Wall v. DO & CO NY Catering, Inc. et al

Filing 40

ORDER Re 39 Motion to Compel. Plaintiffs motion to compel is GRANTED, in part, consistent with the directives in this Order. SEE ATTACHED ORDER. Ordered by Magistrate Judge A. Kathleen Tomlinson on 9/9/2021. (Tomlinson, A.)

Case 2:18-cv-03725-JMA-AKT Document 40 Filed 09/09/21 Page 1 of 5 PageID #: 277

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------------------------------X
BRENDA WALL,
Plaintiff,
-againstDO & CO NY CATERING, INC.,

ORDER
ON MOTION
CV 18-3725 (JMA) (AKT)

Defendant,
---------------------------------------------------------------X
A. KATHLEEN TOMLINSON, Magistrate Judge:
Plaintiff has filed a motion to compel the Defendant to respond (1) to post-judgment
interrogatories and document demands, and (2) to appear for a Rule 30(b)(6) deposition,
pursuant to Rule 69(a)(2) and 37(a). See DE 39. Defendant has filed any response to the
motion. For reasons which follow, the Plaintiff’s motion is GRANTED, in part, and DENIED,
in part.
I.

BACKGROUND
On June 27, 2018, Plaintiff Brenda Wall (“Plaintiff”) commenced this action against

Defendant DO & CO NY Catering, Inc. (“Defendant”) asserting claims for hostile work
environment and retaliation based on her race, national origin and gender, in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq., the New York State
Human Rights Law, N.Y. Exec. Law §290 et seq., and the New York City Human Rights Law,
N.Y.C Admin. Code § 8-107. See generally Complaint [DE 1]. Defendant served Plaintiff with
an Offer of Judgment pursuant to Rule 68(a) of the Federal Rules of Civil Procedure. Plaintiff
accepted the Rule 68 Offer which was filed on ECF on March 12, 2021 [DE 35], after which the

Case 2:18-cv-03725-JMA-AKT Document 40 Filed 09/09/21 Page 2 of 5 PageID #: 278

Court entered judgment against the Defendant on March 17, 2021 in the amount of $450,000.00.
See DE 36-37.
Plaintiff served the Defendant with post-judgment discovery, including interrogatories,
requests for production of documents, and a notice for deposition under Rule 30(b)(6) on May 6
and May 7, 2021, respectively. See DE 39. Responses to the discovery demands were due June
5, 2020. Id. The date for which deposition was noticed was adjourned due to counsel for the
parties’ settlement discussions. Id. The parties were unable to reach a settlement and, according
to Plaintiff’s counsel, the Defendant has yet to respond to discovery despite repeated reminders
through email and telephone by Plaintiff’s counsel. Id.
II.

DISCUSSION
“Post-judgment discovery is governed by Federal Rule of Civil Procedure 69....” EM

Ltd. v. Republic of Argentina, 695 F.3d 201, 207 (2d Cir. 2012), aff'd sub nom. Republic of
Argentina v. NML Capital, Ltd., 573 U.S. 134, 134 S.Ct. 2250, 189 L.Ed.2d 234 (2014). Rule
69(a)(2) provides that “[i]n aid of the judgment or execution, the judgment creditor or a
successor in interest whose interest appears of record may obtain discovery from any person—
including the judgment debtor—as provided in these rules or by the procedure of the state where
the court is located.” Fed. R. Civ. P. 69(a)(2). “The scope of discovery under Rule 69(a)(2) is
constrained principally in that it must be calculated to assist in collecting on a judgment.” First
Tech. Cap., Inc. v. Airborne, Inc., 380 F. Supp. 3d 217, 219–20 (W.D.N.Y. 2019) (quoting EM
Ltd., 695 F.3d at 207). “The purpose of discovery under Rule 69(a)(2) is to allow the judgment
creditor to identify assets from which the judgment may be satisfied and consequently, the
judgment creditor should be permitted to conduct a broad inquiry to uncover any hidden or
concealed assets of the judgment debtor.” Id. (citing Iron Workers Dist. Council of W. N.Y. &

2

Case 2:18-cv-03725-JMA-AKT Document 40 Filed 09/09/21 Page 3 of 5 PageID #: 279

Vicinity Pension Fund v. D.C. Scott, Inc., No. 10-CV-6373, 2013 WL 1004215, at *2 (W.D.N.Y.
Mar. 13, 2013)); see also Phoenix Bulk Carriers (BVI), Ltd. v. Triorient, LLC, No. 20-CV-0936,
2021 WL 621226, at *2 (S.D.N.Y. Feb. 17, 2021) (“Precisely because discovery to enforce a
judgment is employed to discover assets of a recalcitrant judgment debtor, judgment creditors
‘must be given the freedom to make a broad inquiry to discover hidden or concealed assets of the
judgment debtor.’”). “Although discovery in aid of enforcement is ‘broad,’ the rules do not
provide judgment creditors with unfettered license to go on a ‘fishing expedition.’” Phoenix
Bulk Carriers, 2021 WL 621226, at *2 (citation omitted). Instead, “post-judgment discovery
must be ‘calculated to assist in collecting on a judgment.’” Allstate Insurance Co. v. Mirvis, No.
08-CV-4405, 2017 WL 10398552, at *1 (E.D.N.Y. Jan. 25, 2017) (quoting EM Ltd., 695 F.3d at
207).
A.

