Carl v. Edwards et al
ORDER granting in part and denying in part 80 Motion to Compel. SEE ATTACHED ORDER for details. Plaintiff's counsel is directed to serve a copy of the attached Order on all pro se Defendants forthwith and is to file proof of such service on ECF promptly. Ordered by Magistrate Judge A. Kathleen Tomlinson on 9/25/2017. (Roman, Joshua)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
- against CV 16-3863 (ADS) (AKT)
RICHARD EDWARDS, JOHN HAWKINS,
SPECIALIST CARS OF MALTON LIMITED,
GRAEME SCHOLES, LEFT HAND DRIVE LTD.,
PAUL SWEENEY, PHS CONSULTANTS,
ANDREW HOWARTH, CHRISTOPHER WILLIAMS,
TREVOR SMITH, FOOS CHINA TRADING,
VIKASH LIMBANI, LANDMARK CAR CO.,
JEFFREY PATTINSON, THOMAS HAMANN,
and JOHN DOES 1-5,
A. KATHLEEN TOMLINSON, Magistrate Judge:
High dollar vintage car collecting sets the backdrop for the case presently before the
Court. The cast of characters in this international activity spans the globe, encompassing
individuals and entities residing or doing business in the United States, the United Kingdom and
Hong Kong. See Complaint (“Compl.”) ¶¶ 3-42 [DE 1]. Plaintiff Bernard Carl (“Plaintiff”) is
“an avid collector of vintage sports and racing automobiles.” Id. ¶ 4. In the fall of 2013, Carl
“was persuaded to purchase by Defendant, [Richard] Edwards . . . several vintage automobiles
. . . with the participation and assistance of certain of [Edwards’] co-conspirators.” Id. ¶ 77.
What ultimately happened to some of those vehicles is the subject of this litigation.
Before the Court at this time is Plaintiff’s motion seeking to compel discovery responses from
the following Defendants: Richards Edwards (pro se), Christopher Williams (pro se), John
Hawkins (pro se), Specialist Cars of Malton, Ltd., Graeme Scholes (pro se) and Left Hand Drive,
Ltd., Thomas Hamann, Jeffrey Pattinson and Landmark Car Co. See DE 80. None of the
Defendants, except for Jeffrey Pattinson and Landmark Car Co., filed opposition to the motion.
See DE 82.
Plaintiff ultimately entered into a brokerage agreement with Defendant Edwards which
provided that Edwards could “propose a sale to a potential buyer to Plaintiff for approval” but
otherwise could not “‘accept [any such] offers . . . on [Plaintiff’s] behalf,’ and that any
agreement to sell one of the cars not executed by Plaintiff ‘would not be binding upon
[Plaintiff.]’” Id. ¶¶ 79-85. In addition, the agreement further stipulated that “‘any vehicle
bought with [Plaintiff] Carl’s funds shall remain the sole and exclusive property of [Plaintiff]
Carl until sold and paid for…’” Id. ¶ 83. Significantly, “if a car subject to the Agreement were
not sold within 90 days after its acquisition by Plaintiff (or such later date as Plaintiff might
approve), any right Defendant, Edwards, might have had to represent the car to potential buyers
would terminate, and Plaintiff would owe no further obligation to Defendant, Edwards, or any
party claiming through Defendant, Edwards, with regard to that car.” Id. ¶ 86.
Relying on the brokerage agreement and based upon Edwards’ recommendation,
“[b]etween November 2013 and November 2014, Plaintiff purchased approximately seventeen
(17) vintage automobiles. . . .” Id. ¶ 94. Of these 17 vehicles, eight are embroiled in this
litigation and include a Ferrari F40, Porsche 2.7 RS Touring, Lamborghini Miura, Porsche 2.7RS
Lightweight, Porsche 2.7RS Touring, Porsche 959 Komfort, Ferrari 365 GT 2+2 and an Alfa
Romeo Montreal. Id. ¶ 95. In order to ensure these cars remained secure, Plaintiff insisted they
be housed at “an established vintage car dealership until they were sold.” Id. ¶ 96. Ultimately,
Plaintiff settled on Defendant Specialist Cars of Malton Limited (“Specialist Cars”) which was
owned and operated by Defendant John Hawkins (“Hawkins”).
During the evening hours of October 12, 2015 — less than one day before a hearing was
to take place before the High Court in the United Kingdom concerning the ownership of these
cars — the eight referenced automobiles were removed from Specialist Cars’ warehouse facility
by Defendant Edwards. Id. ¶¶ 104-106. Plaintiff asserts that Edwards “repeatedly represented
that he removed the aforementioned [cars] from the facility” and claims that Co-Defendants
Andrew Howarth and Vikash Limbani “have acknowledged assisting [ ] Edwards[ ] in removing
and transporting one or more of the Missing Cars . . . on October 12 and 13, 2015.” Id. ¶¶ 111112. Further adding to the intrigue, Plaintiff claims that Edwards, upon taking possession of
these eight vehicles, began selling them off to Defendant Trevor Smith, an “‘underworld’
figure,” who allegedly procured the cars as an agent from Defendant Foos China Trading which
ultimately purchased the cars for approximately $1.2 million. Id. ¶¶ 113-123. According to
Plaintiff, the purchase price amounted to only a fraction of the fair market value of these vehicles
and that, in any event, Edwards’ motive in offloading the vehicles at such a cut-rate price was
because “he needed the proceeds . . . to pay his pre-existing debts,” which included payments to
Defendants Thomas Hamann and Landmark Car Co. Id. ¶¶ 123-125. Despite negotiations
between Plaintiff’s prior counsel and Edwards, Plaintiff was not able to recover these vehicles or
the money he invested to procure them. Id. ¶¶ 128-169. Further, Plaintiff asserts that in addition
to the eight cars that were misappropriated from Specialist Cars’ warehouse, Edwards and certain
other Defendants “converted for the[ir] own use and benefit a Porsche Speedster . . . belonging to
Plaintiff . . . .” Id. ¶ 169.
