23-446-cv(L) 

Abbott Lab’ys. v. H&H Wholesale Servs., Inc. 

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. 

CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS 

PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 

32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER 

IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE 

FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION 

“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A 

COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 

At a stated term of the United States Court of Appeals for the Second Circuit, 

held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the 

City of New York, on the 26th day of September, two thousand twenty-four. 

PRESENT: REENA RAGGI,

RICHARD C. WESLEY, 

RAYMOND J. LOHIER, JR.,

Circuit Judges. 

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ABBOTT LABORATORIES, ABBOTT 

DIABETES CARE INC., ABBOTT 

DIABETES CARE SALES 

CORPORATION, 

Plaintiffs - Counter Defendants - 

Appellees, 

v. No. 23-446-cv(L)

No. 23-449-cv(con)

H&H WHOLESALE SERVICES, 

INC., HOWARD GOLDMAN, LORI 

GOLDMAN, 

Defendants - Counter Claimants - 
2 

Cross Defendants - Appellants, 

ADELPHIA SUPPLY USA, YUDAH NEUMAN, AKA 

LENNY NEUMAN, REUVEN SOBEL, AKA CHAIM 

SOBEL, MOSES NEUMAN, SHMUEL LEZELL, SAVE 

RITE MEDICAL.COM LLC, MARC KAPLAN, MATRIX 

DISTRIBUTORS, INC., CHRISTOPHER BENEVENT, 

SETH GRUMET, PAPOUTSANIS USA, LLC, DBA VIP 

INTERNATIONAL-DROGARIS, GEORGE DROGARIS, 

OSD CAPITAL, INC., FKA FARNES ENTERPRISES 

CORPORATION, OVERSTOCKDRUGSTORE.COM LLC, 

DBA SIMPLEMED SUPPLY, RICK EVENSON, KEVIN 

PLUMB, BUDGET HEALTH CORPORATION, DBA 

BUDGET DRUGS PHARMACY, JOHN FANDETTI, 

ROBERT NEWMYER, MARIA FANDETTI, LORI BLUE, 

ANTHONY MEOLA, MARK D. HENKIN, DREAM 

CEREAL INC., DBA DIABETESSUPPLIES4LESS.COM, 

DOUGLAS HAUCK, BERKELEY DRUGS INC., MAJID 

HAMEED, EUGENE HA, CAREWAY PHARMACY INC., 

ANATOLIY FAIN, HARRICO-GALLER DRUG 

CORPORATION, JOHN GALLAGHER, HABER J&N

INC., DBA THE MODERN CHEMIST, NAOMI HABER, 

JERRY HABER, NORSTRAND PHARMACY, LLC, DBA 

VANDERVEER PHARMACY, SARATHCHANDRA 

ADUSUMALLI, HEMAGIRI GAYAM, LEV RX CORP, 

DBA KIRAS PHARMACY, KIRA LEVKOUSKAYA, 

ELIYAHUS PHARMACY, INC., ILIAS MLABASATI, 

GLOBAL CARE PHARMACY, INC., D.K.Y. 

ENTERPRISES, INC., DBA 8TH AVENUE PHARMACY, 

KIM PING JIM, TGIS PHARMACY, INC., DBA SUNRISE 

FAMILY PHARMACY, SAJID JAVED, BAY PHARMACY 

INC., IRENE PIKER, B & T MARLBORO PHARMACY, 

INC., ANATOLY GOROKHOVSKY, LARKE DRUGS, 

INC., DBA 110 PHARMACY & SURGICAL, PRASAD 

VENIGALLA, LA RUCHE PHARMACY, INC., SUNIL B. 

