Rhode Island Market LLC d/b/a Cedar Market, DAB TB10751 (2026)

ORDER GRANTING COMPLAINANT’S MOTION TO IMPOSE SANCTIONS AND INITIAL DECISION AND DEFAULT JUDGMENT

On July 21, 2025, the Center for Tobacco Products (CTP) served a Complaint on Rhode Island Market LLC d/b/a Cedar Market (Respondent), at 101 North Rhode Island Avenue, Atlantic City, New Jersey 08401.  A copy of the Complaint was also filed with the Food and Drug Administration’s (FDA) Division of Dockets Management on July 22, 2025.  CTP seeks to impose a $14,232 civil money penalty against Respondent for allegedly violating the Federal Food, Drug, and Cosmetic Act (Act), 21 U.S.C. § 301 et seq., and its implementing regulations, 21 C.F.R. pt. 1140, at least seven times within a 48-month period.

Respondent, through counsel, filed an answer to the Complaint.  Respondent’s counsel subsequently withdrew his appearance and Respondent elected to proceed pro se.  Since its counsel’s withdrawal, Respondent has completely disregarded my orders and has been non-responsive to CTP’s discovery requests.  Specifically, Respondent failed to respond to CTP’s document requests, failed to respond to CTP’s Motion to Compel Discovery, failed

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to comply with my Order granting CTP’s Motion to Compel Discovery, and failed to respond to the present Motion to Impose Sanctions.  Respondent’s designated representative has also failed to comply with my orders to register for the Departmental Appeals Board’s (DAB’s) electronic filing system (DAB E-File) or request a written waiver from the electronic filing requirements.

Currently before me is CTP’s Motion to Impose Sanctions, which seeks sanctions against Respondent for its noncompliance with the rules and orders governing this proceeding.  As a proposed sanction for Respondent’s conduct, CTP asks me to strike Respondent’s answer and issue a default judgment against Respondent pursuant to 21 C.F.R. § 17.35(c)(3).  For the reasons stated below, I find the requested sanctions are warranted and appropriate under the circumstances.  Therefore, I grant CTP’s Motion to Impose Sanctions, strike Respondent’s answer, and issue this decision of default judgment imposing the requested civil money penalty against Respondent.

I. Procedural History

On July 21, 2025, CTP served a Complaint on Respondent by United Parcel Service in accordance with 21 C.F.R. §§ 17.5 and 17.7.  See Civil Remedies Division (CRD) Docket (Dkt.) Entry Nos. 1, 1a, 1b.  On August 15, 2025, Respondent, through counsel, timely filed an answer to the Complaint.  CRD Dkt. Entry No. 3a.

On August 26, 2025, I issued an Acknowledgment and Pre-Hearing Order (APHO), which outlined the procedures governing this case and established deadlines for the parties to complete discovery and file pre-hearing exchanges.  CRD Dkt. Entry No. 4.  Among other provisions, the APHO established a deadline of October 2, 2025 for the parties to serve any document requests, and explained that a party must produce any requested documents no later than 30 days after receiving a request for documents from the opposing party.  CRD Dkt. Entry No. 4 ¶ 4; see also 21 C.F.R. § 17.23(a).  The APHO also warned the parties that I may impose sanctions against either party, up to and including dismissal of the Complaint or striking the answer, for failing to comply with any order in this case, failing to prosecute or defend its case, or engaging in misconduct that “interferes with the speedy, orderly, or fair conduct of the hearing.”  CRD Dkt. Entry No. 4 ¶ 21; see also 21 C.F.R. § 17.35.

On September 29, 2025, Respondent filed a letter requesting a two-week extension of the discovery and other pre-hearing deadlines to give the parties time to discuss a potential settlement.  CRD Dkt. Entry No. 7.  On October 6, 2025, I granted the request and extended all deadlines by 14 days.  CRD Dkt. Entry No. 8.  Pursuant to that Order, all document requests were to be served by October 16, 2026.  Id.

On October 15, 2025, one day before the extended discovery deadline, Respondent’s counsel filed a letter stating Respondent wanted to proceed without counsel.  CRD Dkt.

