*1 Plaintiff Beverly Van Gundy commenced this case against Defendants Atlas Rare Coins, Inc., Tri-State Assets, LLC, Christian Antonelli, Jason Sullivan, C.A. Rarities, Inc., Atlas Collectibles, Inc., Christopher F. Misuraca, Richard J. Bruckner, III, and Kyle Finkbeiner alleging that Defendants defrauded Plaintiff by selling her precious coins. (ECF No. 77.) Specifically, she alleges that Defendants sold these coins to her at “unconscionably inflated prices” and Antonelli would then convert the coins and siphon them back into his operation to resell them to others for an overpriced value. (Id. ¶ 3.)

Plaintiff now moves for sanctions against Defendants Atlas Rare Coins, Inc. and Antonelli for their failure to comply with the Court's Orders regarding Antonelli's attendance Atlas Rare Coins deposition and failure to comply with discovery obligations. (ECF No. 132.) Defendants oppose the motion. (ECF Nos. 134 and 138.) For the reasons set forth below, the undersigned recommends that Plaintiff's motion for sanctions (ECF No. 132) be GRANTED in part and DENIED in part.

Defendant Antonelli owns Atlas Rare Coins and C.A. Rarities, which operated from October 2018 through July 2021 and July 2021, respectively. (ECF No. 77 ¶ 1.) Plaintiff alleges that Antonelli and Atlas Rare Coins, as well as the other Defendants, committed two frauds: one by selling her coins at inflated prices unbeknownst to her, and two by “tricking her into shipping the coins back to Antonelli who then converted her coins and failed to adequately compensate her for them.” (Id. ¶ 3.) Antonelli often told Plaintiff that she had to act quickly if she wanted to reap the rewards for these rare coins. (Id. ¶ 32.) He also made several false representations about the value of the coins that were offered to her from June 2017 through July 2021. (See e.g. id. ¶ 34.) Antonelli told Plaintiff that he would sell the coins for her at an auction and promised her $1.1 million in return. (Id. ¶ 8.) When Plaintiff asked about the results of these auctions, Antonelli dodged her inquiries. (Id. ¶ 9.)

Antonelli later admitted that he did not send her coins to the auction and said he had already paid her for the coins he sold. (ECF No. 77 ¶ 10.) But Plaintiff demanded that he return the coins back to her. He only returned 8 coins, though she had given over 2,000 coins to Antonelli. (Id. ¶¶ 10, 43.) As a result of their frauds, Plaintiff “has incurred losses of $371,983.40” based on the second fraud alone, which have ultimately depleted her of her life savings. (Id. ¶ 10.)

Plaintiff alleges that Defendants committed fraud and/or fraudulent concealment, negligent misrepresentation, negligence, violations of the New York General Business Law § 349, conspiracy, money had and received, unjust enrichment, and conversion. (ECF No. 77.) She requests actual ($682,988.59), consequential, punitive, and treble damages as well as injunctive relief and attorneys’ fees and costs. (Id.)

A. Motions for Extensions of Time to Complete Discovery

*2 This suit was initiated on March 17, 2023. (ECF No. 1.) On July 7, 2023, the Court directed the parties to make Rule 26 disclosures. Plaintiff amended her complaint three more times, thereby eliminating her initial Racketeer Influenced and Corrupt Organizations Act (“RICO”) claims against Defendants. (ECF Nos. 17, 37, 77.)

On August 14, 2023, the court extended discovery to September 11, 2023. (ECF No. 47.) The Court also extended the deadline for the Antonelli Defendants’ discovery demands and response to Plaintiff's demands to September 30, 2023. (Electronic Order dated Sept. 10, 2023.) The parties then requested a settlement conference before the undersigned (ECF No. 53). (Electronic Order dated Sept. 1, 2023.) A settlement was reached between Plaintiff and Defendants Sullivan and Atlas Collectibles, but not between Plaintiff and the Antonelli Defendants. (Electronic Order dated Sept. 27, 2023.)

In light of a motion to compel filed by Plaintiff, the Court directed that Defendants’ deposition to be taken by November 24, 2023, and extended fact discovery to conclude by December 15, 2023. (Electronic Order dated Nov. 6, 2023.) The Antonelli Defendants moved for a discovery extension (ECF No. 67) and the court granted it, stating that all depositions should now be completed by January 31, 2024, and all discovery should conclude on March 29, 2024 (Electronic Order dated Nov. 18, 2024.)