PATEL, ESTATES PHARMACY, INC., MOHAMMED 
3 

NURUDDIN, JOHN DOE, 1-10, NOVEX AMERICA, 

DENNIS CANTOR, TRI-STATE MEDICAL SUPPLIES 

EQUIP. CORP., ERWIN GANZFRIED, MORDECHAI 

KRITZLER, VALUE WHOLESALE, INC., DIANE 

BROWN, MEDICAL DISCOUNT SERVICES, INC., 

BRIAN MESIKA, DARRYL SCHREIBER, XPRESS 

MEDICAL SUPPLIES CORP., DBA PAYLESS 

DISTRIBUTORS, MOHAMMED PATEL, ZUBEDA MOTI, 

MUHAMMAD ARIF, SAPS DRUG WHOLESALE, INC., 

VILAS ASMIN, RAJESH AMIN, NIMESH AMIN, IXTHUS 

MEDICAL SUPPLY, INC., KARL KUNSTMAN, COMPLY 

USA INC., IRANY NIR, OFEK MESSIKA, KIMBERLY 

PASZKIEWICZ, DRUGPLACE, INC., PAUL LEIGHT, 

KEVIN SINGER, HMF DISTRIBUTING INC., 

WHOLESALE DIABETIC SUPPLIES INC., ROSS 

TRAGER, MATTHEW FRANK, PRIMED 

PHARMACEUTICALS LLC, VINCENT MONDENADO, 

MATTHEW ZEIGLER, NE MEDICAL SUPPLY USA, 

INC., DANIELLE WAYNE, NICK WAYNE, TAS 

MEDICAL SUPPLY COMPANY, INC., TZVI SKLARZ, 

PRODUCT PERFORMANCE COMPANY, INC., 

JERROLD HERMAN, STEPHEN HERMAN, MED-PLUS, 

INC., ROGER MEZHIBOVSKY, DELRAY MARKETING, 

LLC, STEVE MICHAELS, DIABETIC PHARMACY 

SOLUTIONS, LLC, KARL BUCHOLZ, GLOBE WANTED, 

MASSALAH TRADING U.S.A. LTD., SAAD HADDAD, 

AKA SAM, HAVEMEYER PHARMACY INC., AKA 

SOUTH SECOND PHARMACY, MICHAEL BASSANELL, 

6122 PHARMACY, INC., 86TH STREET COMMUNITY 

PHARMACY, ABLE WHOLESALERS OF TENNESSEE, 

ABSOLUTE FREIGHT SERVICES, ADVANCED 

PHARMACY LLC, ADVANCED SCRIPTS INC., ALBERT 

KRITZLER, ALPESHKUMAR VASANI, AMEXPO 

INTERNATIONAL, LLC, AMIN PHARMACY, INC., ANNOOR PHARMACY INC., ASHRAF AWAD, ASTUTE 

HEALTHCARE LIMITED, DBA E-NET SOLUTION, 
4 

ATTILA KEKESI, AVI FRANKMAN, BELL 

APOTHECARY, INC., BENJAMIN WALVOORD, JANI 

BHAGVAT, BHANUMATI PATEL, BISHAM SINGH 

GHOTRA, BOB-BILA DISTRIBUTORS, INC., BRIAN 

BOESHART, BRIAN MCCLELLAND, BRIDESBURG 

PHARMACY, CAREPOINTE HEALTH CARE 

CORPORATION, CARL TELANDER, CASHARIM 

TRADING, AKA CASHRIM, CHAIM GREENFIELD, 

CHAOYING XUAN, CHAYA BRAISH, CHILDRENS 

CLINIC PHARMACY, CHRISTOPHER AARONS, 

CLINTON HERMAN, COOLRELIC, INC., DANJAL 

HANSEN, DANNY KATZ, DAVID JOHN TIPP, 

DEALS2000 LLC, DBA JUSTDIABETICTESTSTRIPS.COM, 

