Selletti v. Carey

194 F.R.D. 476, 2000 U.S. Dist. LEXIS 10587, 2000 WL 1052000
CourtDistrict Court, S.D. New York
DecidedJuly 27, 2000
DocketNo. 96 Civ. 0016(DC)
StatusPublished
Cited by2 cases

This text of 194 F.R.D. 476 (Selletti v. Carey) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Selletti v. Carey, 194 F.R.D. 476, 2000 U.S. Dist. LEXIS 10587, 2000 WL 1052000 (S.D.N.Y. 2000).

Opinion

MEMORANDUM DECISION

CHIN, District Judge.

Before the Court is the motion of defendants Sony Music Entertainment Inc., Sony Songs, Inc., and Mariah Carey to dismiss the complaint pursuant to Fed.R.Civ.P. 41(b) and 37(b) and the Court’s inherent authority. For the reasons that follow, the motion is granted and the complaint is dismissed, with prejudice and with costs.

Selletti’s “Motion for Relief from Orders,” filed with a “Notice of Hearing” and docketed on November 30, 1999, is denied in all respects.

BACKGROUND

A. Prior Proceedings

On June 26, 1997, I issued an order dismissing this action with prejudice because plaintiff Christopher Selletti had failed to pay a discovery sanction of $5,000 and had failed to post a security bond of $50,000. I thereafter denied two requests by Selletti to vacate the order of dismissal. See generally Selletti v. Carey, 173 F.R.D. 96 (S.D.N.Y.1997); Selletti v. Carey, 174 F.R.D. 311 (S.D.N.Y.1997); Selletti v. Carey, 177 F.R.D. 189 (S.D.N.Y. 1998).

On appeal, the Second Circuit concluded that I did not abuse my discretion by imposing a $5,000 sanction against Selletti for “a series of discovery abuses and a general strategy, pursued by both plaintiff and his attorney, to prosecute this action through the media rather than comply with the discovery requirements of the Federal Rules [of Civil Procedure] and the orders of the court.” [477]*477Selletti v. Carey, 173 F.3d 104, 110 (2d Cir. 1999). Likewise, the Second Circuit concluded that I did not abuse my discretion by requiring Selletti to post a security bond in the amount of $50,000 in light of my findings — which the circuit court did not disturb — that “the merits of plaintiffs claims were questionable, that plaintiff had violated discovery orders and otherwise had failed to prosecute his claims adequately, and that defendants’ ultimate ability to recover costs that might be awarded by the court was in doubt.” Id. at 111. Accordingly, the Second Circuit affirmed my May 21, 1997 order imposing sanctions of $5,000 and requiring that plaintiff post a bond of $50,000. Id. at 110— 11.

The Second Circuit remanded the case, however, because it concluded that I had failed “to accord any significant weight to plaintiffs inability to pay the sanction or post security in the required amount, a consideration relevant to plaintiffs interest in receiving a fair chance to be heard.” Id. at 111. The circuit court instructed as follows:

On remand, the district court may consider whether dismissal is appropriate based on a finding that plaintiff was in fact able to pay the sanctions or post the required bond; based on plaintiffs overall conduct apart from his non-compliance 'with those requirements; or based on a conclusion that the evidence already received by the district court demonstrates defendants’ entitlement to summary-judgment —

Id. at 113.

B. Proceedings on Remand

Following the Second Circuit’s remand, defendants served discovery requests on Sellet-ti seeking information regarding his financial situation and in particular whether he had the ability to pay the $5,000 sanction or post the $50,000 bond. Again, however, Selletti failed to respond in a diligent and complete manner. For example, he failed to produce a number of categories of documents. (Snyder 10/29/99 Aff. H 6). At a conference on September 13,1999,1 ordered Selletti to produce certain documents that he had failed to produce. (9/13/99 Tr. at 21-23). The parties submitted certain letters to the Court and I again overruled Selletti’s objections to certain document requests and I reiterated my order that he produce certain documents by September 21,1999.

Although Selletti did produce some documents, he failed to fully comply with my order as significant categories of documents remained unproduced as of September 21, 1999. (Snyder 10/29/99 Aff. H 16). By letter dated September 28, 1999, Selletti produced some additional documents. But this production was still incomplete; for example, Sellet-ti produced the first pages of tax returns for FYM, Inc. (“FYM”), a corporation in which he held an ownership interest, for 1997 and 1998 but not the remaining pages. (Id. 1118 & Ex. R). Moreover, Selletti had previously represented to the Court that FYM had not filed corporate tax returns, and these prior representations to the Court had not been correct. (Id. H119, 13, 18; 9/13/99 Tr. at 21).

The documents that Selletti did produce showed that on or about June 1, 1997, just ten days after my May 21,1997 order imposing the $5,000 discovery sanction and requiring the $50,000 bond, he had transferred his 50% interest in FYM to his then-girlfriend (and future wife). (Snyder 10/29/99 Aff. 117 & Ex. H, I). Moreover, FYM’s tax returns (or the first pages thereof) showed that FYM reported gross income for 1997 of $121,793 and for 1998 of $114,072. (Id. 1119 & Ex. R). Selletti’s personal tax returns show adjusted gross incomes for 1996, 1997, and 1998, respectively, of -$323, $11,682, and $27,821. (Id. If 19 & Exs. U, Y, W).

On September 30, 1999, Selletti was deposed. He still had not produced as of that date a number of categories of documents, including, for example, any bank account statements after 1997, any credit card statements after 1997, FYM’s books and records for any period of time, any portion of FYM’s tax returns for 1996, or any W-2s or 1099s for Selletti or his wife for 1996,1997, or 1998. (Id. 1121). Yet, he admitted that FYM maintained books and records, that FYM paid for certain of Selletti’s living expenses, that he had certain credit card statements in his apartment that he had not produced, and that his future wife had taken over their [478]*478finances after May 1997. (Id. 1123, citing Ex. J (Selletti Dep. Tr.) at 20, 33, 54, 59,122-23). Selletti also stated that he could have paid the $5,000 discovery sanction in 1997 (as well as in 1999) in the same manner in which he paid for other living expenses (i.e., through credit card cash advances on one of his 36 credit cards) and that he did not pay the discovery sanction in 1997 because he thought his attorney should have paid it. (Id., citing Ex. J at 130-33,142-43).1

Approximately a week after his deposition, Selletti produced additional documents that should have been produced by September 21, 1999. (Id. 1124). Selletti still did not, however, produce all the required documents. (Id. H 25).

This motion followed.

DISCUSSION

Defendants move to dismiss this action on three grounds: first, they contend that Sel-letti’s misconduct prior to his appeal provided a sufficient basis for dismissal, regardless of his failure to pay the $5,000 sanction or post the $50,000 bond; second, they contend that his continued misconduct following remand provides an additional basis for dismissal; and third, they contend that Selletti had the means to pay the $5,000 sanction in 1997 and that his failure to do so therefore provides a sufficient basis for dismissal as well. I agree, in all three respects.

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Related

Selletti v. Carey
17 F. App'x 18 (Second Circuit, 2001)

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Bluebook (online)
194 F.R.D. 476, 2000 U.S. Dist. LEXIS 10587, 2000 WL 1052000, Counsel Stack Legal Research, https://law.counselstack.com/opinion/selletti-v-carey-nysd-2000.