Mamakos v. United Airlines, Inc.

Filing 81

ORDER granting in part and denying in part 54 Motion for Discovery. SEE ATTACHED ORDER for details. Ordered by Magistrate Judge A. Kathleen Tomlinson on 9/28/2018. (McCuiston, Hannah)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------------------------------X
JEAN PERRENOD MAMAKOS,
Plaintiff,
- against -

ORDER
CV 14-7294 (JFB) (AKT)

UNITED AIRLINES, INC.,
Defendant.
-------------------------------------------------------------X
A. KATHLEEN TOMLINSON, Magistrate Judge:
Plaintiff seeks the following relief from the Court: (1) an Order pursuant to Fed. R. Civ.
P. 37(b)(2)(A)(iii) striking he Defendant’s Answer in its entirety for the failure to comply with
this Court’s Order of October 24, 2017; or, in the alternative, (2) an Order pursuant to Fed. R.
Civ. P. 37(b)(2)(A)(ii) and (c)(1) for sanctions precluding the Defendant from offering witnesses
and evidence at trial; or, in the alternative, (3) an Order pursuant to Fed. R. Civ. P. 37(a)(3)(A)
and (B) compelling the Defendant to provide, by a specific date, certain documents requested in
Plaintiff’s First Request for Document Production dated August 24, 2017; (4) an Order pursuant
to Fed. R. Civ. P. 37(a)(5)(A), (b)(2)(C) and (c)(1)(A), awarding Plaintiff costs and reasonable
expenses, including attorney’s fees incurred in making the instant motion; and (5) such other
relief as the Court deems just and equitable. See Plaintiff’s Motion to Compel (“Pl’s. Mot.”)
[DE 54].
I.

FACTUAL AND PROCEDURAL BACKGROUND
The instant action arises from the alleged wrongful ejectment of Plaintiff from an airline

flight operated by United Airlines. See generally Second Amended Complaint (“SAC”)
[DE 75]. During the Initial Conference in this case, the Court set a deadline of October 27, 2016
for service of requests for the production of documents and interrogatories and a deadline of

December 8, 2016, for serving responses to those requests. DE 26. At that same conference, the
Court advised that the discovery cut-off date was May 18, 2017. DE 25. In January 2017, the
Court was informed that Plaintiff’s counsel was experiencing certain medical issues which
precipitated a request to extend the discovery deadlines. DE 30. Plaintiff’s counsel was absent
from this case until May 16, 2017, when she requested a conference to get discovery back on
track. DE 38. The parties participated in a conference before this Court on May 23, 2017.
DE 39. At that time, the Court reset the discovery deadlines. Plaintiff was directed to provide
responses to Defendant’s discovery demands by May 30, 2017. Likewise, the Court set the same
deadline for Plaintiff to serve her Rule 26(a) Initial Disclosures. Any discovery demands which
Plaintiff intended to serve had to be served by June 2, 2017. Responses to Plaintiff’s discovery
demands had to be served by July 14, 2017 and all fact depositions were to be completed by
November 15, 2017.
Discovery failures on the part of the Plaintiff prompted Defendant to file a motion for
sanctions seeking dismissal, preclusion, or an Order compelling Plaintiff to provide appropriate
responses to Defendant’s discovery demands. DE 44. The Court denied the request for
dismissal or preclusion. DE 47. However, the Court directed Plaintiff to prepare proper
responses to each document request and to serve them on opposing counsel, as well Plaintiff’s
Amended Rule 26(a) disclosures, no later than September 7, 2017. Id. ¶¶ 2, 4. The Court
further ruled that “the plaintiff is precluded from serving any interrogatories based on the failure
to comply with the Court’s Orders.” Id. ¶ 5. The Court imposed a $500 sanction on Plaintiff’s
counsel for the time Defendant spent in preparing the motion for sanctions. Id. ¶ 6.
Plaintiff’s counsel subsequently filed a letter motion seeking a further extension of time
to complete discovery. DE 51. Plaintiff advised that she did not receive Defendant’s responses

