Balk v. New York Institute of Technology et al

Filing 133

ORDER granting in part and denying in part 102 Motion to Compel. The Court GRANTS Plaintiff's motion to compel the appearance of Dr. Mohammed Hussein for a deposition in New York at the Law Offices of Ridley M. Whitaker, Esq., counsel for Plaintiff. SEE ATTACHED MEMORANDUM AND ORDER. Ordered by Magistrate Judge A. Kathleen Tomlinson on 9/30/2013. (Rizvi, Asad) Modified on 10/1/2013 to correct order date (Ryan, Mary).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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DENNIS BALK,
MEMORANDUM
AND ORDER
CV 11-509 (JFB) (AKT)
Plaintiff,
- against NEW YORK INSTITUTE OF TECHNOLOGY
and INFOTEC CORPORATION,
Defendants.
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A. KATHLEEN TOMLINSON, Magistrate Judge:
I.

PRELIMINARY STATEMENT
This case arose in the aftermath of an article appearing on March 1, 2008 in Al-Ayam, a

daily newspaper published in Bahrain. See Pl.’s Second Amended Complaint (“SAC”) ¶ 37. The
article stated that a “professor” teaching at New York Institute of Technology’s (“NYIT”) facility
in Bahrain had posted to his class website a controversial cartoon depicting the prophet
Mohammed in ragged clothing. Id. ¶ 37. Purportedly, officials at NYIT knew that the article in
Al-Ayam referred to the Plaintiff, Dennis Balk (“Plaintiff” or “Balk”), the Director of the Computer
Graphics Department at NYIT Bahrain, and that the Plaintiff had not committed the acts for which
the article accused him. Id. Notwithstanding these facts, Plaintiff was terminated from his
teaching position at NYIT Bahrain. Id. ¶¶ 75-78.
Dennis Balk alleges that NYIT had a contract with co-defendant Infotec Corporation
(“Infotec”) in which Infotec would solicit Bahraini Muslims to operate the NYIT facility in
Bahrain. SAC ¶ 3. According to the SAC,
NYIT and Infotec routinely effect illegal discriminatory acts when a
Western, non-Muslim faculty member is falsely accused of violating

any norms, mores or values not acceptable to its Muslim clientele by
discrediting and terminating the Western faculty member and forcing
the Western faculty member to leave the country for fear of personal
safety.
SAC ¶ 4. As a result of Defendants’ conduct and Balk’s ultimate termination from employment,
Balk has brought claims of discrimination based on race, religion, and national origin in violation
of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. against both NYIT and
Infotec. SAC ¶¶ 1, 59-69. Plaintiff also alleges breach of contract against NYIT, unlawful
interference of contractual rights against Infotec, and conspiracy to commit fraud against both
Defendants. Id. ¶¶ 71-86, 103-147.
Plaintiff now seeks to compel the appearance of Dr. Mohammed Hussein (“Dr. Hussein”),
who purportedly is now residing in Egypt, for a deposition in New York, pursuant to 28 U.S.C.
§ 1783 (the “Walsh Act”). See Pl.’s Mot. [DE 102] at 1; see also Affidavit of Stephen J. Kloepfer,
Esq., annexed as Ex. “3” to Pl.’s Mot. (“Kloepfer Aff.”) ¶ 31. Dr. Hussein claims to be not only
the Executive Chairman Middle East for NYIT but also the President of Infotec. Pl.’s Mot. at 1.
The motion is unopposed.
II.

BACKGROUND
A.

The Second Amended Complaint

Plaintiff claims that “[w]ithout actual disclosure to prospective teaching applicants or
NYIT Bahrain faculty recruited from Western universities and Western locations, NYIT practices
an illegal discriminatory policy toward any complaint against the Western, non-Muslim faculty by
Muslim students or Muslim faculty.” SAC ¶ 4. According to the SAC, this policy and practice
“violates all established academic protocols for dealing with complaints against faculty by

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students. Id. The complained of policy is utilized to show Muslim parents and students that “any
claimed deviation from Muslim culture will not be tolerated… .” Id.
Plaintiff contends that he was “falsely accused of explaining Western values in a manner
purportedly offensive to Muslim students” and was subsequently terminated from employment by
Defendants despite providing “exemplary services.” SAC ¶ 5. Specifically, Plaintiff maintains
that Infotec “actively caused articles to be published in local Bahraini newspapers falsely accusing
Plaintiff of having posted the highly controversial Danish cartoon insulting the Prophet Mohamed
on his website.” Id. Defendants purportedly “engaged in this illegal discriminatory conduct solely
based on the fact that Plaintiff’s accusers were Muslims and Plaintiff was a Western, non-Muslim
and a citizen of the United States.” Id.
Infotec is a for-profit corporation incorporated in the Republic of Cyprus and registered by
the Ministry of Education of the Arab Republic of Egypt. SAC ¶ 23. Infotec provides
administrative support services to American undergraduate and graduate university degree
programs throughout the Middle East. Id. As a party to a ten-year agreement with NYIT, Infotec
provides administrative services and personnel to NYIT educational programs located in the
Middle East, including Bahrain. Id. ¶ 24. Plaintiff claims that Infotec and NYIT were his joint
employers. Id. ¶ 25. In approximately June 2006, Plaintiff began his teaching duties at NYIT
Bahrain pursuant to a written agreement. Id. ¶27. Throughout his employment with NYIT,
Plaintiff attempted to provide an overview of art appreciation in the global art world “such that
Plaintiff’s teachings were culture neutral and information positive.” Id. ¶ 28.
According to the Plaintiff, NYIT and Infotec jointly conspired to defraud him into leaving
the Bahrain campus of NYIT as early as February 25, 2008. SAC ¶¶ 103-104. During that month,

