NSI International, Inc. v. Mustafa

Filing 100

ORDER granting in part and denying in part 85 Motion to Compel; Motion for Sanctions. Show Cause Hearing set for May 3, 2016 at 11:30 A.M. before Magistrate Judge A. Kathleen Tomlinson. SEE ATTACHED ORDER for details. The Court directs Plaintiff 's counsel to serve a copy of the attached Order on the Pro Se Defendant Mona Mustafa forthwith by overnight mail, first-class mail, and e-mail, and file proof such serve on ECF immediately. Ordered by Magistrate Judge A. Kathleen Tomlinson on 3/28/2016. (Kandel, Erin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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NSI INTERNATIONAL, INC.,
Plaintiff,
- against MONA MUSTAFA,

COMPLIANCE AND
SHOW CAUSE ORDER
CV 12-5528 (JFB) (AKT)

Defendant Pro Se.
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A. KATHLEEN TOMLINSON, Magistrate Judge:
Presently before the Court is the letter motion by Plaintiff NSI International Inc.
(“Plaintiff”) seeking to compel Pro Se Defendant Mona Mustafa (“Defendant”) to respond to
Plaintiff’s post-judgment document requests and interrogatories. See DE 85. Plaintiff further
requests that the Court: (1) direct Defendant to comply with the Restraining Notice served on
her pursuant to Fed. R. Civ. P. 69 and N.Y. C.P.L.R. § 5222 (McKinney’s 2016); and (2) require
Defendant to appear in-person before the Court or, in the alternative, issue sanctions against her
based on, inter alia, her failure to respond to Plaintiff’s post-judgment discovery requests and
“possible failure” to comply with the Restraining Notice. See id.
This is not the first time Plaintiff has sought to compel Defendant to respond to its postjudgment discovery requests which were originally served on December 16, 2014. See DE 89-1.
Plaintiff first moved to compel Defendant to respond on January 29, 2015. See DE 80. The
Court granted Plaintiff’s motion on February 9, 2015 and directed Defendant to produce her
responses to Plaintiff’s discovery requests by March 2, 2015. DE 83. The Court further stated
that “[i]f Defendant does not provide her responses to Plaintiff’s counsel by March 2, 2015, the
Court will require Defendant to appear for a hearing on why sanctions should not be imposed for
failure to comply with the Court’s Orders.” Id.

Following the Court’s February 9, 2015 Order, Defendant sent Plaintiff a “Response and
Demand,” dated February 28, 2015, which sets forth multiple reasons why Defendant refuses to
respond to Plaintiff’s post-judgment discovery demands. See DE 85-2. Plaintiff also filed her
response with the Court. See DE 87.
Having reviewed Defendant’s submission, the Court finds that Defendant has not
provided valid reasons for her refusal to respond to Plaintiff’s discovery requests. Primarily,
Defendant’s “objection” to responding based on the fact that Plaintiff’s counsel is not admitted to
practice in the State of Illinois is irrelevant. See DE 87 at 2-3. The discovery requests at issue
here concern the above-captioned litigation which is pending in the Eastern District of New
York, where Plaintiff’s attorneys are admitted. Moreover, Defendant’s disagreement with
certain issues which go to the merits of this action does not provide a proper basis for her refusal
to respond to post-judgment discovery requests. See id. at 3-4. The Court further points out that
Judge Bianco’s decision granting summary judgment to Plaintiff was affirmed by the United
States Court of Appeals for the Second Circuit on September 22, 2015. See DE 99. Thus, to the
extent Defendant has refused to respond because the Second Circuit’s decision was still pending,
that “objection” is now moot.
As to the relief sought by Plaintiff’s counsel, the Court will address the motion in two
parts. First, the Court finds that there is no reasonable basis for Defendant to continue to delay
responding to Plaintiff’s discovery requests and the Court will not tolerate further delay. The
Court hereby orders Defendant, for the final time, to respond to Plaintiff’s post-judgment
document requests and interrogatories previously served on her on December 16, 2014. See DE
85-1. However, the Court will limit several of Plaintiff’s demands. Specifically, Defendant is
not required to respond to Document Request No. 14, or Interrogatory Nos. 8, 9, 11, and 13.

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However, Defendant must serve her responses to the remaining document requests and
interrogatories to Plaintiff’s counsel no later than April 28, 2016.
Second, as to Plaintiff’s request that the Court direct Defendant to appear before the
Court or, alternatively, issue sanctions against Defendant for her failure to respond to Plaintiff’s
post-judgment demands, the Court is hereby issuing an Order to Show Cause. Therefore, it is
hereby
ORDERED, THAT DEFENDANT MONA MUSTAFA APPEAR IN PERSON
BEFORE THE HON. A. KATHLEEN TOMLINSON PRESIDING, AT THE ALFONSE
D’AMATO FEDERAL COURTHOUSE, 100 FEDERAL PLAZA, CENTRAL ISLIP,
NEW YORK, 11722, IN COURTROOM 910, ON TUESDAY, MAY 3, 2016 AT 11:30 A.M.
EASTERN STANDARD TIME, AND SHOW CAUSE WHY SANCTIONS SHOULD NOT
BE IMPOSED ON MONA MUSTAFA FOR HER FAILURE TO COMPLY WITH THE
ORDERS OF THIS COURT; and it is further
ORDERED, THAT, IN THE ALTERNATIVE, IF DEFENDANT MONA
MUSTAFA CLAIMS THAT TRAVEL TO THE EASTERN DISTRICT OF NEW YORK
COURTHOUSE IN CENTRAL ISLIP, NEW YORK WOULD POSE AN UNDUE
HARDSHIP ON HER, THEN DEFENDANT MONA MUSTAFA WILL BE PERMITTED
TO APPEAR BY VIDEO CONFERENCE AT THE UNITED STATES DISTRICT
COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EVERETT MCKINLEY
DIRKSEN UNITED STATES COURTHOUSE, 219 SOUTH DEARBORN STREET,
CHICAGO, ILLINOIS, 60604, IN ROOM 1554 ON TUESDAY, MAY 3, 2016 AT 10:30
A.M. CENTRAL STANDARD TIME, AND SHOW CAUSE WHY SANCTIONS
SHOULD NOT BE IMPOSED ON MONA MUSTAFA FOR HER FAILURE TO

