East Point Systems, Inc. et al v. Maxim et al

Filing 141

ORDER granting in part and denying in part 135 Motion to Compel. Signed by Judge Victor A. Bolden on 04/30/2015. (LaPre, E.)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT
EAST POINT SYSTEMS, INC.,
THOMAS MARGARIDO, JASON
MARGARIDO, AND PAUL TAFF
Plaintiffs,
v.
STEVEN MAXIM, S2K, INC., MAXIM
ENTERPRISES, INC., MAXIM FIELD
SERVICE SUPPLY, INC., EDWIN
PAJEMOLA, AND CLEVELAND FIELD
SYSTEMS, LLC
Defendants.

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CIVIL ACTION NO.: 3:13-cv-00215-VAB

APRIL 30, 2015

RULING ON PLAINTIFFS’ MOTION TO COMPEL
I.

INTRODUCTION
Plaintiffs East Point Systems, Inc. (“EPS”), Thomas Margarido, Jason Margarido,

and Paul Taff (collectively, “Plaintiffs”) move to compel Defendants Edwin Pajemola
(“Pajemola”) and Cleveland Field Systems, LLC (“CFS”) to respond to certain
interrogatories and production requests served upon them. In addition, Plaintiffs seek
an order finding Pajemola in contempt for failing to comply with a subpoena duces
tecum and compelling Pajemola to comply with the same. Plaintiffs also seek to
recover their expenses in bringing this motion.
For the reasons set forth below, Defendants Pajemola and CFS are ordered to
respond to Plaintiffs’ interrogatories, production requests, and subpoena within 14 days
after the date of this Order in accordance with D. Conn. L. Civ. R. 37(d). However, the
Court will not hold Defendant Pajemola in contempt. Accordingly, Plaintiffs’ Motion to
Compel (ECF No. 135) is GRANTED IN PART and DENIED IN PART.
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II.

FACTUAL AND PROCEDURAL BACKGROUND
This case arises out of a dispute concerning the alleged unlawful use and

copying of software owned by EPS. Plaintiffs allege that Defendant Pajemola accessed
the “confidential back-end” of EPS’s software and developed competing software for
Defendant CFS in violation of a Software Source Code Access and Indemnification
Agreement. (See Verified Compl. at 10-11.) Plaintiffs claim breach of contract, tortious
interference with business expectancy, violation of the Connecticut Unfair Trade Secrets
Act, violation of the Connecticut Unfair Trade Practices Act, computer-related offense,
copyright infringement, and imposition of constructive trust. (See id. at 18, 22-30).
Counsel for Defendants Pajemola and CFS withdrew as of March 24, 2014 citing
their inability to reach their clients despite repeated efforts in order to comply with
discovery obligations. (Mot. Withdraw Counsel at 1, ECF No. 70.) Pajemola and CFS
have been pro se since that time, and have failed to respond to a subpoena, to attend a
deposition, and to answer interrogatories, requests for admissions, and requests for
production.
III.

STANDARD OF REVIEW
“A party seeking discovery may move for an order compelling an answer,

designation, production, or inspection” if, inter alia, “a party fails to answer an
interrogatory submitted under Rule 33” or “fails to respond that inspection will be
permitted—or fails to permit inspection—as requested under Rule 34.” Fed. R. Civ. P.
37(a)(3)(B)(iii)-(iv). A party has failed to answer interrogatories timely if that party has
failed to “serve its answers and any objections within 30 days after being served with
the interrogatories.” Fed. R. Civ. P. 33(b)(2). Similarly, with respect to requests for

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production of documents, “[t]he party to whom the request is directed must respond in
writing within 30 days after being served” and “must either state that inspection and
related activities will be permitted as requested or state an objection to the request,
including the reasons.” Fed. R. Civ. P. 34(b)(2)(A)-(B).
With respect to the substance of discovery requests, parties may obtain
discovery regarding any non-privileged matter that is relevant to a claim or defense.
Fed. R. Civ. P. 26(b)(1). In this context, relevance is viewed broadly in that “[r]elevant
information need not be admissible at the trial if the discovery appears reasonably
calculated to lead to the discovery of admissible evidence.” Id.; see also Oppenheimer
Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978) (relevance under Rule 26(b)(1) is
broadly construed "to encompass any matter that bears on, or that reasonably could
lead to other matter that could bear on, any issue that is or may be in the case").  The
scope of discovery under a Rule 45 subpoena is the same as that permitted under Rule
26. Chamberlain v. Farmington Sav. Bank, No. 3:06CV01437 CFD, 2007 WL 2786421,
at *1 (D. Conn. Sept. 25, 2007) (citing Fed. R. Civ. P. 45 Advisory Committee Notes to
1970 Amendment and 9A Wright & Miller, Federal Practice and Procedure § 2459).
IV.

DISCUSSION
A.

Interrogatories and Production Requests

On or about May 23, 2014, Plaintiffs served the following discovery requests:
1. Interrogatories and production requests to CFS generally requesting
information related to the development, features, sale, and marketing of the competing
software, as well as information related to Defendants’ counterclaims. CFS failed to

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respond within 30 days as required by Federal Rules of Civil Procedure 33(b)(2) and
34(b)(2)(A).
2. Interrogatories and production requests to Pajemola generally requesting
information related to the development, features, sale, and marketing of the competing
software, as well as information related to Defendants’ counterclaims. Pajemola failed
to respond within 30 days as required by Federal Rules of Civil Procedure 33(b)(2) and
34(b)(2)(A).
The Court concludes that these discovery requests were reasonably calculated
to lead to the discovery of admissible evidence because they sought information
regarding the software that is the subject of this action and information directly related to
Defendants’ counterclaims. Accordingly, the motion to compel with respect to these
requests is GRANTED.
B.