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Entry No. 8.  In the letter, Respondent’s counsel stated Milad Wissa would serve as Respondent’s pro se representative, and that Mr. Wissa had been provided with copies of all relevant case documents and advised of the October 16, 2025 deadline for serving discovery requests.  Id. at 1.  The letter requested five days for Mr. Wissa to register for DAB E-File.  Id.  Enclosed with the letter was a notice of “substitution of counsel/withdrawal,” signed by Respondent’s counsel and Mr. Wissa, stating that “Milad Wissa, pro se,” was being substituted as Respondent’s designated representative.  Id. at 3.

The October 15, 2025 letter from Respondent’s counsel stated that he was “also filing an amended answer based on information and other developments as to added defenses.”  Id. at 1.  According to the letter, Respondent’s counsel “only had limited information and other circumstances have changed.”  Id.  The letter did not elaborate or identify any specific information or developments which warranted filing an amended answer, nor did it explain what “other circumstances” had changed.  See id.

As noted in the letter concerning the change in representation, Respondent’s counsel separately filed an amended answer on October 15, 2025.  CRD Dkt. Entry No. 9.  The amended answer was not accompanied by a motion for leave to amend the answer.  See id.  The amended answer appears to be identical to Respondent’s initial answer, except that it added several new “affirmative defenses.”  Id. at 2-3.

On October 29, 2025, the attorney assisting me with this case issued a letter to the parties, by my direction.  CRD Dkt. Entry No. 11.  The letter instructed Mr. Wissa to register for DAB E-File or request a waiver from the electronic filing requirements by November 7, 2025.  Id. at 2.  The letter also established a deadline for CTP to file any written objections to Respondent’s change in representation and/or amended answer.  Id.1 

On November 12, 2025, CTP filed its written objections.  CRD Dkt. Entry No. 12.  In the filing, CTP stated it did not oppose the change in representation.  Id. at 3. CTP argued that Respondent’s amended answer was improper and should be stricken from the record because Respondent failed to request leave to amend and had not shown the amendment was made to “conform with the evidence as justice may require.”  Id. at 3-5.

Also on November 12, 2025, CTP filed a Motion to Compel Discovery, stating that it served document requests on Respondent on October 2, 2025, but received no response.  CRD Dkt. Entry No. 13.  The Motion requested an order compelling Respondent to comply with CTP’s document requests.  Id.  By separate filing, CTP also requested a thirty-day extension of all outstanding deadlines pending resolution of the Motion to Compel Discovery.  CRD Dkt. Entry No. 14 at 2.

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On November 17, 2025, I issued an Order granting CTP’s request for a thirty-day extension of the pre-hearing deadlines.  CRD Dkt. Entry No. 15.  I also advised Respondent that it had until December 1, 2025 to respond to CTP’s Motion to Compel Discovery, and noted that if Respondent failed to file a response, “I may grant CTP’s motion in its entirety.”  Id. at 2. I further stated that I would address Respondent’s request to change representation and amended answer by separate order.  Id. at 1 n.1.

On November 21, 2025, I issued an Order granting Respondent’s request to “substitute counsel” and striking Respondent’s amended answer.  CRD Dkt. Entry No. 18.  With respect to the change in representation, I again directed Mr. Wissa to register for DAB E-File and warned Respondent that it was responsible for ensuring its designated representative participates in this case and complies with all rules, orders, and deadlines.  Id. at 3, 5. I also specifically reminded Respondent of the upcoming December 1, 2025 deadline for responding to CTP’s Motion to Compel Discovery.  Id. at 5.  With respect to the amended answer, I found that Respondent had failed to request leave to amend its pleading and had not shown that the amendment was made to “conform with the evidence as justice may require.”  See id. at 3-4; see also 21 C.F.R. § 17.9(d).  I also found that permitting Respondent to assert new “affirmative defenses” at this late stage of the case would be unfairly prejudicial to CTP and/or unnecessarily delay the proceedings.  CRD Dkt. Entry No. 18 at 4.  Therefore, I concluded that Respondent had improperly filed the amended answer and struck the amended answer from the record.  Id. at 4-5.

Despite my reminders, Respondent did not file a response to CTP’s Motion to Compel Discovery by the December 1, 2025 deadline.  Accordingly, on December 11, 2025, I issued an Order granting the Motion and directed Respondent to fully respond to CTP’s document requests by December 22, 2025.  CRD Dkt. Entry No. 19.  I also extended all deadlines by thirty days to give Respondent time to comply with the Order.  Id. at 2. I specifically warned Respondent that if it failed to comply, I could impose sanctions, “including the issuance of an Initial Decision and Default Judgment finding Respondent liable for the violations listed in the Complaint and imposing a civil money penalty.”  Id.

