Mirlis v. Edgewood Elm Housing, Inc. et al

Filing 68

MEMORANDUM AND ORDER and RULINGS (see attached). Decision on Defendants' 51 Motion for Summary Judgment is RESERVED pending consideration of the further submissions specified in this Order. Plaintiff's 56 Cross-Motion for an Order that he need not respond to Defendants' 51 Motion for Summary Judgment is DENIED. Defendants' 61 Motion to Stay Discovery is DENIED; provided, however, that any future discovery will be governed by the Court 's rulings following the additional submissions directed by this Order. Plaintiff is directed to file and serve papers in opposition to Defendants' 51 Motion for Summary Judgment not later than October 21, 2021. Plaintiff ma y include with those papers an affidavit pursuant to Fed. R. Civ. P. 56(d). Defendants may file reply papers on their 51 Motion for Summary Judgment not later than November 4, 2021. Signed by Judge Charles S. Haight, Jr. on September 9, 2021. (Dorais, L.)

Case 3:19-cv-00700-CSH Document 68 Filed 09/09/21 Page 1 of 12

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

ELIYAHU MIRLIS,
Civil Action No.
No. 3:19-cv-700 (CSH)

Plaintiff,
v.
EDGEWOOD ELM HOUSING, INC.,
F.O.H., INC., EDGEWOOD VILLAGE,
INC., EDGEWOOD CORNERS, INC.,
and YEDIDEI HAGAN, INC.,

SEPTEMBER 9, 2021

Defendants.

MEMORANDUM AND ORDER ON DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT [Doc. 51], and RULINGS ON PLAINTIFF’S MOTION TO DENY
SUMMARY JUDGMENT PENDING DISCOVERY [Doc. 56] AND DEFENDANTS’
MOTION TO STAY DISCOVERY [Doc. 61]
HAIGHT, Senior District Judge:
Plaintiff brings this diversity action to require the five corporate Defendants to pay an
unsatisfied judgment Plaintiff obtained in a prior action in this Court against a nonparty individual
and a nonparty corporation following a jury trial before Judge Shea. This Ruling addresses three
motions that have been made as the case goes forward.
I
In the earlier action before Judge Shea, Plaintiff obtained a judgment in the amount of
$21,749,041.10 against nonparty Daniel Greer and nonparty Yeshiva of New Haven, Inc. See
Mirlis v. Greer, No. 3:16CV678(MPS), Doc. 63 (“Judgment” entered 6/6/2017). The judgment was
affirmed on appeal. Mirlis v. Greer, 952 F.3d 36 (2d Cir. 2020). Plaintiff claimed that during 2001
through 2005, when he was a boarding student at the Yeshiva, Greer sexually assaulted him.
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Plaintiff’s judgment against Greer and the Yeshiva remains unsatisfied.
Plaintiff seeks by the present action before this Court to force the captioned Defendants to
pay the judgment. The five Defendants are non-profit Connecticut corporations, formed between
1984 and 1999. They own residential real estate in the Edgewood Park section of New Haven which
they rent to lower-income tenants.
In an opinion reported at 2020 WL 4369268 (“Mirlis I”), familiarity with which is assumed,
I denied Defendants’ motion under Federal Rule of Civil Procedure 12(b)(6) to dismiss the
complaint. In Mirlis I, I said:
What this case comes down to is that Plaintiff Mirlis seeks to
subject the five corporate Defendants to reverse veil piercing which,
if granted, would render the Defendants’ assets available to pay
Mirlis’s Underlying Action judgment against Daniel Greer and the
Yeshiva.
Plaintiff pleads two theories in support of that effort: the identity
rule and the instrumentality rule. These are alternative bases for
reverse veil piercing.
Mirlis v. Edgewood Elm Hous., Inc., No. 3:19-CV-700 (CSH), 2020 WL 4369268, at *11 (D. Conn.
July 30, 2020).
Following the Court’s denial of Defendants’ motion to dismiss the complaint, the parties
attempted to resolve their disputes by mediation. That effort has failed thus far. Reviving the
litigation effort, Plaintiff demands extensive discovery from Defendants into their corporate
formation and histories, and any interactions with Daniel Greer.
II
Defendants have not made any of this discovery. Instead, Defendants now move [Doc. 51]
for summary judgment on the entire complaint under Rule 56. Their brief contends that the

