OPINION

ROBERT W. SWEET, U.S.D.J.

Plaintiff Kara Holding Corp. ("Kara") moves to strike the answer of defendants Getty Petroleum Marketing, Inc. ("Getty Marketing"); Getty Properties Corp. ("Getty Properties"); Getty Realty Corp. ("Getty Realty") (collectively "Getty"); Leemilt's Petroleum Inc. ("Leemilt's"); and The Tyree Organization, Ltd. ("Tyree") pursuant to Fed.R.Civ.P. 37 (b)(2). The third-party defendants, Island Transportation Corp. ("Island") and Xerxes Corporation ("Xerxes") also move for dismissal of the defendants' third-party complaint against them if Kara's motion is granted.

For the foregoing reasons, plaintiff's motion is denied, and the third-party defendants' motions are denied. However, the defendants and third-party defendants are ordered to comply with this Court's earlier discovery orders to the extent they have not done so. Any future failure to comply may result in the type of harsh sanctions that plaintiff sought prematurely in this motion.

Facts

The instant action arises out of a petroleum spill that occurred on April 2, 1997 at Getty Service Station #329, a gas station located in Bronx, New York. Plaintiff, the owner of a building situated adjacent to the gas station, contends that a gasoline spill or spills at the station have resulted in considerable soil and groundwater contamination, as well as contamination of the Bronx River. Defendants are, variously, the alleged owner(s) and operator(s) of the Getty Station, or related corporate entities.

The complaint in this action was filed on January 14, 1999, and asserts federal and state causes of action, for which Kara requests injunctive relief, declaratory relief, the imposition of civil penalties, and an award of both costs and attorneys' fees.

This motion is the culmination of several discovery disputes that took place in 2001.

By a June 26, 2001 order, this Court directed, in pertinent part, that the defendants and third-party defendants provide: (1) insurance policies that could be applicable to the cause of action; (2) testimony and documents that relate to any settlement agreements, agreements of interrelationship and joint defense agreements, or a sworn statement that none exist; (3) testimony and documents related to the settlement of the New York State Department of Environmental Conservation complaint against any defendant, or a sworn statement that none exist other than what had been supplied already; (4) testimony and documents related to petroleum spills at Getty stations that were reported to, or were required to be reported to, the appropriate governmental agencies from January 1, 1993 to the present; (5) testimony and documents related to the sale of Getty Petroleum Marketing Inc. and spill incidents at Getty stations (available for counsel's use only); and (6) the annual reports from 1995 to 1999 of Getty Realty and Getty Marketing. Order of June 26, 2001, at 1-2.

On August 15, 2001, Kara filed a motion to compel pursuant to Fed.R.Civ.P. 37(a). By order dated November 6, 2001, this Court granted Kara's motion. The order again directed the defendants and third-party defendants to provide the items in (1), (2), (3), (4), and (5), listed above. It also required that the defendants and third-party defendants pursuant to Local Rule 33.3 designate a witness with knowledge or information relevant to the subject matter of this action and state the nature of that knowledge or information, as well as respond to all document requests and provide all documents. Order of November 6, 2001. Finally, the order stated that the defendants alone must produce documents related to violations issued by the New York City Department of Environmental Protection or Department of Buildings and information regarding quantity of pumping or pumping logs relating to the ground water remedial system at the 1441 Westchester Avenue Getty station, or a sworn statement such documents do not exist. Id.

Defendants submitted a motion on November 29, 2001, seeking a protective order to prevent plaintiff from taking the depositions of six high-level executives. Defendants claimed that the plaintiff sought the depositions for the purposes of harassment and without any reasonable basis to believe that they had knowledge that was material or relevant to the plaintiff's inquiry. The motion stated that the six witnesses had no personal knowledge of the facts underlying the claim, but it did not include affidavits from the six witnesses to that effect. At a hearing on December 12, 2001, the Court ruled that the requested witnesses need not be deposed if they provided affidavits stating they have no knowledge of the facts.

On December 14, 2001, Kara sent a proposed affidavit form to defendants for execution. The example included a general denial. It also identified four paragraphs of this Court's November 6, 2001 order and stated that the signatory had no knowledge that relates to those matters. The Court's request that the six witnesses sign an affidavit was not conditioned upon them signing one put forward by the plaintiff.

