John R. Andrews, Jr. v. Town of West Seneca, Donald Driscoll, Jeffrey Coia,...

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK _____________________________________ JOHN R. ANDREWS, JR., DECISION and Plaintiff, ORDER v. 21-CV-746-LJV(F) TOWN OF WEST SENECA, DONALD DRISCOLL JEFFREY COIA, JAMIE PAPPACENO, GERALD FIBICH, ROBERT DEPPELER, Defendants. _____________________________________ APPEARANCES: RUPP PFALZGRAF LLC Attorneys for Plaintiff JONATHAN P. CANTIL, MATTHEW E. GABALSKI, PAUL D. JAGER, YOUNG WOO KIM, R. ANTHONY RUPP, III, of Counsel 1600 Liberty Building Main Street Buffalo, New York 14202 BAKER & SMITH PC Counsel for Defendants ARTHUR J. SMITH, of Counsel Jericho Turnpike, Suite 302 Jericho, New York 11753

In a Decision and Order (“D&O”), filed March 26, 2026 (Dkt. 101), the court granted in part and dismissed in part Plaintiff’s motion to compel pursuant to Fed.R.Civ.P. 37(a)(5)(A) (“Rule 37(a)(5)(A)”). Defendants were given 10 days to respond to the court’s Order To Show Cause (“OTSC”) why Plaintiff’s expenses, including reasonable attorneys fees, should not be awarded as required by Rule 37(a)(5)(A). D&O at 5. Defendants were served with the D&O on March 26, 2026 via CM/ECF. On April 7, 2026, Plaintiff filed a letter noting that the 10-day period within which Defendant was required to respond to the OTSC has now expired (April 6, 2026) without any response by Defendants and, accordingly, Plaintiff should be awarded Plaintiff’s expenses pursuant to Rule 37(a)(5)(A). (“Plaintiff’s April 7, 2026 Letter”) See Plaintiff’s April 7, 2026 Letter (Dkt. 102).

Failure to respond to an order to show cause why a prevailing party should not be awarded its expenses in connection with a successful motion to compel pursuant to Rule 37(a)(5)(A) by a requested party constitutes a failure to demonstrate such party’s failure to provide Plaintiff’s requested discovery in accordance with Fed.R.Civ.P. 33 and was substantially justified or that an award would be unjust. See Lennon v. Allegiance Accounting Services, LLC, 2020 WL 13441828, at *1 (W.D.N.Y. Nov. 12, 2020) (citing Roth v. 2810026 Canada Limited Ltd., 2016 WL 5745162, at ** 1-2 (W.D.N.Y. Oct. 4, 2016) (ordering defendant to pay plaintiff’s expenses, including reasonable attorneys fees, based on defendant’s failure to timely comply with the order to show cause why plaintiff’s expenses should not be imposed pursuant to Rule 37(a)(5)(A)). Accordingly, in light of Defendant’s failure to respond to the OTSC, Plaintiff’s request for an award pursuant to Rule 37(a)(5)(A) is GRANTED. Said award shall be paid by Defendants’ attorneys given that, as found in the D&O, that the untimeliness of Defendants’ responses to Plaintiff’s discovery requests was primarily the result of Defendants’ counsel’s law office failure. See D&O at 3-5 (referencing Defendants’ attorney’s declaration that Defendants’ late responses to Plaintiff’s discovery requests was caused by the assigned attorney having left the law firm).

Plaintiff shall file Plaintiff’s affidavit of Plaintiff’s expenses, including attorneys fees, stating the amount of such expenses together with copies of contemporaneous time and billing records and receipts for any related expenses in support of the amounts of such expenses within 20 days; Defendants’ response shall be filed within 10 days; Plaintiff’s reply shall be filed within five days; oral argument shall be at the court’s discretion.

SO ORDERED. /s/ Leslie G. Foschio _________________________________ LESLIE G. FOSCHIO UNITED STATES MAGISTRATE JUDGE Dates: April 9, 2026 Buffalo, New York