Parris v. Pappas et al

Filing 307

RULING denying 302 Motion to Compel and ORDER Regarding August 29, 2017 Contempt Hearing. Signed by Judge Holly B. Fitzsimmons on 8/3/17. (Esposito, A.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
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: Civil No. 3:10CV1128 (WWE)
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DONNA PARRIS
v.
CHARLES PAPPAS, ET AL

RULING and ORDER
Motion to Compel [Doc. #302]
Plaintiff seeks an order compelling production of documents
relating to a “Farmer’s Hill Trust.” [Doc. #302]. For the
reasons that follow, plaintiff’s Motion to Compel and Motion for
Costs and Attorneys Fees are DENIED.
On September 19, 2016, defendant Pappas disclosed that in
2014 he served as the guarantor for the purchase by an entity
called “Farmer’s Hill Trust” of a property located at 27
Farmer’s Hill Road, Andover, Maine. In a response to an
Interrogatory dated November 16, 2016, defendant provided
further information stating,
The property was purchased by Farmer’s Hill Trust, the
trustee of which is Julie Webber, my girlfriend, and
the beneficiary of which is Ms. Webber’s daughter. The
property was purchased from Mr. and Mrs. Shaffer
(possibly Bob and Jean). I am not certain of the
purchase price but believe it was approximately
$27,000, with a $1,000 down payment and $600 monthly
payment. I served as guarantor because I wanted to
help my girlfriend and the seller wanted an additional
person to be made liable for payment.

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[Doc. #302-3, Pl. Ex. C (Answ. to Interrog. No. 2)]. He
added, “I have no relationship with Farmer’s Hill Trust.”
Id. (Answ. to Interrog. No. 3). After plaintiff informed
defendant that she believed that his response was
inadequate, a supplemental response consisting of a letter
dated February 9, 2017, from an attorney in Maine was
provided, stating that he had reviewed the trust documents
and reporting that “Charlie Pappas is not a grantor,
trustee or beneficiary of said Trust. Nor is he is [sic]
mentioned anywhere in the language of the Trust.” [Doc.
#302-4, Pl. Ex. D].
On June 15, 2017, plaintiff again requested that Mr.
Pappas provide copies of the Trust documents. [Doc. #302-5,
Pl. Ex. E]. Defendant’s counsel responded that, “Mr. Pappas
has informed me that he has requested the trust documents
from his girlfriend and she has refused to provide them to
him.” Id.
Rule 26(b)(1) of the Federal Rules of Civil Procedure
outlines the scope of discovery. Under the Rule, parties “may
obtain discovery regarding any nonprivileged matter that is
relevant to any party's claim or defense and proportional to the
needs of the case.” Relevance involves a consideration of “the
importance of the issues at stake in the action, the amount in
controversy, the parties' relative access to relevant
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information, the parties' resources, the importance of the
discovery in resolving the issues, and whether the burden or
expense of the proposed discovery outweighs its likely benefit.”
Fed. R. Civ. P. 26(b)(1). Even when a request seeks relevant
matter, the court can limit such discovery when “the discovery
sought is unreasonably cumulative or duplicative, or can be
obtained from some other source that is more convenient, less
burdensome, or less expensive.” Fed. R. Civ. P. 26(b)(2)(C). See
During v. City Univ. of New York, No. 05 CIV. 6992(RCC), 2006 WL
2192843, at *4 (S.D.N.Y. Aug. 1, 2006) (“Even if the information
sought is relevant, courts have the authority to forbid or to
alter discovery that is unduly burdensome.”).
The Court agrees with plaintiff that the Trust
documents are relevant and the discovery request is proper,
pursuant to Fed. R. Civ. P. 26(b)(1), to determine whether
“Defendant Pappas is benefiting from this property or the
trust.” [Doc. #302 at 3]. However, the Court disagrees with
plaintiff’s argument that Pappas should be compelled to
produce the Trust documents because “he has shown that he
has some level of access to the documents by producing a
letter from an attorney who reviewed them.” Id. Rather,
plaintiff must accept defendant’s representation that “he
has requested [the responsive] documents from his
significant other, who denied the request.” [Doc. #306 at
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1]. (citing Pl. Ex. E)].
It is well-established that “a party is not obliged to
produce...documents that it does not possess or cannot
obtain.” Shcherbakovskiy v. Da Capo Al Fine, Ltd., 490
F.3d 130, 138 (2d Cir. 2007). Pursuant to Fed. R. Civ.
P. 34, a party may serve on another party a request
“to produce ... items in the responding party's
possession, custody, or control.” A party “controls
documents that it has the right, authority, or ability
to obtain upon demand.” Scott v. Arex, Inc., 124
F.R.D. 39, 41 (D. Conn. 1989) (citations omitted).
Plaintiffs bear the burden of establishing that the
documents are in GE's control. See Pitney Bowes, Inc.
v. Kern Int'l, Inc., 239 F.R.D. 62, 66 (D. Conn.
2006).
Grayson v. Gen. Elec. Co., No. 3:13-cv-1799(WWE)(WIG), 2016 WL
1275027, at *1 (D. Conn. Apr. 1, 2016). Plaintiff has not
sustained her burden of showing the requested documents are
within defendant’s possession, custody, or control. Defendant
has made a showing that he is not a grantor, trustee or
beneficiary of the Trust and that he does not possess copies of
the relevant documents. Further, he states he has requested the
documents from his girlfriend and she refuses to provide them.
See Fed. R. Civ. P. 26(1)(A)(ii)(requiring the initial
disclosure of “a copy...of all documents, electronically stored
information, and tangible things that the disclosing party has
in its possession, custody, or control and may use to support
its claims or defenses, unless the use would be solely for
impeachment.”); Fed. R. Civ. P. 34(a)(1)(authorizing service of
discovery requests for certain “items in the responding party’s