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COMPLY WITH THE ORDERS OF THIS COURT; and it is further;
ORDERED, THAT IF DEFENDANT MONA MUSTAFA ELECTS TO APPEAR
BY VIDEO CONFERENCE FROM THE UNITED STATES DISTRICT COURT FOR
THE NORTHERN DISTRICT OF ILLINOIS, EVERETT MCKINLEY DIRKSEN
UNITED STATES COURTHOUSE, ON MAY 3, 2016, SHE MOST NOTIFY THE HON.
A. KATHLEEN TOMLINSON IN WRITING OF HER INTENT TO DO SO NO LATER
THAN APRIL 25, 2016; and it is further
ORDERED, that Plaintiff’s counsel must be present for the Show Cause Hearing on
May 3, 206, at the Alfonse D’Amato Federal Courthouse in Central Islip, New York; and it is
further
ORDERED, that Plaintiff’s counsel shall serve a copy of this Order on Defendant Mona
Mustafa forthwith by overnight mail, first-class mail, and e-mail, and file proof such serve on
ECF immediately.
Defendant Mona Mustafa is urged to consult with an attorney regarding this Order and its
consequences. Moreover, Defendant is hereby placed on notice that failure to comply with
this Order may result in Defendant being found in contempt of Court and subject to
further action by the Court.
Finally, Plaintiff requests that the Court (1) direct Defendant to comply with the
Restraining Notice served on December 16, 2014 pursuant to Fed. R. Civ. P. 69 and N.Y.
C.P.L.R. § 5222, and (2) sanction Defendant based on her “possible failure to comply with the
Restraining Notice.” DE 85 at 2, see DE 85-1. Fed. R. Civ. P. 69 provides that “[a] money
judgment is enforced by a writ of execution” and “[t]he procedure on execution . . . must accord
with the procedure of the state where the court is located . . . . ” Fed. R. Civ. P. 69(a)(1). New

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York law therefore applies here and, specifically, N.Y. C.P.L.R. § 5222, which governs
restraining notices. Under N.Y. C.P.L.R. § 5222, once a judgment holder has served the debtor
with a restraining notice, the debtor is prohibited from transferring or assigning property before
the judgment has been satisfied. See N.Y. C.P.L.R. § 5222(b). A failure to comply with a
restraining notice “is punishable by contempt” and “[a] judgment creditor may move in federal
court to hold a judgment debtor in civil contempt for transferring property in violation of N.Y.
C.P.L.R. § 5222(b).” Cordius Trust v. Kummerfeld Associates, Inc., 658 F. Supp. 2d 512, 51718 (S.D.N.Y. 2009); see also N.Y. C.P.L.R. § 5251 (McKinney’s 2016).
Here, Plaintiff has not moved to hold Defendant in contempt for failing to comply with
the December 16, 2014 Restraining Notice. Rather, Plaintiff asks the Court to direct Defendant
to comply with the Restraining Notice and to impose sanctions based on, essentially, her
prospective non-compliance with that notice. Plaintiff has not cited any case law or other
authority indicating that it would be proper for the Court to grant this relief under the
circumstances presented here, i.e., where Plaintiff (1) has not moved to hold Defendant in
contempt, and (2) has not provided any evidence or indication that Defendant has violated the
Restraining Notice.
The Court further notes that Plaintiff appears to assert in its motion that the December 16,
2014 Restraining Notice is the second such notice it has served on Defendant regarding this
action. See DE 89 at 2 (“NSI previously served a Restraining Notice and Information Subpoena
on Mustafa under the CPLR, but Mustafa refused to respond.”). Under N.Y. C.P.L.R. § 5222(c),
“[l]eave of court is required to serve more than one restraining notice upon the same person with
respect to the same judgment or order.” Plaintiff has not specified whether this requirement was
met here. Plaintiff also has not indicated whether it provided Defendant with the requisite

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“Notice to Judgment Debtor or Obligor” along with the December 16, 2014 Restraining Notice.
See N.Y. C.P.L.R. § 5222(d), (e); see also Cordius, 658 F. Supp. 2d at 517-18 (“Additionally,
where the debtor is a natural person the judgment creditor must provide the debtor with notice of
potentially exempt funds and the procedure for getting such funds back, and must alert the debtor
that he may wish to consult legal counsel.”) (citing N.Y. C.P.L.R. § 5222(e)).
For these reasons, the Court declines to take any action regarding the Restraining Notice
unless and until it receives further information from Plaintiff.

SO ORDERED.
Dated: Central Islip, New York
March 28, 2016
/s/ A. Kathleen Tomlinson
A. KATHLEEN TOMLINSON
U.S. Magistrate Judge

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