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Plaintiff had a conversation with two NYIT Bahrain students who were soon leaving on a trip to
New York. Id. ¶ 31. According to the SAC, Plaintiff had an appropriate discussion with the
students about the different social norms and treatment of religion in Bahrain and New York City
regarding the subject matter of the course Plaintiff had been hired to teach by NYIT. Id.
Apparently, Plaintiff’s discussions “of the different between secular and religious societies
reportedly offended the NYIT Bahrain Students.” Id. On or about February 20, 2008, those
students claimed that Plaintiff discriminated against them on the basis of their national origin and
religion by “making inappropriate statements” regarding Islam. Id. ¶ 105. When Reginald Bragg,
the Dean of Students, reportedly heard about the students’ complaint, he directed the two students
to submit a confidential letter describing the circumstances. Id. ¶¶ 32, 106. The two students
apparently prepared the letter and circulated it to the staff of NYIT and to the Royal Family of
Bahrain. Id. ¶ 32. Dean Bragg forwarded the letter to NYIT Bahrain Campus Dean Damon
Revelas who received it on February 24, 2008. Id. ¶ 106. Dean Revelas informed Plaintiff Balk of
the students’ complaint that same day. Id. ¶ 107. The next day, February 25, 2008, Plaintiff wrote
a letter to Dean Revalas responding to the accusations of the two students, informing the Dean that
there had been a “misunderstanding.” Id. ¶ 108. On or about the same date, Plaintiff met with
Dean Revelas, Dean Bragg, Professor Moade and the two complaining students, at which time
Plaintiff read aloud his letter responding to the allegations. Id. ¶ 109. Plaintiff maintains that there
was an agreement that the students would consider “drafting a letter recounting the allegations”
and “general apologies” were made. Id.
The SAC asserts that Dr. Hussein gave instructions to NYIT Bahrain Campus Dean,
Damon Revelas, as well as NYIT Dean of Students, Reginald Bragg, to investigate the allegations

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made against by the two students. Id. ¶ 25(b)(i). Plaintiff contends that Dr. Hussein, through
Ahmed Fouad, an Infotec employee and Vice Chairman/Director of Admissions at NYIT Bahrain,
“reportedly directed” Dean Revelas to ensure that Plaintiff was “banned from the NYIT Bahrain
campus.” Id. ¶¶ 25(b)(ii), 104.
On February 25, 2008, Fouad sent a memorandum to Dean Revelas, stating as follows:
After the students’ written complaint and the investigation
concerning Mr. Balk’s unexceptional [sic] behavior towards the
Islamic religion and the Kingdom of Saudi Arabia, Dr. Mohamed
Hussein, Executive Chairman has come to a decision to banned [sic]
Mr. Balk from the NYIT Campus.
Please be informed that Mr. Balk is forbidden from entering the
campus until further notice, he will not be permitted to teach his
courses anymore, or contact any students.
SAC ¶ 110. Also on February 25, 2008, Dr. Hussein e-mailed NYIT President Dr. Edward
Guiliano stating:
…We had a complain [sic] form some of the students against Dennis
Balk (Faculty hired by NYIT, NY for Computer Graphics). They
complain about rude remarks against Islam, Quran and Prophet
Muhammad. In light of this matter, I’ve given instructions to the
Dean, Associate Dean and Student Dean to investigate what has
happened with Dennis and the students. Dennis Balk has denied and
stated that the students misunderstood. Students had started to
complain outside the campus which means bad reputation for the
University.
I think that Dennis is lying, hence I gathered evidence which shows
that he has been against Islam for quite a long time. All this
information is present in his website and he had discriminated the
students and staff [sic] for the past 2 years. Furthermore, to have a
successful program we have invested approximately $200,000 for
equipment and software.
Now we have this problem and i’ve [sic] to stop him from coming to
the campus before we have more problems with the Ministry of
Education, Students, Government and before this is printed in the

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media. This guy has to be removed immediately from the county
before they put him in jail. […]
Id. ¶ 111. Plaintiff claims that President Guiliano and Dr. Hussein, on behalf of NYIT and Infotec,
agreed to have Plaintiff removed from Bahrain no later than February 26, 2008. Id. ¶ 112.
Following the February 25, 2008 meeting between Dean Revelas, Dean Bragg, Professor
Moade and the two students, Plaintiff spoke with Dean Revelas and was informed that Dr. Hussein
had become aware of the students’ complaint and that Dr. Hussein was in Bahrain and “extremely
concerned” about the spread of the allegations against Plaintiff. SAC ¶ 113. Plaintiff received no
indication that he was to be escorted out of Bahrain. Id.
On February 29, 2008, Dr. Hussein called Plaintiff on behalf of Infotec and NYIT to
inform Plaintiff that he would have to leave Bahrain for a “period of two to three weeks.” SAC
¶ 128. Dr. Hussein informed Plaintiff that Infotec and NYIT would pay for Plaintiff’s travel
expenses out of Bahrain and that Plaintiff could “return after two or three weeks.” Id. However,
Plaintiff alleges that Dr. Hussein was aware that the accusations against him were false. Id.
On March 1, 2008, the Bahrain Daily Newspaper Al-Ayam published an article claiming
that a “professor,” which Plaintiff asserts referred to him, “had posted to his class website the
controversial Danish cartoon depicting the prophet Mohammed in ragged clothing (the ‘Danish
cartoon’).” SAC ¶ 37. Plaintiff asserts that everyone at NYIT knew that the article referred to
Plaintiff and that its contents were false. Id. The article also noted that NYIT Bahrain students
were preparing a petition to have Plaintiff removed from NYIT, whereas Plaintiff claims that
certain students had, in fact, signed a petition in support of his retention at NYIT. Id.
Plaintiff states that, on March 2, 2008, Dr. Hussein demanded he “immediately cease
providing services for NYIT Bahrain and insisted that Plaintiff leave Bahrain immediately on the

