Galland et al v. Johnston et al
OPINION AND ORDER: re: 94 MOTION for Recusal. filed by Claude Galland, 90 AMENDED MOTION to Dismiss . filed by James Johnston, Judith Johnston. For the foregoing reasons, Defendants' motion to dismiss is DENIED, and Plaint iffs' motion to recuse Porter and their requests to proceed to trial are DENIED. Claude Galland shall file a letter updating the Court on his medical condition, with supporting medical documentation on or before September 29, 2017. This Opinion and Order resolves Doc. Nos. 90 and 94. (Signed by Magistrate Judge Ronald L. Ellis on 9/14/2017) (js) Copies Mailed by Chambers
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
CLAUDE GALLAND & VIOLAINE GALLAND,
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OPINION AND ORDER
- against 14-CV-4411 (RJS) (RLE)
JAMES JOHNSTON & JUDITH JOHNSTON,
RONALD L. ELLIS, United States Magistrate Judge:
This breach of contract case is before the undersigned for General Pretrial and
Dispositive Motions. (Doc. No. 5.) On October 20, 2016, Defendants James Johnston and
Judith Johnston (collectively, "the Johnstons" or "Defendants") filed a motion to dismiss
pursuant to Federal Rules of Civil Procedure 3 7 and 41, for failure to comply with discovery
orders. (Doc. Nos. 88, 90-92.) On November 3, 2016, Plaintiffs Claude Galland and Violaine
Galland (collectively, "the Gallands" or "Plaintiffs") filed their opposition. (Doc. No. 89.) On
November 28, 2016, the Johnstons filled their reply. (Doc. No. 99.) The Gallands filed a surreply on November 29, 2016. (Doc. No. 100.)
On November 10, 2016, the Gallands filed a motion to recuse the Johnston's attorney and
daughter, Lisa Porter ("Porter"). (Doc. No. 94.) That same day, the Gallands filed a letter
requesting that the Oregon State Bar investigate and discipline Porter. (Doc. No. 95.) On
November 14, 2016, the Johnstons filed their opposition, (Doc. No. 96.), and Porter filed a letter
in response to the Gallands' Oregon State Bar letter. (Doc. No. 97.) The Gallands filed a reply
on November 29, 2016. (Doc. No. 99.)
For the following reasons, the Johnstons' motion to dismiss and the Gallands' motion to
recuse are DENIED.
The Gallands own a rental property in Paris, France, and advertise their property to
potential travelers on a travel website called Vacation Rentals by Owner. (Doc. No. 18.) The
Johnstons stayed at the property for four nights, from May 24 to May 28, 2013. (Doc. No. 2.)
Prior to their stay, the Johnstons signed written rental agreements. Id. A clause in the rental
agreement states: "The tenants agree not to use biogs or websites for complaints, anonymously
or not." Id. The Gallands allege that subsequent to their stay, the Johnstons breached the
contract by publishing complaints on various websites. Id.
On January 13, 2015, the Court recommended that all claims be dismissed, with
exception of the breach of contract claim, and the Honorable Richard J. Sullivan adopted the
Report and Recommendation. (Doc. Nos. 30, 32.) The Court also denied the Gallands' motion
for summary judgment and motion to amend their Complaint. (Doc. No. 30.)
On September 2, 2015, an initial pretrial conference was held. On January 21, 2016, the
Court ordered the Parties to "refile all outstanding discovery requests, including notice of
depositions, by February 4, 2016," and warned the Gallands that "failure to participate in
discovery may lead to dismissal of their case for failure to prosecute." (Doc. No. 62.) The
Gallands sent the Johnstons a letter with discovery requests dated January 29, 2016, which was
received by Porter on February 5, 2016. (Doc. No. 91 at 3.) The Johnstons e-filed their requests
for document production, admissions, and interrogatories on February 4, 2016. (Doc. Nos. 6365.)
On March I, 2016, the Gallands filed a letter raising several discovery issues. (Doc. No.
66.) The Gallands state that they received "redundant" discovery demands and had not received
even "a scintilla of documents." Id The Gallands also requested that the depositions be held in
person in New York. Id.
The Johnstons responded on March 4, 2016, stating that they produced "approximately
68 pages of documents" on February 25, 2016, and indicated that they would be available for
depositions in Oregon or via telephone. (Doc. No. 67.) The Johnstons also noted that the
Gallands "have failed to adequately answer discovery requests and have not produced any
documents to date." (Doc. No. 67.)
On March 9, 2016, the Johnstons filed a letter asking for a pre-motion discovery
conference, alleging that the Gallands' responses to discovery requests were "filled with
argument and dictum offered only for the purpose of harassment." (Doc. No. 68 at 1.) The
Johnstons also asked that discovery be limited to written interrogatories in lieu of depositions.
(Id. at 2.)
The Court held a telephone conference on April 13, 2016, where Claude Galland
("Galland") indicated that he had a medical condition impairing his ability to hear. (Doc. No.
79.) The Court ordered Galland to file a letter describing his impairment and limitations, along
with medical documentation for in camera review. Id.
