NOEL LABOY, Plaintiff, v. QUALITY AUTOMOTIVE SERVICES, INC., ROSEANNE BENJAMIN, ANTHONY ALFARO, and HRATCH KETCHELIAN, Defendants 21 CV 2501 (RPK)(RML) United States District Court, E.D. New York Filed June 20, 2023 Counsel Justin Ames, Akin Law Group, PLLC, New York, NY, for Plaintiff. Cynthia Ann Augello, Augello Law Group, PC, New York, NY, John F. Lagan, Law Offices of John F. Lagan, Long Island City, NY, for Defendants Quality Automotive Services, Inc., Roseanne Benjamin. John F. Lagan, Law Offices of John F. Lagan, Long Island City, NY, for Defendants Anthony Alfaro, Hratch Ketchelian. Anthony Alfaro, Queensvillage, NY, Pro Se. Hratch Ketchelian, Sunnyside, NY, Pro Se. Levy, Robert M., United States Magistrate Judge MEMORANDUM AND ORDER *1 Plaintiff Noel Laboy (“plaintiff”) moves for sanctions under Rule 37 of the Federal Rules of Civil Procedure. For the reasons stated below, the motion is granted. BACKGROUND Plaintiff commenced this wage and hour action on May 5, 2021 against defendants Quality Automotive Services, Inc., Roseanne Benjamin, Anthony Alfaro, and Hratch Ketchelian (“defendants”), asserting claims under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201, et seq., and the New York Labor Law (“NYLL”). (Complaint, filed May 5, 2021, Dkt. No. 1.) I assume familiarity with the procedural and factual history of this matter and instead discuss only the facts relevant to the instant motion for sanctions. On November 28, 2022, the court held an in-person conference with the parties to discuss plaintiff's third motion for sanctions. The topics discussed at the conference included the scope of defendants’ noncompliance with previous court orders, remaining discovery issues, and the nature of the sanctions that the court could fashion to facilitate defendants’ compliance. (See Fourth Motion for Sanctions, filed Dec. 7, 2022 (“Mot. for Sanctions”), Dkt. No. 21, at 2.) Among the issues discussed was plaintiff's concern that each time defendants provide any documents or information, under the threat of sanctions, plaintiff learns that a previously undisclosed or unproduced category of documents or information exists. (Id.) For example, at the November 28 conference, defendants first revealed that they were in possession of additional dispatch log slips and payroll records that had not yet been produced. (Id.) Those documents are now the subject of plaintiff's fourth motion for sanctions. (See id.) To address plaintiff's concerns, the court directed defendants to produce by December 2, 2022, all outstanding responsive documents in their possession and, in the event that a certain document was not produced, to provide a supplemental response verifying, under oath, the reason the document was not timely produced. (Id.; see also Minute Entry, dated Nov. 29, 2022.) The court also directed defendants to produce verified responses to plaintiff's First Set of Interrogatories, to which defendants had not responded despite having been served more than eight months prior, also by December 2, 2022. (Mot. for Sanctions at 2; Minute Entry, dated Nov. 29, 2022.) The court concluded the hearing by indicating that plaintiff would be awarded expenses and exploring the feasibility of imposing a sanction precluding defendants from asserting certain defenses to attempt to obtain defendants’ compliance with their discovery obligations and remedy the harms caused to plaintiff. (Mot. for Sanctions at 2.) Nevertheless, defendants failed to produce any additional documents, supplemental responses to plaintiff's document demands, or dispatch sheets, and did not confirm the existence or absence of payroll records in their interrogatory responses by the December 2 deadline. (Id. at 3-4.) The only discovery defendants produced following the November 28 hearing was “what purport to be responses to Plaintiff's interrogatories.” (Id. at 4.) Plaintiff notes several deficiencies in these responses. (See id. at 4-5.)