Based upon the foregoing allegations, Plaintiff has interposed claims predicated upon the
Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1962(c), (d) as
well as common law claims of civil conspiracy, fraudulent misrepresentation, fraud, trespass to
chattels, unjust enrichment and an accounting. Id. ¶¶ 637-713. Plaintiff seeks compensatory
damages in the amount of $8,003,935.50, including treble damages on Plaintiff’s RICO claims,
punitive damages, an accounting as well as attorney’s fees and costs. See id. (Prayer for Relief).
RELEVANT PROCEDURAL HISTORY
Following the filing of Plaintiff’s Complaint, the Court conducted an Initial Conference
which was attended by some, but not all, of the Defendants in this action. See generally DE 47.
Although several Defendants sought a stay of discovery through the filing of various motions to
dismiss based upon lack of personal jurisdiction and forum non-conveniens grounds, the Court
declined the stay, pointing out that “this case does not fall within the pantheon of ‘extraordinary
cases’ contemplated by the Second Circuit for a full stay of discovery.” Id. ¶¶ 2-3. However, as
a result of the representations made during the conference, the Court: (1) stayed discovery with
regard to all RICO allegations; and (2) limited discovery “solely to the jurisdictional issue.”
Id. ¶ 4. The Court specifically instructed Plaintiff’s counsel that “any document requests and/or
interrogatories are to be narrowly tailored to that issue.” Id. In light of the circumscribed nature
of the jurisdictional discovery permitted by the Court, a limited Scheduling Order was entered
whereby all responses to Plaintiff’s request for documents and interrogatories were due by
November 30, 2016 and any letter motions seeking court intervention were to be filed by
January 6, 2017. Id. Subsequently, on September 23, 2017, Judge Spatt denied, without
prejudice, all pending motions to dismiss, providing all Defendants leave to renew “following
the close of jurisdictional discovery.” DE 50.
On January 6, 2017, Plaintiff filed the instant motion seeking to compel discovery
responses from the specific Defendants identified at the outset of this Order, including several
pro se defendants, certain corporate defendants and an individual defendant represented by
counsel. None of these Defendants, except for Jeffrey Pattinson and Landmark Car Co., filed
opposition to the motion. See DE 82.
A. Defendant’s Motion to Compel Jurisdictional Discovery
Federal Rule 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
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 the finding 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 exact-ingly.”).
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) (citing Wells Fargo Bank, N.A. v. Konover, No. 05 Civ. 1924, 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)); Denim Habit, LLC, 2016 WL 2992124, at *3. 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.”); Coggins v. Cnty. of Nassau,
No. 07 Civ. 3624, 2014 WL 495646, at *2 (E.D.N.Y. Feb. 6, 2014) (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.”) (internal quotation omitted); see also
Mirra v. Jordan, No. 13-CV-5519, 2016 WL 889683, at *2 (S.D.N.Y. Feb. 23, 2016)
(“[m]otions to compel are left to the court’s sound discretion.”); Liberty Mut. Ins. Co. v. Kohler
Co., No. 08-CV-867, 2010 WL 1930270, at *2 (E.D.N.Y. May 11, 2010) (“[A] motion to compel
is entrusted to the sound discretion of the district court.”).
Federal Rule 33
Pursuant to Rule 33 of the Federal Rules of Civil Procedure, “a party may serve on any
other party no more than 25 written interrogatories. . . .” Fed. R. Civ. P. 33(a)(1); see Pegoraro
v. Marrero 281 F.R.D. 122, 128 (S.D.N.Y. 2012). Interrogatories “may relate to any matter that
may be inquired into under Rule 26(b) . . . [and] is not objectionable merely because it asks for
an opinion or contention that relates to fact or the application of law to fact. . . .” Id. 33(a)(2);
see Trueman v. New York State Canal Corp., No. 1:09-CV-049, 2010 WL 681341, at *2
(N.D.N.Y. Feb. 24, 2010) (“Interrogatories, like other discovery devices, may inquire into any
discoverable matter, including facts and contentions.”). The general aim of this discovery device
is to “expeditiously narrow the scope of the litigation, reduce the element of surprise, serve as
admissions for trial, and in a significant matter avoid unnecessary discovery and minimize
expense.” Trueman, 2010 WL 681341, at *2. To that end, the responding party is required to
answer each interrogatory “separately and fully under oath.” Fed. R. Civ. P. 33(b)(3). Thus, the
Rule explicitly requires the responding party to “provide the best answer they can based upon
information within their possession.” Trueman, 2010 WL 681341, at *2 (citing Fed. R. Civ. P.