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next available flight, for which Dr. Hussein had already made arrangements.” SAC ¶ 35. Plaintiff
states that Dr. Hussein “assured” him that he was aware that the reports about him in the press
were “unfounded” and that “everything was resolved.” Id. Dr. Hussein advised Plaintiff about a
conversation he had with NYIT Bahrain students and high-level staff, including Dean Revelas,
Dean Reginald, and NYIT Vice President of Global Academic Programs, Dr. William Cyrus Reed,
which “resolved all issues” concerning the students’ complaint. Id. Plaintiff alleges that Dr.
Hussein told Plaintiff that he “must leave ‘for a couple of weeks until the incident was blown
over’.” Id.
Plaintiff claims that Dr. Hussein’s staff member then accompanied him to an airport in
Bahrain and “escorted him to the departure gate via special procedures that allowed him to skip
lines and expedite customs.” SAC ¶ 39. Plaintiff maintains that he was not informed of his
destination and was advised to keep his trip a “secret and speak to nobody when he arrived at his
then unknown destination.” Id.
The SAC alleges that counsel for NYIT, on behalf of both NYIT and Infotec, “incorrectly
stated” that on March 2, 2008, Plaintiff left Bahrain on his own accord “out of concern for his own
personal safety.” SAC ¶ 132 (internal citation and quotations omitted). NYIT counsel stated that
“Plaintiff’s own conduct prevented himself from securing a residence visa to return to Bahrain
which, in turn, prevented him from completing his teaching duties in Bahrain.” Id. (same).
Plaintiff states that he “continued to reasonably and justifiably rely” on Defendants’ false
statements until March 18, 2008, at which point Dean Revelas informed him that Dr. Hussein and
Dr. Vogt decided that Plaintiff would not be returning to Bahrain. Id. ¶ 137. Plaintiff Balk is

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currently a professor of fine arts and computer graphics providing academic services in Southeast
Asia. Id. ¶ 20.
In the instant action, Plaintiff has asserted causes of action under Title VII for
discrimination based on national origin, race, and creed against both NYIT and Infotec as joint
employers, breach of contract against NYIT, intentional interference with contractual rights against
Infotec, and conspiracy to defraud against both NYIT and Infotec. See generally SAC.
B.

The Instant Motion to Compel

On September 10 and 11, 2012, Plaintiff’s counsel served NYIT with three notices of
deposition for a September 24, 2012 deposition of Dr. Hussein to be taken via telephone
conference pursuant to Federal Rule of Civil Procedure 30(b)(4). See Pl.’s Mot. at 1. The three
notices consisted of: (1) a notice to take the deposition of NYIT through managing agent Dr.
Mohammed Hussein; (2) a notice to take the deposition of NYIT through managing agent Infotec;
and (3) a notice to take the deposition of Infotec through its corporate officer Dr. Hussein. Id. In a
September 13, 2012 e-mail, counsel for NYIT acknowledged receipt of the three notices and
responded as follows:
Please be advised that defendant New York Institute of Technology
(“NYIT”) objects to the notice of deposition that purports to notice
the deposition of NYIT by Mohamed Hussein in his capacity of
“Executive Chairman NYIT Middle East” and/or “Executive
Chairman M.E.” and/or Chair, Middle East.” To the extent that Dr.
Hussein at one time used any of those titles, he has been explicitly
not authorized to use those or any title including “NYIT” since
approximately January 2010. Dr. Hussein has no relationship with
NYIT, except in his role as a principal of Infotech (sic) Corporation,
which has a contractual relationship with NYIT.
See Sept. 13, 2012 E-mail of Neil Sparber, Esq. to Ridley Whitaker, Esq., annexed as Ex. “1” to
Pl.’s Mot. [DE 102-1]. However, NYIT did not refuse to participate in Dr. Hussein’s

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September 24, 2012 noticed deposition in his capacity as Infotec corporate officer. Id.
In his September 14, 2012 response, Plaintiff’s counsel e-mailed Dr. Hussein directly,
using an e-mail address provided to Plaintiff by NYIT’s counsel, to request that he voluntarily
appear for a deposition and confirm his appearance by 5 p.m. E.D.T. on September 17, 2012. See
September 14, 2012 E-mail of Ridley Whitaker, Esq. to Dr. Mohamed Hussein, annexed as Ex. “2”
to Pl.’s Mot. [DE 102-2]. Plaintiff’s counsel also attached the three notices of deposition to his
September 14, 2012 e-mail to Dr. Hussein. Id. Plaintiff’s counsel advised Dr. Hussein of his right
to “obtain counsel with respect to these notices of deposition and to have counsel appear with
[him] at the deposition.” Id. Dr. Hussein was advised that a failure to respond to Plaintiff’s
counsel concerning the deposition notices would lead Plaintiff’s counsel to seek Court intervention
“to issue the appropriate court order” and “cause a subpoena to be issued compelling” Dr.
Hussein’s appearance. Id. After receiving no response by September 17, 2012, Plaintiff’s counsel
again e-mailed Dr. Hussein on September 18, 2012 to request his voluntary appearance for a
deposition using the reported e-mail address provided by NYIT counsel as well as another e-mail
address “disclosed for the first time at the deposition of Infotec’s New York-based agent/executive
Robert Vogt on September 18, 2012.” Id.
On September 20, 2012, after reviewing a civil lawsuit filed in New York County Supreme
Court by NYIT against Infotec as well as Dr. Hussein and Robert Vogt, Plaintiff’s counsel learned
that Dr. Hussein is a United States citizen. See Pl.’s Mot. at 2. In that state action, former NYIT
General Counsel, Stephen J. Kloepfer, submitted an affidavit attesting to the fact that Dr. Hussein
is a dual citizen of the United States and Egypt. See Affidavit of Stephen J. Kloepfer, Esq. in
Opposition to Defendants’ Motion to Dismiss, annexed as Ex. “3” to Pl.’s Mot. (“Kloepfer Aff.”)

