Financial Casualty & Surety, Inc. v. Zouvelos et al

Filing 181

ORDER denying 172 Motion to Compel; denying 175 Motion for Sanctions. The substantive objections to plaintiff's discovery responses raised by defendants for the first time in their reply papers (ct. docs. 176, 177), will be addressed at a telephone conference to be held on July 28, 2014 at 3:30 p.m. The parties are directed to confer with each other in advance of the conference. Ordered by Magistrate Judge Marilyn D. Go on 7/22/2014. (Proujansky, Josh)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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FINANCIAL CASUALTY & SURETY, INC.,
Plaintiff,
- against -

ORDER
CV 12-3476 (WFK)(MDG)

GEORGE ZOUVELOS and ANASTASIA
MANCINI,
Defendants.
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In this action, Financial Casualty & Surety, Inc.
("Financial Casualty") asserts claims against George Zouvelos and
Anastasia Mancini, defendants pro se, for indemnification and
breach of certain agreements relating to bail bonds under which
Financial Casualty was obligated to pay as surety.

After this

action was transferred to this Court from the Southern District
of Texas, plaintiff moved for summary judgment and to dismiss
defendants' counterclaim (ct. doc. 131) and defendants moved to
dismiss (ct. doc. 138).

Judge Kuntz initially stayed discovery,

but, after addressing plaintiff's motion by electronic order on
April 1, 2014, requested this Court to supervise discovery and
address various motions relating to discovery.
163.

See ct. doc. 158,

By electronic order filed on April 16, 2014, this Court

granted requests by both sides to extend discovery and scheduled
a conference on May 28, 2014 to discuss other scheduling matters.

This Court also noted that "[i]nsofar as defendants move to
compel discovery, the motion is denied for lack of specificity
and failure to attempt to resolve the issue prior to making a
motion."

Id.

At the May conference, this Court vacated the stay, required
that plaintiff respond to defendants' outstanding discovery
requests by June 27, 2014 and shortened the discovery deadline to
August 8, 2014, in light of the remaining discovery sought only
by defendants.
By motion filed on July 1, 2014, defendants move for
sanctions because of plaintiff's purported failure to serve
timely responses as ordered (ct. doc. 172), which plaintiff
followed with it own motion for sanctions for filing a frivolous
motion for sanctions (ct. doc. 175).

Both motions are denied for

the reasons set forth below.

DISCUSSION
Rule 37 of the Federal Rules of Civil Procedure authorizes
the imposition of sanctions if a party "fails to obey an order to
provide . . . discovery, . . ."

In response to defendants' claim

that plaintiff did not provide discovery responses by the June
27, 2014 deadline set by the Court, plaintiff's counsel states
that he mailed responses on June 27, 2014.
Defendants base their motion on the incorrect assumption
that the date this Court set for plaintiff's responses meant that

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defendants were to receive the responses by that date.
Generally, when a court orders the production of discovery by a
date certain, that date refers to when the discovery responses
must be served, not when they must be received.

See Gorman v.

Cty. of Suffolk, 2010 WL 55935, at *1 (E.D.N.Y. 2010) ("Federal
Rule of Civil Procedure 34 provides that a party must serve its
responses to discovery demands" within 30 days of being served")
(emphasis added).

That was what this Court intended in setting

June 27, 2014 as the deadline for plaintiff's responses.

Under

the applicable Federal Rules, discovery responses should be
served on the parties to the action but not filed with the Court,
see Fed. R. Civ. P. 5(a)(1)(C), 5(d)(1), and "service is complete
upon mailing," Fed. R. Civ. P. 5(b).1

Since it is undisputed

that plaintiff mailed its discovery responses on June 27, 2014 as
ordered, plaintiff did not violate this Court's order.

Thus,

defendants' motion for sanctions is denied.
Plaintiff cross-moves for sanctions "pursuant to Federal
Rule of Civil Procedure 11" for defendants' filing and refusal to
withdraw its motion for sanctions.

See ct. doc. 175 at 1.

Rule

11 is inapplicable since the Rule "does not apply to . . .
[discovery] motions under Rule 26 through 37."

1

Fed. R. Civ. P.

In contrast, when papers must be filed with the Court as
required by Rules 5(d) and (e) of the Federal Rules of Civil
Procedure, the filing of papers occurs when they are "delivered
into the actual custody of the proper officer designated by
statute." Greenwood v. State of New York, 842 F.2d 636, 639 (2d
Cir. 1988).
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11(d).

In any event, plaintiff failed to follow the procedure

prescribed therein to serve the motion but not file or present it
to the court until the other party fails to withdraw the
challenged paper within 21 days after service.
11(c)(2).

See Fed. R. Civ.

Had plaintiff brought its motion pursuant to the

applicable provision of the Federal Rules, Rule 37(a)(5)(B), I
would find that an award of expenses would be unjust under the
circumstances.

See Fed. R. Civ. P. 37(a)(5)(B).

Finally, while plaintiff correctly notes that defendants
failed to confer with plaintiff prior to filing their motion for
sanctions, this Court will excuse defendants' conduct this time
given the fact they are unrepresented.

However, defendants

appear to be more knowledgeable about the legal system than most
pro se litigants and are warned that this Court will not excuse
their failure to comply with the requirement to confer in good
faith before filing a motion to compel discovery or for sanctions
in the future.

CONCLUSION
For the foregoing reasons, the parties' cross-motions for
sanctions are denied.
The substantive objections to plaintiff's discovery
responses raised by defendants for the first time in their reply
papers (ct. docs. 176, 177), will be addressed at a telephone
conference to be held on July 28, 2014 at 3:30 p.m.

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The parties

are directed to confer with each other in advance of the
conference.
SO ORDERED.

Dated:

Brooklyn, New York
July 22, 2014
/s/
MARILYN D. GO
UNITED STATES MAGISTRATE JUDGE

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