From December 20, 2001 to January 11, 2001, the six witnesses signed affidavits stating they had no personal knowledge of the facts relating to plaintiff's claim. Five of the six further affirmed that they had never been to the Getty station that is the subject of this dispute.

On January 10, 2002, plaintiff's counsel wrote a letter acknowledging the receipt of five of the affidavits, but pointed out that the affidavits failed to address whether the signatories had knowledge of items specified in the four paragraphs of this Court's November 6, 2001 order that plaintiff's counsel had earlier highlighted in its sample affidavit. Plaintiff's counsel wrote:

"If these individuals have no knowledge of the facts relating to those paragraphs and they so verify that to you, we will accept your letter to this effect on their behalf with regard to those paragraphs."

Defendants had not responded to this letter at the time plaintiff filed its motion, about one week later, on January 18, 2002. In it, Kara alleges that the defendants' and third-party defendants' answers should be struck because of (1) misrepresentations to the Court in their memorandum of law dated November 29, 2001; (2) misrepresentations to the Court at a December 12, 2001 hearing; and (3) failure to comply significantly with the orders of this Court dated June 26 and November 6, 2001.

Defendants filed opposition papers on January 28, 2002, and Kara replied the same day. Island filed a related motion on January 28, 2002, asking that the Court dismiss the defendants' third-party complaint against the third-party defendants if the plaintiff's motion was granted. Xerxes filed similar request on January 29, 2002. The motion was argued before this Court on January 30, 2002, and was deemed fully submitted at that time.

Discussion

Plaintiff's motion for sanctions is brought under Fed.R.Civ.P. 37 (b)(2), which provides the framework for the imposition of sanctions for failure to comply with a court's discovery orders. The Rule provides that the court may make such orders in regard to a discovery failure "as are just," including (1) an order striking out the pleadings or rendering a judgment by default; (2) an order of contempt; and (3) an order requiring the disobedient party to pay the reasonable expenses, including attorney's fees, caused by the disobedient party's failure. Fed.R.Civ.P. 37(b)(2). "Rule 37(b)(2) sanctions must be applied diligently both to penalize those whose conduct may be deemed to warrant such a sanction, [and] to deter those who might be tempted to such conduct in the absence of a deterrent." Roadway Express Inc. v. Piper, 447 U.S. 752, 763-64, 100 S.Ct. 2455, 2463 (1980) (quoting Nat'l Hockey League v. Metro. Hockey Club, 427 U.S. 639, 643, 96 S.Ct. 2778, 2781 (1976)); see also Update Art, Inc. v. Modin Publ'g Ltd. v. Allied Artists Pictures Corp., 602 F.2d 1062, 1066 (2d Cir. 1979).

The Court has wide discretion in imposing sanctions. Strong sanctions should be imposed only for serious violations of court orders, however, such as "when the failure to comply with a court order is due to willfulness or bad faith or is otherwise culpable." Id. at 1367; see also New Pacific Overseas Group (USA) Inc. v. Excal In'tl Dev. Corp., Nos. 99 Civ. 2436, 99 Civ. 3591 (DLC), 2000 WL 97358, at *4 (S.D.N.Y. Jan. 27, 2000) ("Courts ordinarily impose such extreme sanctions only where there has been willfulness, bad faith, or any fault in the course of discovery." (citations and internal quotation marks omitted)).

With respect to plaintiff's request to strike defendants' answer, which in effect would result in a default judgment, the following considerations are relevant: (a) willfulness or bad faith on the part of the noncompliant party; (b) the history, if any, of noncompliance; (c) the effectiveness of lesser sanctions; (d) whether the noncompliant party had been warned about the possibility of sanctions; and (e) the client's complicity. American Cash Card Corp. v. ATT Corp., 184 F.R.D. 521, 524 (S.D.N.Y. 1999); see also New Pac. Overseas Group, 2000 WL 377513 at *7 (looking to the duration of the party's failures; whether the party received notice of possible sanctions; prejudice to party seeking relief arising from the noncompliant party's actions; due process considerations; and the efficacy of lesser sanctions); Yucyco, Ltd. v. Ljubjanska Banka D.D., No. 96 Civ. 4274, 2001 WL 699135, at *4 (S.D.N.Y. June 20, 2001) (same).