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[DE 102-3] ¶ 31. In the instant action, Dr. Hussein has submitted a June 27, 2011 declaration
stating under penalty of perjury that he has “not even set foot in New York in years.” See
Declaration of Mohamed Yossry Hussein in Support of Motion to Set Aside Default and to
Dismiss, annexed as Ex. “4” to Pl.’s Mot. (“Hussein Decl.”) [DE 102-4] ¶ 9. However, Plaintiff’s
counsel contends that Dr. Hussein was personally served with the summons and complaint in the
NYIT state court action as recently as June 27, 2011. See Pl.’s Mot. at 2. Citing the deposition
testimony of Dr. Vogt, an Infotec consultant living in New York, Plaintiff’s counsel asserts that,
contrary to Dr. Hussein’s contentions, Infotec conducts business in the United States and also
maintains an office in the NYIT Old Westbury campus. Id. Dr. Vogt is characterized as an Infotec
“senior executive” in Kloepfer’s state court affidavit. Kloepfer Aff. ¶ 8.
On September 24, 2012, Dr. Hussein failed to appear in New York for his deposition
despite Plaintiff’s counsel having followed the procedures set forth in the notices to initiate the
telephone conference. See Pl.’s Mot. at 2. After waiting one-half hour for Dr. Hussein to appear
by telephone, Plaintiff’s counsel ultimately noted Dr. Hussein’s default on the record with regard
to the three notices. Id.
Plaintiff filed the instant motion on September 27, 2012 seeking to compel Dr. Hussein to
appear for his deposition in New York pursuant to the Walsh Act. DE 102; 28 U.S.C. § 1783. The
Defendants have not opposed the motion.
III.

LEGAL STANDARD
Rule 26 of the Federal Rules of Civil Procedure provides for the discovery of relevant, non-

privileged information which “appears reasonably calculated to lead to the discovery of admissible
evidence.” Fed. R. Civ. P. 26(b). “‘Relevance” under Rule 26 ‘has been construed broadly to

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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.’” Oppenheimer Fund, Inc., 437 U.S. 340, 351 (1978);
Maresco v. Evans Chemetics, Div. of W.R. Grace & Co., 964 F.2d 106, 114 (2d Cir. 1992) (noting
that the scope of discovery under Rule 26(b) is “very broad”); Greene v. City of New York, No. 08
Civ. 243, 2012 WL 5932676, at *3 (E.D.N.Y. Nov. 27, 2012) (citing Crosby v. City of New York,
269 F.R.D. 267, 282 (S.D.N.Y. 2010) (explaining that Rule 26 must be construed broadly to
include any matter that has, or could reasonably have, bearing on any issue that is, or may be, in
the case); Barrett v. City of New York, 237 F.R.D. 39, 40 (E.D.N.Y. 2006) (noting that the
information sought “need not be admissible at trial to be discoverable.”).
Notwithstanding the foregoing principles, however, “[t]he party seeking discovery must
make a prima facie showing that the discovery sought is more than merely a fishing expedition.”
Barbara v. MarineMax, Inc., No. 12-CV-368, 2013 WL 1952308, at *2 (E.D.N.Y. May 10, 2013)
(citing Wells Fargo Bank, N.A. v. Konover, No. 3:05CV1924, 2009 WL 585430, at *5 (D.Conn.
Mar. 4, 2009); Evans v. Calise, No. 92 Civ 8430, 1994 WL 185696, at *1 (S.D.N.Y. May 12,
1994)). In general, “[a] district court has broad latitude to determine the scope of discovery and to
manage the discovery process.” EM Ltd. v. Republic of Argentina, 695 F.3d 201, 207 (2d Cir.
2012) (citing In re Agent Orange Prod. Liab. Litig., 517 F.3d 76, 103 (2d Cir. 2008)); Barbara,
2013 WL 1952308, at *3 (“Courts afford broad discretion in magistrates’ resolution of discovery
disputes.”).

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A.

The Walsh Act

Since Plaintiff seeks to compel the deposition testimony of a U.S. citizen residing abroad,
the Court reviews the instant motion in accordance with the Walsh Act. See 28 U.S.C. § 1783.
Under the Walsh Act,
[a] court of the United States may order the issuance of a subpoena
requiring the appearance as a witness before it . . . of a national or
resident of the United States who is in a foreign country . . . if the
court finds that particular testimony . . . is necessary in the interest of
justice, and . . . that it is not possible to obtain his testimony in
admissible form without his personal appearance . . . .
28 U.S.C. § 1783(a); Estate of Ungar v. Palestinian Auth., 412 F. Supp. 2d 328, 332 (S.D.N.Y.
2006) (explaining the Walsh Act). In addition, § 1783(b) requires that service of a Walsh Act
subpoena must be made in compliance with the “Federal Rules of Civil Procedure and that the
serving party pay the necessary travel costs of the witness, which are to be determined by the
court.” Ungar, 412 F. Supp. 2d at 332 (citing 28 U.S.C. § 1783(b)). Accordingly, two elements
must be satisfied before a Court can issue a subpoena to a U.S. citizen living “outside the territorial
jurisdiction of the United States”: (1) the particular testimony is necessary in the “interest of
justice” and (2) it is not possible to obtain the witness’s testimony in admissible form without his
or her personal appearance. Id. at 333 (citing 28 U.S.C. § 1783(a)). “‘The decision to issue a
subpoena under this statute is left to the sound discretion of the court.’” MedImmune, LLC v. PDL
Biopharma, Inc., No. 08 Civ. 5590, 2010 WL 2179154, at *1 (quoting Klesch & Co. Ltd. v. Liberty
Media Corp., 217 F.R.D. 517, 523 (D.Col. 2003).
With respect to the “interest of justice” prong, courts have found that this element must be
“‘considered in light of the circumstances of the particular case and, more importantly, the posture
of the case when the issue arises.’” Ungar, 412 F. Supp. 2d at 333 (quoting Klesch, 217 F.R.D.
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517). Citing the legislative history of § 1783, the court in Ungar found that “[t]he essence of the
legislative history is clear: the courts have the power to subpoena a United States citizen outside
the jurisdiction of the United States when a ‘compelling reason’ exists” (internal citation omitted).
Id. at 334. Specifically, in Ungar, the court noted that
Section 1783's legislative history explains that…when considering
the propriety of the issuance of a subpoena under § 1783, the court
should consider a multitude of factors, including “the nature of the
proceedings, the nature of the testimony or evidence sought, the
convenience of the witness or the producer of the evidence, the
convenience of the parties, and other facts bearing upon the
reasonableness of requiring a person abroad to appear as a
witness… .”
Id. at 333-34 (citing S. REP. NO. 88-1580, at 10 (1964), reprinted in 1964 U.S.C.C.A.N. 3782,
3791 (legislative history of predecessor section to 28 U.S.C. § 1783)). Moreover, in S.E.C. v.
Sabhlok, No. 08 Civ. 4238, 2009 WL 3561523, at *3 (N.D. Cal. Oct. 30, 2009), the court
explained that “[t]estimony is ‘necessary in the interest of justice’ if it is relevant under the liberal
standards set forth in Federal Rule of Civil Procedure 26(b)” (citing SEC v. Sandifur, No. 05 Civ.
1631, 2006 WL 3692611, at *4 (W.D.Wash.2006)).
In assessing the second prong - - whether there are potentially alternative methods to obtain
testimony - - courts analyze whether it is practical to obtain the information sought from the
witness. See CSI Inv. Partners II, L.P. v. Cendant Corp., No. 00 Civ. 1422, 2006 U.S. Dist.
LEXIS 11014, at *14 (S.D.N.Y. Mar. 15, 2006). “Subpoenas may be issued when it is
‘impractical’ to obtain the information.” Sandifur, 2006 WL 3692611, at *4 (citing CSI Inv.
Partners II, 2006 U.S. Dist. LEXIS 11014, at *14). “Sheer impossibility is not required.” Id.
“Impracticality occurs, for example, where resort to alternative methods is unlikely to produce the
relevant evidence in time to meet impending discovery deadlines.” Id. (noting that it was