[1] *2 On December 7, 2022, plaintiff filed a fourth motion for sanctions as a result of defendants’ noncompliance with the court's order. (See generally Mot. for Sanctions.) On December 9, 2022, defendants filed a letter stating that defendants’ counsel had “identified approximately eighteen crates of records pertaining to tow jobs performed by Quality's tow truck drivers during that period,” and attached photographs of crates containing loose, paperclipped, and rubber banded documents. (Letter Noting Additional Disclosure Documents Located, dated Dec. 9, 2022, Dkt. No. 22.) On December 15, 2022, defendants’ counsel emailed plaintiff's counsel, “[p]lease let me know a few dates and times when you might be available to inspect the tow job records; as indicated previously, there are approximately 18 crates of records I estimate contain somewhere between 10,000 and 15,000 individual documents.” (Supplemental Motion to Amend/Correct/Supplement Fourth Motion for Sanctions, filed Dec. 30, 2022 (“Pl.’s Supp.”), Dkt. No. 23, at 1.) Plaintiff now asserts that the invitation to inspect the documents does not comply with Rule 34(b)(2)(E)(i) of the Federal Rules of Civil Procedure and improperly shifts defendants’ discovery obligations to plaintiff. (Id.) Defendants maintain that the invitation to inspect the crates of records at a mutually convenient time complies with the Federal Rules. (See Reply in Opposition, filed Jan. 7, 2023 (“Opp.”), Dkt. No. 24, at 3-4.) Additionally, the parties dispute the application of Executive Order 202.8, 9 N.Y.C.R.R. § 8.202.8, which declared a state of emergency due to the COVID-19 pandemic. (See id.; Mot. for Sanctions at 5.) DISCUSSION I. Executive Order 202.8 The parties disagree over whether Executive Order 202.8 entitles plaintiff to discovery dating back to September 18, 2014 instead of May 1, 2015–six years prior to the filing of the complaint. Defendants argue that Executive Order 202.8 does not toll the statute of limitations under the NYLL. (Opp. at 3.) Plaintiff maintains that Executive Order 202.8 does toll the statute of limitations and that he is accordingly entitled to discovery dated back to September 18, 2014. (Transcript of Proceedings held on 2/9/2023, filed Mar. 14, 2023 (“Tr.”), Dkt. No. 25, at 15-17.) “A toll suspends the running of the applicable period of limitation for a finite time period, and the period of the toll is excluded from the calculation of the relevant time period.” Brash v. Richards, 149 N.Y.S.3d 560 (2d Dep't 2021). On March 20, 2020, Governor Cuomo issued Executive Order 202.8, which “among other things, toll[ed] the time limits for filing legal actions as prescribed by the state's procedural laws.” Bonilla v. City of New York, No. 20 CV 1704, 2020 WL 6637214, at *1 (E.D.N.Y. Nov. 12, 2020), aff'd, 2020 WL 6637214 (E.D.N.Y. Nov. 12, 2020). On October 4, 2020, the Governor issued Executive Order 8.202.67, which was the last extension of the toll to November 3, 2020. See 9 N.Y.C.R.R. § 8.202.67. This Executive Order tolled the statute of limitations for 228 days from March 20, 2020 until November 3, 2021. Courts in this Circuit have found that Executive Order 202.8 applies to federal cases involving New York state-law statutes of limitations. See, e.g., Marquez v. Indian Taj, Inc., No. 20 CV 5855, 2022 WL 4485948, at *2 (E.D.N.Y. Aug. 5, 2022), report and recommendation adopted, 2022 WL 4485185 (E.D.N.Y. Sept. 27, 2022); Bowers v. City of Salamanca, No. 20 CV 1206, 2021 WL 2917672, at *6 (W.D.N.Y. July 12, 2021) (finding Executive Order 202.8 applicable to § 1983 cases brought in federal court); Bonilla, 2020 WL 6686531 (same); Citi Connect, LLC v. Loc. Union No. 3, No. 20 CV 5147, 2020 WL 5940143, at *3-4 (S.D.N.Y. Oct. 7, 2020) (holding that Executive Order 202.8 tolled the statute of limitations in a claim brought under the False Claims Act). “A number of New York courts have held that EO 202.8 ‘suspended’ rather than ‘tolled’ the time periods to which it applied, and thus extended limitations periods that would otherwise have expired between March 3 and November 3, 2020, but did not lengthen periods that expired after November 3, 2020.” Barry v. Royal Air Maroc, No. 21 CV 8481, 2022 WL 3215050, at *4 (S.D.N.Y. July 8, 2022) (emphasis in original), report and recommendation adopted, 2022 WL 3214928 (S.D.N.Y. Aug. 9, 2022); see also Baker v. 40 Wall St. Holdings Corp., 161 N.Y.S.3d 723, 724 (2d Dep't 2019). *3 