In order to ensure that each interrogatory is answered “separately” and “fully,” see Fed.
R. Civ. P. 33(b)(3), the responding party is required “to make an inquiry and obtain information
to answer the interrogatories which would include obtaining the information to fully and
completely answer the interrogatories. . . .” Upstate Shredding, LLC v. Ne. Ferrous, Inc.,
No. 312 CV 1015, 2016 WL 865299, at *8 (N.D.N.Y. Mar. 2, 2016); see Zanowic v. Reno, No.
97 Civ. 5292, 2000 WL 1376251, at *3 n.1 (S.D.N.Y. Sept. 25, 2000) (“In responding to
interrogatories . . . a party is under a duty to make a reasonable inquiry concerning the
information sought in the interrogatories, and a party’s failure to describe his efforts to obtain the
information sought . . . renders his responses insufficient.”); Braham v. Perelmuter,
No. 3:15 CV 1094, 2016 WL 1305118, at *3 (D. Conn. Apr. 1, 2016); In re Auction Houses
Antitrust Litig., 196 F.R.D. 444, 445 (S.D.N.Y. 2000) (“A party served with interrogatories is
obliged to respond . . . not only by providing the information it has, but also the information
within its control or otherwise obtainable by it.”). Where a party, despite conducting a diligent
inquiry, is nevertheless unable to provide a responsive answer, any efforts utilized should be set
forth in detail to ensure a sufficient response is interposed. Id.; Zanowic, 2000 WL 1376251, at
*3 n.1. Further, “an answer to an interrogatory must be completed within itself and, it should be
in a form that may be used at trial . . . [Therefore] [r]eference to depositions, other answers to the
interrogatories, other document production, the complaint itself, or any other documents are
improper and thus unresponsive.” Trueman, 2010 WL 681341, at *3; Poulio v. Paul Arpin Van
Lines, Inc., 2004 WL 1368869, at *2 (D. Conn. June 14, 2004) (noting that other courts have
held that a party may not incorporate deposition testimony or rely upon future depositions in lieu
of complete responses to interrogatories); In re Savitt/Adler Litig., 176 F.R.D. 44, 49 (N.D.N.Y.
1997); Davidson v. Goord, 215 F.R.D. 73, 77 (W.D.N.Y. Jan. 30, 2003); Moore Federal Practice
§§ 33.101, 33.103, & 33.106. In addition, “as new information comes into its possession, the
responding party has a continuing duty to supplement their responses.” Trueman, 2010 WL
681341, at *2 (citing Fed. R. Civ. P. 26(e)(1)).
Although a responding party is permitted to object to an interrogatory that it deems to be
improper, the grounds for any such objection “must be stated with specificity. Any ground not
stated in a timely objection is waived unless the court, for good cause, excuses the failure.”
Fed. R. Civ. P. 33(b)(4); see Pegoraro, 281 F.R.D. at 128. It follows that “[B]oilerplate
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.” Jacoby v. Hartford Life & Accident Ins. Co., 254 F.R.D. 477, 478
(S.D.N.Y. 2009); Davidson, 215 F.R.D. at 77 (“Generalized objections that a discovery request
is burdensome without resort to specific reasons is similarly insufficient to justify a refusal to
respond.”) (quoting Burns v. Imagine Films Entertainment, Inc., 164 F.R.D. 589, 592–93
(W.D.N.Y. 1996)). In order to effectively resist providing a response to an interrogatory, a party
must show “specifically how, despite the broad and liberal construction afforded [by] the federal
discovery rules, each interrogatory is not relevant or how each question is overly broad,
burdensome or oppressive. . . by submitting affidavits or offering evidence revealing the nature
of the burden.” Pegoraro, 281 F.R.D. at 128–29 (quoting Compagnie Francaise d’Assurance
Pour le Commerce Exterieur v. Phillips Petroleum Co., 105 F.R.D. 16, 42 (S.D.N.Y. 1984)).
Federal Rule 34
Rule 34(a) of the Federal Rules of Civil Procedure delineates the type of items that 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
(i) A party must produce documents as they are kept in the usual
course of business or must organize and label them to correspond
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
(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 it terms, Rule 34(b)(2)(E)(i) and (ii), concerning the production
of documents or ESI respectively, permits the producing party, unless otherwise ordered by the
Court, to choose which method to produce the items sought by the requesting party. See Rule
34(b)(2)(E)(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.”) (emphasis
added); Rule 34(b)(2)(E)(ii) (“a party must produce [ESI] in a form or forms in which it is
ordinarily maintained or in a reasonably usable form or forms”) (emphasis added). 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); see
Hill v. Stewart, No. 10CV538S, 2011 WL 4439445, at *5 (W.D.N.Y. Sept. 23, 2011)
(“[D]efendants are not obligated under the Federal Rules to organize their records to suit
plaintiff’s discovery demands and plaintiff cites no authority to the contrary. Rule 34(b)(2)(E)
gives the responding party the option either to produce the documents in the manner they usually
keep the records or produce them in the categories sought; that rule does not require the
responding party to alter their record keeping to meet the movant’s discovery categories.”).