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impractical for plaintiff to effect service under the Hague Convention in the “context of the
looming discovery deadline and overall trial schedule.”)
A subpoena issued under the Walsh Act must be served in compliance with Federal Rule of
Civil Procedure 4(f). 28 U.S.C. § 1783(b); Sabhlok, 2009 WL 3561523, at *5; Ungar, 412
F.Supp.2d at 334-35. Under FED. R. CIV. P. 4(f)(1), “service of process upon an individual outside
any judicial district of the United States must be in conformity with an internationally agreed upon
means, such as those authorized by the Hague Convention.” Ungar, 412 F.Supp.2d at 335.
IV.

DISCUSSION
As a preliminary matter, the Court notes that there has been no dispute presented regarding

Dr. Hussein being a U.S. citizen and, accordingly, he is subject to the Walsh Act. See 28 U.S.C.
§ 1783(a); Kloeper Aff. ¶ 31. In fact, the Kloepfer Affidavit affirms that Dr. Hussein is a “citizen
of the United States.” Kloepfer Aff. ¶ 31. In light of Defendants’ having elected not to submit any
opposition to Plaintiff’s motion to compel, the Court accepts for purposes of this motion the fact
that Dr. Hussein possesses U.S. citizenship and is within the purview of the Walsh Act. See 28
U.S.C. § 1783(a).
A.

Interest of Justice

Plaintiff maintains that Dr. Hussein’s testimony is required in the “interest of justice”
because it is relevant, necessary and “bears directly on the key issues in this case.” Pl.’s Mot. at 2.
As the President of Infotec, Dr. Hussein is, according to the SAC, the party responsible for
providing instructions to NYIT Bahrain Dean Revelas and NYIT Dean of Students Bragg to
investigate the allegations made against Plaintiff Balk by two students enrolled at NYIT Bahrain.
Id.; SAC ¶ 25(b). Further, Plaintiff submits that Dr. Hussein banned him from NYIT Bahrain on

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February 25, 2008 and required him to leave the country following the publication of a local
newspaper article “falsely linking” Plaintiff to the controversial Danish cartoons. Id. 2-3; SAC
¶¶ 35, 110. Acting on behalf of Infotec, Dr. Hussein “conspired with NYIT” and defrauded
Plaintiff, unjustifiably forcing him to leave Bahrain. Id. at 3 (citing SAC ¶ 103). As such, Plaintiff
contends that Dr. Hussein is a “key player in the events forming the basis” of Plaintiff’s claims
against Defendants and his testimony is necessary in the “interest of justice.” Id. at 2-3.
The Court agrees and finds that Dr. Hussein’s deposition is necessary in the “interest of
justice” within the meaning of the Walsh Act. See 28 U.S.C. § 1783. Dr. Hussein is at the center
of many of the allegations asserted against NYIT and Infotec in this action. See generally SAC.
For example, Plaintiff claims that Dr. Hussein “reportedly directed” NYIT Bahrain Campus Dean
Revelas, through Infotec employee Ahmed Fouad, that Plaintiff was to be “banned from the NYIT
Bahrain campus.” SAC ¶ 25(b)(ii). In Fouad’s February 25, 2008 letter to Dean Revelas, Fouad
wrote that “Dr. Mohamed Hussein, Executive Chairman has come to a decision to be banned [sic]
Mr. Balk from the NYIT Campus” following the investigation into the NYIT Bahrain students’
complaint about the Plaintiff. Id. ¶ 110. Purportedly, Dr. Hussein e-mailed NYIT President
Guiliano stating, inter alia, that there have been complaints by students that Plaintiff has made
“rude remarks against Islam, Quran and Prophet Muhammad,” which Plaintiff denied. Id. ¶ 111.
In addition and as previously noted, Dr. Hussein wrote to President Guiliano that he believed
“Dennis is lying” and gathered evidence showing that Plaintiff had “been against Islam for quite a
long time.” Id. In closing his e-mail to President Guiliano, Dr. Hussein wrote that Plaintiff had to
be “removed from the county before they put him in jail. […] Id.