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circumstances of the case entitle them to a summary disposition without giving Plaintiff any
discovery. Plaintiff contends in a cross-motion [Doc. 56] that he need not respond to Defendants’
summary judgment motion until Defendants have made full discovery. Lastly, Defendants move
[Doc. 61] to stay discovery.
The Court conducted a hearing to explore these dramatically different contentions. The
attorneys for the parties appeared and adhered to their extreme positions. Mr. Colbert argued for
Defendants that whether Plaintiff’s reverse corporate veil piercing theory against these non-profit
corporations be regarded as an application of the instrumentality test or the identity test, “we have
moved for summary judgment because we believe that these two issues can be decided right now
and that no discovery will change the outcome of these issues based on what is already clearly
known and available” to the public and the court. Hearing Transcript (“Tr.”) [Doc. 67], at 10-11.
Mr. Cesaroni argued for Plaintiff that “[w]hat the plaintiff is asking is to be able to conduct case
discovery so he can prove his case,” and “especially where there hasn’t been any discovery, that it’s
appropriate to deny or stay a motion for summary judgment so that the case can proceed in the
normal manner, which is discovery first, summary judgment second.” Tr., at 47.
Counsel are saying, in effect, that the Court should grant Defendants’ summary judgment
motion with no discovery (Mr. Colbert); or the Court should not even consider a summary judgment
motion until after total and complete discovery (Mr. Cesaroni). While counsel argue these
irreconcilable contentions with energy and skill, I find upon consideration that I cannot accept either
of them. Instead, I regard myself as bound by the provisions and protocols of Federal Rule of Civil
Procedure 56, which governs the present motion by Defendants for summary judgment.

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III
A defendant moving for summary judgment must begin with an analysis of the plaintiff’s
claims, as they are pleaded in the complaint. Rule 56(a) provides that a party “may move for
summary judgment, identifying each claim” or “the part of each claim . . . on which summary
judgment is sought.” Rule 56(a) then provides: “The court shall grant summary judgment if the
movant shows that there is no genuine issue as to any material fact and the movant is entitled to
judgment as a matter of law.”
Professor Moore’s treatise, 11 James W. Moore, et al., Moore’s Federal Practice ¶ 56.13[1]
(3d ed. 2009), at 56-161 to -162, notes that “[s]ummary judgment motion practice commonly
involves two different burdens,” and goes on to say:
[T]he movant must make a prima facie case for summary judgment
in its favor by establishing (1) the apparent absence of any genuine
dispute of material fact and (2) movant’s entitlement to judgment as
a matter of law on the basis of the undisputed facts. If the movant
successfully discharges this initial burden, a countervailing burden is
then imposed on the nonmovant, who must then shoulder the burden
of contesting movant’s prima facie case for summary judgment and
demonstrating that there is a genuine dispute of material fact and a
need for trial to resolve the controversy. Usually, the nonmovant
may not successfully rebut the properly made motion for summary
judgment without introducing material of its own with specific facts
and substantial opposing evidence showing a need for trial.
In the typical case, summary judgment motion practice takes place after the completion of
pretrial discovery by both parties. Counsel are then able, against a full evidentiary record, to debate
the existence vel non of genuine issues as to material facts, of the sort that would preclude summary
disposition and require trial.

