A at 4). Additionally, according to
defendant, plaintiff's production in response to Request
for Production No. 18 “remains deficient” as
plaintiff failed to produce the W-2 wage statement detailing
income received in 2014 from STA of Connecticut. (Dkt. #86,
Brief at 7).
objection, plaintiff notes that he has complied with
Interrogatory 7(d) in that, in an email dated November 22,
2017, plaintiff's counsel informed defense counsel that
he did not work for Uber in 2017 (Dkt. #89, at 1 & Exh.
A), and defendant “fail[ed] to inform the court that it
issued a subpoena to Uber to produce the [p]laintiff's
employment records by November 20, 2017.” (Dkt. #89, at
Additionally, plaintiff contends that although he had a
typographic error when he noted seasonal work at UPS from
November 2016 to January 2016, the seasonal work ended in
January 2017, and defendant, as a result of a subpoena issued
to UPS, received plaintiff's UPS employment records on
November 21, 2017. (Dkt. #89, at 2 & Exh. B). According
to plaintiff, between plaintiff's own responses and Uber
and UPS' responses to the subpoenas issued by defendant,
there is no information outstanding.
addition, plaintiff responds that he provided defendant with
all of the income tax returns requested together with the
corresponding schedules in response to Request for Production
No. 18, and thus, plaintiff cannot determine what defendant
claims is missing. (Dkt. #89, at 2). To the extent that
defendant is missing plaintiff's 2014 itemized deduction
worksheet, plaintiff attached another copy to his brief in
opposition. (Dkt. #89, Exh. B). Plaintiff also asserts that
he does not have W-2s for 2015 and 2016, but plaintiff's
W-2 income is listed with a description of the employer on a
W-2 worksheet attached to plaintiff's 2015 and 2016 tax
returns. (Dkt. #89, at 3). In response, defendant claims
plaintiff has not provided his 2014 W-2 and failed to produce
any accompanying statements, schedules, and/or attachments
for his 2013, 2014, and 2015 tax returns. (Dkt. #90, at 6-7).
Rule of Civil Procedure 37(b)(2)(A) permits a court to impose
sanctions on a party for failure to comply with a discovery
order, and Rule 37(b)(2)(C) provides that “the court
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.” “Where, as
here, the nature of the alleged breach of a discovery
obligation is the non-production of evidence, a district
court has broad discretion in fashioning an appropriate
sanction . . . .” Residential Funding Corp. v.
DeGeorge Fin. Corp., 306 F.3d 99, 107 (2d Cir.
2002)(citation omitted); see John B. Hull, Inc . v.
Waterbury Petroleum Prods, Inc., 845 F.2d 1172, 1176 (2d
Cir. 1988)(citation omitted)(imposition of sanctions is
within the discretion of the district court).
is correct that this Court ordered compliance by October 31,
2017, and such compliance was not complete until over a month
later. (See Dkt. #89, Exh. A; Dkt. #90, Exhs. I-J).
One day after the October 31, 2017 deadline, defendant served
a subpoena on UPS, and two days later, on November 3, 2017,
defendant served a subpoena on Uber Technologies, Inc. and
Raiser, LLN. (Dkt. #90, at 8, n.11). As discussed above,
plaintiff responded to defense counsel in an email
communication that he did not receive any compensation from
Uber in 2017 (see Dkt. #89, Exh. A); plaintiff served
supplemental compliance prior to the filing of
defendant's motion (see Dkt. #86, Aff't,
Exh. 6; Dkt. #90, Exhs. I-J); and plaintiff served an
additional document responsive to Request for Production No.
18 in connection with his brief in opposition. (See
Dkt. #89, Exh. B). Thus, the fact that defendant received
documents responsive to its subpoena to UPS,  and the fact that
plaintiff supplemented its responses once deficiencies were
noted by defense counsel in the weeks following the October
31, 2017 deadline, does not excuse plaintiff's
counsel's failure to comply with the Court's
discovery order. Accordingly, the Court orders
plaintiff's counsel to pay reasonable attorneys' fees
and costs, limited to those expended in connection with the
motion for sanctions and reply brief. After the close of
discovery, defendant shall file an application for
attorneys' fees and costs outlining the reasonable fees
and costs expended in litigating this motion for sanctions.
not a Recommended Ruling, but a ruling on a non-dispositive
motion, the standard of review of which is specified in 28
U.S.C. § 636; Fed.R.Civ.P. 6(a), 6(e) & 72; and Rule
72.2 of the Local Rules for United States Magistrate Judges.
As such, it is an order of the Court unless reversed or
modified by the District Judge upon timely made objection.
See 28 U.S.C. § 636(b)(written
objections to ruling must be filed within fourteen calendar
days after service of same); Fed. R. Civ. P. 6(a)
& 72; Rule 72.2 of the Local Rules for United States
Magistrate Judges, United States District Court for the
District of Connecticut; Impala v. United States Dept. of
Justice, 670 F. App'x 32 (2d Cir. 2016)(summary
order)(failure to file timely objection to Magistrate
Judge's recommended ruling will
preclude further appeal to Second Circuit); cf. Small v.
Sec'y, H&HS, 892 F.2d 15, 16 (2d Cir.
1989)(failure to file timely objection to Magistrate
Judge's recommended ruling may
preclude further appeal to Second Circuit).
Attached to defendant's motion is
correspondence from defense counsel informing plaintiff's
counsel of defendant's receipt of documents responsive to
its subpoena to UPS. (See Dkt. #86 Aff't, Exh.
See note 4 infra.
Plaintiff did not supplement his
response to Interrogatory No. 7(d), in writing and under oath
as required by Federal Rule of Civil Procedure 33(b)(3).
Defendant, however, accepted plaintiff's
“supplemented” response. (See Dkt. #89, Exh. A,
Nov. 22, 2017 2:30PM email: “. . . there was no way for
us to know that he did not earn ...