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On February 29, 2008, Dr. Hussein informed the Plaintiff that he would be required to
leave Bahrain for “two to three weeks,” even though Hussein acknowledged that he understood the
allegations against Plaintiff were false. Id. ¶ 128. Notwithstanding Dr. Hussein’s representations
to the Plaintiff, after the publication of the March 1, 2008 article in the Bahrain newspaper
accusing a professor of posting to his class website the controversial Danish cartoon about the
Prophet Mohammed, Dr. Hussein orchestrated Plaintiff’s sudden departure from Bahrain – and
from employment at NYIT Bahrain – the very next day. Id. ¶¶ 35-37. A member of Dr. Hussein’s
own staff secreted Plaintiff to the Bahrain airport and escorted him to the departure gate “via
special procedures that allowed him to skip lines and expedite customs.” Id. ¶ 39. Plaintiff was
not even advised of his destination and was told by Hussein that he had no time to gather his
belongings or even say goodbye to anyone. Id. ¶¶ 38-39. In light of the numerous allegations
directly involving Dr. Hussein with the claims at issue, the Court finds that Dr. Hussein’s
testimony is unquestionably “relevant under the liberal standards set forth in Federal Rule of Civil
Procedure 26(b).” Sabhlok, 2009 WL 3561523, at *3 (citing Sandifur, 2006 WL 3692611, at *4);
see Klesch, 217 F.R.D. at 524 (finding that the “the requested subpoena [under the Walsh Act] is
consistent with the liberal discovery contemplated by Rule 26 and is, therefore, necessary in the
interest of justice.”).
Additionally, the Court notes that Dr. Hussein has appeared in the United States as recently
as June 27, 2011 to accept personal service of a summons and complaint in connection with a
separate state court action. See Pl.’s Mot. at 2. Moreover, Dr. Hussein’s company, Infotec,
maintains office space at the NYIT campus in Westbury, New York, which Dr. Hussein affirmed
is staffed by Dr. Vogt, who “does some consulting work” for Infotec. Id. (citing Hussein Decl. ¶ 9

16

n.1). Defendant Vogt was previously employed by NYIT until he resigned in 2007, whereupon he
was immediately hired by Dr. Hussein. See Kloepfer Aff. ¶ 8. Vogt is a senior executive and
minority shareholder in Infotec and “continues to be Hussein’s ‘right hand man.’” Id. ¶ 8. These
factors, combined with Dr. Hussein’s integral role in the activities and conduct underlying the
SAC, provide additional weight for the exercise of the Court’s discretion in favor of the issuance
of a subpoena compelling Dr. Hussein to appear for a deposition in the United States in
compliance with the Walsh Act. See MedImmune, 2010 WL 2179154, at *1; see also Sabhlok,
2009 WL 3561523, at *8 (noting that if the witness can find time to pass through the U.S.
“repeatedly for business, and make whatever arrangements are necessary for the needs of his
family, then he cannot reasonably assert family hardship as justification to decline to appear for
deposition in the U.S.”).
Several courts sitting in and outside the Second Circuit have ordered the issuance of
subpoenas pursuant to the Walsh Act in civil actions where the testimony of U.S. citizen witnesses
residing abroad is necessary to advance the “interest of justice.” For example, in Ungar, judgment
creditors representing the estate of a U.S. couple murdered abroad in Israel sought to compel the
testimony of an Egyptian telecommunications company chairman in an effort to establish the
court’s jurisdiction over defendant Palestinian Authority’s debts and assets “and thus use such
funds to satisfy the outstanding default judgment.” Ungar, 412 F. Supp. 2d at 330. Plaintiffs in
Ungar asserted that the company owed the Palestinian Authority “at least tens of millions of
dollars, and probably well over a hundred million dollars.” Id. (internal citation and quotations
omitted). As a result, the court in Ungar issued a subpoena pursuant to 28 U.S.C. § 1783(a)
compelling the testimony of the chairman, a U.S. citizen, “in an ostensible effort to re-litigate

17

whether this Court has personal jurisdiction” over the telecommunications firm. Id. at 330, 334.
The court in Ungar found that “there exists a ‘compelling reason’ to issue the subpoena” to capture
the U.S. citizen’s testimony “for the purposes of establishing required minimum contacts for valid
personal jurisdiction over” the telecommunications firm. Id. at 334. Like Ungar, Plaintiff’s
justification to compel Dr. Hussein’s deposition in New York is in furtherance of the prosecution
of his claims and the “interest of justice.” Id.; see CSI Inv. Partners II, 2006 U.S. Dist. LEXIS
11014, at *14 (finding no error in magistrate judge’s issuance of a subpoena compelling
defendant’s former employee to appear for a deposition in England pursuant to the Walsh Act).
Likewise in Sabhlok, the court found that the proposed witness’s testimony was “relevant
and necessary in the interest of justice because it bears directly on the key issues” of the case.
Sabhlok, 2009 WL 3561523, at *3. The SEC in Sabhlok alleged that the foreign witness
“delegated the authority to grant stock options” which were ultimately “backdated” and
participated in discussions “regarding altering stock option grant dates and related compensation
charges.” Id. The court found that the proposed witness was an “undisputed key actor in the
option granting processes” and would “provide critical testimony on those processes.” Id.
Similarly, Dr. Hussein is an “undisputed key actor” in the asserted discrimination, conspiracy to
defraud, and intentional interference with contractual rights claims alleged by Plaintiff, especially
in light of Dr. Hussein’s role as President of Infotec and Executive Chairman, NYIT Middle East.
See SAC ¶ 104. The SAC reflects the individual actions referenced above which were taken by
Dr. Hussein and which were essential to the termination of Plaintiff’s employment as well as his
hasty departure from Bahrain. Consequently, there is a “compelling reason” for Plaintiff to secure
Dr. Hussein’s testimony. See Ungar, 412 F. Supp. 2d at 333; see also GMA Accessories, Inc. v.