However, most courts in this Circuit have found otherwise. See, e.g., U.S. Bank Nat'l Ass'n v. Keybank, Nat'l Ass'n, No. 20 CV 3577, 2023 WL 2745210, at *12 (S.D.N.Y. Mar. 31, 2023) (“Though there is some disagreement among courts as to whether the Executive Orders ‘tolled’ or ‘suspended’ statutes of limitations, this Court concludes that the Executive Orders tolled the New York statute of limitations on New York state law claims asserted in a federal court.”); Charles Equip. Energy Sys., LLC v. INNIO Waukesha Gas Engines, Inc., No. 22 CV 2716, 2023 WL 2346337, at *1 n.1 (S.D.N.Y. Mar. 3, 2023) (“Executive Order 202.8 ... tolled the statute of limitation for the filing of any claim brought under New York law ... during the period March 20, 2020 through November 3, 2020. This added a total of 228 days to the otherwise-applicable four-year limitations period.”); Marquez, 2022 WL 4485948, at *5 (adding 228 days to the NYLL statute of limitations); Cain v. Cnty. of Niagara, New York, No. 20 CV 1710, 2022 WL 616795, at *5-8 (W.D.N.Y. Mar. 2, 2022) (applying Executive Order toll to plaintiff's state law claims); Citi Connect, LLC v. Loc. Union No. 3, Int'l Bhd. of Electrical Workers, AFL-CIO, No. 20 CV 5147, 2020 WL 5940143, at *3-4 (S.D.N.Y. Oct. 7, 2020) (noting that the Executive Orders “expressly tolled” statutes of limitations). Defendants argue that Executive Order 202.8 does not “add time before the statute [of limitations] beg[a]n.” (Opp. at 3.) Although there is some case law supporting this argument, the majority of courts in this Circuit have held that Executive Order 202.8 tolled the statute of limitations or added time “before” the statute of limitations began running. Since plaintiff filed this action on May 5, 2021, I find that plaintiff likely has timely NYLL claims from September 18, 2014 (six years prior plus 228 days) to the last date of his employment and that defendants must produce documents and information responsive to plaintiff's requests dating back to September 18, 2014. II. Rule 34 Plaintiff asserts that defendants have not identified to which of plaintiff's demands the estimated 10,000 – 15,000 documents are responsive. (Pl.’s Supp. at 2.) Plaintiff contends that defendants’ failure to produce, Bates stamp, and provide the documents in response to plaintiff's documents demands is a violation of Rule 34 and constitutes an impermissible “document dump.” (Tr. at 4.) Under Rule 34 of the Federal Rules of Civil Procedure, a party has two options for the production of documents in response to a discovery request. The litigant may either produce documents “as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request.” FED. R. CIV. P. 34(b)(2)(E)(ii). Rule 34 does not elaborate on the term “usual course of business.” S.E.C. v. Collins & Aikman Corp., 256 F.R.D. 403, 409 (S.D.N.Y. 2009). A party choosing to produce documents as maintained in the ordinary course of business “bears the burden of demonstrating that the documents made available were in fact produced consistent with that mandate.” Id. (citation omitted). Allowing the production of documents as they “are actually kept in the usual course of business” was intended to minimize the burden of production while maintaining the “internal logic reflecting business use.” Id. (citation omitted). The provision prohibits “simply dumping large quantities of unrequested materials onto the discovering party along with the items actually sought.” Id. (citations omitted). In most cases, documents produced pursuant to Rule 34 will be organized by subject matter or category. Id. at 409-410. It bears noting that “the overwhelming weight of authority counsels that more in the way of organization is required in order to make the document production meaningful, and thus proper.” Pass & Seymour, Inc. v. Hubbell Inc., 255 F.R.D. 331, 335 (N.D.N.Y. 2008) (citing CooperVision, Inc. v. Ciba Vision Corp., No. 06 CV 149, 2007 WL 2264848, at *5 (E.D. Tex. Aug. 6, 2007) (“[S]imply placing documents in boxes and making them available does not conform to the rule.”); Wagner v. Dryvit Sys., Inc., 208 F.R.D. 606, 610-11 (D. Neb. 2001) (“producing large amounts of documents in no apparent