DEDAC NGUYEN, DEEPAK MUNSHI, DELWAR 

KAHN, DENNIS CHARLES PAY, DESAI'S PHARMACY 

INC., DIPTIBAHEN PATELDEFE, DISCOVERY 

PHARMACY INC., DOUGLAS PARKER RUDDERHAM, 

DWAYNE PORTER, EAST TREMONT PHARMACY 

INC., EDUARDO GIL, EDWARD CONNELL, ERIK 

BERG, EXPRESS CHEMIST, FCL HEALTH SOLUTIONS 

LTD., FIFTY50 MEDICAL, LLC, G&P SUPPLIES, INC., 

GABECARE DIRECT RX, INC., GARY KAGAN, GEORGE 

LYNCH, AKA RICK, GLENDALE PRESCRIPTION 

CENTER, INC., GLOBALMED LIMITED, AKA 

GLOBALMED PHARMACEUTICAL WHOLESALER, 

GOODLIFE PHARMACY INC., GOOLAM SHEIKH, 

GREGORY PETER SANTULLI, GREGORY S. DIXON, 

GREGORY SARGENT, GURPREET SINGH, GUY SAVIA, 

HANNA NGUYEN, HARMANPREET BAL, 

HETASVEEBEN MAHENDRABHAI VANAPARIYA, 

HIRONORI MITSUISHI, HSIU SARGENT, INSIGHT 

DESIGNS, INC., ISSA KASHOU, JACQUELINE 

HERRERA, JAMES H. REDECOPP, JASON GRAMA, 

JASVIR SINGH SOHI, JENNIFER HERMAN, JENNY 

NGUYEN, JIRI SVEC, JOEL SILBERSTEIN, JOHN SEAL, 

JOHNNY K. CHAN, JONATHAN NIKOLAS WOODS, 
5 

JOSEPH KARAS, JOYCE MOGIL, KENNETH RUIZ, 

KEYUR SHAH, KIRI PATEL, KONIE MINGA, 

KONSTANTINOS POLYCHRONOPOULOS, KRUNAL 

VASANI, KULBIR SINGH SOHI, LAFAYETTE DRUGS, 

LARRY E. SMITH, LAURYNAS LEMESOVAS, LEONID 

BEIGELMAN, LESLIE BOESHART, LESLIE STEWART 

JONES, LIGHTBOX MEDICAL LLC, LUBNA ARSHAD, 

LUIS SANTIAGO, LUIS SOTO, M & L BROTHERS 

PHARMACY, INC., MAGCHOP, LLC, MANIFEST 

PHARMACY LLC, MANISH MITTAL, MARK MOGIL, 

MARLENY CANETE, MAULIK SHAH, MEDEX SUPPLY 

DISTRIBUTORS INC., MEDICAL CARE SUPPLIES INC., 

MEDICAL DISCOUNT SERVICES, LLC, DBA MEDICAL 

WHOLE SALE SUPPLIES, MEDWORLD SUPPLY INC., 

FKA SP DIST. INC., MISAR LLC, MOHAMMAD 

ARSHAD, MONSUR CHOWDHURY, MOSHE BRAISH, 

MUJJAHID UL HUQ, N A & S DRUGS, INC., DBA 

FALCON HEALTHMART DRUGS, N HOSKING & S 

DUFFELL, DBA TOWERS PHARMACY, NABILA 

CHAUDHRY, NACHMAN NEIL FEIG, NADER 

PARSIAN, NATIONAL MEDICAL MANAGEMENT, 

NEIL J. HOSKING, NESSIN USSEIN, NIGEL HUW 

BUSH, NOEMI RUIZ, NOURI FITHA, NPR 

BIOMEDICAL INC., NWHOLESALEDEAL, INC., 

OLIVER SUESS, OXFORD PHARMACY, INC., 

PARITOSH MAZUMDER, PAT KEKESI, PATRICIA 

HERMAN, PAUL MICHAEL CAPPER, PERFECTO H. 