However, the case at bar departs from the norm. Counsel for

Defendants move for summary judgment at a time when Plaintiff has not obtained any discovery
from Defendants. Counsel for Plaintiff responds with heartfelt expressions of discontent and
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regards the absence of discovery as a bar to the Court’s consideration of Defendants’ summary
judgment motion.
Rule 56’s summary judgment protocol directly addresses the problem posed by a
discontented, discovery-deprived nonmovant like the present Plaintiff. The Rule states the requisites
for summary judgment in Rule 56(a) and then provides in Rule 56(d):
If a nonmovant shows by affidavit or declaration that, for
specified reasons, it cannot present facts essential to justify its
opposition, the court may: . . . .
(2) allow time to obtain affidavits or declarations or to take
discovery; . . .
Rule 56(d) is a restatement of Rule 56(f) in an earlier text.
IV
The cases construing Rule 56(f) and, more recently, Rule 56(d) emphasize that a
nonmovant who, like the Plaintiff at bar, professes an inability to “present facts essential to justify
its opposition” to a summary judgment motion may obtain limited discovery specific to the factual
issue in question. The Second Circuit said in Trebor Sportswear Co. v. The Limited Stores, Inc.
that under former Rule 56(f), “[t]he nonmoving party must have had the opportunity to discover
information that is essential to his opposition to the motion for summary judgment.” 865 F.2d 506,
511 (2d Cir. 1989) (citation and internal quotation marks omitted). A nonmoving party seeking
discovery under present Rule 56(d) must demonstrate a specific need for the requested discovery.
In Miller v. Wolpoff & Abramson, L.L.P., the Second Circuit held:
[A] party resisting summary judgment on the ground that it needs
discovery in order to defeat the motion must submit an affidavit
showing (1) what facts are sought [to resist the motion] and how they
are to be obtained, (2) how those facts are reasonably expected to
create a genuine issue of material fact, (3) what effort affiant has
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made to obtain them, and (4) why the affiant was unsuccessful in
those efforts.
321 F.3d 292, 303 (2d Cir. 2003) (citations and internal quotation marks omitted).
In Consolidated Rail Corporation v. Primary Industries Corporation, the defendant sought
discovery in order to oppose the plaintiff’s motion for summary judgment. The district court
rejected defendant’s invocation of Rule 56(f):
Defendant Primary Coal seems to misunderstand the purpose of
Rule 56(f). It is designed to allow a party opposing summary
judgment reasonable access to potentially favorable information. To
invoke the Rule’s protection, however, the discovery sought must be
material to the opposition of the summary judgment motion. . . . .
...
. . . [A]dditional discovery on issues irrelevant to plaintiff’s motion
is not warranted by Rule 56(f) . . . .
868 F. Supp. 566, 572 (S.D.N.Y. 1994) (citations omitted).
The same principles are stated in Allstate Insurance Company v. Administratia Asigurarilor
de Stat:
Moreover, while Rule 56(f) discovery is specifically designed to
enable a plaintiff to fill material evidentiary gaps in its case . . . it
does not permit a plaintiff to engage in a fishing expedition. Rule
56(f) is not a shield against all summary judgment motions. Rather,
litigants seeking relief under the rule must show that the material
sought is germane . . . and that it is neither cumulative nor
speculative.

948 F. Supp. 285, 294 (S.D.N.Y. 1996) (citations, internal quotation marks, and brackets omitted).

V
In the case at bar, Mr. Cesaroni, counsel for Plaintiff, submits a sworn declaration [Doc. 571], purported to be “in compliance with [Rule] 56(d).” Cesaroni Decl. ¶ 1. I do not think the

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declaration deserves that characterization.
The wording of Rule 56(d) and the cited cases provide that a party opposing summary
judgment and seeking discovery must show that the discovery sought is material and germane to
the particular opposition issues generated by the motion. The principal issue in this case is whether
Plaintiff may require the Defendant corporations to pay Plaintiff’s unsatisfied judgment against
Daniel Greer. Subsidiary issues arise out of Plaintiff’s efforts at reverse piercing the Defendants’
corporate veils, by means of the identity theory and the instrumentality theory, the “alternative bases
for reverse veil piercing.” Mirlis I, 2020 WL 4369268, at *11.
Certain issues that ordinarily arise in veil piercing cases are mooted in this case by
Defendants’ concession (for the purpose of their summary judgment motion only) that “Greer
dominated and controlled the Defendants.” Defendants’ Brief [Doc. 52] at 9 n. 4. That footnote
continues: “Regardless of this concession, all three elements must be proven to establish a reverse
veil piercing claim under the instrumentality test, and Plaintiff is unable to prove the two additional
elements.” Those additional elements are (2) Greer used the Defendant corporations to commit a
fraud or wrong in contravention of Plaintiff’s rights; and (3) Greer’s control of the corporations and
breach of a duty owed to Plaintiff proximately caused the injury of which Plaintiff complains. For
Plaintiff, who bears the burden of proof on those issues, “it is not enough simply to show that a
judgment remains unsatisfied. There must be some wrong beyond the creditor’s inability to collect,
which is contrary to the creditor’s rights, and that wrong must have proximately caused the inability
to collect.” Mirlis I, 2020 WL 4369268, at *8 (emphasis in original) (citing and quoting McKay v.
Longman, 332 Conn. 394, 442 (2019)).
Defendants’ summary judgment motion contends that, on these particular elements, there are

