New Falls Corporation v. Soni

Filing 191

ORDER re 190 Status Report. (See Order for details). SO Ordered by Magistrate Judge Lee G. Dunst on 10/17/2022. (CT)

Case 2:16-cv-06805-HG-LGD Document 191 Filed 10/17/22 Page 1 of 8 PageID #: 2116

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------X
NEW FALLS CORPORATION,
Plaintiff,
v.
OM P. SONI,
Defendant.
------------------------------------------------------------X

ORDER
16-CV-06805 (HG) (LGD)
FILED 
CLERK 

3:51 pm, Oct 17, 2022

U.S. DISTRICT COURT 
EASTERN DISTRICT OF NEW YORK 
LONG ISLAND OFFICE 

LEE G. DUNST, Magistrate Judge:
On May 29, 2020, Magistrate Judge A. Kathleen Tomlinson (to whom this case was
previously assigned) issued a Memorandum and Order addressing various discovery and related
disputes in this case, which ordered that “[c]ounsel are further directed to file a report on the status of
discovery in this action, including the specific discovery which remains to be completed, if any, and
how it is relevant and proportional to the needs of the action.” Electronic Case File number (“ECF
No.”) 153. As a result of the parties’ inability to comply with that simple directive, Judge Tomlinson
issued a new Order on June 16, 2020 directing that each party “provide the Court individually with a
one-page bullet point list solely containing the discovery which each side claims is still to be
completed in this case.” On June 23, 2020, the parties filed their respective submissions identifying
outstanding discovery. See ECF No. 158 (Defendant represented that “[t]he following discovery
remains to be completed at this time” and identified four bullet points); ECF No. 159 (Plaintiff
provided a “list of remaining discovery in this case” and identified six bullet points).
Since June 2020, the parties have made little or no progress in advancing discovery forward in
this case. After the unfortunate death of Judge Tomlinson, this case ultimately was reassigned to the
undersigned on June 13, 2022. In response to the Court’s September 20, 2022 Status Report Order
seeking a joint status report “regarding the current status of discovery,” the parties submitted ECF No.

Case 2:16-cv-06805-HG-LGD Document 191 Filed 10/17/22 Page 2 of 8 PageID #: 2117

190—describing a litany of discovery disputes regarding document production, depositions, non-party
discovery, and expert discovery. Plaintiff identified six separate items in ECF No. 190 as remaining
discovery to be conducted in this case, which are the same six bullet points listed previously in ECF
No. 159 from more than two years ago. Defendant’s list of remaining discovery in ECF No. 190
includes the four bullet points previously identified more than two years ago in ECF No. 158 and
purports to add new open discovery items that were not included in ECF No. 158—though ECF No.
158 purported to respond to Judge Tomlinson’s June 16, 2020 Order to “identify the discovery which
each side claims is still to be completed in this case.” Notably, in ECF No. 190, neither Plaintiff nor
Defendant referenced (1) Judge Tomlinson’s May 29, 2020 Memorandum And Order (ECF No. 153),
(2) Judge Tomlinson’s June 16, 2020 Order, or (3) the parties’ respective responses thereto at ECF
Nos. 158 and 159.
The parties also dispute what was discussed in the August 10, 2020 status conference with
District Judge Sandra F. Feuerstein (to whom the case previously assigned). Plaintiff contends that
Defendant “discussed his additional demands” on August 10, 2020 and that Judge Feuerstein “did not
grant his requests.” ECF No. 190. Defendant, however, argues that Judge Feuerstein “did not address
and rule in any manner on defendant’s remaining discovery.” Id.
It is abundantly clear to the Court from ECF No. 190, as well as the lengthy history of disputes
between the parties over the span of this litigation, that the parties are unable and/or unwilling to
engage meaningfully in the meet-and-confer process mandated by Fed. R. Civ. P. 37(a)(1), the Local
Rules of this Court, and the undersigned’s Individual Practice Rules. The Court therefore intends to
engage directly with the parties to “secure the just, speedy, and inexpensive determination” of these
discovery disputes as required by Federal Rule of Civil Procedure 1. The Supreme Court has
recognized that the “district court possesses inherent powers that are governed not by rule or statute
but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly
2