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to her discovery demands until after the deadline for service had expired. Moreover, counsel
explained, she was in the process of bringing to defense counsel’s attention purported
deficiencies in their responses. The Court issued an Order setting a deadline by which counsel
were required to meet and confer to address any issues concerning discovery responses. To the
extent counsel were unable to resolve all outstanding disputes, they were permitted to file Local
Rule 37.1. motions no later than November 17, 2017. DE 53.
The parties’ inability to resolve their disputes prompted Plaintiff’s counsel to file the
instant motion seeking Court intervention. Defendant subsequently filed its opposition to the
motion. DE 55. Shortly thereafter, Plaintiff’s counsel submitted a letter application arguing that
Defendant’s Opposition constitutes a motion to dismiss Plaintiff’s negligence and negligent
infliction of emotional distress causes of action. DE 56. Counsel requests that if the Court
interprets the application as such that Plaintiff be permitted to submit a reply. Id.
II.

APPLICABLE LAW
A. Fed. R. Civ. P. 26
Rule 26(b)(1), as amended on December 1, 2015, recognizes that “[i]nformation is

discoverable ... if it is relevant to any party's claim or defense and is proportional to the needs of
the case.” Rule 26 Advisory Committee Notes to 2015 Amendments; see Sibley v. Choice
Hotels Int'l, No. CV 14-634, 2015 WL 9413101, at *2 (E.D.N.Y. Dec. 22, 2015) (recognizing
that “the current version of Rule 26 defines permissible discovery to consist of information that
is, in addition to being relevant ‘to any party's claim or defense,’ also ‘proportional to the needs
of the case.’”) (internal citation omitted); Denim Habit, LLC v. NJC Boston, LLC, No. 13 CV
6084, 2016 WL 2992124, at *3 (E.D.N.Y. May 23, 2016). Notably, although Rule 26 still
permits a wide range of discovery based upon relevance and proportionality, the “provision
authorizing the court ... to order discovery of any matter relevant to the subject matter involved

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in the action” has been eliminated. Rule 26 Advisory Committee Notes to 2015 Amendments;
see Sibley, 2015 WL 9413101, at *2 (internal citation omitted). The rationale behind the
elimination of this phrase is that it “has been used by some, incorrectly, to define the scope of
discovery.” Rule 26 Advisory Committee Notes to 2015 Amendments. Thus, Rule 26(b)(1), as
amended, although not fundamentally different in scope from the previous version “constitute[s]
a reemphasis on the importance of proportionality in discovery but not a substantive change in
the law.” Vaigasi v. Solow Mgmt. Corp., No. 11 CIV 5088, 2016 WL 616386, at *13 (S.D.N.Y.
Feb. 16, 2016); see Robertson v. People Magazine, No. 14 Civ. 6759, 2015 WL 9077111 at *2
(S.D.N.Y. Dec. 16, 2015) (“[T]he 2015 amendment [to Rule 26] does not create a new standard;
rather it serves to exhort judges to exercise their preexisting control over discovery more
exactingly.”).
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 Civ. 368, 2013 WL 1952308, at *2 (E.D.N.Y. May 10,
2013) (quoting Wells Fargo Bank, N.A. v. Konover, No. 05 Civ. 1924, 2009 WL 585430, at *5
(D. Conn. Mar. 4, 2009)) (internal quotation marks omitted); Evans v. Calise, No. 92 Civ. 8430,
1994 WL 185696, at *1 (S.D.N.Y. May 12, 1994) (citing Abu–Nassar v. Elders Futures Inc.,
1991 WL 45062, *15 (S.D.N.Y.); Samuels v. Eleonora Beheer, B. V., 500 F. Supp. 1357, 1362
(S.D.N.Y. 1980), aff'd sub nom. Beheer v. Samuels, 661 F.2d 907 (2d Cir. 1981), and aff'd sub
nom. Samuels v. Beheer, 661 F.2d 910 (2d Cir. 1981); Contemporary Mission, Inc. v. United
States Postal Service, 648 F.2d 97, 107 (2d Cir. 1981)). 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.