HALLON, PETER E. SUTULOV, PHARMA SUPPLY, 

INC., PHARMACY WHOLESALE SERVICES INC., AKA 

PROFESSIONAL PHARMACY WHOLESALE SERVICES 

INC., PHYSICIAN CHOICE PHARMACY LLC, POWER 

DISTRIBUTION ENTERPRISES LLC, PRANAM 

HEALTHCARE LLC, DBA SAN PEDRO PHARMA INC., 

PREMIER EQUIPMENT SOLUTIONS, INC., PRODUCT 

LTD., PRIORITY CARE PHARMACY LLC, AKA 

PRIORITY HEALTHCARE CORP., PRODUCT TRADE 
6 

SERVICES LTD., QAISER CHAUDHRY, QRX 

PHARMACY AND HEALTHCARE SUPPLIES, INC., 

DBA QRX2 PHARMACY & MEDICAL SUPPLIES INC., 

RAANAN COHEN, RALEIGH PAOLELLATITSCHINGER, RALPH AMATO, RAN LEV, RANDY 

TAMMARA, ROSEMARY ELIZABETH ANN PAY, SAM 

ZIGHELBOIM, SANTA ZAWAIDEH, SAVOY MEDICAL 

PRODUCTS, LLC, SHARINE XUAN, SHENAY USSEIN, 

SHERWOOD PRIME, INC., DBA SHERWOOD MEDICAL 

SUPPLIES, SHIE GREENFIELD, SHRINATHJI RX INC., 

DBA LANSDALE RX PHARMACY, SIMON R. DUFFELL, 

SMARTWAY PHARMACEUTICALS LTD, SMARTWAY 

PW HOLDINGS LTD., SPYRIDON PSONIS, DBA 

PARAPHARMACY STORE, STAMPMATIC, STEPHANIE 

HUQ, STEPHEN M. KRAUSE, STEVEN TAMMARA, 

STEVEN THUSS, STEVEN W. LABA, TADAS 

LEMESOVAS, TDC PHARMACEUTICAL 

CORPORATION, INC., DBA VITAL HEALTH 

PHARMACY, TDP TRADING, INC., TERRIFIC CARE 

LLC, DBA DEANWOOD NURSING, THOMAS GULIK, 

THUY PHAM, AKA DENIS PHAM, AKA HUY PHAM, 

TIFFANY RIGGS, ANTHONY KVENVOLD, WYNNE 

TREANOR-KVENVOLD, TORI GOLDSTEN, TOTAL 

PHARMACY INC., DBA EZ PHARMACY, TRUSTED 

MEDICAL SUPPLY LLC, VALLEY LIQUIDATION 

SERVICES LLC, DBA VLS, LLC, VICKIE MARTINO, 

VINH HUYNH, WILLIAM SEMAAN, YS MARKETING 

INC., FKA NUMED PHARMA INC., YUSUF MUSE, AKA 

YUSUF MOHAMED, YUXIN XUIE, YX ENTERPRICES 

CORP, Z WORLDWIDE, INC., 86 STREET PHARMACY, 

AL GRAY, DBA S D'FROG, DAVID STRATHY, DBA 

BARGIN PAWN, ELLA SELA, DBA ELLA'S VISION, 

JIGAL PATEL, AKA JIGNAL PATEL, KIMBERLY 

STEVENS, DBA STRIPS2CASH, KONG CHEUNG, AKA 

KONG CARL CHENG TUNG, LEHIGH PHARMACY & 

SUPPLIES, INC., SAYED RAZA, AKA SYED HASAN, 
7 

MIR DARWICHZADA, WHOLESALER DEFENDANTS, 

REPRESENTED BY GOODMAN & SAPERSTEIN, 

GOTTLIEB & JANEY, and STERN & SCHURIN, 

 Defendants, 

 v. 

JASON YERT, KERR RUSSELL AND WEBER PLC, 

 Intervenors.

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FOR APPELLANTS H&H PETER MICHAEL LEVINE, New 

WHOLESALE SERVICES, INC. York, NY

and HOWARD GOLDMAN:

FOR APPELLANT LORI GOLDMAN: JOSHUA H. EPSTEIN (David S. 

Greenberg, on the brief),

Davis+Gilbert LLP, New York, 

NY

FOR APPELLEES: TIMOTHY A. WATERS (Geoffrey 

Potter, Natalie G. Noble, 

Nicole Scully, on the brief), 

Patterson Belknap Webb & 

Tyler LLP, New York, NY

Appeal from a judgment of the United States District Court for the Eastern 

District of New York (Carol Bagley Amon, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 

AND DECREED that the judgment of the District Court is AFFIRMED. 
8 

Defendants-Appellants H&H Wholesale Services, Inc., Howard Goldman, 

and Lori Goldman (collectively, the “H&H Defendants”) appeal from a March 

29, 2023 judgment of the United States District Court for the Eastern District of 

New York (Amon, J.) imposing, after entry of a default judgment, $33,471,224 in 

damages for trademark infringement. Specifically, the H&H Defendants all 

challenge the District Court’s award of damages without a jury trial. Lori 

Goldman alone also separately challenges the entry of default judgment against 

her. We assume the parties’ familiarity with the underlying facts and the record 

of prior proceedings, to which we refer only as necessary to explain our decision 

to affirm. 