On May 3, 2016, the Court stayed the case until June 28, 2016. (Doc. No. 81.) Galland
was instructed to inform the Court if his condition changed before that date. Id. On June 23,
2016, the Gallands filed a letter asking that the proceedings more forward, offering to "forgo"
depositions, and stating that they are ready for trial. (Doc. No. 82.) The Court once again stayed
the case "until at least August 15, 2016," (Doc. No. 83.), and "determined that a pre-motion
telephone conference does not accommodate Galland's hearing impairment." (Doc. No. 87 at 1.)
The Court also acknowledged that the Gallands' discovery responses might require
supplementation, and set a briefing schedule for the Johnston's anticipated motion to compel or
motion to dismiss. (Doc. No. 87 at 2.)
The Johnstons' motion to dismiss requests that the case be dismissed pursuant to Rule 37
because the Gallands "have failed to respond adequately to discovery and have failed to produce
one document" in response to the Johnstons' document requests. (Doc. No. 92 at 1.) The
Johnstons argue that the Gall ands failed to 1) produce evidence of Claude Galland' s medical
impairment and 2) explain why Violaine Galland could not appear on behalf of both Plaintiffs,
thus their "refusals to participate in discovery were not made for good cause." (Id. at 2.) The
Johnstons also move for dismissal pursuant to Rule 41 for failure to prosecute. Id.
The Gallands filed their opposition, stating that Porter attempts to "defraud" the Court by
making factual misrepresentations. (Doc. No. 89 at 1.) The Gallands argue that 1) the motion to
dismiss is untimely because they were not served until after the deadline, 2) the Court "denied
the entire discovery demands requested by PlaintiffTs], ... PlaintiffTs'] right to conduct
discover[y] face-to face, ... and PlaintiffTs'] right to any document discovery," and 3) medical
evidence was hand delivered to the Court. (Id. at 2-3.) The Gallands also note that they are not
in possession of documents the Johnstons request, which are "solely in the control of the
managing agent in Paris," and they provided the Johnstons with contact information for the
managing agent. (Id. at 4-5.) The Gallands also assert that they did not receive "a scintilla of
documents" or answers to their "written questions and demand[s]." (Id. at 6.) The Gallands ask
that the Johnstons' motion be striken and summary judgment be entered in the Gallands' favor,
or alternatively, the Gallands be granted "full" discovery, including depositions held in New
York, and leave to amend their Complaint, and Porter be recused and the Gallands be awarded
treble damages in the amount of$5,000 pursuant to New York Judiciary Law§ 487_ (Doc_ No.
89 at 8, 11-13.)
In response, the Johnstons argue that no "fraud" occurred because Porter was not aware
that medical documents were submitted to the Court, and they characterize the medical evidence
as "suspicious." (Doc. No. 98 at 10-13.) The Johnstons also note that the Court found that
Porter was not a material witness, and denied the Gallands' objection to Porter appearing as pro
bono counsel. (Doc. No. 98 at 3.)
The Johnstons argue that the Gallands' discovery requests:
failed to conf1 o ]rm with Federal Rules of Civil Procedure as ordered by the [C]ourt, nor
were most of the demands within the scope of discovery under the Federal Rules,
including the demand that the Johnstons establish their "mental health" and include
disclosure of drugs taken, medical records of depression and bipolar issues, records of
their "delusional state," police records[,] and treatments for anger management.
(Id. at 5.)
The Johnstons also argue that the Gallands "refused to submit any documentation or
respond appropriately to interrogatories." (Id. at 5.) The Johnstons further note that "[t]his
matter is not ready for trial because the parties have not even been able to complete the first
round of discovery." (Id. at 4.)
The Gallands filed a sur-reply arguing again that they cannot produce documents that
they do not have in their control. (Doc. No. 100 at 2.)
On November 10, 2016, the Gallands filed a motion to recuse, alleging that Porter
committed perjury and fraud for stating that Claude Galland did not produce medical
documentation supporting his medical impairment. (Doc. No. 94.) The Gallands seek $1,000 in
treble damages. (Id at 6.) The Gallands also filed a letter addressed to the Oregon State Bar
seeking disciplinary action against Porter, mirroring the motion to recuse. (Doc. No. 95.)
The Johnstons filed an opposition to the motion to recuse on November 14, 2016, arguing
that Porter "did not commit perjury or fraud" and the Gallands' motion "is an extension of their
continuous harassment and bullying through financial pressure and continuous inappropriate and
malicious attacks on the credibility of the [Johnstons'], and [Porter], to settle this case." (Doc.
No. 96 at 1.) The Johnstons note that "[i]t was Defendants' understanding from the Court's
Order that it accepted the letter and Plaintiff Claude's statements of his condition to be [a] valid
reason to Order a Stay until [Claude] is 'medically cleared for oral communication."' (Id at 6.)