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Litig., 517 F.3d 76, 103 (2d Cir. 2008)), aff'd sub nom. Republic of Argentina v. NML Capital,
Ltd., 134 S. Ct. 2250, 189 L. Ed. 2d 234 (2014); Barbara, 2013 WL 1952308, at *3 (“Courts
afford broad discretion in magistrates' resolution of discovery disputes.”) (collecting cases);
AMW Materials Testing, Inc. v. Town of Babylon, 215 F.R.D. 67, 72 (E.D.N.Y. 2003)) (A district
court has “broad discretion to determine whether an order should be entered protecting a party
from disclosure of information claimed to be privileged or confidential.”).
B. Fed. R. Civ. P. 34
Rule 34(a) of the Federal Rules of Civil Procedure delineates the type of items which a
requesting party may “inspect, copy, test or sample” when such items are in the “responding
party's possession, custody, or control [.]” Fed. R. Civ. P. 34(a). The overall scope of Rule 34 is
broad and includes “information that is fixed in a tangible form and to information that is stored
in a medium from which it can be retrieved and examined. At the same time, a Rule 34 request
for production of ‘documents' should be understood to encompass, and the response should
include, electronically stored information....” Fed. R. Civ. P. 34 (Advisory Committee Notes to
2006 Amendments). Rule 34(b)(2)(E) governs the manner in which production of documents or
electronically stored information (“ESI”) must be made. The Rule states as follows:
(E) Producing the Documents or Electronically Stored Information.
Unless otherwise stipulated or ordered by the court, these
procedures apply to producing documents or electronically stored
information:
(i) A party must produce documents as they are kept in the
usual course of business or must organize and label them to
correspond to the categories in the request;
(ii) If a request does not specify a form for producing
electronically stored information, a party must produce it in
a form or forms in which it is ordinarily maintained or in a
reasonably usable form or forms; and

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(iii) A party need not produce the same electronically stored
information in more than one form.
Fed. R. Civ. P. 34(b)(2)(E). By their terms, Rule 34(b)(2)(E)(i) and (ii), concerning the
production of documents or ESI respectively, permit the producing party, unless otherwise
ordered by the Court, to choose which method to produce the items sought by the requesting
party. Thus, “under the provisions of Rule 34(b)(2) a responding party clearly controls the
manner in which production will occur, and specifically which of the two prescribed methods of
production will be employed.” Pass & Seymour, Inc. v. Hubbell Inc., 255 F.R.D. 331, 334
(N.D.N.Y. 2008) (citing MGP Ingredients, Inc. v. Mars, Inc., No. 06–2318, 2007 WL 3010343,
at *3 (D. Kan. Oct. 15, 2007)).
With regard to documents produced in accordance with Rule 34(b)(2)(E)(i), where a
producing party elects to produce such documents as they are kept in the usual course of
business, a party “must do more than merely represent to the court that the party complied with
Rule 34(b)(2)(E)(i).” Distefano v. Law Offices of Barbara H. Katsos, PC, No. CV 11-2893, 2013
WL 1339536, at *5 (E.D.N.Y. Mar. 29, 2013). Instead, courts generally require the party to
explain how its documents are organized in the ordinary course of business and what steps the
party took to search and produce the documents. Id.; see, e.g., Century Jets Aviation LLC v.
Alchemist Jet Air LLC, No. 08–CV–9892, 2011 WL 724734, at *3–4 (S.D.N.Y. Feb. 8, 2011);
Synventive Molding Solutions, Inc. v. Husky Injection Molding Sys., Inc., 262 F.R.D. 365, 371 n.
9 (D. Vt. 2009); Pass & Seymour, Inc. 255 F.R.D. at 333-38 (collecting cases). However, the
“rule does not require the responding party to alter their record keeping to meet the movant's
discovery categories.” Hill, 2011 WL 4439445, at *5 (collecting cases). Further, “[t]he most
obvious means of complying with the requirement of Rule 34(b) to produce documents as they
are kept in the usual course of business is to permit the requesting party to inspect the documents

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where they are maintained, and in the manner in which they are organized by the producing
party.” Pass & Seymour, Inc., 255 F.R.D. at 336.
III.