In 2015 Abbott Laboratories, Abbott Diabetes Care Inc., and Abbott 

Diabetes Care Sales Corporation (collectively, “Abbott”) sued hundreds of 

defendants for, among other things, trademark infringement under the Lanham 

Act, 15 U.S.C. § 1125(c). Five years into the litigation, the District Court granted 

Abbott’s motion for case-ending sanctions against the H&H Defendants for

repeatedly withholding responsive documents and providing misleading and 

inconsistent testimony in depositions and court filings. The District Court then 

held an inquest on damages, awarding $33,471,224 plus post-judgment interest
9 

to Abbott. Abbott’s lawsuit against many of the remaining defendants is 

ongoing.1

I. Right to a Jury Trial on Damages

On appeal, the H&H Defendants argue that they were entitled to a jury 

trial on the issue of damages even after the District Court entered default 

judgment. Abbott argues that we need not reach the merits of this argument 

because the H&H Defendants waived their right to a jury trial. We agree with 

Abbott. 

 “[T]he right of jury trial is fundamental,” Heyman v. Kline, 456 F.2d 123, 129 

(2d Cir. 1972) (quotation marks omitted), but it “may be waived by conduct of 

the parties,” Royal Am. Managers, Inc. v. IRC Holding Corp., 885 F.2d 1011, 1018 (2d 

Cir. 1989). A party waives its right to a jury trial if, with “notice that the trial 

court [i]s planning to adjudicate the dispositive issues of fact,” it “participate[s] 

in a [nonjury proceeding] without objection.” Id. at 1018 (quotation marks 

1 We have appellate jurisdiction pursuant to 28 U.S.C. § 1291, which permits us to hear 

appeals from partial final judgments. See Petrello v. White, 533 F.3d 110, 113 (2d Cir. 

2008); Fed. R. Civ. P. 54(b). The District Court’s judgment against the H&H Defendants 

is a partial final judgment because: there are multiple defendants in Abbott’s lawsuit; 

the judgment “finally determine[s]” the rights and liabilities of the H&H Defendants; 

and the District Court expressly determined that “there [wa]s no just reason for delay of 

entry of final judgment” against them. Linde v. Arab Bank, PLC, 882 F.3d 314, 322–23 (2d 

Cir. 2018) (quotation marks omitted). 
10

omitted); accord Sacerdote v. N.Y. Univ., 9 F.4th 95, 117–18 (2d Cir. 2021) (holding 

that participation “in a bench trial without objection” is enough to “constitute[] 

waiver of the jury trial right”). 

Initially, in the complaint and answer, both Abbott and the H&H 

Defendants demanded a jury trial. Once the District Court began considering 

Abbott’s motion for case-ending sanctions, however, the H&H Defendants 

acquiesced to a damages inquest instead. Before the District Court imposed caseending sanctions, counsel for the H&H Defendants stated that any trial on 

damages for the other defendants should not include the H&H Defendants. 

After the District Court granted the motion for case-ending sanctions, it 

requested that the parties address “the sequencing of a damages inquest against 

the H&H Defendants and a trial against the remaining defendants,” Joint App’x 

274, thereby putting the H&H Defendants on notice that it intended to hold an 

inquest on damages rather than a jury trial. But the H&H Defendants did not 

once argue that they had the right to a jury trial on damages. Instead, they 

argued that the damages inquest should follow any jury trial for the remaining 

defendants. They proposed as an alternative that the damages inquest be 

consolidated with a jury trial for the remaining defendants. Even as to this 
11

alternative scenario, however, the H&H Defendants suggested that the District 

Court, rather than a jury, could determine the amount of damages. The H&H 

Defendants thereafter participated in the damages inquest without objecting that 

they were entitled to a jury trial. 

On appeal, the H&H Defendants describe their proposal to consolidate the 

inquest with a jury trial but to have Judge Amon decide their damages as a 

compromise, maintaining that their true request was to have a jury hear and 

decide their damages. The record is to the contrary. The H&H Defendants’ 

primary request was for the damages inquest to follow a jury trial for the nondefaulting defendants, and in making that request, the H&H Defendants clearly 

acquiesced to a nonjury proceeding for determination of the damages they owed. 

Based on this record, we conclude that the H&H Defendants waived their 

right to a jury trial on damages. 