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 at 333–38 (N.D.N.Y. 2008) (collecting cases);
see also Schrom v. Guardian Life Ins. Co. of Am., No. 11 CIV. 1680, 2012 WL 28138, at *6
(S.D.N.Y. Jan. 5, 2012) (“Where massive numbers of documents are involved, it may be
necessary for the producing party to provide a complete explanation of its information
management structure if it wishes to produce those documents in the manner that they are
ordinarily stored.”). 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;
see In re Adelphia Communications Corp., 338 B.R. 546, 551 (S.D.N.Y. 2005) (citing 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 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.
Application to the Facts
As an initial matter, Plaintiff’s motion suffers from various procedural defects which in
themselves would justify its denial.
First, the motion fails to comply with Local Civil Rule 37.1 and is capable of being
rejected on that basis alone. Local Civil Rule 37.1 states that
Upon any motion or application involving discovery or disclosure
requests or responses under Fed. R. Civ. P. 37, the moving party
shall specify and quote or set forth verbatim in the motion papers
each discovery request and response to which the motion or
application is addressed. The motion or application shall also set
forth the grounds upon which the moving party is entitled to
prevail as to each request or response. Local Civil Rule 5.1 also
applies to the motion or application.
Local Civil Rule 37.1. See also Local Rule 5.1. Therefore, to comply with these Rules, the
movant must first list verbatim the document request or interrogatory which was served on
opposing counsel, followed directly by opposing counsel’s verbatim response to the particular
request, followed immediately by the particularized objection(s) counsel is raising and the basis
for the objections (i.e., why the response is overly broad, deficient, non-responsive, etc.).
Counsel is expected to refer to relevant case law to support his/her position/objection as to the
respective discovery demand. Compliance with Rule 37.1 is critical in ensuring that the Court
does not waste judicial resources by having to constantly flip-flop between documents in order to
locate the specific interrogatory or discovery request at issue, the opposing party’s answer, the
nature of each party’s arguments and the relevant case law cited in support of each party’s
Second, Plaintiff did not include a copy of the demands at issue in conjunction with the
filing of this motion (which otherwise would not have been necessary in the first instance had
counsel complied with Rule 37.1). Therefore, counsel essentially leaves a vacuum as to the
context of the discovery demands, putting the Court at a disadvantage.1
Third, Plaintiff provides no case law supporting his individual demands
Fourth, the only reason the Court chooses to address the substance of this motion is the
passage of time since the motion was filed and the procedural posture of this case. Counsel are
hereby on notice that the Court will not accept future motions which fail to comply with the
Federal Rules, the Local Civil Rules and this Court’s Individual Rules.
On October 17, 2016, Plaintiff, in accordance with the deadlines set forth in this Court’s
Scheduling Order, see DE 47, served his discovery demands and interrogatory requests upon
Defendants. See DE 80. Despite evidence of such service, see id., Exs. 1-10, the following
Defendants have, to date, failed to serve any responses: Richard Edwards (pro se), Christopher
Williams (pro se), Graeme Scholes (pro se), Left Hand Drive, Ltd. and Thomas Hamann (the
“Non-Responding Defendants”). DE 80.2 Likewise, although Jeffrey Pattinson and Landmark
Car Co. filed a timely opposition, Plaintiff asserts that specific responses remain deficient.
See DE 80.
Although Plaintiff did file his discovery demands on October 17, 2016, see DE 57-67,
the Court responded that discovery requests and responses should not be filed on ECF unless
annexed to a motion. As such, those filings do not operate as a substitute for the attachment of
the specific demands and responses at issue in the pending motion to compel.
When no responses were interposed by John Hawkins (pro se) and Specialist Cars of
Malton, Ltd., Plaintiff requested a Certificate of Default as to each of these Defendants on
May 1, 2017. See DE 89, 90. On May 2, 2017, the Clerk issued the requested Certificates in
accordance with Rule 55(a) of the Federal Rules of Civil Procedure. See DE 91, 92. As such,
the Court deems the motion moot with respect to these Defendants.
Turning first to the Non-Responding Defendants, “there is consistent authority that a
failure to serve timely responses to interrogatories and document requests serves as a waiver of
objections. Senat v. City of N.Y., 255 F.R.D. 338, 339 (E.D.N.Y. 2009) (citing Fed. R. Civ. P.
33(b)(4)); see Gesualdi v. Interstate Payroll Co., Inc., No. 14CV6780, 2016 WL 737909, at *2
(E.D.N.Y. Feb. 22, 2016); Stabile v. United Recovery Servs., L.P., No. 11-CV-1152, 2011 WL
6448189, at *2 (E.D.N.Y. Dec. 22, 2011) (“[D]efendants’ failure to timely respond results in a
waiver of all objections as to the interrogatories and all objections to the document demands
except those based on privilege.”); Labarbera v. Absolute Trucking, Inc., No. CV 08-4581, 2009
WL 2496463, at *1 (E.D.N.Y. Aug. 12, 2009); Russo–Lubrano v. Brooklyn Federal Sav. Bank,
No. CV–06–672, 2007 WL 2126086, at *2 (E.D.N.Y. July 23, 2007); Carr v. Queens–Long
Island Medical Group, P.C., Nos. 99 Civ. 3706, 02 Civ. 1676, 2003 WL 169793, at *5 (S.D.N.Y.