Plaintiff's complaints boil down to the allegations that defendants misrepresented that full and complete discovery of all fact issues had been completed and that Stephen Tyree had no personal knowledge of the facts relating to plaintiff's claims in this action. In addition, plaintiff alleges that defendants have failed to comply with requests for production of documents.

Each allegation is treated separately below.

I. Defendant's Alleged Misrepresentation that Discovery of All Fact Issues Is Complete

Defendants state in the first paragraph of the November 29, 2001 Motion that "full and complete discovery of all issues by the plaintiff has been completed." Plaintiff contests that this statement constitutes a misrepresentation.

This statement is at most argument, not a knowing misrepresentation. Defendants point out that plaintiff had already taken approximately 15 depositions at the time of the motion. In addition, the Getty defendants had produced 1,423 documents at the request of the plaintiff, as well as an additional 97 documents following this Court's order of November 6, 2001. The Tyree defendants had produced 1,903 documents. The argumentative point, which plaintiff appears to have taken out of context, is that plaintiff has discovered everything that the persons it seeks to depose would be able to offer.

II. Stephen Tyree's Lack of Personal Knowledge

Plaintiff has alleged that Stephen Tyree misrepresented his personal knowledge of facts before this Court. A limited deposition on that subject will be permitted.

Plaintiff quotes extensively from a December 10, 2001, deposition of Stephen Tyree in an unrelated case, Petro Equities Inc. v. Tyree Organization Ltd., Supreme Court, County of Nassau, Index No. 00-018124. As defendants point out, Stephen Tyree did have personal knowledge of the facts in the case and had been responsible for the work at that site. It does not follow that he also must have personal knowledge of the facts of this case. In fact, there was only one reference to the site in dispute in this case in the excerpts that Kara provided. Stephen Tyree stated that the site was one "you [the deposing attorney] had showed me about." Pl.'s Mem. at 10.

However, a limited deposition concerning the representation of knowledge will be permitted.

III. Failure to Comply with the June and November Orders

The November 6, 2001 order was entered based on plaintiff's motion that the defendants and third-party defendants failed to comply earlier with the order of this Court dated June 26, 2001. Thus this court will treat the allegations under both orders together.

Plaintiff complains that defendants have failed to respond to specific document requests. Kara claims that defendants have failed to fulfill four requests repeated in both the June and November orders, namely those issues labeled above as (2), (3), (4), and (5). In addition, Kara claims that defendants have failed to specify any violations issued by the NYC Department of Environmental Protection or Department of Buildings and information regarding quantity of pumping or pumping logs related to the ground water remedial system on the site.

Defendants submitted an affidavit to plaintiff on December 10, 2001, noting their compliance with the November 6, 2001 order. Defendants noted that they had already sent all documents in their possession related to the issues labeled (2) and (3).

In addition, the defendants offered a number of documents in the affidavit. Getty agreed, pursuant to (4), to produce all documents relating to petroleum spills at Getty stations that were reported or were required to be reported to the appropriate governmental agency from 1993 to the present. The documents were produced "as they are kept in the usual course of business at Getty's offices or the offices of its consultants at a date to be determined by plaintiff's counsel upon reasonable notice to all parties." Whether such offer of production was made in good faith is not and cannot be determined without further action by the Plaintiff. Defendants also stated that the offer to purchase for cash all the outstanding shares of common stock of Getty Marketing was attached, pursuant to (5). Finally, the defendants noted other violations issued by the NYS Department of Environmental Protection and Department of Buildings.

Plaintiff notes a number of documents that it requested formally at depositions. If those documents are within the control and possession of defendants, those documents should be produced to plaintiff.

In addition, if there remains any directive in the order left unfulfilled, defendants are ordered to produce requested documents, recognizing that failure to do so could result in the type of harsh sanctions asked for here.

Conclusion

For the foregoing reasons, the plaintiff's motion is granted to the extent set forth above, and the third-party defendants' motions are denied. Leave is hereby granted to make a further application at the conclusion of the matter for expenses and attorneys fees arising out of these discovery proceedings.

It is so ordered.