Subpoena Duces Tecum
i.

Compliance

In March 2014, Plaintiffs served a subpoena duces tecum (the “Subpoena”) on
Pajemola commanding production of a 2009 MacBook computer allegedly used to
develop the competing software, as well as any other electronic devices presently or
formerly containing communications or work product related to the development of the
competing software. (See Pls.’ Mot. Compel, Ex. E, ECF No. 135-8.) Pajemola has
not complied with the Subpoena. This Court has the authority under Fed. R. Civ. P.
45(d)(2)(B)(i) to compel compliance with a subpoena.
Plaintiffs assert that the 2009 MacBook computer contains versions of the
competing software that are the subject of the claims and counterclaims of the parties.

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The Court concludes that the Subpoena is therefore reasonably calculated to lead to the
discovery of admissible evidence. Accordingly, the motion to compel with respect to the
Subpoena is GRANTED.
ii.

Contempt

Plaintiffs also move for an order holding Pajemola in contempt for failing to
comply with the Subpoena. If a commanded party “fails without adequate excuse to
obey the subpoena,” the court may hold that party in contempt. Fed. R. Civ. P. 45(g);
see Daval Steel Products, a Div. of Francosteel Corp. v. M/V Fakredine, 951 F.2d 1357,
1364 (2d Cir. 1991) (failure to comply with subpoena duces tecum can constitute
contempt of court).
Pajemola did not timely object to the Subpoena pursuant to Fed. R. Civ. P.
45(d)(2)(B), failed to obey the Subpoena, and has offered no excuse for his failure.
Nevertheless, the Court declines to hold Pajemola in contempt at this time. Pajemola
has not been represented by counsel since March 2014. Additionally, Plaintiffs have
not diligently pursued this matter, waiting over eight months before seeking to compel
compliance with the Subpoena. Moreover, there is no indication or allegation of bad
faith on Pajemola’s part. See Cruz v. Meachum, 159 F.R.D. 366, 368 (D. Conn. 1994)
(declining to impose sanctions for failure to comply with subpoena because there was
“no indication of bad faith on the part of the defendant or the defendant’s attorney.”).
Plaintiffs’ motion to hold Pajemola in contempt is DENIED without prejudice to renewal if
Pajemola fails to comply with this Order.

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C.

Costs

Plaintiffs ask the Court to order Defendants CFS and Pajemola to pay the costs
of bringing this motion. (Pls.’ Mot. Compel at 1.) The Court finds that such an award is
appropriate in this case, but only as to Plaintiffs’ reasonable expenses incurred in
moving under Rule 37 to compel responses to their interrogatories and production
requests; this Court may not award Plaintiffs their expenses in moving to compel
compliance with the Subpoena because Pajemola is not in contempt. See Fed. R. Civ.
P. 37(a)(5)(A); S.E.C. v. Kimmes, No. 89 C 5942, 1996 WL 734892, at *7-8 (S.D.N.Y.
Dec. 24, 1996) (conducting thorough analysis of Rules 37 and 45 and concluding that
subsection of Rule 37 requiring payment of movant’s expenses “is inapplicable to
motions to compel under Rule 45” and that Rule 45 authorizes a court to award costs
against non-compliant party only when that party is held in contempt under Rule 45).
However, the Court may not award expenses without first giving Defendants CFS
and Pajemola an “opportunity to be heard.” Fed. R. Civ. P. 37(a)(5)(A). CFS and
Pajemola had ample opportunity to object to Plaintiffs’ motion to compel requesting
expenses. However, the Court will allow CFS and Pajemola 14 days from the date of
this Order to (a) file pro se appearances or have counsel file appearances on their
behalf, and (b) contest Plaintiffs’ request for expenses. If CFS and Pajemola do not file
appearances within 14 days from the date of this Order and contest Plaintiffs’ request
for expenses, they will be defaulted under Fed. R. Civ. P. 55(a) and Plaintiffs shall be
awarded their expenses in bringing this motion.

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V.

ORDERS
1. Plaintiffs’ Motion to Compel (ECF No. 135) is GRANTED IN PART and

DENIED IN PART.
2. Defendants Pajemola and CFS are ORDERED to respond to Plaintiffs’
interrogatories, production requests, and subpoena duces tecum within 14 days after
the date of this Order in accordance with D. Conn. L. Civ. R. 37(d).
3. Defendants Pajemola and CFS are ORDERED to file pro se appearances or
have counsel file appearances on their behalf within 14 days after the date of this Order.
4. Plaintiffs shall file a summary of their expenses, including attorneys’ fees,
incurred in bringing this motion excluding any expenses incurred in moving to compel
compliance with the Subpoena under Rule 45.
5. The Clerk shall mail a copy of this Order to Defendants Pajemola and CFS at
the address set forth at page 3 of ECF No. 70.

SO ORDERED at Bridgeport, Connecticut this thirtieth day of April, 2015.

/s/ Victor A. Bolden
VICTOR A. BOLDEN
UNITED STATES DISTRICT JUDGE

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