Case 2:16-cv-06805-HG-LGD Document 191 Filed 10/17/22 Page 3 of 8 PageID #: 2118

and expeditious disposition of cases.” Dietz v. Bouldin, 579 U.S. 40, 45 (2016) (internal quotations
omitted). As a result, there are “many . . . standard procedural devices trial courts around the country
use every day in service of Rule 1’s paramount command: the just, speedy, and inexpensive resolution
of disputes” even if not set forth explicitly in the Federal Rules of Civil Procedure. Id. (noting that,
for example, motions in limine and motions to dismiss for forum non conveniens are well-accepted
procedural devices though they have “no provision” in the Federal Rules of Civil Procedure). Thus, it
is appropriate for a court to exercise this inherent power if it is “a ‘reasonable response to the
problems and needs’ confronting the court’s fair administration of justice.” Id. (quoting Degen v.
United States, 517 U.S. 820, 823–824 (1996)). Further, the Supreme Court has held that “district
courts have the inherent authority to manage their dockets and courtrooms with a view toward the
efficient and expedient resolution of cases.” Id.; accord Braithwaite v. Collins, No. 22-CV-0161, 2022
WL 426165, at *1 (E.D.N.Y. Feb. 11, 2022). The Court intends to do so in this case and will use the
tools at its disposal to (1) ensure the parties’ strict compliance with the Court’s orders and (2) achieve
“the just, speedy, and inexpensive determination” of this matter.
In light of the foregoing, the Court ORDERS as follows:
(1)

Defendant shall file a supplemental submission by October 28, 2022 that includes the

following:
(a) A copy of Defendant’s notice seeking the Fed R. Civ. P. 30(b)(6) deposition of
Plaintiff, New Falls Corp., together with the attached rider seeking documents. ECF Nos.
158 & 190.
(b) A copy of Defendant’s September 5, 2019 Request to inspect “All Original Audi
Recordings on conversations between Plaintiff and Defendant and Soni family members.”
Id.
(c) Copies of (i) Defendant’s September 5, 2019 Request to Produce, and (ii) Plaintiff’s
discovery responses thereto that Defendant seeks to be revised—both in connection with
Defendant’s request for “Plaintiff’s Revised Responses and Compliance with Defendant’s
September 5, 2019 Request to Produce; pursuant to 2015 Amendments to [Fed. R. Civ. P.
34].” Id.
3

Case 2:16-cv-06805-HG-LGD Document 191 Filed 10/17/22 Page 4 of 8 PageID #: 2119

(d) Copies of (i) Defendant’s August 30, 2019 Request to Produce, and (ii) Plaintiff’s
discovery responses thereto that Defendant seeks to be revised—both in connection with
Defendant’s request for “Plaintiff’s Revised Responses and Compliance with Defendant’s
August 30, 2019 Request to Produce; pursuant to 2015 Amendments to [Fed. R. Civ. P.
34].” Id.
(e) An explanation for its failure to include the following requests in ECF No. 158—filed
more than two years ago in response to Judge Tomlinson’s June 16, 2020 Order that the
parties “identify the discovery which each side claims is still to be completed in this
case”—that Defendant included in ECF No. 190: (i) documents responsive to “Fed R. Civ.
P. 26(a) Compliance, including R. 26(a)(1)(iii), computation of damages;” (ii) “Issuance of
subpoena for documents and depositions to The Cadle Co. II, Inc. and The Cadle Co.”; and
(iii) “Expert and rebuttal reports.” ECF No. 190. That explanation must attempt to
demonstrate good cause for why the Court should now entertain these untimely discovery
requests absent from DE 158.
(2)

Plaintiff shall file a supplemental submission by October 28, 2022 (together with

Defendant’s submission described above, the “Letters” and each a “Letter”) that includes the
following:
(a) A detailed list of “all documents responsive to Plaintiff’s demands at the deposition of
Defendant to produce full documents for which signature pages were provided.” ECF No.
190.
(b) The relevant portion of the transcript of the deposition of non-party Kanwal Kapar
during which Plaintiff contends that “the parties agreed to continue on record.” Id.
(c) All document requests that Plaintiff intends to include in the proposed subpoena to nonparty Alan Grossman. The Court expects that the proposed subpoena will be “proportional
to the needs of the case,” Fed. R. Civ. P. 26(b)(1), and will not impose any “undue burden
or expense” on the non-party, Fed R. Civ. P. 45(d)(1).
(d) All document requests that Plaintiff intends to include in the proposed subpoena to
non-party Soni Capital Resources, LLC. The Court expects that the proposed subpoena
will be “proportional to the needs of the case,” Fed. R. Civ. P. 26(b)(1), and will not
impose any “undue burden or expense” on the non-party, Fed R. Civ. P. 45(d)(1).
(e) A summary of the subject matter of Plaintiff’s proposed expert reports.
(f) Confirmation of whether Plaintiff will comply with Defendant’s September 5, 2019
Request to inspect “All Original Audi Recordings on conversations between Plaintiff and
Defendant and Soni family members.” ECF No. 190. This confirmation must provide a
one-word response to the Court’s inquiry: either “yes” or “no.” If the answer is “yes,”
Plaintiff shall also advise the Court when it will comply. If the answer is “no,” Plaintiff
shall also provide a reasonable explanation for this refusal.
(g) Copies of “the [November 5, 2018] notice of deposition by prior [defense]
4