order does not comply with a party's obligation under Rule 34.”); Stiller v. Arnold, 167 F.R.D. 68, 71 (N.D. Ind. 1996) (“Producing 7,000 pages of documents in no apparent order does not comply with a party's obligation under Rule 34(b).”); T.N. Taube Corp. v. Marine Midland Mortg. Corp., 136 F.R.D. 449, 456 (W.D.N.C. 1991) (in response to production of 789 documents, Bates-stamped and provided in a box with no discernable order, the court expressed doubt that production was made as the documents were kept in the usual course of business, and thus directed that the documents be organized and labeled to indicate the specific document demand to which each related)). *4 Courts “routinely ‘require responding parties to provide documents in some kind of organized, indexed fashion rather than as a mass of undifferentiated, unlabeled documents.’ ” Rahman v. The Smith & Wollensky Rest. Grp., Inc., No. 06 CV 6198, 2009 WL 773344, at *4 (S.D.N.Y. Mar. 18, 2009) (quoting Sparton Corp. v. United States, 77 Fed. Cl. 10, 16 (Fed. Cl. 2007)). Accordingly, where documents produced “were not organized and labeled to correspond to the categories specified in” the document requests in response to which the documents were produced, courts have directed the producing party to re-produce the documents, Bates-stamped, with an “itemized list which sets forth, by [B]ates-number, the documents responsive to each of the requests.” Ng v. HSBC Mortg. Corp., No. 07 CV 5434, 2009 WL 205048, at *3 (E.D.N.Y. Jan. 27, 2009); see also Mee Jin-Jo v. JPMC Specialty Mortg. LLC, No. 08 CV 230, 2011 WL 1198133, at *2 (W.D.N.Y. Mar. 29, 2011) (instructing a party to produce documents responsive to document requests and to “specifically identify which documents are responsive to each of these requests”). Here, defendants claim that “the 18 crates contain only tow job dispatch records and the associated summary payment sheets from Quality's service partners. Every document is responsive to Plaintiff's demand and the Court's order, but it would be extremely burdensome for Quality to copy each and every one of those documents.” (Opp. at 3; see also Tr. at 11.) Copying each dispatch record is not necessary, nor is it what plaintiff seeks. Plaintiff requests “all of the tow records that pertain to Mr. Laboy since September [18], 201[4], the first date that he has timely claims, until ... the end of his employment with Quality.... I do not need thousands of records from other truck drivers[.]” (Tr. at 14.) I find that defendants’ offer to allow plaintiff's counsel to inspect eighteen crates of tow job dispatch records falls short of the requirements under Rule 34. Accordingly, defendants are directed to identify the dispatch sheets pertaining specifically to plaintiff, Bates stamp them, and produce them. III. Rule 37 Plaintiff requests that the court issue a Report and Recommendation for the imposition of terminating and other sanctions against defendants pursuant to Rule 37, the entry of a default judgment against all defendants, the scheduling of an inquest as to plaintiff's damages, and the issuance of an award of attorney's fees and costs to plaintiff. (Mot. for Sanctions at 8; see also Pl.’s Supp. at 3.) The only predicates to the imposition of sanctions under Rule 37(b) are (1) a “court order directing compliance with discovery requests,” and (2) “non-compliance with that order.” Shanghai Weiyi Int'l Trade Co. v. Focus 2000 Corp., No. 15 CV 3533, 2017 WL 2840279, at *9 (S.D.N.Y. June 27, 2017). Both are established here. Federal Rule of Civil Procedure 37(b) governs sanctions for failure to obey a prior discovery order. If a party “fails to obey an order to provide or permit discovery,” Rule 37(b)(2)(A) permits the court to “issue further just orders,” including orders: (i) directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims; (ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence; (iii) striking pleadings in whole or in part; (iv) staying further proceedings until the order is obeyed; (v) dismissing the action or proceeding in whole or in part; (vi) rendering a default judgment against the disobedient party; or (vii) treating as contempt of court the failure