Jan. 24, 2003); Berube v. Great Atlantic & Pacific Tea Co., No. 3:06 cv 197, 2006 WL 3826702,
at *5 (D. Conn. Nov. 30, 2006); Techsearch Services, Inc. v. Gorman, No. 97 Civ. 7641, 1999
WL 33024, at *1–2 (S.D.N.Y. Jan. 21, 1999). However, “the Court may, in its discretion, excuse
[a party’s] delay” in serving timely responses to discovery demands. Gesualdi, 2016 WL
737909, at *2 (quoting Melendez v. Greiner, No. 01 Civ. 7888, 2003 WL 22434101, at *2
(S.D.N.Y. Oct. 23, 2003)) (alteration in original); see also Davis v. City of New York,
No. 86 Civ. 6345, 1988 WL 42189, at *2 (S.D.N.Y. Apr. 28, 1988) (“It is well settled that the
protections and sanctions found in the discovery rules are not absolute and contemplate use of
Here, the Non-Responding Defendants have failed to file timely responses to Plaintiff’s
document demands and interrogatory requests by the November 30, 2016 deadline set forth in
this Court’s Scheduling Order. DE 47. In addition, none of these Defendants sought leave for an
extension of time within which to respond to Plaintiff’s demands. In this regard, the Court points
out that the importance of [a scheduling order] to a district court’s effective control and
management of a case, cannot be overstated.” Kassim, 221 F.R.D. at 365; see, e.g., Public
Citizen v. Liggett Group, 858 F.2d 775, 790 (1st Cir. 1988), cert. denied, 488 U.S. 1030, 109 S.
Ct. 838, 102 L. Ed. 2d 970 (1989) (“[Scheduling] orders and their enforcement are regarded as
the essential mechanism for cases becoming trial-ready in an efficient, just, and certain manner.
The control of these schedules is deliberately reposed in the court, and not in counsel, so that this
end may be achieved.”). Consequently, a court’s scheduling order, issued in accordance with
Rule 16, “is not a frivolous piece of paper, idly entered, which can be cavalierly disregarded by
counsel without peril.” Kassim, 221 F.R.D. at 365. In order to ensure that litigants give proper
deference to a scheduling order, Rule 16(f) provides that “[o]n motion or on its own, the court
may issue any just orders, including those authorized by Rule 37(b)(2)(A)(ii)-(vii), if a party or
attorney . . . fails to obey a scheduling or other pretrial order.” Fed. R. Civ. P. 16(f)(1); see Allen
v. Dairy Farmers of Am., Inc., No. 5:09-CV-230, 2013 WL 211303, at *2 (D. Vt. Jan. 18, 2013)
(“The Federal Rules of Civil Procedure allow a court to impose sanctions if a party “fails to obey
a scheduling or other pretrial order.”) (quoting Fed. R.Civ. P. 16(f)(1)(C)); see M.B. v. CSX
Transp., Inc., 299 F.R.D. 341, 345 (N.D.N.Y. 2014)); Arnold, 232 F.R.D. at 67 (“The Federal
Rules of Civil Procedure provide that failures to comply with case management orders entered
by the court pursuant to Rule 16(b) are subject to the sanctions available to courts to enforce its
orders including the authority to make such orders as are just, as well as those available under
Rule 37(b)(2)(B), (C) and (D).”) (internal quotations omitted); Neufeld v. Neufeld, 172 F.R.D.
115, 118 (S.D.N.Y. 1997); see also Rule 37(b)(2)(A)(ii)-(vii) (setting forth sanctions that may be
imposed for failure to comply with the court’s scheduling order).
Based upon the Non-Responding Defendants’ disregard of this Court’s Scheduling Order,
and in light of the fact that these Defendants have not filed any opposition papers in response to
the instant motion (which could have provided the Court with a basis for the failure to respond),
the Court hereby orders the Non-Responding Defendants to provide full and complete responses
to Plaintiff’s discovery demands and interrogatories previously served on October 17, 2016.
These responses (and/or arrangements to inspect documents) must be served upon the
Plaintiff by October 26, 2017. Normally, the Court would require a shorter time, but in light of
the fact that these individuals and entities are outside the United States, the Court is giving a 30day time frame for responses.
In addition, in its discretion, the Court finds that any objections that the Non-Responding
Defendants otherwise would have interposed in responding to Plaintiff’s document demands and
interrogatories (other than objections based upon privilege) are hereby deemed waived based on
the Non-Responding Defendants failure to respond as directed by the Court’s prior Orders.
See DeNicola v. Frontline Asset Strategies, 279 F.R.D. 214, 215 (E.D.N.Y. 2012) (“[B]y its
failure to timely respond, the defendant has waived all objections as to the interrogatories and all
objections to the document demands except those based on privilege.”) (internal citation
omitted); Carr v. Queens-Long Island Med. Grp., P.C., No. 02CIV.1676, 2003 WL 169793, at
*5 (S.D.N.Y. Jan. 24, 2003) (“The failure to provide discovery responses in a timely fashion is a
basis for deeming objections waived.”); Eldaghar v. City of N.Y. Dep’t of Citywide Admin.