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possession, custody, or control”); Fed. R. Civ. P.
45(a)(1)(iii)(requiring subpoenas which “command each person to
whom it is directed to...produce designated documents,
electronically stored information, or tangible things in that
person’s possession, custody, or control”).
Courts have universally held that documents are deemed
to be within the possession, custody or control if the
party has actual possession, custody or control or has
the legal right to obtain the documents on demand.
Starlight International v. Herlihy, 186 F.R.D. 626,
635 (D. Kan. 1999). “Control” comprehends not only
possession, but also the right, authority, or ability
to obtain the documents. Super Film of Am., Inc. v.
UCB Films, Inc., 219 F.R.D. 649, 651 (D. Kan. 2004).
Therefore, Rule 34(a) enables a party seeking
discovery to require production of documents beyond
the actual possession of the opposing party if such
party has retained any right or ability to influence
the person in whose possession the documents lie. Id.
The party seeking production of the documents bears
the burden of proving that the opposing party has the
control required under Rule 34(a). Id.
Tomlinson v. El Paso Corp., 245 F.R.D. 474, 476–77 (D. Colo.
2007).
Rule 34 of the Federal Rules of Civil Procedure provides a
mechanism under Rule 45 to subpoena the Trustee, “a
nonparty...to produce documents and tangible things or to permit
an inspection.” Fed. R. Civ. P. 34(c); Fed. R. Civ. P. 45.
Plaintiff may seek the assistance of the Court should the
Trustee fail to comply with a subpoena.
Accordingly, plaintiff’s Motion to Compel and Motion for
Costs and Attorney’s Fees are DENIED.
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[Doc. #302].

August 29, 2017 Contempt Hearing
Plaintiff having moved for a renewed order for contempt and
imposition of sanctions up to and including confinement until
defendant Charles Pappas purges his contempt, [Doc. #274], it is
hereby ORDERED that the defendant, Charles Pappas, appear before
the District Court in Courtroom Four - Annex, 915 Lafayette
Boulevard, Bridgeport, Connecticut, at 11:00 AM on August 29,
2017, then and there to be examined under oath concerning his
assets and ability to pay the judgment entered against him. The
Court may make such orders at the hearing or thereafter that it
determines to be reasonably calculated to facilitate payment of
the judgment.
The defendant is advised that failure to appear before the
Court at the scheduled time and place may subject the defendant
to being held in Contempt of Court and having a Capias Writ
issue, that is an order to the U.S. Marshal to take him into
custody and bring him before the Court. It is FURTHERED ORDERED
that this order be served by certified mail, return receipt
requested, upon Charles Pappas by no later than August 11, 2017.
SO ORDERED at Bridgeport this 3rd day of August 2017.
/s/
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HOLLY B. FITZSIMMONS
UNITED STATES MAGISTRATE JUDGE

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