APPLICATION TO THE FACTS
A.

Preliminary Matters

Plaintiff argues that Defendant’s opposition constitutes a motion to dismiss Plaintiff’s
negligence and negligent infliction of emotional distress causes of action, and as such, Plaintiff
should be permitted to file a full Reply. DE 56. Plaintiff appears to be interpreting Defendant’s
opposition in this manner based on to defense counsel’s representation that Judge Bianco
dismissed Plaintiff’s negligence and negligent infliction of emotional distress claims in
connection with Defendant’s motion to dismiss. Defendant further argues in its Opposition that
as a result of the dismissal, certain discovery which Plaintiff requests does not relate to any of the
claims that are still at play. The Court has considered Plaintiff’s argument in conjunction with
Defendant’s Opposition and has determined that the latter does not constitute a motion to
dismiss. Consequently, the submission will not be treated as such, and Plaintiff’s request to file
a Reply is denied. In connection with the parties’ dispute over which claims remain, the Court
notes that Judge Bianco recently granted Plaintiff leave to file a Second Amended Complaint.
See Electronic Order of July 13, 2018. On July 23, 2018, Plaintiff filed her Second Amended
Complaint, which sets forth causes of action for negligence, gross negligence, willful and wanton
negligence, negligent infliction of emotional distress and breach of contract. DE 75.
In view of the fact that the parties previously disputed which claims in this case were still
active, the Court requested that they submit a status report advising whether the filing of the
Second Amended Complaint had any impact on the pending discovery dispute. Electronic Order
of September 5, 2018. The Court also inquired whether any portion of the discovery dispute had
been resolved. In response to the Court’s Order, counsel for Defendant advised that Judge
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Bianco has “clarified plaintiff’s causes of action which was formerly a matter of dispute between
the parties. It appears settled now that plaintiff’s causes of action sound in negligent infliction of
emotional distress, negligence, gross negligence, willful and wanton negligence and breach of
contract.” DE 77. Plaintiff’s counsel argues that Defendant’s characterization of the state of
Plaintiff’s claims is “disingenuous” since her negligence and negligent infliction of emotional
distress claims “existed from the inception of this litigation.” DE 78. Plaintiff explains that in
November 2017, Defendant supplemented its production with an incident report which “outlines
the tortious actions of the defendant towards the plaintiff and laid a strong foundation for the
filing of [Plaintiff’s] motion to amend [the] complaint.” Counsel further represents, however,
that Defendant has failed to turn over the remainder of the discovery requested in Plaintiff’s
motion to compel.
The Court notes that both sides set forth in their letters information beyond that
contemplated by the Court’s September 5, 2018 Order. Defendant argues that the Second
Amended Complaint differs substantially from that which was submitted to Judge Bianco in
support of Plaintiff’s motion to amend. DE 77. Plaintiff responds to this argument in her letter.
These matters will be taken up with Judge Bianco, who decided Plaintiff’s motion to amend.
Defendant’s request to strike certain portions of the Second Amended Complaint is currently
pending before Judge Bianco. DE 79.
Plaintiff also argues in her letter that Defendant has failed to file an answer or otherwise
respond to Plaintiff’s Second Amended Complaint and that the time to do so has expired. Since
Defendant is seeking to strike certain portions of the Second Amended Complaint, no answer to
that pleading is yet due.

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B.