Servs., No. 02CIV.91, 2003 WL 22455224, at *1 (S.D.N.Y. Oct. 28, 2003) (concluding that
defendants’ objections to plaintiff’s discovery requests were waived where “there was an
unexcused and unexplained failure to assert objections in a timely manner”); see generally Yakus
v. United States, 321 U.S. 414, 444, 64 S. Ct. 660, 88 L. Ed. 834 (1944) (“No procedural
principle is more familiar to this court than that a . . . right may be forfeited in criminal as well as
civil cases by the failure to make timely assertion of the right before the tribunal having
jurisdiction to determine it.”). Although what may seem like a harsh result, the Supreme Court
has repeatedly cautioned that “in the long run, experience teaches that strict adherence to the
procedural requirements specified by the legislature is the best guarantee of evenhanded
administration of the law,” Mohasco Corp. v. Silver, 447 U.S. 807, 826, 100 S. Ct. 2486, 65 L.
Ed. 2d 532 (1980); accord McNeil v. United States, 508 U.S. 106, 113, 113 S. Ct. 1980, 124 L
.Ed. 2d 21 (1993); Halstrom v. Tillamook County, 493 U.S. 20, 31, 110 S. Ct. 304, 107 L. Ed. 2d
237 (1990), and that “[p]rocedural requirements . . . are not to be disregarded by courts out of a
vague sympathy for particular litigants.” Baldwin County Welcome Center v. Brown, 466 U.S.
147, 152, 104 S. Ct. 1723, 80 L. Ed. 2d 196 (1984). Based upon this authority and the particular
facts and circumstances of this case, the Court finds that a deemed waiver of objections is
appropriate. See, e.g., Labarbera, 2009 WL 2496463, at *1 (“Any other result would ignore the
time limits set forth in the Federal Rules of Civil Procedure, contribute further to the delay in
resolving cases, and transform Article V of the Federal Rules of Civil Procedure from a structure
of well-defined rights and obligations to a system of suggested, but non-binding, guidelines.”)
(quoting Eldaghar, 2003 WL 22455224, at *1).3
Turning next to Defendants Jeffrey Pattinson (“Pattinson”) and Landmark Car Co.
(“Landmark”), Plaintiff asserts that although a timely response to his demands was received,
Although the Non-Responding Defendants include those who are proceeding pro se,
that fact in itself does not serve to excuse non-compliance since a party’s pro se status “does not
exempt a party from compliance with relevant rules of procedural and substantive law.”
Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d Cir. 2006) (quoting Traguth v. Zuck,
710 F.2d 90, 95 (2d Cir.1983)); but see Holtz, 258 F.3d at 73 (recognizing that district courts
have “broad discretion to determine whether to overlook a party’s failure to comply with local
court rules.”). As such, a finding of waiver is no less appropriate as applied to these pro se
“certain demands propounded by the Plaintiff were objected to by Pattinson’s counsel.” DE 80.
Plaintiff avers that on December 20, 2016, after receiving these responses, he conferred with
John Wait, Esq., counsel for Pattinson and Landmark in an attempt to resolve all remaining
issues. See id. Nevertheless, according to Plaintiff, Defendants continued to assert otherwise
“boilerplate” objections, including that certain requests sought information “outside the scope of
the limited jurisdictional discovery” set by the Court. Id.
In response, Defendants Pattinson and Landmark oppose the motion primarily on the
grounds that the issues raised “were not brought to my attention until I received a copy of the
Motion, despite Plaintiff’s counsel’s certification to the contrary.” DE 82. In addition, as to
Plaintiff’s document demands nos. 11, 12, 17, 18, 19 and 20 (the specific responses at issue),
Defendants state that their refusal to provide responses is based upon the fact that these requests
“go well beyond the narrow issue of jurisdictional discovery and seek to impose on Defendants
obligations that go beyond the Federal Rules of Civil Procedure and the [Court’s] Order.” Id.
Further, Defendants assert that the “burden and expense association [sic] with obtaining and
producing the documents is outweighed by its benefit.”4 Id.
Initially, the Court points out that Defendants’ responses, similar to Plaintiff’s motion,
lack any relevant case law in support of the positions Defendants take. Likewise, a review of
Defendants’ responses to Plaintiff’s document demands nos. 11, 12, 17, 18, 19 and 20, see
DE 82-1, reveals only conclusory objections as to relevance, overbreath and burden which are
insufficient to exclude discovery of the requested information. See Melendez v. Greiner, No. 01
Civ. 7888, 2003 WL 22434101, at *1 (S.D.N.Y. Oct. 23, 2003) (“General and conclusory
The Court believes that counsel’s argument here is actually addressed to the question
whether the burden or expense of the proposed discovery outweighs its likely benefit (rather than
“whether the burden or expense of the proposed discovery is outweighed by its benefit” as
expressed here) (emphasis supplied).
objections as to relevance, overbreadth, or burden are insufficient to exclude discovery of
requested information.”); Trilegiant Corp. v. Sitel Corp., 275 F.R.D. 428, 431 (S.D.N.Y. 2011)
(same); Diaz v. Local 338 of Retail, Wholesale Dep’t Store Union, United Food & Commercial
Workers, No. 13-CV-7187, 2014 WL 4384712, at *2 (E.D.N.Y. Sept. 3, 2014) (same); see also
John Wiley & Sons, Inc. v. Book Dog Books, LLC, 298 F.R.D. 184, 186 (S.D.N.Y. 2014)
(“Where a party objects to a discovery request, the ‘objecting party bears the burden of
demonstrating specifically how, despite the broad and liberal construction afforded the federal
discovery rules, each [request] is not relevant or how each question is overly broad, burdensome
or oppressive by submitting affidavits or offering evidence revealing the nature of the burden.’”