Interrogatories

Plaintiff has propounded 88 interrogatories, many of which contain several subparts. See
DE 39-3. On its face, the number of interrogatories exceeds the scope of Rule 33. Rule 33(a)(1)
provides that “[u]nless otherwise stipulated or ordered by the court, a party may serve no more
than 25 written interrogatories, including all discrete subparts. Leave to serve additional
interrogatories may be granted to the extent consistent with Rule 26(b)(2).” Fed. R. Civ. P.
33(a)(1) (emphasis added). “The party seeking leave to serve more than 25 interrogatories ‘must
set forth a ‘particularized showing’ to exceed the limit.” Black v. Buffalo Meat Serv., Inc., No.
15-CV-49, 2016 WL 4363506, at *7 (W.D.N.Y. Aug. 16, 2016) (citations omitted). “Courts
grant leave to exceed the limit when the benefit of discovery outweighs the potential burden on
the responding party…. Courts generally deny requests for more than 25 interrogatories initially,
preferring instead to consider requests to add interrogatories after a party has served 25

3

Case 2:18-cv-03725-JMA-AKT Document 40 Filed 09/09/21 Page 4 of 5 PageID #: 280

interrogatories and argues that additional interrogatories are needed.” Douglas v. Harry N.
Abrams, Inc., No. 13-CV-2613, 2016 WL 11645646, at *3 (S.D.N.Y. Aug. 23, 2016) (citing
Black, 2016 WL 4363506, at *7).
Plaintiff has provided no evidence of a stipulation permitting them to exceed the number
of interrogatories authorized by Rule 33, nor has she explicitly moved for leave to do so. While
the number of interrogatories is problematic, the substance is of the interrogatories is valid.
Here, the interrogatories seek information broadly related to the Defendant’s corporate status,
corporate relationships, and financial assets. Such information is relevant to the Defendant’s
ability to satisfy the judgment against it. As such, the Court must resolve the tension arising
from the Plaintiff’s legitimate but excessive request.
Absent a “particularized showing” that the benefit of the requested discovery outweighs
the potential burden on the Defendant, the Court will not compel responses to all 88
interrogatories at this time. However, the Court will permit the Plaintiff to re-serve the
Defendant with any 25 of the 88 interrogatories initially propounded. Further, the Court
hereby ORDERS the Defendant to produce substantive responses to those interrogatories
within 21 days after receipt of service. Any failure to comply with this Order will result in
further action by the Court, including the prospect of sanctions with respect to both
Defendant’s counsel and the Defendant corporation.
Once Plaintiff’s counsel has reviewed the responses from Defendant, if counsel has a
good faith basis to serve further interrogatories, counsel may make an appropriate application to
the Court If the Plaintiff wishes to serve any additional interrogatories, she must seek leave from
the Court before doing so. Counsel is reminded, as noted in Black that he must set forth a
“particularized showing” to exceed the limit.

4

Case 2:18-cv-03725-JMA-AKT Document 40 Filed 09/09/21 Page 5 of 5 PageID #: 281

B.

Request for Production of Documents

Plaintiff has propounded 35 requests to produce documents upon the Defendant. See
DE 39-3 at 23-28. “The Federal Rules have no express limit on the number of document
requests.” Black, 2016 WL 4363506, at *7 (citing 7 Moore's Federal Practice, § 34.02[3], at 3411 (2006)); see also Fed. R. Civ. P. 33. As with the interrogatories served by the Plaintiff, the
substance of the document requests is valid. Here, the document requests also seek information
broadly related to the Defendant’s corporate status, corporate relationships, and financial assets
which are relevant to the Defendant’s ability to satisfy the judgment against it. The Court finds
the requests reasonable. Therefore, the Defendant is directed to produce substantive responses
to the Plaintiff’s requests for production of documents within 21 days of this Order.
C.

Rule 30(b)(6) Deposition

Plaintiff has served a notice of deposition under Rule 30(b)(6) to depose a designated
corporate representative of the corporate Defendant broadly regarding the Defendant’s corporate
status, corporate relationships, and financial assets. See DE 39-2. Defendant is directed to
designate and produce a representative to appear for deposition under Rule 30(b)(6) within 60
days of this Order.
III.

CONCLUSION
For the foregoing reasons, the Plaintiff’s motion to compel is GRANTED, in part,

consistent with the directives in this Order.
SO ORDERED.
Dated: Central Islip, New York
September 9, 2021

/s/ A. Kathleen Tomlinson
A. KATHLEEN TOMLINSON
United States Magistrate Judge
5