On January 22, 2024, the Court held a status conference with the parties, given that there were three additional parties added to the lawsuit (Finkbeiner, Bruckner, Misuraca) (ECF No. 86.) The Court additionally directed the Antonelli Defendants to produce documents in response to Plaintiff's demands by January 26, 2024. (ECF No. 86.)

On February 23, 2204, the Court held a scheduling conference. The Court adopted the following discovery schedule:

(ECF No. 93.) The undersigned then ordered the Fed. R. Civ. P. 30(b)(6) witnesses to take place on April 16, 2024 and Antonelli's deposition to occur on April 17, 2024.[1] (ECF No. 95.)

The Antonelli Defendants’ deposition was adjourned (Electronic Order dated Apr. 12, 2024) but the Court additionally directed the Defendants to respond to Plaintiff's Requests for Production by April 26, 2024 and directed the parties to meet and confer concerning the Antonelli Defendants’ depositions prior to May 17, 2024. (Electronic Order dated Apr. 22, 2024.) Shortly after Jack Piana, Antonelli Defendants’ attorney, filed a letter motion to withdraw due to a conflict of interest, which was granted. (ECF No. 107; Electronic Order dated May 7, 2024.) In light of the withdrawal, the Court stayed the case for 30 days to allow time for the Antonelli Defendants to retain counsel—therefore, fact discovery was to conclude by June 27, 2024 and expert discovery by August 29, 2024. (Electronic Order dated May 7, 2024.)

Plaintiff's counsel then made a request to the Hon. Nusrat J. Choudhury for a further extension of deadlines. (ECF No. 113.) Counsel stated that the Antonelli Defendants attempted to frustrate all court-imposed deadlines and was simply trying to “run out the clock.” (Id.) Judge Choudhury granted the request and extended the deadline to complete fact discovery to July 26, 2024. (Electronic Order dated May 20, 2024.) After Plaintiff filed another motion for an extension of time to complete discovery (ECF No. 126), the court granted it one final time, making the conclusion of fact discovery August 16, 2024. (Electronic Order dated July 26, 2024.)

B. Motions to Compel Document Production

*3 On October 31, 2023, Plaintiff filed a motion to compel (ECF No. 63) requesting that the Antonelli Defendants disclose the names of all potential witnesses in their initial Disclosures and respond and produce responsive documents to several of Plaintiff's document demands. Defendants opposed (ECF No. 65). The court denied the motion and directed the parties to proceed with depositions and further directed Plaintiff's counsel to explore Defendants’ document search efforts referenced in ECF No. 65 during the respective depositions. (Electronic Order dated Nov. 6, 2023.) Plaintiff moved for reconsideration (ECF No. 66) which was denied.

Plaintiff filed another motion to compel (ECF No. 68), again requesting that the Court order the Antonelli Defendants to compel Defendants to produce responsive documents for Plaintiff's document demands. The Antonelli Defendants opposed. (ECF No. 69.) The court denied the motion and directed counsel to proceed with depositions by the January 31, 2024 deadline. (ECF No. 70.) If the documents were not received, then Plaintiff would be able to renew the motion to compel. (Id.)

Defendants recently filed a motion to compel regarding Plaintiff's failure to produce vital information (ECF No. 121) and Plaintiff opposed (ECF No. 122.) Plaintiff also filed a motion to compel three categories of information including FedEx boxes of coins Plaintiff sent Defendants (ECF No. 123) along with a motion for extension of time to complete discovery given the Antonelli Defendants’ threatened document dump of over 1,000 documents just days before the close of discovery. (ECF No. 124.) The request for an extension was denied. (Electronic Order dated July 24, 2023.) The Court granted in part and denied in part these requests. All documents were to be exchanged by August 12, 2024. (ECF No. 131.)

Plaintiff filed a motion to compel Defendants’ deposition stating this deposition is critical because Atlas Rare Coins is the entity that sold Plaintiff's coins as part of the First Fraud and converted them in the Second Fraud. (ECF No. 125.) She explained that the first deposition was noticed for March 11, 2024, re-noticed on July 21, 2024, and adjourned to accommodate Antonelli's availability, for July 24, 2024, but he failed to appear at that time. (Id.) The Court granted this motion to compel, directing Atlas Rare Coins's deposition to take place by August 9, 2024. (Electronic Order dated July 27, 2024.) Plaintiff now files this motion for sanctions at ECF No. 132 which is opposed by Defendants for their continued failure to comply with Court Orders regarding depositions and discovery.[2] (ECF No. 134, 138.)

