Sadis & Goldberg, LLP v. Banerjee

Filing 165

OPINION & ORDER re: 146 FIRST MOTION to Quash 141 142 filed by Sumanta Banerjee. For the reasons discussed above, Defendant's Motion to Quash is DENIED. The Clerk of Court is respectfully directed to close ECF 146 and mail a copy of this Opinion and Order to the pro se Defendant. If Plaintiff intends to file a motion for payment of expenses under Federal Rule of Civil Procedure 37(a)(5)(B), Plaintiff shall meet and confer with Defendant and provide a proposed briefing schedule by September 6, 2019. Plaintiff is directed to serve the subpoenas on Fidelity and HRB by August 30, 2019. (Signed by Magistrate Judge Ona T. Wang on 8/26/2019) (rro) Transmission to Docket Assistant Clerk for processing.

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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SADIS & GOLDBERG, LLP,
Plaintiff,
-againstSUMANTA BANERJEE,
Defendant.

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14-CV-0913 (LTS) (OTW)
OPINION & ORDER

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ONA T. WANG, United States Magistrate Judge:
I.

Introduction
Sadis & Goldberg, LLP brought this diversity action against their former client Sumanta

Banerjee for unpaid legal fees. Mr. Banerjee is now proceeding pro se. 1 Defendant has filed a
motion to quash Plaintiff’s third-party subpoenas to HRB Tax Group, Inc. (“HRB”), and Fidelity
Investments (“Fidelity”). See ECF 146. For the reasons that follow, Defendant’s motion to quash
is DENIED.
II.

Background
On February 18, 2015, the Honorable Laura T. Swain granted Plaintiff’s motion for a

default judgment and entered judgment. (ECF 39). Defendant appealed to the U.S. Court of
Appeals for the Second Circuit, asserting that because he was a United States citizen domiciled

Defendant had previously been represented by two attorneys but has proceeded pro se since April 16, 2019.
Jennifer M. Cabrera filed a Notice of Appearance on June 22, 2018, but she moved to withdraw on January 14,
2019 because Defendant had discharged her. (See ECF 110). Ms. Cabrera noted that her firm asserted a retaining
lien on the case file due to Defendant’s unpaid legal bills. (Id.). Robert N. Chan filed a Notice of Appearance on
January 11, 2019, and later moved to withdraw on April 16, 2019, citing Defendant’s failure to pay his legal bills.
(See ECF 129, 130).
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in India at the time the Complaint was filed, there is no basis for diversity jurisdiction. The Second
Circuit ultimately remanded the case for the district court to determine where Banerjee was
domiciled when the complaint was filed. (ECF 83). We are now in jurisdictional discovery.
This Court has held numerous discovery conferences where Plaintiff has repeatedly
asserted that Defendant has selectively withheld documents that would support his domicile in
the United States, which in turn would support a finding of diversity jurisdiction. Indeed, Plaintiff
seeks documents from Fidelity—concerning Defendant’s own account records—because
Defendant has apparently failed to produce such documents for over a year. Similarly, Plaintiff
seeks work files and communications from HRB because neither Defendant nor his wife were
able to answer Plaintiff’s deposition questions regarding the locus of Defendant’s earned income
and deductions.
Plaintiff filed the proposed subpoenas on May 15, 2019. (ECF 140, 141). Defendant moved
to quash the subpoenas on May 31, 2019. (ECF 146). After some requests to file certain
documents under seal or in redacted form, (ECF 154, 157), this motion was fully briefed on August
23, 2019.
III.

Discussion
Rule 45 allows a party to serve a subpoena for the production of documents and other

information from a non-party. See Fed. R. Civ. P. 45(a)(1). The subpoena recipient may move to
quash the subpoena if the subpoena “(i) fails to allow a reasonable time to comply; (ii) requires
a person to comply beyond the geographical limits specified in Rule 45(c); (iii) requires disclosure
of privileged or other protected matter, if no exception or waiver applies; or (iv) subjects a person
to undue burden.” Fed. R. Civ. P. 45(d)(3)(A)(i)-(iv). The party seeking to quash the subpoena