The Johnstons also argue that "[b]ecause [Gallands' medical documentation] was [filed]
in camera it was not available for download [via] ECF ... therefore [Porter] was not able to
access the actual copy of the letter ... and the ECF Notice did not state that the letter had any
attached exhibits." (Id. at 5.) The Johnstons state that they filed a letter on April 28, 2016, 1
which, they argue, put the Gallands "on notice" that the Johnstons believed that no medical
documentation was submitted. (Doc. No. 96-4 at 1.) The Johnstons state that they did not
received the medical documentation until November 8, 2016, when the Gallands opposed the
motion to dismiss. (Doc. No. 96 at 6.)
The Gallands filed a reply on November 29, 2016, arguing that Porter "admitted reading
the words "in camera" and knew the Court had reviewed the medical records that were produced
simply because the Court explicitly had stated [it] received the medical records on April 26,
2016." (Doc. No. 99 at 3.) The Gallands also argue that Porter lied "about a fictitious non-
1 No such submission is entered on the docket on April 28, 2016. The Johnstons attach the letter as an Exhibit in
their opposition to the Gallands' motion to recuse. (Doc. No. 96-4 at I.)
compliance to influence the Court to dismiss." (Doc. No. 99 at 4.) The Gallands seek recusal
of Porter and that the case proceed to trial. (Id at 7.)
The Johnstons' Motion to Dismiss
When a party "fails to obey an order to provide or permit discovery," Rule 37 provides
that the Court "may issue further just orders," including:
directing that the matters embraced in the order or other designated facts be
taken as established for purposes of the action, as the prevailing party claims;
prohibiting the disobedient party from supporting or opposing designated
claims or defenses, or from introducing designated matters in evidence;
striking pleadings in whole or in part;
staying further proceedings until the order is obeyed;
dismissing the action or proceeding in whole or in part;
rendering a default judgment against the disobedient party; or
treating as contempt of court the failure to obey any order except an order to
submit to a physical or mental examination.
Fed. R. Civ. P. 37(b)(2)(A)(i)-(vii).
Additionally, under Rule 41, "[i]f the plaintiff fails to prosecute or to comply with these
rules or a court order, a defendant may move to dismiss the action or any claim against it." Fed.
R. Civ. P. 4l(b).
Here, the Gallands filed discovery requests and responded to the Johnstons' discovery
requests. This is not a situation where the Gallands have not responded at all to discovery
requests. Instead, the issue is the sufficiency of discovery responses and document production
on both sides. While the Court acknowledged that the Gallands' discovery responses may
require supplementation, (Doc. No. 87.), the appropriate next step was to schedule a conference
to resolve disputes. A conference was scheduled, but, Claude Gallands' medical impairment
made telephonic conferences impractical. (Doc. No. 81at2; see also Doc. No. 87.) The Court
did not have an opportunity to resolve disputes, and ordered Claude Galland to file a letter
detailing his impairment with supporting evidence for in camera review, which he timely
submitted. (Id. at 1.) The Court stayed the case pending an improvement of his condition,
finding that "serious concerns regarding the sufficiency and scope of each others' discovery
requests and productions ... cannot be resolved without oral communication between the Parties
and with the Court." (Doc. No. 81 at 2.) Additionally, the Gallands have expressed their wishes
to proceed with this case.
Therefore, the Johnstons' motion to dismiss the Gallands' Complaint because of their
alleged failure to participate in discovery is premature and hereby DENIED. Additionally, the
Gallands' requests for summary judgment, "full-discovery," and to file an amended complaint
are DENIED. The Court has previously ruled on these issues, (see Doc. Nos. 30, 32.), and will
not reconsider its decision.
The Gallands' Motion to Recuse
Although the Gallands seek sanctions pursuant to Judiciary Law§ 487 and 18 U.S.C. §§
1621 and 1623, the Court finds sanctions or recusal under these statutes inapposite. The Court
finds that Rule 11 is more on point as it governs representations to the Court. When "an attorney
or unrepresented party certifies that to the best of the person's knowledge, information, and
belief, formed after an inquiry reasonable under the circumstances," those "factual contentions
[must] have evidentiary support" or if denials of factual contentions are made, those assertions
"are warranted on the evidence or, if specifically so identified, are reasonably based on belief or
a lack of information." Fed. R. Civ. P. ll(b)(3)-(4).
Moving for Rule 11 sanctions requires "notice and a reasonable opportunity to respond."
(Id. at I l(c).) Despite procedural deficiencies here, the Court finds that sanctions pursuant to
Rule 11 are without merit. The Court acknowledges that Porter incorrectly argued that Claude
Galland did not file medical documentation, but, those assertions were made based on a lack of
information or a reasonable misunderstanding. The Johnstons did not receive the medical
documentation until after the motion to dismiss had been filed. (Doc. No. 96 at 6.)
Therefore, the Gallands' motion to recuse and impose damages is DENIED.
For the foregoing reasons, Defendants' motion to dismiss is DENIED, and Plaintiffs'
motion to recuse Porter and their requests to proceed to trial are DENIED. Claude Galland shall
file a letter updating the Court on his medical condition, with supporting medical documentation
on or before September 29, 2017. This Opinion and Order resolves Doc. Nos. 90 and 94.
SO ORDERED this 14th day of September 2017.
New York, New York
The Honorable Ronald L. Ellis
United States Magistrate Judge
MAILED BY CHAMBERS
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