Rule 16 of the Federal Rules of Civil Procedure authorizes the imposition of sanctions—including those authorized by Rule 37(b)(2)(A)(ii)-(vii)— when a party fails to comply with other pretrial orders. Fed. R. Civ. P. 16(f); see Rahman v. Red Chili Indian Café, Inc., 17-CV-5156 (RA) (BCM), 2019 WL 6619893, at *3 (S.D.N.Y. July 12, 2019). Courts look to several factors when considering the appropriate sanction, including “(1) the willfulness of the non-compliant party or the reason for the noncompliance; (2) the efficacy of lesser sanctions; (3) the duration of the period of noncompliance[;] and (4) whether the non-compliant party had been warned of the consequences of ... noncompliance.” Sanchez v. Jyp Foods Inc., 16-CV-4472 (JLC), 2018 WL 4502008, at *3 (S.D.N.Y. Sept. 20, 2018) (quoting Agiwal v. Mid Island Mortg. Corp., 555 F.3d 298, 302 (2d Cir. 2009)). In addition to the four Agiwal factors, courts also consider whether the movant will be prejudiced by the party's non-compliance. Griggs v. Weiner, 13 CV 3885 (KAM) (CLP), 2020 U.S. Dist. LEXIS 124442, at *10-11 (E.D.N.Y. July 10, 2020).

*4 The Court has a panoply of options available once it is determined that discovery sanctions are warranted. “Rule 37 provides a district court with a wide range of sanctions which it may apply to a wide range of circumstances – potential sanctions extend from payment of expenses and similar monetary sanctions at one end of the spectrum to default judgment on the other.” Abante Rooter & Plumbing, Inc. v. Shore Funding Sols., Inc., No. CV176499 (ADS)(AKT), 2019 WL 2436239, at *5 (E.D.N.Y. Mar. 6, 2019), report and recommendation adopted, No. 217CV06499 (ADS)(AKT), 2019 WL 1986606 (May 6, 2019).

As relevant here, the sanction of striking a defendant's answer and entering a default is a severe sanction and is only appropriate in the most extreme cases. See Sullivan v. Aircraft Servs. Grp., Inc., No. 19-CV-6500 (MKB) (CLP), 2022 WL 16901850, at *4 (E.D.N.Y. Nov. 10, 2022) at *4 (“Indeed, courts have awarded attorney's fees and costs where sanctions were appropriate but where the court found that the sanctioned party's conduct did not rise to a level that would warrant the more severe sanctions of dismissal or default.”). “[C]ourts have held that willfulness or conscious disregard of the court's orders is a prerequisite to the harsher categories of Rule 37 sanctions. Severe sanctions such as dismissal and default judgment are to be applied sparingly, where no other sanction will suffice.” O'Connor v. DL-DW Holdings, L.L.C. (In re Extended Stay Inc.), Case Nos. 09-13764-JLG and 11-02254-JLG, 2022 Bankr. LEXIS 2322, at *11-12 (Bankr. S.D.N.Y. Aug. 22, 2022). Typically, “a single pretrial violation, such as [a] party's failure to respond to a document request by the date ordered, would not ordinarily result in an imposition of a sanction of such finality as striking defendants’ answer and entering judgment by default.” U.S. Freight Co. v. Penn Cent. Transp. Co., 716 F.2d 954, 954 (2d Cir. 1983) (citation omitted) (emphasis added).

Courts must also consider whether the sanction awarded will (1) “ensure that a party will not benefit from its own failure to comply [with discovery orders]”; (2) deter and obtain a party's compliance with the order issued; and (3) [additionally] serve as a general deterrent for other litigants, “provided that the party against whom they are imposed was in some sense at fault.” Roberts v. Bennaceur, 658 Fed. Appx. 611, 614 (2d Cir. 2016); O'Toole v. Vesnic (In re Reifler), Nos. 17-35075 and 19-09004, 2023 Bankr. LEXIS 314, at *10 (Bankr. S.D.N.Y. Feb. 6, 2023).