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bears the burden of persuasion. Concord Boat Corp. v. Brunswick Corp., 169 F.R.D. 44, 48 (S.D.N.Y.
1996). The same standard applies in a case such as this where a person other than the subpoena
recipient moves to quash the subpoena. Strike 3 Holdings, LLC v. Doe, No. 18-CV-2648, 2019 WL
78987, at *2 (S.D.N.Y. Jan. 2, 2019) (citing Malibu Media, LLC v. Doe, No. 15-CV-3504, 2016 WL
4444799, at *5-6 (E.D.N.Y. Aug. 23, 2016).
Subpoenas issued pursuant to Rule 45 may obtain discovery regarding “any nonprivileged
matter that is relevant to [a] party’s claim or defense.” In re Refco Sec. Litig., 759 F. Supp. 2d 342,
345 (S.D.N.Y. 2011) (alteration and emphasis in original) (quoting Fed. R. Civ. P. 26(b)(1)).
Relevance is to be “construed broadly to encompass any matter that bears on, or that reasonably
could lead to other matter that could bear on’ any party’s claim or defense.” State Farm Mut.
Auto. Ins. Co. v. Fayda, No. 14-CV-9792, 2015 WL 7871037, at *2 (S.D.N.Y. Dec. 3, 2015) (quoting
Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978)).
Here, Defendant does not move to quash the subpoena on any of the grounds listed in
Rule 45(d)(3)(A). Instead, Defendant’s arguments—in both his moving papers and reply—appear
to be based on relevancy or possibly that the documents are duplicative. Defendant argues that
the subpoenas are not necessary because he has already provided to Plaintiff any responsive
documents, and he disputes Plaintiff’s characterization of the content of previously-produced
documents. These arguments—which go to the merits of the case—are premature. See Strike 3
Holdings, 2019 WL 78987, at *2 (quoting Achte/Neune Boll Kino Beteiligungs Gmbh & Co. v. Does
1-4577, 736 F. Supp. 2d 212, 215-16 (D.D.C. 2010)) (“the merits of [a party’s] case are not relevant
to the issue of whether [the party’s] subpoena is valid and enforceable.”).

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The Court finds that the information Plaintiff seeks in the two subpoenas is relevant.
Plaintiff’s subpoena to HRB seeks work files for Defendant and his wife’s 2013 – 2016 tax returns
as well as communications between HRB’s representatives and either of the Banerjees. This
information is relevant to the extent it shows Defendant’s address, his income earned, and where
he earned his income. At their depositions, neither Defendant nor his wife was able to explain
certain earned income listed on the tax returns and deductions taken. (See Pl’s Opposition, Ex. A,
B). Plaintiff thus seeks work files and communications from HRB to fill in these gaps regarding
Defendant’s assets and earnings in the United States.
Plaintiff’s subpoena to Fidelity seeks account opening and modification documents and
account statements for Defendant’s accounts. These documents are similarly relevant to showing
Defendant’s address, as well as the extent of Defendant’s earned income and assets in the United
States. Plaintiff sought “bank accounts, investment accounts, or brokerage accounts, including
account opening documents [and] monthly statements” in their first set of document requests
to Defendant on August 3, 2018. (Pl’s Opp., Ex. C). Defendant did not produce any investment
account documents in response. On January 18, 2019, in Plaintiff’s subpoena to Ms. Banerjee,
Plaintiff requested her “bank accounts, investment accounts, or brokerage accounts, including
account opening documents [and] monthly statements.” (Pl’s Opp., Ex. D). Ms. Banerjee did not
produce any investment account documents in response, but she did produce bank account
statements. When reviewing Ms. Banerjee’s bank account statements, Plaintiff noticed deposits
from a Fidelity account. Therefore, on March 6, 2019, the Court ordered Ms. Banerjee to produce
“all of her investment account and brokerage account statements from 2013 and 2014.” (ECF
124, at 1). Ms. Banerjee then produced statements revealing that two Fidelity accounts existed,

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one a joint account with her husband, and a second account solely in her husband’s name. (See
Pl’s Opp., Exs. E, F). Neither Ms. Banerjee nor Defendant produced account opening or
modification documents or complete monthly statements for either of the two Fidelity accounts.
In sum, Defendant has not identified—nor has the Court found—any basis for the Court
to quash Plaintiff’s third-party subpoenas seeking documents from HRB and Fidelity. 2 The
information Plaintiff seeks is plainly relevant to the issue of Defendant’s domicile. Defendant has
not shown that “the documents [Plaintiff’s seek] were so untethered to the allegations in the
. . . complaint that the [] court was compelled to quash the subpoenas. In re Speer, 754 F. App’x
62, 64 (2d Cir. 2019). Accordingly, Defendant’s motion to quash is denied.
IV.

Conclusion
For the reasons discussed above, Defendant’s Motion to Quash is DENIED. The Clerk of

Court is respectfully directed to close ECF 146 and mail a copy of this Opinion and Order to the
pro se Defendant. If Plaintiff intends to file a motion for payment of expenses under Federal Rule
of Civil Procedure 37(a)(5)(B), Plaintiff shall meet and confer with Defendant and provide a
proposed briefing schedule by September 6, 2019. Plaintiff is directed to serve the subpoenas on
Fidelity and HRB by August 30, 2019.
SO ORDERED.

Dated: August 26, 2019
New York, New York

s/ Ona T. Wang
Ona T. Wang
United States Magistrate Judge

Indeed, one could infer from the tortuous history of the case that Defendant’s actions led Plaintiff to seek the
documents from other sources, and that had Defendant been more forthcoming in his own document production,
and in a timely manner, these subpoenas would not have been necessary.

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