Donoghue et al v. Astro Aerospace Ltd. et al

Filing 55

ORDER granting 53 Letter Motion to Compel. Plaintiffs' motion for reasonable attorney's fees and costs in association with the motion to compel is GRANTED. Plaintiffs are directed to submit their detailed fee request for the court's review no later than January 30, 2023. The Clerk is directed to terminate the motion at ECF No. 53. (Signed by Judge J. Paul Oetken on 11/21/2022) (ate)

Case 1:19-cv-07991-JPO Document 55 Filed 11/21/22 Page 1 of 3

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
DEBORAH DONOGHUE
and MARK RUBENSTEIN,

19-CV-7991 (JPO)

Plaintiffs,

ORDER

-vASTRO AEROSPACE LTD.,
Nominal Defendant,
and
BRUCE BENT,
Defendant.

J. PAUL OETKEN, District Judge:
On April 28, 2022, the Court entered a final judgment awarding Plaintiffs’ counsel a total
of $15,725.00 in fees and costs, to be paid jointly and severally by Defendant Bruce Bent and
Nominal Defendant Astro Aerospace Ltd. (Dkt. No. 49.) The Clerk of the Court entered a writ
of execution in that amount against Defendants on June 8, 2022.
Plaintiffs now move to compel Defendants to respond to their outstanding post-judgment
document and deposition subpoenas, pursuant to Federal Rule of Civil Procedure 69(a)(2).
Plaintiffs also request an order compelling Defendants to pay the attorney’s fees and expenses
incurred in connection to their motion, pursuant to Federal Rule of Civil Procedure 37(a)(5)(A).
Plaintiffs’ counsel certifies that they attempted to meet and confer in advance of filing the
motion to compel, as required by Federal Rule of Civil Procedure 37(a)(1). Because Defendants
failed to respond to Plaintiffs’ motion within the applicable time period set by Local Rule 6.1,
Plaintiffs’ motion is unopposed.
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Case 1:19-cv-07991-JPO Document 55 Filed 11/21/22 Page 2 of 3

Under Rule 69(a)(2), “[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.” Chevron Corp. v.
Donziger, No. 11 CIV. 0691 (LAK), 2020 WL 635556, at *4 (S.D.N.Y. Feb. 11, 2020) (internal
quotations omitted). Rule 69(a)(2) has been interpreted to permit judgment creditors “wide
latitude in using the discovery devices provided by the Federal Rules in post-judgment
proceedings.” GMA Accessories, Inc. v. Elec. Wonderland, Inc., No. 07 CIV. 3219 PKC DF,
2012 WL 1933558, at *4 (S.D.N.Y. May 22, 2012) (citing Gibbons v. Smith, No. 01 CIV.
1224(LAP), 2010 U.S. Dist. LEXIS 13938, at *6 (S.D.N.Y. Feb. 9, 2010)). Plaintiffs’ use of
document and deposition subpoenas to discover information relating to the prior final judgment
and writ of execution in this matter is clearly appropriate. The motion to compel post-judgment
discovery is granted.
Finally, Rule 37(a)(5)(A) requires the court to compel the party whose conduct
necessitated the motion to compel to pay the movant’s reasonable expenses and attorney’s fees
incurred in making the motion—but only after the court gives that party an opportunity to be
heard. Plaintiffs’ request for attorney’s fees and expenses was clearly stated in their motion, and
Defendants had an opportunity to be heard on the matter by filing an opposition within the
fourteen-day period set out in the local rules. See Wager v. G4S Secure Integration, LLC, No. 19
CIV. 3547 (MKV), 2021 WL 293076, at *5 (S.D.N.Y. Jan. 28, 2021) (“It is evident therefore
that Plaintiff’s request for an award of expenses in her notice of motion and opening brief—
albeit perfunctory—put Defendant on notice that she intended to move to recover expenses in the
event she succeeded on her motion and gave Defendant an opportunity to be heard on the issue

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Case 1:19-cv-07991-JPO Document 55 Filed 11/21/22 Page 3 of 3

of expenses, as required under Rule 37.”). Plaintiffs’ motion for attorney’s fees and expenses is
therefore granted.
Plaintiffs’ motion to compel post-judgment discovery is GRANTED. Defendants shall
respond to Plaintiffs’ document subpoena by January 1, 2023. Defendant Bruce Bent shall
appear via Zoom for a deposition by Plaintiffs’ counsel on a date mutually agreeable to the
parties and no later than January 15, 2023. Defendants’ failure to respond will subject them to
further sanctions.
Plaintiffs’ motion for reasonable attorney’s fees and costs in association with the motion
to compel is GRANTED. Plaintiffs are directed to submit their detailed fee request for the
court’s review no later than January 30, 2023.
The Clerk is directed to terminate the motion at ECF No. 53.
SO ORDERED.
Dated: November 21, 2022
New York, New York
____________________________________
J. PAUL OETKEN
United States District Judge

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