However, it is well within the court's discretion to impose such harsher sanctions where a defendant exhibits a “continuing saga of dilatory conduct,” and where that party has had notice of the orders with which they failed to comply, paired with “an opportunity to argue [their] case against the proposed sanction.” U.S. Freight Co. v. Penn Cent. Transp. Co., 716 F.2d at 954; see Rahman, 2019 WL 6619893 at *3; Lujan v. Cabana Mgmt., Inc., 284 F.R.D. 50, 68 (E.D.N.Y. 2012) (stating that courts “enjoy broad discretion in deciding whether and how to fashion a sanction pursuant to Rule 37”).

Plaintiff seeks sanctions against Defendants for their failure to comply with the Court's order regarding Antonelli's attendance at the August 9, 2024 deposition for Atlas Rare Coins. (ECF No. 132 at 1.) The sanctions requested include: “(i) establishing that Plaintiff sent the 2,400 coins to Antonelli in September 2021; (ii) prohibiting Antonelli and his companies from opposing Plaintiff's claims; and/or (iii) striking defendants’ answer or rendering a default judgment against Antonelli and his companies.” (Id. at 1 n.4.)

*5 Plaintiff separately points to Defendants’ series of non-compliance with discovery including Antonelli's alleged submission of an inventory intake sheet demonstrating the coins shipped to Defendants by Plaintiff. (ECF No. 132 at 2.) However, the intake sheet only shows Plaintiff's shipping of 400 coins to Defendants; but Plaintiff alleges she shipped 2,400 coins to Defendants in September 2021. (Id.) Indeed, Plaintiff states that the Defendants have “perjured themselves” when coins discussed at a deposition were not on the inventory sheet and Antonelli could not provide an explanation for the discrepancy. (Id.); (see e.g. ECF No. 132-5 at 4) (Q: “So, Mr. Antonelli, on behalf of Tri-State Assets, does that coin appear on your inventory intake form?” A: “I didn't see it.”); (id. at 5) (“I just checked all four of them. No I didn't see them.”) Further, over 200 coins were sold to a company called Florida Coin Exchange, Inc. but Defendants have not provided such records. (ECF No. 132 at 2.)

Defendants respond only to distinguish between the various coin companies named in the deposition and Plaintiff's motion for sanctions. (See ECF No. 134.) Notably, Antonelli does not address his failure to retain counsel, only emphasizing that he cannot represent himself pro se as a corporation. (Id. at 2.) Defendants filed a second opposition, this time stating that: (1) Antonelli has complied with court orders and Plaintiff—not Defendants—has requested extensions to the discovery schedule; (2) there are inconsistencies in Plaintiff's list of coins as well as other invoices; (3) Plaintiff exploits his lack of legal resources and manipulates his pro se status; (4) Plaintiff “sudden[ly]” submitted over 700 documents which undermines her credibility and raises questions about the timing and completeness of her document productions; and (5) Defendants’ former counsel engaged in misconduct which led to the delay and submission of documents without Antonelli's knowledge or consent. (ECF No. 138.)

In light of these allegations, the Court considers each of the factors to determine whether and which sanctions are appropriate against Atlas Rare Coins and Antonelli.

I. Sanctions Against Atlas Rare Coins, Inc.

A. Defendant's Willfulness and Duration of Noncompliance Period

Sanctions in the form of default judgment is warranted here considering Atlas Rare Coins's history of noncompliance spanning several months. Defendants’ evasion of discovery orders began at least in April 2024 when the Rule 30(b)(6) witnesses were to be deposed by April 16, 2024 (ECF No. 95). Those depositions did not take place as scheduled, as indicated at the status conference on April 22, 2024. (Electronic Order dated Apr. 22, 2024.) The Antonelli Defendants’ third counsel in this proceeding withdrew from the case in May 2024 (electronic Order dated May 7, 2024) and was given until June 7, 2024 to secure counsel—which they failed to do. (Electronic Order dated May 20, 2024.) The Court even extended the discovery deadlines to account for the stay in place to afford the Defendants time to retain counsel. (Electronic Orders dated May 20, 2024 and July 26, 2024.) Atlas Rare Coins's deposition was then re-noticed for July 21, 2024 and July 24, 2024. (ECF No. 125.) However, Antonelli again failed to appear for the deposition, stating that he could not appear for the deposition since he was pro se. (Id.) The undersigned then ordered the corporate Defendants’ deposition to take place on August 9, 2024 and that order was then served upon Defendants that same day. (Electronic Order dated July 27, 2024; ECF No. 128.) The Court granted this motion to compel Atlas Rare Coins's deposition (electronic Order dated July 27, 2024) which was to take place by August 9, 2024, but Antonelli failed to appear for a third time. (ECF No. 132.) This nonappearance prompted the filing of this motion for sanctions.