to obey any order except an order to submit to a physical or mental examination. *5 FED. R. CIV. P. 37. Discovery sanctions are imposed for three purposes: “(1) to ensure that a party will not benefit from its failure to comply; (2) to obtain compliance with the Court's orders; and (3) to deter noncompliance, both in the particular case and in litigation in general.” Royal Park Invs. SA/NV v. U.S. Bank Nat'l Ass'n, 319 F.R.D. 122, 126 (S.D.N.Y. 2016). Consistent with these purposes, any sanction imposed under Rule 37(b) must be “just,” and its severity “must be commensurate with the non-compliance.” Joint Stock Co. Channel One Russia Worldwide v. Infomir LLC, No. 16 CV 1318, 2017 WL 3671036, at *21 (S.D.N.Y. July 18, 2017) (quoting Shcherbakovskiy v. Da Capo Al Fine, Ltd., 490 F.3d 130, 140 (2d Cir. 2007)), report and recommendation adopted, 2017 WL 4712639 (S.D.N.Y. Sept. 28, 2017). “Whether exercising its inherent power, or acting pursuant to Rule 37, a district court has wide discretion in sanctioning a party for discovery abuses.” FDIC v. Horn, No. 12 CV 5958, 2015 WL 1529824, at *3 (E.D.N.Y. Mar. 31, 2015) (citing Reilly v. Natwest Mkts. Grp. Inc., 181 F.3d 253, 267 (2d Cir. 1999)). “For less severe sanctions, such as fines and cost-shifting, the Court's inquiry focuses mainly on the misconduct of the responding party; for more severe sanctions, such as dismissal, preclusion[,] or the imposition of an adverse inference, the court must also assess whether the requesting party suffered prejudice as a result of the loss or withholding of evidence.” Nycomed U.S. Inc. v. Glenmark Generics Ltd., No. 08 CV 5023, 2010 WL 3173785, at *3 (E.D.N.Y. Aug. 11, 2010). In deciding what the appropriate sanction is, the court should consider “ ‘the prophylactic, punitive[,] and remedial rationales’ of discovery sanctions.” Id. at *10 (quoting Passlogix, Inc. v. 2FA Tech., LLC, 2FA, Inc., 708 F. Supp. 2d 378 (S.D.N.Y. 2010)). In determining the appropriate sanction under Rule 37(b), courts in this Circuit consider four non-exclusive factors: “(1) the willfulness of the non-compliant party or the reason for noncompliance; (2) the efficacy of lesser sanctions; (3) the duration of the period of noncompliance; and (4) whether the non-compliant party had been warned of the consequences of noncompliance.” S.E.C. v. Razmilovic, 738 F.3d 14, 25 (2d Cir. 2013) (quoting S. New Eng. Tel. Co. v. Glob. NAPs Inc., 624 F.3d 123, 144 (2d Cir. 2010)). I will discuss each factor in turn. 1. Willfulness of the Noncompliance “Noncompliance with discovery orders is considered willful when the court's orders have been clear, when the party has understood them, and when the party's noncompliance is not due to factors beyond the party's control.” Thompson v. Jamaica Hosp. Med. Ctr., No. 13 CV 1896, 2015 WL 7430806, at *3 (S.D.N.Y. Nov. 20, 2015) (citations omitted). “Willful non-compliance is routinely found, for instance, where a party has ‘repeatedly failed to ... produce documents ... in violation of the district court's orders.’ ” Farmer v. Hyde Your Eyes Optical, Inc., No. 13 CV 6653, 2015 WL 2250592, at *7 (S.D.N.Y. May 13, 2015) (quoting Doe v. Delta Airlines, No. 13 CV 6287, 2015 WL 798031, at *8 (S.D.N.Y. Feb. 25, 2015)); accord Grammar v. Sharinn & Lipshie, P.C., No. 14 CV 6774, 2016 WL 525478, at *3 (S.D.N.Y. Feb. 8, 2016) (failure to comply with two orders, without an explanation for the delinquency, was a sufficient basis for a finding of willfulness “[g]iven the clarity and simplicity of the Court's orders and the absence of any indication that defendant's noncompliance is the result of factors beyond its control”). *6 As discussed above, defendants failed to comply with the order issued following the November 28 hearing, resulting in the instant motion for sanctions. Moreover, defendants have repeatedly failed to comply with court orders, leading to the conclusion that defendants’ conduct constitutes willful non-compliance. This factor weighs in favor of imposing sanctions. 