(quoting McKissick v. Three Deer Ass’n Ltd. P’ship, 265 F.R.D. 55, 56–57 (D. Conn. 2010));
Barella v. Village of Freeport, 296 F.R.D. 102, 105 (E.D.N.Y.2013) (“The party objecting to the
discovery demands must, with some degree of specificity, illustrate the nature and extent of the
burden of production.”).
Similarly, with respect to Plaintiff’s interrogatory no. 7, which asks Pattinson and
Landmark, in part, to “[d]escribe [their] relationship to each of the co-defendants,” Defendants
object only on the grounds that the interrogatory is “objectionable because it goes beyond the
scope of the limited purpose of jurisdictional discovery. . . .” DE 82-1. Although Defendants
object in a generalized fashion to this interrogatory based upon its “scope,” the objection is
altogether insufficient since it fails to set forth, with any specificity how or why the interrogatory
lies outside the ambit of the Court’s September 22, 2016 Order which limited discovery to the
“jurisdictional issue.” DE 47. See Pegoraro, 281 F.R.D. at 128–29 (quoting Compagnie
Francaise d’Assurance Pour le Commerce Exterieur, 105 F.R.D. 16, 42 (S.D.N.Y. 1984)) (in
order for an objection to an interrogatory to be properly interposed, a party must show
“specifically how, despite the broad and liberal construction afforded [by] the federal discovery
rules, each interrogatory is not relevant or how each question is overly broad, burdensome or
oppressive, . . . by submitting affidavits or offering evidence revealing the nature of the
burden.”); see also Jacoby, 254 F.R.D. at 478 (“[B]oilerplate 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.”).
While the Court did caution Plaintiff that his discovery requests and interrogatories seeking
jurisdictional discovery were required to be “narrowly tailored to that issue,” the Court otherwise
set no defined limitations in that regard. See DE 47. Therefore, to the extent Defendants
Pattinson and Landmark took issue with a particular interrogatory, they were required to do more
than simply respond in a “boilerplate” fashion which lacks the necessary specificity for the Court
to properly analyze the objection within the contextual facts of this individual case.
Notwithstanding Pattinson and Landmark’s insufficient objections, the Court
nevertheless has a duty to ensure, in accordance with Rule 26(b)(1) that the discovery sought by
Plaintiff — even in the limited jurisdictional context — is both relevant and proportional in light
of the particular facts and circumstances of this case. See Fed. R. civ. P. 26(b)(1). Again, based
on the passage of time, the Court will review the requests and interrogatory at issue.
With respect to document request nos. 11, 12, 17, and 18, the time frame referenced by
the Plaintiff for which documents are requested is January 1, 2011 to the present. However,
document request nos. 19 and 20 seek documents for the period running from January 1, 2013 to
the present. See DE 82, Ex. A. In reviewing the Complaint, the Court points out that the facts
giving rise to Plaintiff’s claims appear to have their inception in the fall of 2013, when Plaintiff
was initially approached about the prospect of having Edwards serve as Plaintiff’s broker and
sales agent. See Compl. ¶¶ 78-82. Likewise, the latest date referenced in the Complaint is
July 1, 2016. See id. ¶¶ 152, 154, 158, 160, 164. As such, in order to ensure that the requisite
proportionality is achieved — especially while jurisdictional questions remain — the Court is
limiting the temporal period of Plaintiff’s discovery requests. Therefore, Defendants shall
produce the requested information for the period January 1, 2013 through July 31, 2016.
As to document request nos. 11 and 12, Plaintiff seeks copies of “any and all documents,
business records, tax records, customs records, invoices, purchase orders, and contracts (whether
executed or not) involving the Defendant[s] . . . and the United States, a State thereof, a United
States resident, a business located or doing business in the United States and any individual
located within the United States. . . .” DE 82, Ex. A. In addition to the temporal restrictions set
forth above, the Court finds that although business records may provide clarity concerning the
jurisdictional issues, the request for tax records is premature. Moreover, Plaintiff has failed to
meet the higher threshold required for the Court to mandate production of tax records at this
stage of the proceedings. See Sadofsky v. Fiesta Prod., LLC, 252 F.R.D. 143, 149 (E.D.N.Y.
2008) (“In order for a requesting party to prevail on a motion to compel the production of tax
returns, whether corporate or personal, the requesting party must satisfy a two-prong test: (1) the
tax returns must be relevant to the subject matter of the action, and (2) a compelling need must
exist because the information is not readily obtainable from a less intrusive source.”) (citing
Hamm v. Potamkin, No. 98 Civ. 7425, 1999 WL 249721, at *2, (S.D.N.Y. Apr. 28, 1999)
(applying two-part test to motion to compel corporate tax returns); see Melendez v. Primavera
Meats, Inc., 270 F.R.D. 143, 144 (E.D.N.Y. 2010) (applying two-part test and recognizing that
“Although income tax returns are not inherently privileged, courts are typically reluctant to
compel their disclosure because of both the private nature of the sensitive information contained
therein and the public interest in encouraging the filing by taxpayers of complete and accurate
returns.”) (quoting Carmody v. Village of Rockville Centre, 2007 WL 2042807, at *2 (E.D.N.Y.