Though Antonelli cites Atlas Rare Coins's pro se status as the basis for its failure to comply, the company should no longer be able to use its pro se status as a shield for defending this case. Atlas Rare Coins has conveniently asserted it for depositions but has filed documents on the electronic docket on Atlas Rare Coins's behalf. Accordingly, Atlas Rare Coins's willfulness and lengthy history of noncompliance counsels toward granting default judgment. Griggs v. Weiner, 13 CV 3885 (KAM) (CLP), 2020 U.S. Dist. LEXIS 124442, at *9 (E.D.N.Y. July 10, 2020) (“Where a party has failed to appear at multiple depositions and has otherwise failed to participate in discovery, default judgment is especially warranted.”); Leopold-Hooke v. Smith, 91 Civ. 1291 (PKL), 1992 U.S. Dist. LEXIS 4753, at *6 (S.D.N.Y. Apr. 9, 1992) (“The rendering of judgment by default against a party, although a severe sanction, is unquestionably authorized by Rule 37(d) when a party fails to appear for his or her deposition.”).

B. Efficacy of Lesser Sanctions, Prejudice to Plaintiff, and Warnings to Defendant

*6 Lesser sanctions at this juncture would not be effective for several reasons. First, Atlas Rare Coins was forewarned about the possibility of default judgment if it failed to appear through counsel. (ECF No. 131 at 3) (“If the corporations do not appear through counsel, default judgments could result as to those.”). Notwithstanding this cautionary note, Atlas Rare Coins still failed to retain counsel. Second and relatedly, Antonelli himself is aware that Atlas Rare Coins must be represented and indeed has acknowledged this or been told this several times and has used it as a means to avoid the corporate deposition. (See ECF No. 118 at 2) (Plaintiff's counsel's letter stating that Antonelli cannot proceed pro se on behalf of corporate defendants); (ECF No. 129) (Antonelli states that his appearing pro se applies to his individual capacity and not Atlas Rare Coins, “demonstrating [his] understanding of the applicable rules”); (ECF No. 132-6) (email from Antonelli stating, “Why do you continue to ask me to appear for a deposition on behalf of an unrepresented corporation after orders have stated it is not allowed?”). Third, any other sanctions would only prolong the case and impose additional prejudice upon Plaintiff. Amusingly, Defendants state that Plaintiff requested multiple extensions of the discovery schedule—not Defendants. (ECF No. 134.) However, discovery has been graciously extended several times at Plaintiff's expense because of Defendants’ own failure to comply and no other sanctions, other than those recommended by Plaintiff as harsh as they may be, would be as effective. (See Electronic Orders dated Sept. 10, 2023, Nov. 18, 2023, Apr. 22, 2024, May 20, 2024, and July 26, 2024.)

Here, the Atlas Rare Coins's failure to retain new counsel, even after being warned that it could not proceed pro se, would impose a proper basis for entering default against it. (See ECF No. 131 at 3); Rowland v. Cal. Men's Colony, Unit II Men's Advisory Council, 506 U.S. 194, 202 (1993); Lattanzio v. COMTA, 481 F.3d 137, 139-40 (2d Cir. 2007); Trustees of Loc. 807 Lab. - Mgt. Pension Fund v. Showtime on the Piers, LLC, No. 21-CV-3677, 2023 WL 2969298, at *3-4 (E.D.N.Y. Mar. 6, 2023); Trustees of Bldg. Trades Educ. Benefit Fund v. Romero Electric LLC, 19-CV-3515, 2021 WL 3604811, at *4 (E.D.N.Y. July 19, 2021), report and recommendation adopted, 2021 WL 3603613 (Aug. 13, 2021). Further, none of the parties here will benefit from the failure to comply; rather, as stated by Plaintiff, a default judgment “would be at most a pyrrhic victory.” (ECF No. 132 at 1.) And finally, given that Antonelli, on behalf of Atlas Rare Coins, was forewarned about the consequences of failing to retain counsel and in light of the multiple extensions granted by the Court, Plaintiff's recommended sanctions of default judgment against Atlas Rare Coins should be granted, so as to deter similar future conduct. See Morales v. Cancun Charlie's Rest., NO. 3:07-cv-1836 (CFD), 2009 U.S. Dist. LEXIS 101986, at *1, *15-20 (D. Conn. Oct. 30, 2009) (granting plaintiff's motion for sanctions in the form of a default judgment and fees for willful violations of discovery orders, including deposition notices, over a period of two years despite several opportunities to comply); see also Beattie v. Bolla Taxi, Inc., 01 Civ. 1270 (SWK), 2003 U.S. Dist. LEXIS 15433, at *6-7 (S.D.N.Y. Sept. 3, 2003) (granting sanctions for expenses and fees but allowing defendants to appear one final time for their deposition before sanctioning them, including striking their responsive pleadings).