On December 23, 2025, CTP filed the present Motion to Impose Sanctions.  CRD Dkt. Entry No. 21.  In the Motion, CTP states that Respondent failed to comply with my December 11, 2025 Order granting its Motion to Compel Discovery and still has not produced any documents.  Id. at 1.  As a proposed sanction, CTP asks that I strike Respondent’s answer and issue a default judgment in favor of CTP.  Id. at 2-3. By separate filing, CTP also asked me to stay all deadlines pending resolution of its Motion for Sanctions.  CRD Dkt. Entry No. 22.

On December 29, 2025, I issued an Order giving Respondent until January 16, 2026, to file a response to CTP’s Motion to Impose Sanctions.  CRD Dkt. Entry No. 24.  I also granted CTP’s request to stay all deadlines pending resolution of the Motion.  Id.

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To date, Respondent has not filed a response to CTP’s Motion for Sanctions, produced any documents in response to CTP’s discovery requests, or otherwise complied with my Order granting CTP’s Motion to Compel Discovery.  I also note that Respondent’s designated representative, Milad Wissa, still has not complied with my orders to register for DAB E-File or request a written waiver from the electronic filing requirements.

II. Motion to Impose Sanctions

I may sanction a party for:

(1) Failing to comply with an order, subpoena, rule, or procedure governing the proceeding;

(2) Failing to prosecute or defend an action; or

(3) Engaging in other misconduct that interferes with the speedy, orderly, or fair conduct of the hearing.

21 C.F.R. § 17.35(a).

Here, I find that Respondent failed, and continues to fail, to comply with multiple orders and rules in this proceeding, including:

• The requirements in 21 C.F.R. § 17.23(a) and paragraph 4 of the APHO, by failing to respond to CTP’s document requests within 30 days; and
• My December 11, 2025 Order granting CTP’s motion to compel discovery, by failing to respond to CTP’s document requests by December 22, 2025.

In addition, I find that Respondent has failed to defend this action.  Specifically, Respondent did not respond to CTP’s Motion to Compel Discovery or the present Motion to Impose Sanction.  In addition, Respondent’s designated representative has not registered for DAB E-File or requested a waiver from the electronic filing requirements despite repeatedly being directed to do so.  In fact, Respondent has not taken any action in this case since requesting the change in representation on October 15, 2025.  Respondent’s conduct has interfered with the speedy, orderly, and fair conduct of this proceeding by preventing the case from moving forward to a hearing.  Therefore, I conclude that Respondent’s conduct establishes a basis for sanctions pursuant to 21 C.F.R. § 17.35, and that sanctions are warranted under the circumstances.

The sanctions I impose must relate to the nature and severity of the misconduct or noncompliance.  21 C.F.R. § 17.35(b).  Here, Respondent’s conduct has caused unnecessary delays and disruptions, interfered with CTP’s ability to prosecute its case, and prevented me from conducting a hearing or issuing a decision on the merits.  While I recognize that Respondent is no longer represented by counsel, I have given Respondent’s new representative numerous opportunities to comply with my orders and directives to no

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avail.  Respondent’s lack of responsiveness and complete disregard for my orders suggests it has abandoned its defense and is no longer interested in participating in these proceedings.

Based on the severity and ongoing nature of Respondent’s conduct, I find that the appropriate sanction is to strike Respondent’s answer to the complaint.  21 C.F.R. § 17.35(b), (c)(3); see also KKNJ, Inc. d/b/a Tobacco Hut 12, DAB No. 2678 at 10-11 (2016) (concluding ALJ did not abuse discretion by striking Respondent’s answer for failure to comply with discovery order).  While I recognize that this is a harsh remedy, I conclude that a lesser sanction would not effectively address Respondent’s repeated noncompliance and failure to defend its case.  Indeed, Respondent’s conduct has effectively brought this proceeding to a standstill without any explanation or justification.  Therefore, CTP’s Motion to Impose Sanctions is GRANTED and Respondent’s answer to the complaint is hereby STRICKEN from the record.

III. Default Decision

Striking Respondent’s answer leaves the complaint unanswered.  Therefore, I am required to issue an initial decision by default, provided that the complaint is sufficient to justify a penalty.  21 C.F.R. § 17.11(a).  Accordingly, I must determine whether the allegations in the complaint establish violations of the Act.