2. Efficacy of Lesser Sanctions A court “should always seek to impose the least harsh sanction that will remedy the discovery violation and deter such conduct in the future.” Grammar, 2016 WL 525478, at *3 (citing Hawley v. Mphasis Corp., 302 F.R.D. 37, 46 (S.D.N.Y. 2014)). “[T]he range of sanctions, from the least harsh to the harshest, include further discovery, cost-shifting, fines, special jury instructions, preclusion, entry of default judgment, and dismissal.” In re Keurig Green Mountain Single-Serve Coffee Antitrust Litig., 341 F.R.D. 474, 497 (S.D.N.Y. 2022) (quoting Slovin v. Target Corp., No. 12 CV 863, 2013 WL 840865, at *6 (S.D.N.Y. Mar. 7, 2013)). “Monetary sanctions are the norm, not the exception, when a party is required to engage in motion practice in order to obtain the discovery to which it is entitled.” Id.[2] “If monetary sanctions are not sufficient, ‘[m]ore stringent’ orders may be issued,” including adverse inference orders, preclusion orders, and orders “deeming disputed issues determined adversely to the position of the disobedient party.” Id. at *12 (quoting Cine 42nd St. Theatre Corp. v. Allied Artists Pictures Corp., 602 F.2d 1062, 1066 (2d Cir. 1979)). Striking pleadings and imposing a default judgment are “the most severe sanction[s]” that Rule 37(b) provides, “because [they] terminate” the action. Mason Tenders Dist. Council Welfare Fund v. Precise Brick, Inc., No. 08 CV 8373, 2009 WL 1675399, at *1 (S.D.N.Y. June 15, 2009).[3] While the Second Circuit has “expressed a preference for resolving disputes on the merits rather than by default,” it has also “consistently recognized that Rule 37 sanctions are applicable in ‘extreme circumstances,’ where ‘a party fails to comply with the court's discovery orders willfully, in bad faith, or through fault.’ ” Robertson v. Dowbenko, 443 F. App'x 659, 660 (2d Cir. 2011) (quoting John B. Hull, Inc. v. Waterbury Petrol. Prods., Inc., 845 F.2d 1172, 1176 (2d Cir. 1988)). Here, defendants have been warned multiple times that failure to fully comply with the court's orders, without good cause, may result in a recommendation that terminating sanctions be imposed. (See Minute Entry, dated Oct. 19, 2022.) Monetary sanctions are clearly in order. More severe sanctions also appear necessary because prior warnings that sanctions may be imposed have not resulted in defendants’ compliance. The question is whether adverse inference orders or preclusion orders are appropriate, which requires a consideration of the prejudice suffered by plaintiff as a result of defendants’ noncompliance. See Nycomed U.S. Inc., 2010 WL 3173785, at *3 (“for more severe sanctions ... the court must also assess whether the requesting party suffered prejudice as a result of the loss or withholding of evidence.”). a. Prejudice *7 At the most recent conference before the court, plaintiff explained that [t]he documents that are contained in those 10 to 15,000 documents likely include documents reflecting the tows that Mr. Laboy was sent to and from, which will help to establish the amount of hours Mr. Laboy actually worked for the defendants. That is the primary issue that we have been unable to establish because there have been no records produced that actually relate to Mr. Laboy's actual hours worked. The only records that have been produced thus far directly relate to the hours Mr. Laboy was scheduled to work. (Tr. at 5.) Additionally, defendants have failed to produce payroll records or swear under oath that such records do not exist. (Id. at 4.) Where the discovery misconduct has deprived the opposing party of key evidence needed to litigate a contested issue, an order prohibiting the disobedient party from contesting that issue—or simply directing that the matter be taken as established—is appropriate. See, e.g., Knox v. Palestine Liberation Org., 229 F.R.D. 65, 71 (S.D.N.Y. 2005) (“establishing as a sanction facts sufficient to permit the exercise of personal jurisdiction over defendants”). Here, plaintiff has been deprived of key evidence needed to establish the number of hours he worked for defendants. The withholding of evidence related to the hours worked by plaintiff will likely cause him prejudice, which weighs in favor of imposing more severe sanctions, such as a preclusion or adverse inference order. 