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no genuine issues of material fact and Defendants are entitled to judgment as a matter of law. This
narrowing of the dispositive issues also serves to narrow the scope of discovery Rule 56(d) entitles
Plaintiff to demand. Rule 56(d) requires Plaintiff to show that what he seeks to discover is germane
to the effect of Greer’s control of the Defendants upon Plaintiff’s ability to collect his judgment
against Greer. Evidence which is not germane or relevant to that core issue is not discoverable
under Rule 56(d).
The same considerations apply to the alternative basis for reverse veil piercing: the identity
test, which “complement[s] the instrumentality rule,” and prohibits an “economic entity” from
escaping liability “arising out of an operation conducted by one corporation for the benefit of the
whole enterprise.” Longman, 322 Conn. at 442. Greer’s tactical concession that he controlled and
dominated the Defendant corporations is germane to this theory as far as it goes, but additional proof
is required to hold Defendants liable on the identity theory for the judgment against Greer. Again,
the core issue has to do with the manner and effect of Greer’s control of the corporations and the
effect of that control upon Plaintiff’s ability to collect the judgment. Evidence that is not germane
to that issue is not discoverable under Rule 56(d).
VI
In the case at bar, the declaration submitted by Plaintiff’s counsel does not comply with Rule
56(d). The demand for discovery is too broad and not sufficiently precise. Plaintiff professes the
need, in order to oppose this summary judgment motion, for discovery of “[t]he financial
information of Defendants and others;” “[t]he management and operations of the Defendants and
others;” “[t]he relationships among Defendants and between Defendants and others;” “the
operations of Defendants and the Yeshiva from their formation to the present day;” and “financial

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information of Defendants from their formation until the present day, including books, records, tax
documents, audited and unaudited financials, bank records, and records of transactions among
them.” Cesaroni Decl. ¶¶ 4-5
Plaintiff has not filed an opposition to Defendants’ summary judgment motion. The Cesaroni
Declaration does not substantially address the bases Defendants urge for a summary disposition.
Nor does the declaration undertake to specify what discovery it requires to oppose or counter
Defendants’ specific contentions.
Moreover, Plaintiffs’ open-ended discovery demands take the case into areas that are neither
germane nor relevant to the precise dispositive issues Defendants’ motion identifies. For example:
Plaintiff wants an exhaustive compendium of financial records from all Defendants “from their
formation until the present day.” Id. ¶ 5. The formation of the Defendant corporations is described
in Daniel Greer’s declaration [Doc. 53]. While in the circumstances Greer’s credibility is obviously
suspect, his account of how and when the Defendants came into being is corroborated by
contemporaneous public records attached to his declaration as exhibits.
That account, which I accept as accurate, recites that in 1977, Daniel Greer and his wife
Sarah established an Orthodox Jewish school in New Haven, which thereafter became the Yeshiva
of New Haven. Doc. 53, ¶¶ 6-7. The Greers also established the five corporate Defendants in this
action, which own residential buildings in the Edgewood Park section of New Haven, engage in low
and moderate rate rentals, and generate funds for the support of the Yeshiva. Defendant Yedidei
Hagan was registered as a Connecticut non-profit corporation in May 1984. Id. ¶ 10. Defendant
Edgewood Elm Housing, Inc. was registered as a Connecticut non-profit corporation in July 1989.
Id. ¶ 14. Defendants Edgewood Village, Inc., Edgewood Corners, Inc., and F.O.H., Inc. were