18

BOP, LLC, No. 07 Civ. 3219, 2008 U.S. Dist. LEXIS 96998, *8 (S.D.N.Y. Nov. 19, 2008) (issuing
Walsh Act subpoena in civil action permitting plaintiff to obtain deposition of non-party witness
residing in Argentina since the “testimony is necessary in the interest of justice”).
B.

Not Possible to Obtain Testimony

According to Plaintiff, “[u]nless Dr. Hussein is ordered to appear for his deposition in New
York,” Plaintiff will be “unable to obtain sworn testimony concerning Dr. Hussein’s actions and
decisions on behalf of Infotec and as a managing agent for NYIT.” See Pl.’s Mot. at 3. Plaintiff
professes that he “cannot obtain Dr. Hussein’s testimony in any other form since Infotec, the
defendant in this action of whom Dr. Hussein is the President has ‘defaulted’ in this action as of
April 9, 2012, for failing to obtain new counsel following the withdrawal of Infotec’s prior
counsel.” Id. 1
In Sandifur, the court issued an order pursuant to the Walsh Act, notwithstanding the fact
that the “proposed witness had previously been deposed by the SEC as part of its investigation, and
other witnesses who had also reviewed the mortgage applications at the core of the SEC’s case had
already been deposed.” Sabhlok, 2009 WL 3561523, at *4 (citing Sandifur, 2006 WL 3692611, at
*2). In issuing the subpoena, the court in Sandifur found that “the witness’s prior deposition
transcript and testimony by other witnesses were not a substitute for the witness’s testimony.” Id.
(citing Sandifur, 2006 WL 3692611, at *4). Similarly, in Sabhlok, the court found that the
1

By Order, dated April 19, 2012, Judge Bianco granted Plaintiff leave to file a Second
Amended Complaint and held, inter alia, that “[i]f defendant Infotec does not retain counsel and
file an answer within the time period required under the Federal Rules of Civil Procedure after
receiving service of the Second Amended Complaint, plaintiff may move for default judgment on
the Second Amended Complaint with respect to defendant Infotec.” DE 82. On March 13, 2013,
the Clerk of the Court entered a Certificate of Default against Defendant Infotec as to Plaintiff’s
First and Second Amended Complaints pursuant to Rule 55(a) of the Federal Rules of Civil
Procedure based upon Infotec’s failure to appear or otherwise defend this action. DE 122. On
August 15, 2013, Plaintiff filed a motion for default judgment against Infotec, and that motion is
currently pending before Judge Bianco. DE 129.
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proposed witness’s testimony could be compelled under the Walsh Act where the witness provided
“no prior substantive testimony” and no “documents or comparable witnesses” could substitute for
the witness’s own testimony. Id.
Similarly, in CSI Inv. Partners II, the court found that the proposed witness’s testimony
could not be obtained in another manner, in view of both the looming discovery deadline and the
impracticality of defendants’ proposal that testimony be elicited via procedures set forth in the
Hague Convention. CSI Inv. Partners II, 2006 U.S. Dist. LEXIS 11014, at *14. Moreover, the
court rejected defendants’ suggestion that the witness’s testimony be taken from a previous
criminal matter in lieu of a fresh deposition. Id. at *15. After considering numerous unsuccessful
attempts by the parties to have the overseas witness in Belgium voluntarily produce informal
discovery, the court in MedImmune concluded plaintiff demonstrated that it was not possible to
obtain the sought after testimony without the issuance of a Walsh Act subpoena. MedImmune,
2010 WL 2179154, at *1.
Based upon the representations in Plaintiff’s moving papers and the procedural posture of
this action, the Court finds that it is not possible for Plaintiff to obtain Dr. Hussein’s testimony
without the Court’s issuance of a subpoena pursuant to the Walsh Act. See Ungar, 412 F. Supp.
2d at 333. As detailed in the motion, on September 10 and 11, 2012, Plaintiff served NYIT’s
counsel with three notices for Dr. Hussein’s deposition in his capacity as managing agent of NYIT,
managing agent of Infotec, and corporate officer of Infotec. Pl.’s Mot. at 1. The deposition was to
be taken via telephonic conference in accordance with Federal Rule of Civil Procedure 30(b)(4)
and Local Civil Rule 30.2. Id. On September 14, 2012, Plaintiff served the notices upon Dr.
Hussein via e-mail, requesting that Dr. Hussein confirm by September 17, 2012 whether he would

20

voluntarily appear for his deposition. Id. When Hussein failed to respond by the given date,
Plaintiff then e-mailed Hussein at two e-mail addresses, ultimately to no avail. Id. at 1-2. On
September 24, 2012, Plaintiff initiated the telephonic procedures set forth in the deposition notices
and, despite counsel waiting one-half hour, Dr. Hussein failed to appear, causing Plaintiff to note
Dr. Hussein’s default on all three depositions. Id. at 2. Moreover, on March 13, 2013, the Clerk of
the Court entered a Certificate of Default against Infotec in light of its failure to appear or
otherwise defend this action. See DE 122. 2 Since Infotec’s counsel had previously been relieved
and in view of Infotec’s failure to retain new counsel, any possibility that Dr. Hussein’s deposition
might be compelled by communication with his counsel in this action has been eliminated. See DE
77. In addition, NYIT counsel’s has formally objected to Dr. Hussein’s association with NYIT as
Executive Chairman Middle East as of 2010 and only agreed to attend the September 24, 2012
deposition since Dr. Hussein was being deposed in his capacity as corporate officer for Infotec.
See Pl.’s Mot. at 1 & n.1. In light of the foregoing circumstances, the issuance of a subpoena in
accordance with the Walsh Act is the only practical method by which Plaintiff may obtain
Dr. Hussein’s testimony.
C.