Case 2:16-cv-06805-HG-LGD Document 191 Filed 10/17/22 Page 5 of 8 PageID #: 2120

counsel . . . for Mr. [Pete] Barta as a representative” and the relevant portions of the
transcript of the November 21, 2018 deposition of Mr. Barta which demonstrates whether
he was deposed in his position as an employee, Rule 30(b)(6) witness, non-party, or some
other capacity. Id.
(h) Copies of any correspondence confirming that “Plaintiff fully responded to Defendant’s
demands and produced all documents requested on May 16, 2017.” Id.
(3)

The minute entry for the parties’ August 10, 2020 conference with Judge Feuerstein

does not indicate any rulings on the instant discovery issues. See ECF No. 170 To the extent that the
parties have a position on this point, counsel must submit a sworn affidavit with their respective
Letters that (i) explains whether Judge Feuerstein did (or did not) address during the August 10, 2020
conference any of the Defendant’s additional discovery demands, and (ii) provides any supporting
evidence.
(4)

The parties’ respective Letters shall not exceed four pages (excluding the materials

specifically requested in this Order). The Court will reject any Letter that fails to comply with the
requirements of this Order or the undersigned’s Individual Practice Rules.
(5)

The Court will not grant any adjournments of the deadline to file the Letters absent a

showing of good cause supported by a sworn affidavit from the party seeking the adjournment.
(6)

The parties shall not respond to the opposing party’s Letter.

(7)

The parties shall not serve any additional discovery demands on opposing counsel prior

to the November 10, 2022 conference before the undersigned.
(8)

All depositions, non-party discovery, and expert discovery are stayed pending the

November 10, 2022 conference before the undersigned.

*

*

*

Finally, the Court has reviewed numerous filings by the parties in this case and concludes that
the parties are routinely violating Local Civil Rule 26.4, which requires as follows: “[c]onsistent with
representing the interests of their clients, attorneys of record are expected to act professionally and
5

Case 2:16-cv-06805-HG-LGD Document 191 Filed 10/17/22 Page 6 of 8 PageID #: 2121

cooperate with each other in all phases of discovery and be courteous in their dealings with each of
other.” In fact, the parties’ submissions to the Court have been replete with ad hominem attacks,
vituperative language, and provocative finger-pointing. Judge Tomlinson recognized this extreme and
unnecessary behavior by the parties. See ECF No. 153 (“Going forward, the parties are precluded
from filing any further motions in this case without the advance permission of this Court.”); June 16,
2020 Order (“The one-page submission shall not contain a party’s ‘position,’ complaint about
opposing counsel, argument, request for a ruling, disputed issue, commentary on claims or defenses or
anything of a similar nature. Any failure to comply with the letter of this Order shall result in the
imposition of sanctions.”). As Judge Tomlinson did in the past, the undersigned will not tolerate any
continued recklessness and lack of basic professional courtesy by counsel in this case. See Individual
Practice Rule I.B.3 (discussing the guidance issued by the American College of Trial Lawyers in the
Code of Pretrial and Trial Conduct, including the provision that “[z]ealous representation of the client
is not inconsistent with a collegial relationship with opposing counsel in service to the court . . . The
absence of respect, cooperation, and collegiality displayed by one lawyer toward another too often
breeds more of the same in a downward spiral.”).
Famed French writer Victor Hugo aptly observed that “[s]trong and bitter words indicate a
weak cause.” In re Ostrowski, No. 1:10-MC-0064, 2014 WL 690528, at *13 & n.6 (M.D. Pa. Feb. 24,
2014). Counsel should keep this principle in mind when communicating with each other and
especially with the Court. Both parties are on notice that the Court will not tolerate any further
unprofessional conduct in this case. See, e.g., Piccolo v. Top Shelf Prods., Inc., No. 16-6930, 2018
WL 4374914, at *1-2 (E.D.N.Y. Sept. 13, 2018) (imposition of sanctions after “repeated instances of
unprofessional conduct by both counsel” and “ad hominem attacks between counsel”).
SO ORDERED:

6

Case 2:16-cv-06805-HG-LGD Document 191 Filed 10/17/22 Page 7 of 8 PageID #: 2122

Dated:

s/ Lee G. Dunst

Central Islip, New York
October 17, 2022

LEE G. DUNST
United States Magistrate Judge

7

Case 2:16-cv-06805-HG-LGD Document 191 Filed 10/17/22 Page 8 of 8 PageID #: 2123

8