July 13, 2007)); Caputi v. Topper Realty Corp., No. 14-CV-2634, 2015 WL 893663, at *2
(E.D.N.Y. Feb. 25, 2015) (same). Likewise, there are sufficient categories of other records
requested to obtain information regarding jurisdiction without necessitating tax returns. Further,
these requests are similarly overbroad as to their geographical scope. Specifically, there are no
allegations set forth in the Complaint -- and likewise no basis to infer -- that any of the
Defendants have engaged in business “with the United States” or “a State thereof” and these
parameters are likewise stricken.
Document request nos. 17 and 18 seek “[c]opies of any and all communications of any
kind, whether oral, written, or electronic, including but not limited to, travel records, invoices for
travel, itineraries and/or travel receipts, related to travel by the Defendant[s], [including
Defendant Landmark[’s] employees, servants, contractees, agents and/or representatives to or
from the United States. . . .” DE 82, Ex. A In addition to the temporal limitations set forth
above, the Court finds that the phrase “communications of any kind” is overly broad and
ambiguous even when taking into consideration the qualifying language contained in the balance
of the document request. At its core, this request seeks written (including electronic) and oral
communications associated with or pertaining to travel to the United States by Defendants
Pattinson and Landmark during the relevant period. As rephrased, the Court finds that the
written and oral communications (to the extent there is a record or recording of any oral
communications) related to Defendants’ travel to the United States is relevant to the
jurisdictional question and should be produced, with the further qualification that it be limited
solely to Pattinson, both in his individual capacity and as managing director of Landmark.
See Compl. ¶ 37 (identifying Pattinson as “managing director” of Landmark). This further
limitation is warranted in light of the fact that the Complaint does not identify or otherwise
implicate persons who could be characterized as “employees, servants, contractees, agents and/or
representatives of Landmark.” DE 82, Ex. A.
Document request nos.19 and 20 seek “[a] copy of any and all telephone records,
including records for land-lines and cell phones, belonging to and/or used by the Defendant[s],
[including Defendant Landmark’s] employees, agents and/or representatives. A response to this
demand shall include the phone number and carrier used by the answering Defendant.” DE 82,
Ex. A. At this stage, although telephone records may shed some marginal light as to the
geographic scope of Defendants’ business dealings (i.e., based upon the telephone numbers
contacted), complete disclosure of all telephone records for this extensive period is not
proportional to the needs of this case, especially where, as here, the Court is permitting Plaintiff
to request business records and travel documents which in themselves would establish the
necessary jurisdictional nexus to the extent such a connection exists. Further, although Plaintiff,
in an altogether conclusory fashion, states that these records “touch the central issue of
jurisdiction,” DE 80, Plaintiff has otherwise provided the Court with no basis, rationale or
example as to why these records are relevant and necessary at the present stage of the
proceedings. As such, document request nos. 19 and 20 are restricted as follows: the Court will
permit Plaintiff to obtain a sampling of three months of Jeffrey Pattinson’s records alone.
Plaintiff is to promptly provide to Mr. Pattinson’s counsel the identification of the specific three
months of telephone records Plaintiff wishes to obtain.
Turning to interrogatory no. 7, which asks Pattinson to “[d]escribe your relationship to
each of the co-defendants: a) For each co-defendant state: (i) your relationship, (ii) any and all
transactions said co-defendant was involved in concerning a United States resident and/or United
States based company, and (iii) any purchase or sale of a car located within or deliverable within
the United States whereby said co-defendant was involved.” DE 82, Ex. A. Although perhaps
marginally relevant to the jurisdictional question, this interrogatory is unrestricted as to
timeframe and scope. Specifically, the interrogatory seemingly encompasses an unrestricted
period of time notwithstanding the dates set forth in the Complaint. In addition, it is unclear, at
this stage of the proceedings, what good faith basis Plaintiff has to assume that Pattinson has
knowledge of any transactions in which the Co-Defendants may have been involved with respect
to a United States based entity or individual. Nor is any good faith basis asserted for Plaintiff’s
belief that Pattinson had knowledge of any purchase or sale of a car (apparently not solely
limited to the automobiles at issue in this litigation) located within or deliverable within the
United States. Plaintiff attempts to deflect the problems with this interrogatory by asserting that
the “transactions alleged herein involved multiple parties and numerous corporate entities” and
that “counsel for these Defendants is improperly withholding information about their
relationships with the co-Defendants.” DE 80. However, these bald assertions, without more,
provide an insufficient basis for the Court to order Defendants to respond further to interrogatory
no. 7 as currently constituted.
Based upon the foregoing analysis, Defendants Pattinson and Landmark are directed to
serve supplemental responses in accordance with the directives as set forth by the Court. These
responses must be served upon the Plaintiff by October 16, 2017.
For the foregoing reasons, Plaintiff’s Motion to Compel is GRANTED, in part, and
DENIED, in part. The Court declines to award sanctions.
Dated: Central Islip, New York
September 25, 2017
/s/ A. Kathleen Tomlinson
A. KATHLEEN TOMLINSON
United States Magistrate Judge
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