The undersigned additionally notes that an analysis regarding liability is not warranted here. In Lavely v. Redheads, Inc., 03 Civ. 7752 (RMB)(KNF), 2006 U.S. Dist. LEXIS 85565, at *1 (S.D.N.Y. Nov. 21, 2006), report and recommendation adopted, 2007 U.S. Dist. LEXIS 12789 (Feb. 15, 2007), the magistrate judge was tasked with determining whether default should be entered against the defendants for failure to comply with discovery orders and whether plaintiff should recover costs and fees incurred because of their misconduct. The court there denied plaintiff's motion for default judgment several times, giving them many opportunities to cure their noncompliance with discovery. Id. at *3-7. Magistrate Judge Fox ultimately recommended a judgment by default against defendants and sanctioning counsel for failure to comply with two court orders. Id. at *14. Judge Fox also suggested scheduling an inquest to prove damages and fees and costs should the court adopt the default judgment recommendation. Similarly, in Communispond, Inc. v. Kelley, 96 Civ. 1487 (DC), 1998 U.S. Dist. LEXIS 12336, at *22 (S.D.N.Y. Aug. 10, 1998), the court granted the motion for sanctions, striking the defaulting defendants’ answer, entering default against them, and granting the request for fees. The court discussed defendants’ disobedience with court orders, bad faith in misrepresenting that documents did not exist, failure to comply with discovery which led to protraction of the case for more than two years, and the prejudice that resulted upon Plaintiff. Id. at *15-20. The court scheduled an inquest to determine damages, fees, and costs. Id. at *22); cf. Diamond v. Simon, No. 89 Civ. 7061 (PKL), 1990 U.S. Dist. LEXIS 16791, at *5-6 (S.D.N.Y. Dec. 11, 1990) (declining to enter default judgment, ordering attorney fees against defendants, and warning defendants that failure to comply with the deposition schedule could result in an entry of default judgment where, although defendants failed to appear at their depositions and offered no explanation, no court order was disobeyed in the process). Consistent with Lavely and Communispond, the undersigned has likewise reviewed the Agiwal factors in making the above recommendation for an entry of default judgment and further finds that more information is needed to determine damages.

*7 Accordingly, the undersigned recommends entering default judgment against Atlas Rare Coins. If this recommendation is adopted, and like Lavely and Communispond, the undersigned here also recommends imposing a briefing schedule or scheduling an inquest on the issue of damages to determine the amount owed to Plaintiff, which shall include the expenses associated with preparing and attending Atlas Rare Coins's scheduled depositions.

II. Sanctions Against Individual Defendant Antonelli

However, default judgment should not be entered against Defendant Antonelli. As Plaintiff's counsel has even pointed out, Antonelli may appear pro se when representing himself, so the circumstances for awarding sanctions are far different than those extant with Atlas Rare Coins. See JPMorgan Chase Babk, N.A. v. Nowak, 23-CV-6834 (JPO), 2024 U.S. Dist. LEXIS 60710, at *4 (S.D.N.Y. Mar. 28, 2024) (“While Nowak can appear pro se as an individual, the entity Defendant, Continentalis Divitiae Express Trust, cannot.”).