II. Case-Ending Sanctions

Individually, Ms. Goldman appeals the merits of the District Court’s 

decision to impose case-ending sanctions against her. We review the District 

Court’s imposition of sanctions for abuse of discretion, Rossbach v. Montefiore 

Med. Ctr., 81 F.4th 124, 141 (2d Cir. 2023), though our review is “more exacting 
12

than under the ordinary abuse-of-discretion standard” because the District Court 

“is accuser, fact finder and sentencing judge all in one,” Wolters Kluwer Fin. 

Servs., Inc. v. Scivantage, 564 F.3d 110, 113–14 (2d Cir. 2009) (quotation marks 

omitted). Here, the District Court imposed sanctions under its inherent powers, 

requiring it to find “clear and convincing evidence of bad faith.” Yukos Cap. 

S.A.R.L. v. Feldman, 977 F.3d 216, 235 (2d Cir. 2020). 

Ms. Goldman argues that the District Court abused its discretion because it 

imposed sanctions without first finding that she personally committed a fraud on 

the court and did so in bad faith. See Wolters Kluwer, 564 F.3d at 114 (explaining 

that, in the context of sanctions, “[b]ad faith is personal” (quotation marks 

omitted)). We disagree. 

In the Report and Recommendation adopted by the District Court, 

Magistrate Judge Bloom identified multiple instances in which Ms. Goldman 

misled Abbott and the court by falsely claiming that she had no role at H&H and 

no responsive documents to produce. Indeed, the record establishes that Ms. 

Goldman continued to assert throughout the litigation that she had no

meaningful involvement with the business activities at H&H, even though 

emails that she was eventually required to produce revealed that she maintained 
13

an office at H&H, attended management meetings, and handled various aspects 

of the business. She used these misrepresentations to gain a litigation advantage: 

In response to Abbott’s motion for a preliminary injunction, she argued that its 

claims against her were frivolous and sanctionable because she had no role at 

H&H. Abbott thereafter withdrew its motion for a preliminary injunction 

against her. Finally, as the District Court noted, Ms. Goldman was individually 

responsible for meeting her discovery obligations and for attempting to cover up

the discovery violations. The District Court therefore did not abuse its discretion 

when it concluded that Ms. Goldman had personally acted in bad faith. See 

Penthouse Int’l, Ltd. v. Playboy Enters., Inc., 663 F.2d 371, 387–88 (2d Cir. 1981). 

Ms. Goldman’s arguments to the contrary are unavailing. First, she 

attempts to blame the discovery failures on her former lawyers and other H&H 

employees. Her effort fails not only because a client can be held to account for 

the “acts and omissions” of her counsel in connection with her discovery 

violations, see Cine Forty-Second St. Theatre Corp. v. Allied Artists Pictures Corp., 602 

F.2d 1062, 1068 & n.10 (2d Cir. 1979), but also because Ms. Goldman is 

responsible for her false testimony to the District Court and at her deposition. 

In any event, there is no evidence in the record that her lawyers or other H&H 
14

employees prevented her from producing responsive documents. See id. Second, 

she argues that the District Court abused its discretion by declining to hold an 

evidentiary hearing on Abbott’s motion for sanctions. But the District Court 

need not conduct an evidentiary hearing when, as here, “sanctions are based 

entirely on an established record.” Schlaifer Nance & Co. v. Est. of Warhol, 194 F.3d 

323, 335 (2d Cir. 1999). Finally, she contends that the District Court failed to 

satisfy its obligation to consider lesser sanctions before dismissal. See Shepherd v. 

Annucci, 921 F.3d 89, 97 (2d Cir. 2019). But the District Court acted within its 

discretion in concluding that lesser sanctions would be ineffective given the 

record of repeated discovery abuses, misrepresentations to the court, and the 

prejudice to Abbott. See S. New Eng. Tel. Co. v. Glob. NAPs Inc., 624 F.3d 123, 148 

(2d Cir. 2010) (holding that the district court is not “required to exhaust possible 

lesser sanctions before imposing dismissal or default if such a sanction is 

appropriate on the overall record”).

We have considered the Defendants’ remaining arguments and conclude 
15

that they are without merit. For the foregoing reasons, the judgment of the

District Court is AFFIRMED. 

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk of Court