Federal Deposit Insurance Corporation (FDIC) v. Capital Hotel, Inc. et al
Filing
94
DECISION & ORDER: It is Ordered that the # 92 Motion for Discovery to Compel Deposition of defendant Ashok Dhabuwala. It is Ordered that Plaintiffs counsel shall serve a copy of this Decision and Order upon the last known address of Defendant Ashok Dhabuwala and file prof of service with the Court. It is Ordered that within thirty (30) days of service of this Order upon Defendant Ashok Dhabuwala he shall produce for examination at the offices of Plaintiffs counsel all documents in his possessi on, custody and/or control responsive to the subpoena dated April 30, 2018; and it is further Ordered that Defendant Ashok Dhabuwala shall appear for a deposition at the offices of Plaintiffs counsel at a mutually agreeable date within sixty (60) days of the service of this Decision and Order upon him. Signed by Magistrate Judge Daniel J. Stewart on 4/11/2019. (jmb)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
PHOENIX NPL, LLC,
Plaintiff,
-v-
CAPITAL HOTEL, INC., CHIRAG KABRAWALA,
ASHOK DHABUWALA, BRANDON LEVIN, and
NEW YORK STATE DEPARTMENT OF TAXATION
AND FINANCE,
Civ. No. 1:15-CV-80
(TJM/DJS)
Defendants.
APPEARANCES:
OF COUNSEL:
WINDELS MARX LANE & MITTENDORF, LLP
Attorney for Plaintiff
120 Albany Street Plaza
6th Floor
New Brunswick, New Jersey 08901
CHRISTINA J. DELAY, ESQ.
MARK A. SLAMA, ESQ.
HON. LETITIA JAMES
Attorney General of the State of New York
Attorney for Defendant New York State
Department of Taxation and Finance
The Capitol
Albany, New York 12224
MICHELE WALLS, ESQ.
Assistant Attorney General
DANIEL J. STEWART
United States Magistrate Judge
DECISION AND ORDER
Plaintiff holds a Judgment in this case against Defendants, including Ashok
Dhabuwala. Dkt. Nos. 78 & 86. Defendants are jointly and severally liable for the
Judgment, which it appears has not yet been fully satisfied. Dkt. No. 92-1, Declaration
of Mark A. Slama (“Slama Decl.”), ¶¶ 14 & 16. Plaintiff attempted to engage in discovery
in order to aid in the execution of the Judgment. Id. at ¶ 17. Specifically, Plaintiff issued
a subpoena for production of documents and subpoenaed Defendant Dhabuwala for a
deposition. Id. at ¶¶ 19 & 21. Defendant Dhabuwala has not produced any documents
in response to the subpoena and did not appear at the scheduled deposition. Id. at ¶ 23.
Plaintiff now moves for an order pursuant to FED. R. CIV. P. 69 compelling Defendant
Dhabuwala to produce for inspection the documents identified in the subpoena and to
appear for a deposition. Dkt. No. 92. Defendant has not responded to the Motion. For
the reasons set forth below, the Motion is granted.
“Post-judgment discovery is governed by Federal Rule of Civil Procedure 69,
which provides that ‘[i]n aid of the judgment or execution, the judgment creditor . . . 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.’” EM Ltd. v. Republic of
Argentina, 695 F.3d 201, 207 (2d Cir. 2012) (quoting FED. R. CIV. P. 69(a)(2)). In EM
Ltd., the Second Circuit stated that that “broad post-judgment discovery in aid of
execution is the norm in federal and New York state courts.” Id. In affirming the Second
Circuit’s decision in EM Ltd., the Supreme Court noted that “[t]he rules governing
discovery in postjudgment execution proceedings are quite permissive.” Republic of
Argentina v. NML Capital, Ltd., 573 U.S. 134, 138 (2014). As a judgment creditor
Plaintiff is entitled “under Rule 69, to a very broad inquiry regarding the location and
identity” of the Defendant’s assets. Banco Cent. De Paraguay v. Paraguay Humanitarian
Found., Inc., 2006 WL 3456521, at *9 (S.D.N.Y. Nov. 30, 2006). Rule 69 expressly
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permits “both deposition and document discovery.” GMA Accessories, Inc. v. Elec.
Wonderland, Inc., 2012 WL 1933558, at *4 (S.D.N.Y. May 22, 2012).
Given these broad standards, the Court must consider whether the discovery
sought is “calculated to assist in collecting on a judgment.” EM Ltd. v. Republic of
Argentina, 695 F.3d at 207. “Discovery sought pursuant to Rule 69 . . . must relate to the
existence or transfer of a judgment debtor’s assets.” Allstate Ins. Co. v. Mirvis, 2017 WL
384318, at *1 (E.D.N.Y. Jan. 25, 2017). The Court has reviewed the list of documents
requested in Plaintiff’s subpoena and concludes that these documents and a deposition of
Defendant Dhabuwala are reasonably related to Plaintiff’s efforts to identify the existence
or transfer of Dhabuwala’s assets, which in turn may assist Plaintiff in collecting upon
the judgment. In light of Defendant’s earlier failure to comply, an order directing
compliance is warranted. Plaintiff’s Motion to Compel this discovery, therefore, is
granted. 1
ACCORDINGLY, it is hereby
ORDERED, that Plaintiff’s Motion for Discovery under FED. R. CIV. P. 69 be
GRANTED; and it is further
ORDERED, that Plaintiff’s counsel shall serve a copy of this Decision and Order
upon the last known address of Defendant Ashok Dhabuwala and file prof of service with
the Court; and it is further
Plaintiff also seeks an order awarding attorneys’ fees associated with making this Motion. Slama Decl. at p. 10.
That Motion is denied, but the Court notes that it does have the authority to enter such an order and would consider
doing so if Defendant’s conduct necessitates further motion practice regarding discovery. See Banco Cent. De
Paraguay v. Paraguay Humanitarian Found., Inc., 2006 WL 3456521, at *11.
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ORDERED, that within thirty (30) days of service of this Order upon Defendant
Ashok Dhabuwala he shall produce for examination at the offices of Plaintiff’s counsel
all documents in his possession, custody and/or control responsive to the subpoena dated
April 30, 2018; and it is further
ORDERED, that Defendant Ashok Dhabuwala shall appear for a deposition at the
offices of Plaintiff’s counsel at a mutually agreeable date within sixty (60) days of the
service of this Decision and Order upon him; and it is further
ORDERED, that the Clerk of the Court serve a copy of this Decision and Order
upon the parties.
Date: April 11, 2019
Albany, New York
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