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registered as Connecticut non-profit corporations in December 1994, March 1996, and June 1999,
respectively. Id. ¶ 17.
Plaintiff Eliyahu Mirlis entered the Yeshiva as a boarding student in the Fall of 2001. The
five corporate Defendants had been established and were generating financial and operational
records for a number of years prior to that time: 17 years for Yedidei Hagan; two years for F.O.H.;
the other corporations falling in between. Greer’s abusive conduct resulting in the judgment in
Plaintiff’s favor occurred between 2001 and 2005. Judge Shea’s unsatisfied judgment was entered
in June 2017. The theory of Plaintiff’s reverse veil piercing claim against these Defendant
corporations is that the business of the Defendants was arranged and conducted in such a way as to
make them liable in equity to pay Plaintiff the judgment he obtained against Daniel Greer.
Defendants now seek summary judgment dismissing that claim. Plaintiff opposes the
motion, and says he needs discovery to do so effectively, but I am unable to discern how years of
Defendants’ corporate activity prior to 2001, the earliest time when Plaintiff could have even been
a gleam in the predatory eye of Daniel Greer, would be germane to the particular issues raised by
Defendants’ motion. But that is the showing Rule 56(d) requires Plaintiff to make.
Plaintiff’s discovery demands, expressed in counsel’s declaration, are stated in broad, general
terms which seek some clearly irrelevant material and are otherwise cumulative or speculative in
part. The Court does not hold that Plaintiff is entitled to no discovery in aid of his opposition to
Defendants’ summary judgment motion. However, Plaintiff must establish his right to motionrelated discovery by submitting an affidavit which conforms to the protocol contained in Rule 56(d)
and Second Circuit authority. The accompanying Order affords Plaintiff an opportunity to make that
showing. The Court neither expresses nor intimates any present view as to whether Plaintiff will

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ultimately be granted any discovery, or what its permissible boundaries might be.
Lastly, I reject the contention of Defendants’ counsel that summary judgment should be
entered dismissing Plaintiff’s claims, without any discovery being allowed Plaintiff.

The

Defendants’ concession of Daniel Greer’s domination and control of the Defendants, tactical but
probably inevitable given Greer’s ubiquitous presence as president of the corporations, sets the
stage for a further factual inquiry under Rule 56(d), so long as that inquiry is governed and limited
by the Rule and the cited cases.
VII
The proper governance of the case calls for submission by Plaintiff of papers in proper form
which oppose Defendants’ motion for summary judgment. Plaintiff is required, in the further
submissions directed by this Order and Ruling, to oppose with specificity the particular bases for
summary judgment identified by Defendants. Plaintiff must file opposition papers to Defendants’
summary judgment motion, including in those papers (if so advised) an affidavit that he is entitled
by Rule 56(d) to specific discovery in areas germane to the particular issues raised by the motion.
For the foregoing reasons, the Court makes this Order:
1. Decision on Defendants’ Motion for Summary Judgment [Doc. 51] is RESERVED
pending consideration of the further submissions specified in this Order.
2. Plaintiff’s Cross-Motion [Doc. 56] for an Order that he need not respond to Defendants’
Motion for Summary Judgment is DENIED.
3. Defendants’ Motion [Doc. 61] to Stay Discovery is DENIED; provided, however, that
any future discovery will be governed by the Court’s rulings following the additional submissions
directed by this Order.

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4. Plaintiff is directed to file and serve papers in opposition to Defendants’ Motion for
Summary Judgment not later than October 21, 2021.
5. If so advised, Plaintiff may include with the papers contemplated by Paragraph 4 of this
Order an affidavit pursuant to Rule 56(d) of the Federal Rules of Civil Procedure, compliant with
that Rule and with this Ruling.
6. If so advised, Defendants may file reply papers on their Motion for Summary Judgment
not later than November 4, 2021.
If the Court desires further oral argument, counsel will be advised.
It is SO ORDERED.
Dated: New Haven, Connecticut
September 9, 2021

/s/Charles S. Haight, Jr.
CHARLES S. HAIGHT, JR.
Senior United States District Judge

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