*1 Before the Court is Plaintiff's motion for sanctions seeking an order striking Defendant's original answer to the complaint as a sanction for repeated failures to produce discovery as well as failure to comply with multiple court orders to comply with discovery demands. (Mot. for Sanctions, Mar. 6, 2020, ECF No. 34.) For the reasons stated below, the Court recommends that the district judge grant the motion and strike the original answer to the complaint per Federal Rule of Civil Procedure 37(b)(2)(A)(iii) and (c)(1)(C).

BACKGROUND

On September 10, 2019, the parties attended a scheduling conference with the Hon. Jonathan Feldman to address discovery issues. Judge Feldman ordered the parties to confer and submit a proposed order compelling the Defendant to produce electronically stored information (“ESI”). (Order, Oct. 3, 2019, ECF No. 27.) Judge Feldman's order gave Defendant until October 28, 2019, to produce the ESI from five different email accounts for search terms relating to Plaintiff, retaliation, harassment, or law suits as well as native calendar entries with metadata. Additionally, Defendant was required to produce certification of an ESI vendor, Plaintiff's time sheets, and complete personnel files for hygienists and dental assistants.

In her affidavit in support of the pending motion for sanctions, Plaintiff's counsel, Ms. Trien, lays out the history of the discovery disputes in this case to date:

(Trien Decl. ¶¶ 4–16, Mar. 6, 2020, ECF No. 34-1.)

Since Plaintiff filed her motion to compel on March 6, 2020, any response to it was due on March 20, 2020. W.D.N.Y. Loc. R. Civ. P. 7 (2020). Eleven days after the deadline, defense counsel filed an affirmation stating the following:

*4 (Geraci Aff. ¶¶ 3–11, Mar. 31, 2020, ECF No. 36.)

At oral argument on March 31, 2020, Plaintiff's counsel repeated her contention that the flash drive provided by defense counsel contained only unrelated material and that Defendant's counsel never produced another replacement drive with the correct material. Incredibly, although acknowledging that he had not replaced the thumb drive, defense counsel insisted that he had provided all the discovery required from Judge Feldman's October 3, 2019, Order.

STANDARD OF LAW

This case has been referred to the undersigned under 28 U.S.C. § 636 “for all matters excluding dispositive motions.” (Order, Nov. 14, 2019, ECF No. 28.) Discovery issues are generally considered non-dispositive, therefore, within the authority of a magistrate judge to decide. Thus, the imposition of monetary sanctions is generally considered non-dispositive and reviewed by the district court on a “clearly erroneous or contrary to law” basis. Thomas E. Hoar, Inc. v. Sara Lee Corp., 900 F.2d 522, 525 (2d Cir. 1990). However, harsher sanctions, such as striking pleadings, constitute an involuntary dismissal and can only be accomplished by the district court. Id.

The Supreme Court has endorsed the imposition of sanctions on a party for willful discovery violation. Update Art, Inc. v. Modiin Pub., Ltd., 843 F.2d 67, 70 (2d Cir. 1988) (citing Taylor v. Illinois, 484 U.S. 400 (1988)). Sanctions under Federal Rule of Civil Procedure 37 serve three purposes:

Update Art, Inc., 843 F.2d at 71 (citations omitted). In this Circuit, Courts contemplating imposition of sanctions consider four non-exclusive factors:

*5 Joint Stock Co. Channel One Russia Worldwide v. Infomir LLC, No. 16CV1318GBDBCM, 2017 WL 3671036, at *21 (S.D.N.Y. July 18, 2017), report and recommendation adopted, No. 16CIV1318GBDBCM, 2017 WL 4712639 (S.D.N.Y. Sept. 28, 2017).

ANALYSIS

Clearly defense counsel has failed to produce the documents in response to Plaintiff's discovery demands. Although he states that responsive documents were provided on a flash drive, Plaintiff convincingly states they were not, and so notified defense counsel, who promised a replacement drive. At the time of oral argument, such had not been done. Consequently, defense counsel has failed to produce the following documents, demanded by Plaintiff well prior to this Court's September 26, 2019, Order:

Contrary to defense counsel's contentions, Plaintiff's counsel mailed a letter to him on November 13, 2019, advising him that he missed the October 28, 2019, deadline to comply with the court-ordered discovery, and that Plaintiff would take further action if no response was received by November 15, 2019. (Stacy E. Trien, Esq., letter to Michael F. Geraci (Nov. 13, 2019) at 1, attached as Ex. K to Pl.’s Mot. to Compel, as ECF No. 29-12.) Plaintiff's counsel then filed her motion to compel on December 2, 2019. Per this Court's local rules, Defendant's response was due on December 16, 2019. W.D.N.Y. Loc. R. Civ. P. 7(b)(2)(B). The undersigned set a motion argument date for January 16, 2020, and the day before the argument date, defense counsel requested an adjournment because he was on trial in a state case. The Court notified defense counsel that it would not entertain a response to Plaintiff's motion to compel (ECF No. 29) unless Defendant made a showing of good cause and excusable neglect as required by Federal Rule of Civil Procedure 6(b). The Court adjourned the motion argument date to February 10, 2020.

On February 10, 2020, both counsels appeared, and the Court heard oral argument. Following the argument, the Court ordered defense counsel to comply with Judge Feldman's prior order (ECF No. 27) not later than February 24, 2020, or the Court would strike Defendant's answer to the complaint. Further, the Court granted sanctions to Plaintiff's counsel (the cost of the motion to compel).