Requests for Production

The Court notes at the outset that certain of Defendant’s responses do little more than
interpose boilerplate generalized objections. By way of example, counsel states “Objection. The
demand is indecipherable, vague, ambiguous, overly broad, unduly burdensome, seeks material
that is privileged and proprietary in nature and not reasonably calculated to lead to the discovery
of admissible evidence.” Counsel does so, however, without setting forth, with particularity,
why and how the documents sought are irrelevant or overbroad. See Jacoby, 254 F.R.D. at 478
(“boilerplate objections that include unsubstantiated claims of undue burden, overbreadth and
lack of relevancy,” while producing “no documents and answer[ing] no interrogatories . . . are a
paradigm of discovery abuse”). Likewise, such boilerplate objections are no longer viable or
acceptable as a result of the 2015 Amendments to the Federal Rules of Civil Procedure. For
example, when a party asserts privilege as a grounds for withholding otherwise discoverable
materials, that party must, in accordance with Fed. R. Civ. P. 26(b)(5)(A), (1) “expressly make
the claim,” and (2) “describe the nature of the documents, communications, or tangible things
not produced or disclosed--and do so in a manner that, without revealing information itself
privileged or protected, will enable other parties to assess the claim.” It does not appear that
Defendant has done so here. The Court further notes that requests using the overbroad language
“any and all” when posing a document request or interrogatory are not permissible. Many of the
requests posed by Plaintiff’s counsel here suffers from that very infirmity. Defendant’s counsel
has clearly applied the wrong standard under current Rule 26.
Despite the aforementioned deficiencies in both Plaintiff’s requests and Defendant’s
responses, for this occasion only, based on the length of time the motion has been pending, the
Court will address the merits of each response and the objection raised by Plaintiff’s counsel in

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an effort to get discovery back on track. The Court issues the following rulings with respect to
the document requests.
(1) Demand No. 6: This request suffers from the “any and all” infirmity discussed above.
The Court also finds that Defendant’s initial response is unacceptable. Plaintiff argues
that Defendant continues to refuse to provide any “inter-office written/computer
generated communication/reports.” However, according to Defendant’s opposition, it
has produced “inter-office written computer generated communications.” Moreover,
Plaintiff herself states that Defendant has produced “formally labelled incident reports.”
The Court finds that Defendant’s subsequent production in combination with the
production made in connection with other document demands, satisfies the Defendant’s
obligation here.
(2) Demand No. 7: No further production required. See above.
(3) Demand No. 8: No further production required. See above.
(4) Demand No. 9: No further production required. See above.
(5) Demand No. 11: This request is truly overbroad and suffers from the same “any and all”
infirmity. As with the above demands, Plaintiff’s counsel argues that Defendant refuses
to turn over “any inter-office written/computer generated communication/reports other
than formally labelled incident reports.” However, Defendant represents that he has
turned over “inter-office written computer generated communications.” As such, the
Court will not require any further production by Defendant unless Plaintiff can show a
specific basis/example of what counsel claims has not been produced here.
(6) Demand No. 12: Defendant is directed to turn over all regulation/procedure policies or
manuals in effect on the date of the incident which pertain to “flight personnel
interaction with passengers” and the forced removal of passengers from an aircraft. The
Court finds that Defendant’s preemption argument is misplaced.
(7) Demand Nos. 14 and 15: Defendant already turned over computer generated
communication and formal reports. Defendant further supplemented its response with
Mr. George Giering’s March 21, 2013 letter referenced by Plaintiff, the correspondence
issued in response and internal notes from Customer Care, as well as the identities of
the United employees who prepared the same. Defendant explains that it is not in
possession of any further discovery responsive to these demands. To the extent there
exists any other materials regarding Defendant’s investigation into the incident that are
unrelated to the March 21, 2013 letter, Defendant is directed to turn over the same.
(8) Demand No. 19: No further response required. This document demand is, in substance,
an interrogatory. During the August 7, 2017 conference, the Court held that Plaintiff
waived her right to serve interrogatories due to her non-compliance with Court Orders.