3. Duration of Noncompliance Courts “have found noncompliance for a period of several months sufficient to warrant dismissal or default.” Urbont v. Sony Music Entm't, No. 11 CV 4516, 2014 WL 6433347, at *3 (S.D.N.Y. Nov. 6, 2014) (granting default sanctions where defendant failed to participate in discovery for over a year and had made no contact with counsel or the court for over six months). Plaintiff's first motion for sanctions related to defendants’ failure to comply with discovery obligations was filed on September 7, 2022. (Motion for Discovery and Sanctions, filed Sept. 7, 2022, Dkt. No. 17.) Thus, defendants’ noncompliance has continued for over six months and this factor weighs in favor of imposing sanctions. 4. Notice “Courts are generally hesitant to impose terminating sanctions before warning the offending litigant.” Grammar, 2016 WL 525478, at *4 (citation omitted). As discussed above, defendants have had ample notice that sanctions are likely to be imposed as a result of their continued noncompliance and this factor weighs towards imposing sanctions. As previously discussed, I find that monetary sanctions are appropriate at this time. Plaintiff is directed to submit a request for attorney's fees and costs, including contemporaneous attorney time records, within thirty days. Furthermore, I find that more severe sanctions are in order after considering the above factors. Defendants are directed to produce payroll records or submit an affidavit stating that no payroll records exist as per the November 28, 2022 Order. Defendants are further directed to produce the tow records, Bates-stamped, with an itemized list setting forth the documents responsive to each of plaintiff's requests, within thirty days. In the event that defendants fail to thoroughly and meaningfully comply with this Order, they will be precluded from using the payroll records and tow records to dispute plaintiff's claims and precluded from asserting arguments to rebut the hours that plaintiff claims he worked for defendants. CONCLUSION *8 For the foregoing reasons, plaintiff's motion for sanctions is granted. Plaintiff is entitled to discovery from September 18, 2014 to the end of his employment with defendants. Monetary sanctions are imposed, and plaintiff's counsel is directed to submit a request for attorney's fees and costs within thirty days. Also within thirty days, defendants are directed to produce payroll records or submit an affidavit stating that no payroll records exist as per the November 28, 2022 Order. Finally, defendants are ordered to produce the tow records, Bates-stamped, with an itemized list setting forth the documents responsive to each of plaintiff's requests. In the event that defendants fail to comply with this Order, they are precluded from using payroll records or tow records to dispute plaintiff's claims and from asserting arguments to rebut the hours that plaintiff claims he worked for defendants. SO ORDERED. Footnotes [1] Plaintiff claims that defendants’ interrogatory responses were (1) not verified by any of the defendants; (2) included improper objections, which were used to provide incomplete and non-responsive responses; (3) artificially restricted to a time period shorter than the period requested by plaintiff; (4) largely incomplete or non-responsive; (5) lacking confirmation of whether payroll records exist; and (6) containing inherent contradictions. (Mot. for Sanctions at 4-5.) [2] “Instead of or in addition to” the sanctions authorized by Rule 37(b)(2), “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.” Joint Stock Co., 2017 WL 3671036, at *19 (quoting FED. R. CIV. P. 37(b)(2)(C)). [3] Orders imposing sanctions “are ordinarily considered non-dispositive, and therefore fall within the grant of Rule 72(a), ‘unless the sanction employed disposes of a claim.’ ” Joint Stock Co. 2017 WL 3671036, at *16 (quoting Seena Int'l Inc., 2016 WL 2865350, at *10). A magistrate judge's authority to order (rather than recommend) a discovery sanction does not depend on the relief requested, but rather depends on the “sanction the magistrate judge actually imposes.” Id. (citation omitted); see also Karsch v. Blink Health Ltd., No. 17 CV 3880, 2019 WL 2708125, at *12 (S.D.N.Y. June 20, 2019).