Case 3:06-cv-01710-VLB Document 277-1 Filed 02/22/10 Page 1 of 7 UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT : DOCTOR S ASSOCIATES INC. : Plaintiff : CIVIL ACTION NO.: vs. : 3:06CV01710 (VLB) : QIP HOLDERS LLC and IFILM : Defendants : FEBRUARY 22, 2010 : PLAINTIFF S MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION TO COMPEL COMPLIANCE WITH COURT S DISCOVERY ORDER The Plaintiff Doctor s Associates Inc. ( Plaintiff or Subway ), by and through undersigned counsel, submits this Memorandum in support of its Motion to Compel the Defendant QIP Holders, LLC ( Defendant or Quiznos ) to comply with the Court s discovery order of April 22, 2009. I. FACTUAL BACKGROUND Plaintiff s Motion to Compel arises out of a dispute over Defendant s withholding of documents sought by the Plaintiff in discovery. By Order dated November 10, 2008, the Court appointed Attorney George Royster
Case 3:06-cv-01710-VLB Document 277-1 Filed 02/22/10 Page 2 of 7 as a Special Master for discovery purposes to perform duties to which the parties consented... pursuant to Fed. R. Civ. P. 53(a)(1). Thereafter Attorney Royster conducted hearings and reviewed the parties submissions, as well as the documents which the Defendant withheld from production. Attorney Royster issued a report, recommending that the Defendant be required to disclose certain documents withheld, and recommending that his fees be apportioned 25% to the Plaintiff and 75% to the Defendant. Following a hearing held on April 22, 2009, the Court adopted Attorney Royster s recommendation regarding the apportionment of fees, and ordered that the Special Master s fees be apportioned 25% to the Plaintiff and 75% to the Defendant. The total amount of the fees charged by Attorney Royster amounted to $78,005.68. The Plaintiff has paid to Attorney Royster 50% of the total, or $39,002.84. The Plaintiff has made demand upon the Defendant for reimbursement of $19,501.44, which would adjust the fees paid to the 25%/75% apportionment ordered by the Court. Despite making demand upon the Defendant by letter dated December 24, 2009 (Copy attached) and 2
Case 3:06-cv-01710-VLB Document 277-1 Filed 02/22/10 Page 3 of 7 reminding the Defendant of its failure to reimburse the Plaintiff the amount due at the Settlement Conference before Magistrate Judge Martinez on January 15, 2010, the Defendant has continued to refuse to make the payment due or to in any way dispute the sum sought. II. ARGUMENT Rule 37(b)(2)(A) provides that the Court may issue sanctions as a result of the failure of a party to obey an order of the Court with respect to discovery. Those sanctions included, but are not limited to, the entry or a default or an order of contempt of court. F.R.C.P. Rule 37(b)(2)(a)(vi) and (vii). The Court has wide discretion in imposing sanctions, including sever sanctions, under Rule 37(b)(2).... Daval Steel Products v. M/V Fadredine, 951 F. 2d 1357, 1365 (2d. Cir. 1991); Morales v. Cancun Charlie s Restaurant, No. 3:07-cv-1836(CFD), 2009 U.S. Dist. LEXIS 101986 (D. Conn. October 30, 2009). It is, of course, well-settled that all litigants... have an obligation to comply with court orders. When they flout that obligation they... must suffer the consequences of their actions. McDonald v. Head Criminal Court Supervisor Officer, 850 F. 2d 121, 124, (2d Cir. 1988). 3
Case 3:06-cv-01710-VLB Document 277-1 Filed 02/22/10 Page 4 of 7 Here there can be no dispute over whether the Defendant has failed to comply with the Court s Order apportioning fees. Sanctions are therefore appropriate. In considering what sanctions to impose, the Court should consider (1) the willfulness of the non-compliant 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 has been warned of the consequences of his non-compliance. Handwerker v. AT&T Corp., 211 F.R.D. 203, 208 (S.D.N.Y. 2002); Morales, supra, at *14-15. A noncompliance with a Court s Order may be deemed willful when the court s orders have been clear, when the party has understood them, and when the party s non-compliance is not due to factors beyond the party s control. Morales, supra, at *15, quoting Abreu v. City of New York, 208 F.R.D. 526, 530 (S.D.N.Y. 2002). Here the Defendant s refusal to comply with the Court s Order regarding apportionment of fees must be considered willful. The Court s Order was clear, and easily understandable, and there can be no good reason or factors beyond the Defendant s control for its failure to pay the 4
Case 3:06-cv-01710-VLB Document 277-1 Filed 02/22/10 Page 5 of 7 fees as apportioned. Accordingly, the Plaintiff asks the Court to impose sanctions upon the Defendant, up to and including the entry of a default, 1 in addition to a requirement that the Defendant pay to the Plaintiff the apportioned amount of $19, 501.44. In addition, F.R.C.P. Rule 37(b)(20(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. There can be no substantial justification for the Defendant s failure to comply with the Court s Order apportioning fees, and the Plaintiff therefore requests that the Court order the Defendant to pay to Plaintiff for its attorney s fees incurred in pursuing this motion. III. CONCLUSION For all the foregoing reasons, the Plaintiff submits that the Court should enter an Order compelling the Defendant to pay to the Plaintiff the sum of $19,501.44, imposing sanctions upon the Defendant for its failure to 1 Default judgment is proper if there is a showing of willfulness, bad faith, or fault on the part of the sanctioned party. Morales, supra at *15, quoting West v. Goodyear Tire and Rubber, 167 F. 3d 776, 779 (2d Cir. 1999). 5
Case 3:06-cv-01710-VLB Document 277-1 Filed 02/22/10 Page 6 of 7 comply with the Court s order of April 22, 2009, and requiring the Defendant to pay the Plaintiff s attorney s fees and costs incurred in pursuing this motion. Respectfully submitted, THE PLAINTIFF DOCTOR S ASSOCIATES INC. By /s/ Lisa A. Zaccardelli, Esq. ct07983) Jeffrey J. Mirman, Esq. (ct05433) LEVY & DRONEY, P.C. 74 Batterson Park Road P.O. Box 887 Farmington, CT 06034-0887 (860) 676-3000 Its Attorneys 6
Case 3:06-cv-01710-VLB Document 277-1 Filed 02/22/10 Page 7 of 7 CERTIFICATION OF SERVICE I hereby certify that on February 22, 2010, a copy of the foregoing Plaintiff s Memorandum of Law in Support of its Motion to Compel was filed electronically and served by mail on anyone unable to accept electronic filing. Notice of this filing will be sent by email to all parties by operation of the Court s electronic filing system or by mail to anyone unable to accept electronic filing as indicated on the Notice of Electronic Filing. Parties may access this filing through the Court s CM/ECF system. Lisa A. Zaccardelli, Esq. (ct07983) Jeffrey J. Mirman, Esq. (ct05433) Levy & Droney, P.C. 74 Batterson Park Road Post Office Box 887 Farmington, CT 06032-0887 (860) 676-3065 (860) 676-3200 (fax) email: jmirman@ldlaw.com email: lzaccard@ldlaw.com /s Lisa A. Zaccardelli 7