For purposes of this decision, I assume the facts alleged in the complaint to be true, pursuant to the provisions of 21 C.F.R. § 17.11(a).  Specifically, CTP alleges the following facts in its complaint:   

• Respondent owns an establishment that does business under the name Cedar Market and is located at 101 North Rhode Island Avenue, Atlantic City, NJ 08401. Complaint ¶ 11.
• Respondent’s establishment receives tobacco products in interstate commerce, including Black & Mild Original cigars and Newport cigarettes, and holds them for sale after shipment in interstate commerce.  Complaint ¶ 12.
• Previously, on February 12, 2024, CTP initiated a civil money penalty action, CRD Docket Number T-24-1689, FDA Docket Number FDA-2024-H-0744, against Respondent alleging that Respondent committed at least four violations of the Act.  Complaint ¶ 14.  CTP alleged those violations occurred at Respondent’s business establishment on November 30, 2022 and November 30, 2023.  Id.
• The previous action concluded when an Initial Decision and Default Judgment was entered by an Administrative Law Judge, finding that all the violations alleged in the Complaint occurred.  Complaint ¶ 15; see also Initial Decision and Default

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Judgment, FDA Docket FDA-2024-H-0744, CRD Docket T-24-1689 (CRD Decision TB7819).

• On February 8 and 9, 2025, FDA-commissioned inspectors conducted a subsequent two-part inspection at Respondent’s business establishment.  During the inspection on February 8, 2025, a person younger than 21 years of age was able to purchase a Black & Mild Original cigar.  Complaint ¶ 13.  In addition, Respondent’s staff failed to verify, by means of photographic identification containing a date of birth, that the purchaser was 21 years of age or older.  Id.  During the inspection on February 9, 2025, the inspector observed an open package of Newport cigarettes with individual cigarettes offered for sale for one dollar each.  Id.

These facts establish Respondent Cedar Market’s liability under the Act.  The Act prohibits “misbranding” of a regulated tobacco product.  21 U.S.C. § 331(k).  A regulated tobacco product is “misbranded” if sold or distributed in violation of regulations issued under section 906(d) of the Act.  21 U.S.C. § 387c(a)(7)(B); 21 C.F.R. § 1140.1(b).  The Secretary issued the regulations at 21 C.F.R. Part 1140 under section 906(d) of the Act.  21 U.S.C. § 387a-1; see 21 U.S.C. § 387f(d)(1); 75 Fed. Reg. 13,225, 13,229 (Mar. 19, 2010); 81 Fed. Reg. 28,974, 28,975-76 (May 10, 2016); 89 Fed. Reg. 70, 483, 70, 485 (Aug. 30, 2024).  Under section 906(d)(5) of the Act, no retailer may sell regulated tobacco products to any person younger than 21 years of age and retailers must verify, by means of photographic identification containing a purchaser’s date of birth, that no regulated tobacco product purchasers are younger than 21 years of age.  Further, pursuant to 21 C.F.R. § 1140.14(a)(4), no retailer may break or otherwise open any cigarette or smokeless tobacco product to sell or distribute individual cigarettes.

Accepting the facts alleged in the Complaint as true, Respondent previously committed at least four violations of the Act during inspections conducted on November 30, 2022, and November 30, 2023.  In addition, during the two-part inspection on February 8 and 9, 2025, Respondent committed three additional violations by: (a) selling regulated tobacco products to a person younger than 21 years of age; (b) failing to verify, by means of photographic identification containing a purchaser’s date of birth; and (c) offering individual cigarettes for sale from an open package of Newport cigarettes.  Therefore, I conclude that Respondent committed at least seven violations of the Act between November 30, 2022, and February 9, 2025.

CTP has requested a civil money penalty of $14,232 against Respondent, which is a permissible penalty under 21 C.F.R. § 17.2 for seven violations of the Act within a 48-month period.  Therefore, I conclude that a civil money penalty of $14,232 is appropriate and impose a penalty in that amount against Respondent.

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ORDER

For the reasons stated above, I enter default judgment and impose a civil money penalty against Respondent, Rhode Island Market LLC d/b/a Cedar Market, in the amount of $14,232.  Pursuant to 21 C.F.R. § 17.11(b), this order becomes final and binding upon both parties after 30 days of the date of its issuance.