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(9) Demand No. 20: Defendant is directed to turn over the requested materials. Again, the
Court finds that Defendant’s preemption argument is misplaced.
(10) Demand No. 25: Defendant originally objected to this request on the grounds that it
makes no material fact more or less likely since only Plaintiff’s breach of contract claim
survived Defendant’s motion to dismiss. This objection is overruled since it is clear
that Plaintiff’s negligence claims continue to be viable. Defendant further objected on
the grounds that Fed. R. Evid. 404(b) prohibits the use of other wrongful acts to show
that the defendant has a propensity to commit the act in question. Fed. R. Evid. 406,
however, provides that “[e]vidence of a person’s habit or an organization’s routine
practice may be admitted to prove that on a particular occasion the person or
organization acted in accordance with the habit or routine practice.” Crawford v.
Tribeca Lending Corp., 815 F.3d 121, 125 (2d Cir. 2016). In view of Fed. R. Evid. 406,
the Court directs Defendant to produce incident and resolution reports responsive to this
request. However, the Court is limiting the time period for which Defendant must
produce materials to five years prior to the commencement of the instant action. The
Court notes that in order for this type of evidence to be ultimately admissible at trial, it
must establish the existence of “a regular response to a repeated specific situation.”
Zubulake v. UBS Warburg LLC., 382 F. Supp. 2d 536, 543 (S.D.N.Y. 2005). The Court
will not require Defendant to set forth a list since that request takes on the form of an
interrogatory, which Plaintiff is precluded from serving on Defendant.
(11) Demand No. 26: The Court finds this request to be overly broad since it includes
situations in which the passenger “voluntarily removed herself.” Here, Plaintiff alleges
that she was forcibly removed when police officers dragged her by the legs off of the
aircraft. The Court will not require any production beyond the scope of Demand No.
25.
(12) Demand No. 27: The Court will not require any production beyond the scope of
Demand No. 25.
(13) Demand No. 28: This request is overly broad and takes the form of an interrogatory.
Defendant is not required to produce materials or otherwise respond to this demand.
(14) Demand No. 30: In Defendant’s opposition, counsel represents that Defendant
supplemented the response to this demand by producing a layout of the aircraft and the
seats of Plaintiff and 40 other passengers. Defendant’s counsel further states that
Defendant is not in possession of Plaintiff’s plane ticket, boarding pass, travel itinerary
or any other discovery responsive to this demand. Based on these representations, the
Court will not require any further production by Defendant.
(15) Demand No. 40: Defendant is directed to turn over the boarding policy that was in
place on the date of the incident.

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(16) Demand No. 43: The portion of the request seeking incident reports pertaining to all
arrests made is overly broad. Removing that portion of the demand makes it duplicative
of Demand No. 25. The Court will therefore not require any further production.
(17) Demand No. 44: This request is limited to reports pertaining to forced passenger
ejectment. The time period is limited to 5 years prior to commencement of this
litigation.
To the extent the Court has directed Defendant to produce additional information, that
production must be completed within 14 days of entry of this Order. The Court declines to deem
any of Defendant’s objections waived. Moreover, since the Court is directing further production
by Defendant, Plaintiff’s request for alternative relief is denied.
Plaintiff seeks an award of attorney’s fees and costs pursuant to Fed. R. Civ. P. 37. Under
Rule 37, when a motion is granted, in part, and denied, in part, the court “may, after giving an
opportunity to be heard, apportion the reasonable expenses for the motion.” “[D]istrict courts
have broad discretion in imposing sanctions.” Carbajal v. Vill. of Hempstead, No. CV024270,
2003 WL 23138447, at *5 (E.D.N.Y. Dec. 22, 2003) (citing Corp. of Lloyd's v. Lloyd's U.S., 831
F.2d 33, 35 (2d Cir. 1987)). The Court finds that an award of attorney’s fees is not warranted in
these circumstances.
Based on the foregoing findings, Plaintiff’s motion to compel is GRANTED, in part, and
DENIED, in part.

SO ORDERED.
Dated:

Central Islip, New York
September 28, 2018
/s/ A. Kathleen Tomlinson
A. KATHLEEN TOMLINSON
U.S. Magistrate Judge

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