Keep On Kicking Music, Limited v. Hibbert
1:15-cv-07464
S.D.N.Y.Jul 31, 2017Background
- Plaintiff Keep on Kicking Music, Ltd. and third-party defendant Marc-Antoine Chetata moved for sanctions, an anti-suit injunction, and an attachment against Frederick “Toots” Hibbert and related entities for discovery abuses and parallel litigation in Jamaica.
- Movants served discovery (interrogatories, document requests, deposition notice) in Sept. 2016 and re-served in Dec. 2016 after no response; Hibbert belatedly sought an extension in Jan. 2017 and gave assurances at a pre-motion conference that he would comply by March 2017.
- Despite assurances, Hibbert produced no documents and did not appear for deposition; Movants filed a sanctions motion and the Court permitted it after continued noncompliance.
- Movants also learned Hibbert had filed a related action in Jamaica raising substantially the same underlying claims about administration and publishing rights to Hibbert’s compositions.
- The Court found Hibbert’s conduct careless and sanctionable but not willful/bad faith sufficient to warrant dismissal; imposed a monetary sanction, ordered completion of discovery/deposition, granted a preliminary anti-suit injunction against the Jamaican Action, and denied an order of attachment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether extreme Rule 37 sanctions (striking answer/dismissing claims) are justified | Hibbert repeatedly failed to produce documents or sit for deposition; such conduct warrants striking answers and inquest | Hibbert blamed heavy travel and a manager’s failures; argued lapses were not willful or in bad faith | Court declined extreme sanctions now; found conduct sanctionable but not willful/bad faith and warned future noncompliance could lead to dismissal |
| Appropriate compensatory sanction amount | Seek attorneys’ fees/costs for bringing the motion and deterrence | Opposed severe monetary or punitive sanctions beyond compensatory fees | Court awarded $12,500 to Movants as partial attorneys’ fees/costs (compensatory), noting punitive relief requires higher procedural protections |
| Whether to enjoin Hibbert’s parallel Jamaican action | Jamaican suit duplicates core claims and would risk inconsistent results, prejudice, delay, vexatious litigation | Hibbert proceeded in Jamaica asserting similar claims; argued forum choice | Court granted preliminary anti-suit injunction: same parties and dispositive overlap met; additional factors (jurisdictional threat, vexatiousness, prejudice, delay) favored enjoining until this action resolves |
| Whether an order of attachment is warranted | Attachment needed to secure potential judgment; Movants asserted risk of noncollection | Hibbert not shown to be making himself judgment-proof; Movants failed to show probability of success on merits | Court denied attachment: Movants failed to show likely success on merits or imminent risk justifying drastic provisional remedy |
| Discovery schedule and consequences of noncompliance | Movants sought prompt completion of discovery and depositions | Hibbert argued logistics but was ordered to comply | Court set deadlines (documents by Sept 30, 2017; deposition in NY by Oct 31, 2017) and warned that further failure could prompt Rule 37 dismissal |
Key Cases Cited
- Dodson v. Runyon, 86 F.3d 37 (2d Cir. 1996) (dismissal/sweeping sanctions are rare and reserved for when lesser measures are futile)
- Goodyear Tire & Rubber Co. v. Haeger, 137 S. Ct. 1178 (2017) (limits on punitive monetary sanctions; compensatory fee awards must be causally related)
- Paramedics Electromedicina Comercial, Ltda. v. GE Med. Sys. Info. Tech., Inc., 369 F.3d 645 (2d Cir. 2004) (framework and caution for anti-suit injunctions restraining foreign litigation)
- China Trade and Dev. Corp. v. M.V. Choong Yong, 837 F.2d 33 (2d Cir. 1987) (requirements for anti-suit injunctions: same parties and dispositive overlap)
- Ibeto Petrochemical Indus. Ltd. v. M/T Beffen, 475 F.3d 56 (2d Cir. 2007) (additional factors to weigh for anti-suit injunctions, incl. jurisdictional threat and prejudice)
- Dragon Yu Bag Mfg. Co. Ltd. v. Brand Science, LLC, 282 F.R.D. 343 (S.D.N.Y. 2012) (lesser sanctions like monetary awards and ordering depositions can satisfy Rule 37 goals)
- Neufeld v. Neufeld, 172 F.R.D. 115 (S.D.N.Y. 1997) (example of severe sanctions after repeated discovery refusals and failure to heed orders)
- Software AG, Inc. v. Consist Software Solutions, Inc., [citation="323 Fed. App'x 11"] (2d Cir. 2009) (applying preliminary injunction standards to anti-suit injunction requests)
- Mahon v. Texaco Inc., [citation="122 Fed. App'x 537"] (2d Cir. 2005) (affirming severe sanctions where discovery noncompliance delayed case for years)