Perez et al v. Escobar Construction, Inc. et al

Filing 168

ORDER: denying 133 Motion for Sanctions. For the foregoing reasons, plaintiffs' motion for sanctions (Docket # 133) is denied. (Signed by Magistrate Judge Gabriel W. Gorenstein on 9/19/2022) (ama)

Case 1:20-cv-08010-LTS-GWG Document 168 Filed 09/19/22 Page 1 of 2

.UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------------X
MARCO ANTONIO PEREZ PEREZ et al.,
:
Plaintiffs,
:
-v.:
ESCOBAR CONSTRUCTION, INC. et al.,

ORDER
20 Civ. 8010 (LTS) (GWG)

:

Defendants.
:
---------------------------------------------------------------X
GABRIEL W. GORENSTEIN, United States Magistrate Judge
With regard to the motion for sanctions (Docket ## 133-35), the plaintiffs’ notice of
motion (Docket # 133) fails to “specify the applicable rules or statutes pursuant to which the
motion is brought” as required by Local Civil Rule 7.1(a)(1), and thus would have to be denied
for this reason alone.
Additionally, plaintiff’s papers suffer from another significant failure: specifically,
plaintiffs’ memoranda of law in numerous instances fail to comply with paragraph 2.D of the
Court’s Individual Practices. That paragraph provides in pertinent part that a memorandum of
law
must contain a fact section that sets forth all facts relevant to the motion and, for
each factual statement, provides one or more citations (with specific page or
paragraph numbers) to pleadings, declarations, affidavits or other documents that
have been separately filed. Any factual statement contained within other sections
of a memorandum also must be followed by a citation to documents in the record.
Plaintiffs’ memoranda contain numerous factual assertions with no citation to the record.
These procedural failings have made it all the more difficult for the Court to adjudicate
this motion. But even putting them aside, plaintiffs’ papers are inadequate. The fact section in
plaintiffs’ opening memorandum is particularly useless. Approximately 15 of its 17 pages
consist of quotations of deposition testimony. On these pages, there is no marshalling of
pertinent evidence or explanation provided.
The argument section provides some additional information, but it too is largely opaque.
Addressing at first what rule plaintiffs are relying on, plaintiff’s opening brief mentions Rules
26, 37 and 56(h) of the Federal Rules of Civil Procedure (Docket # 135 at 1). The latter rule is
obviously inapplicable, however, as there has been no motion for summary judgment filed in this
case. Rule 26 is also not directly applicable inasmuch as Rule 37 is the rule that provides a
mechanism for sanctioning any failure to comply with obligations under Rule 26. It thus appears
that plaintiffs seek sanctions under Fed. R. Civ. P. 37 --- specifically subsection (b)(2), which is

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mentioned on the first page of the argument section of their brief. (Docket # 135 at 19). The
application is premised on plaintiffs’ contention that Escobar did not comply with a Court order
to furnish information to plaintiffs identifying “construction workers, painters, laborers,
finishers, and supervisors employed by defendants who worked at the Binghamton or Ithaca
work sites.” Docket #81 at 17; see also Docket # 82. While it is hardly clear, it appears that the
plaintiffs’ argument centers on their contention that the lists of names provided by Escobar did
not include all supervisors and did not include other workers who worked at those jobsites.
Plaintiffs also find it significant that Escobar indicated his compliance with the Court’s order by
signing an affidavit stating as much. (Docket #134-1).
The deposition testimony quoted by plaintiffs, however, provides insufficient proof of
plaintiffs’ contention that the lists were inadequate. It is simply unclear what portions of the
Escobar deposition purportedly support plaintiffs’ arguments. To the extent plaintiff is
contending that Escobar was required to provide a list of the employees of “sub-contractors,” Pl.
Mem. at 3, that contention is rejected. The Court’s Order required that notice be given only to
persons “employed by defendants,” Docket # 81 at 17, not to employees of subcontractors, and
thus defendants were not required to furnish a list of employees of subcontractors. The Court
cannot make the findings based on the current record that any employees of subcontractors as
referenced in Escobar’s deposition were also employees of any of the defendants.
As for supervisors, Escobar’s deposition testimony contains a portion that could be
interpreted as suggesting that he intentionally omitted supervisors from the initial list provided to
plaintiffs (see Docket # 135 at 18). But it is unclear if Escobar is referring to supervisors
working at the two New York job sites. Certainly, there is no clear record that would allow the
Court to find that Escobar deliberately violated the Court’s Order. Also, to sanction Escobar for
any unintentional omission that was later corrected would not be “just” within the meaning of
Fed. R. Civ. P. 27(b)(2)(A). See generally Agiwal v. Mid Island Mortg. Corp., 555 F.3d 298, 302
(2d Cir.2009) (Fed. R. Civ. P. 37(b) requires that a court consider ”the willfulness of the noncompliant party”). At this point, the Court cannot find that Escobar currently has in his
possession and control information regarding supervisors employed by defendants at the two
relevant sites that has not been furnished to plaintiffs.
For the foregoing reasons, plaintiffs’ motion for sanctions (Docket # 133) is denied.
Dated: September 19, 2022
New York, New York

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