*6 On March 6, 2020, Plaintiff filed her motion for sanctions asking the Court to carry out its notice to defense counsel that it would strike the answer for failure to comply with the discovery deadline set at the February 10 appearance. (Mot. for Sanctions, Mar. 6, 2020, ECF No. 34.) It was on February 24, 2020, the date of the deadline, that defense counsel delivered the flash drive purporting to respond to the outstanding discovery demands. Plaintiff states, under oath, that after advising defense counsel of the collection of unrelated files on the flash drive, he wrote to her on March 6, 2020, via email stating: “he ‘has been on the road,’ advising that the flash drive contains privileged materials relating to a non-party involved in a different action, asking [Plaintiff's counsel] to delete the flash drive, and stating that he will ‘re-transmit all items to [her] on a separate disc or thumb drive right away.” (Trien Decl. ¶ 14, Mar. 6, 2020, ECF No. 34-1.) As previously stated, during oral argument on March 31, 2020, twenty-five days after he stated he would send the responsive documents “right away,” defense counsel had not yet done so.

The Court has tried order after order, and cost sanctions, all to no avail. In deciding what, if any, sanction to impose, the Court will review the four factors discussed above. First, although defense counsel argues again and again that the discovery response will show that no emails exist that would be useful to Plaintiff, he has failed to produce them—even after being ordered to do so—even after being notified that the response he purported to deliver was ineffective—and even after being on notice that Plaintiff was seeking further sanctions for this failure. The Court reluctantly concludes that defense counsel's actions bespeak of intentionality, and not mistake, or neglect.

Second, the other sanction the Court imposed—payment of Plaintiff's counsel's costs for bringing the motion to compel—has seemingly had no effect whatsoever on defense counsel's failures to produce the ordered discovery. Of the possible sanctions available to the Court, only the sanction of striking Defendant's answer will have the effect of ensuring that Defendant will not benefit from its own failure to comply. The Court cannot order that matters embraced be taken as established, because the discovery sought contains information unknown to Plaintiff or the Court. For the same reason, prohibiting Defendant from supporting or opposing designated claims, or from introducing designated matters in evidence would be ineffectual. Fed. R. Civ. P. 37(b)(2)(A)(i) & (ii). Staying the proceedings or dismissing the action would only benefit Defendant. Id. 37(b)(2)(A)(iv) & (v). The Court does not believe that an order finding defense counsel in contempt would result in compliance. Id. 37(b)(20(A)(vii). Finally, only striking the answer appears to ensure that Defendant would not benefit from his repeated failures to produce demanded and ordered discovery.

Third, the duration of the non-compliance is lengthy. Plaintiff's demands date back almost two years, and Judge Feldman's order is from September of 2019. This is not a circumstance where only a short period has passed, and the defendant has finally complied. As late as March 31, 2020, defense counsel had not complied and the Court has no notice that any compliance has occurred since that day until the date of this decision.

Fourth, this Court warned defense counsel during his appearance on February 10, 2020, that it would strike Defendant's answer if the discovery was not turned over. (Minute Entry and Order for Proceedings, Feb. 10, 2020, ECF No. 32: “Failure to comply WILL result in striking of the answer to the complaint.”)

Defendant's Answer to the Original Complaint

A further complication exists with regard to the original answer and the amended complaint. Plaintiff filed her original complaint on June 14, 2018, and served Defendant on June 20, 2018. Defendant filed an answer on August 7, 2018. Defendant's answer was actually due on July 11, 2018; the actual answer was 27 days late. On May 17, 2019, the Court granted Plaintiff's motion to amend the complaint by way of a stipulated order signed by both counsel and Plaintiff filed an amended complaint on May 17, 2019.[1] The stipulated order specified that Defendant “shall file its answer to the Corrected Complaint within ten days of the date of this order.” (Order, May 17, 2019, ECF No. 22.) To date, Defendant has never filed an answer to the amended complaint.

CONCLUSION

*7 For the foregoing reasons, the Court concludes that the only effective sanction in this case is the striking of Defendant's original answer to the original complaint. Defendant has never answered the amended complaint, and the Court does not make any rulings on whether he should be permitted to do so now. Because the sanction is considered dispositive, this Report and Recommendation is made to the assigned district judge for his consideration.

Pursuant to 28 U.S.C. § 636(b)(1), it is hereby

ORDERED, that this Report and Recommendation be filed with the Clerk of the Court.

ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of this Court within fourteen (14) days after receipt of a copy of this Report and Recommendation in accordance with the above statute, Fed. R. Civ. P. 72(b), 6(a) and 6(e) and Local Rule 72.

The district court will ordinarily refuse to consider on de novo review arguments, case law and/or evidentiary material which could have been, but was not, presented to the magistrate judge in the first instance. See, e.g., Paterson-Leitch Co., Inc. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985 (1st Cir. 1988).

Failure to file objections within the specified time or to request an extension of such time waives the right to appeal the District Court's Order. Thomas v. Arn, 474 U.S. 140 (1985); Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55 (2d Cir. 1988).

The parties are reminded that, pursuant to Rule 72(b) of the Local Rules for the Western District of New York, “[w]ritten objections ... shall specifically identify the portions of the proposed findings and recommendations to which objection is made and the basis for each objection, and shall be supported by legal authority.” Failure to comply with the provisions of Rule 72(b), or with the similar provisions of Rule 72(a) (concerning objections to a Magistrate Judge's Decision and Order), may result in the District Court's refusal to consider the objection.

Let the Clerk send a copy of this Order and a copy of the Report and Recommendation to the attorneys for the Plaintiff and the Defendant.

IT IS SO ORDERED.