Service of Process

Plaintiff argues that service of any subpoena issued by this Court upon Infotec and Dr.
Hussein “may properly be effected at an Infotec office in New York or on Infotec’s New York2

A prior certificate of default against Infotec was entered on June 20, 2011. DE 17. That
notation of default was later vacated by stipulation of the parties. DE 35. Thereafter, Infotec’s
counsel moved to withdraw from the case and Judge Bianco granted that motion. See DE 72, 77.
In March 2012, Plaintiff moved for leave to file an Amended Complaint. DE 80. Judge Bianco
granted the motion and ruled that if Infotec did not retain counsel and file an Answer within the
time period required, Plaintiff could move for a default judgment with respect to Infotec. DE 82.
Infotec never appeared and did not retain counsel. See DE 114. The Clerk of the Court noted
Infotec’s default on the record on March 13, 2013, pursuant to Fed. R. Civ. P. 55(a) and Local
Civil Rule 55.1. See DE 122. Plaintiff has moved for a default judgment against Infotec. See DE
129.
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based agent/executive in New York.” Pl.’s Mot. at. 3. In light of Infotec’s default in the instant
action and Dr. Hussein’s failure to acknowledge receipt of documents in a separate state court
action, Plaintiff contends that “substituted service upon Infotec and Dr. Hussein under FED. R. CIV.
P. 4(e) and 4(f)(3) at the address in New York provided by Infotec for prior service, as well as by
FedEx International Priority to Dr. Hussein’s reported address in Egypt, is proper in this case.”
Id.; Hussein Decl. ¶¶ 15-17. However, Plaintiff acknowledges that Dr. Hussein’s purported New
York agent, Dr. Vogt, wrote to Plaintiff: “I am no longer authorized to accept any
communications or documents on behalf of Infotech [sic] Corporation, and I will not forward to
Infotech [sic] any communications sent to me, so please send any communications or documents
directly to Infotech [sic].” Id. at 3 & n.3; see April 16, 2012 Letter of Robert C. Vogt to Ridley M.
Whitaker, annexed to Pl.’s Mot. as Ex. “7.” Although the Court notes that service of process may
be effected on an individual in a foreign county pursuant to FED. R. CIV. P. 4(F)(3), namely, “by
other means not prohibited by international agreement, as the court orders,” the absence of an
agent, counsel, or any other individual who can accept service on behalf of Infotec or Dr. Hussein
requires that this request be denied. See FED. R. CIV. P. 4(F)(3).
The Court finds that service of process must be made in compliance with the Hague
Convention. See FED. R. CIV. P. 4(f). Similar to Ungar, the witness at issue here “currently
resides in Egypt, [thus] service of process of the § 1783 subpoena must be in compliance with this
directive.” Ungar, 412 F.Supp.2d at 335. The Court must decline Plaintiff’s proposal to serve
Dr. Hussein via registered mail as “Egypt along with several other countries, explicitly objected to
this provision [Article 10(a)], thus rendering nugatory service of process via postal channels within

22

Egypt.” Id. This Court is persuaded by the reasoning set forth in Ungar where the court found
that
…service of process on Respondent, while residing in Egypt, must
be in conformity with Articles 5, 6 or 11 of the Hague Convention.
See Hague Convention, 20 U.S.T. 361 (permitting service of process
by submitting legal documents to a Central Authority of signatory
country, and the Central Authority, in turn, arranging service of
process on individual located within country in accord with internal
law). Unless there is a specific agreement between the United States
and Egypt pursuant to Article 11 of the Hague Convention allowing
for some other method of service of process-which this Court is
unaware of-Plaintiffs must comply with the service of process
requirement articulated in Articles 5 and 6 of the Hague Convention.
Id. Accordingly, this Court directs Plaintiff to execute service of process in compliance with
Articles 5 and 6 of the Hague Service Convention.
Given Dr. Hussein’s previous failure to comply with requests made by Plaintiff to
voluntarily appear for a deposition in Egypt, this Court directs that the location of the deposition
shall be at the offices of Plaintiff’s counsel in New York. As the court noted in Sabhlok, this
Court’s subpoena would have no enforceability abroad outside the territorial jurisdiction of the
United States. See Sabhlok, 2009 WL 3561523, at *7 (noting that since the court lacks jurisdiction
in Hong Kong, a deposition abroad would undercut the compelling nature of the deposition).
Similarly, here, in light of Dr. Hussein’s failure to comply with past requests for his voluntary
appearance at depositions in this action, the Court directs that the deposition be held in New York
at the offices of Plaintiff’s counsel.
Under § 1783(b) of the Walsh Act, “the serving party pay[s] the necessary travel costs of
the witness, which are to be determined by the court.” Ungar, 412 F. Supp. 2d at 332 (citing 28
U.S.C. § 1783(b)). In MedImmune, the court issued a subpoena pursuant to the Walsh Act

23

compelling a witness in Belgium to appear for a deposition and ordered plaintiff to “tender with
the subpoena the sum of $12,000, which plaintiff estimate[d] should be sufficient to cover [the
witness’s] business-class travel, his accommodation in Washington, D.C. and his witness fees.”
MedImmune, 2010 WL 2179154, at *2. This Court hereby directs Plaintiff’s counsel to provide
the Court, within ten (10) days of this Decision and Order, an estimate (with supporting
documentation) for Dr. Hussein’s travel expenses, 3 costs, and witness fees involved in his
appearance from Cairo, Egypt for a court-ordered deposition in New York. To afford Plaintiff
time to comply with the requirements of Articles 5 and 6 of the Hague Convention for service of
process in Egypt, the Court directs that Plaintiff’s deposition of Dr. Mohammed Hussein be
completed by February 28, 2014.
V.

CONCLUSION
For the foregoing reasons, the Court GRANTS Plaintiff’s motion to compel the appearance

of Dr. Mohammed Hussein for a deposition in New York at the Law Offices of Ridley M.
Whitaker, Esq., counsel for Plaintiff.
SO ORDERED.
Dated: Central Islip, New York
September 30, 2013
/s/ A. Kathleen Tomlinson
A. KATHLEEN TOMLINSON
U.S. Magistrate Judge

3

The Court does not expect Plaintiff’s counsel to provide an airline ticket (or equivalent
payment) for anything more than a coach-class seat.
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