Plaintiff cites Defendant's failure to produce evidence related to the number of coins shipped to Plaintiff. Plaintiff states that the number of coins shipped was 2,400 while Defendant avers it is only 400 coins and cites the Inventory Intake Sheet as support. (ECF No. 132.) However, C.A. Rarities Inc.’s own deposition testimony contradicts its stance as there were unexplained discrepancies in the Intake Sheet. (Id. at 2.)

In light of the extensive history of willful evasion of discovery orders (see e.g. Electronic Orders dated Apr. 22, 2024, May 20, 2024, and July 26, 2024) and Defendant Antonelli's ongoing failures to supply the requisite evidence concerning Plaintiff's coins, the Court having carefully considered the appropriate sanction, will recommend one less severe than the striking of an answer. See Volpe v. Ryder, No. 19CV02236 (JMA) (JMW), 2022 WL 4329475, at *4 (E.D.N.Y. Sept. 19, 2022) (“Discovery foot-dragging, like what occurred here, standing alone does not give rise to a finding of willfulness.”); Abante Rooter & Plumbing, Inc. v. Shore Funding Sols., Inc., No. CV176499 (ADS)(AKT), 2019 WL 2436239, at *6 (E.D.N.Y. Mar. 6, 2019), report and recommendation adopted, 2019 WL 1986606 (May 6, 2019) (recommending a monetary sanction, in the form of reimbursement of fees expended and costs incurred, rather than dismissal, where Defendant did not meaningfully participate in discovery). “[D]ue to the repeated and inexplicable delays at the hands of the Defendant[ ] after extensions of discovery deadlines had been marked final, the Court finds that lesser sanctions in the form of costs and attorney's fees associated with bringing [the Motion for Sanctions] to be appropriate.” Volpe, 2022 WL 4329475, at *5; Emmon v. Prospect Capital Corp., 675 F.3d 138, 148 (2d Cir. 2012) (affirming district court decision granting costs associated with defending sanctions motion which was granted and denied in part); Sullivan v. Aircraft Servs. Grp., Inc., No. 19CV6500MKBCLP, 2022 WL 16901850, at *7 (E.D.N.Y. Nov. 10, 2022) (“While defendants request that the action be dismissed, the Court Orders plaintiff to reimburse defendants’ attorney's fees and costs necessitated by having to file the earlier motion to compel and this instant motion seeking sanctions.”). “This sanction should sufficiently deter [Defendant] from continued non-compliance and if it does not, [he is] on notice that [he] could face much more serious consequences including dismissal in the future.” Id.[3] Like the sanctions against Atlas Rare Coins, any lesser sanctions would significantly prejudice Plaintiff by prolonging the case, especially given Judge Choudhury's warning that the August 16, 2024 fact discovery deadline would not be extended for any reason. (Electronic Order dated July 26, 2024.) Further, the inconsistencies noted between Plaintiff's and Defendants’ evidence simply undermines Antonelli's position and would instead be appropriate for cross-examination at trial. Therefore, the Court declines a recommendation that Plaintiff's request for sanctions establishing the number of coins sent to Defendants be granted.

*8 For the foregoing reasons, the undersigned recommends that Plaintiff's motion for sanctions filed at ECF No. 132 be decided as follows:

A copy of this Report and Recommendation is being electronically served on counsel. Counsel for Plaintiff is directed to serve a copy of this Report and Recommendation upon Atlas Rare Coins, Inc. and Christian Antonelli on or before September 27, 2024, and file proof of service of same on ECF. Any written objections to this Report and Recommendation must be filed with the Clerk of the Court within fourteen (14) days of service of this Report. 28 U.S.C. § 636(b)(1) (2006 & Supp. V 2011); Fed. R. Civ. P. 6(a), 72(b). Any requests for an extension of time for filing objections must be directed to the district judge assigned to this action prior to the expiration of the fourteen (14) day period for filing objections. Failure to file objections within fourteen (14) days will preclude further review of this Report and Recommendation either by the District Court or the Court of Appeals. Thomas v. Arn, 474 U.S. 140, 145 (1985) (“a party shall file objections with the district court or else waive right to appeal”); Caidor v. Onondaga Cnty., 517 F.3d 601, 604 (2d Cir. 2008) (“failure to object timely to a magistrate's report operates as a waiver of any further judicial review of the magistrate's decision”); see Monroe v. Hyundai of Manhattan & Westchester, 372 F. App'x 147, 147–48 (2d Cir. 2010) (same).

SO ORDERED: