Metzgar et al v. U.A. Plumbers and Steamfitters Local No. 22 Pension Fund et al

Filing 77

DECISION AND ORDER. Plaintiffs' motion to consolidate (Dkt. 72, Dkt. 5) is DENIED; Defendants request (Dkt. 74) to stay Metzgar II is GRANTED; Defendants alternative motion (Dkt. 74) to dismiss is DISMISSED as moot; Defendants motion to compel ( Dkt. 69) is GRANTED. Plaintiffs shall show cause not later than 14 days from this Decision and Order why Defendants' expenses, including reasonable attorneys fees, incurred in connection with Defendants motion should not be granted in accordanc e with Fed.R.Civ.P. 37(b)(2)(C) with respect to Plaintiffs' failure to comply with the April 24, 2017 Order to provide complete answers to Defendants Interrogatory No. 4, and pursuant to Fed.R.Civ.P. 37(c)(3) with respect to Plaintiffs refusal t o schedule Plaintiffs deposition; Defendants' response shall be filed not later than 14 days thereafter. Oral argument shall be at the courts discretion. An Amended Scheduling Order as to further proceedings in Metzgar I will be filed by the court. Signed by Hon. Leslie G. Foschio on 8/29/2017. Associated Cases: 1:13-cv-00085-LJV-LGF, 1:17-cv-00726-LJV-LGF(SDW)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
________________________________________
GARY METZGAR, RICHARD MUELLER,
KEVIN REAGAN, RONALD REAGAN,
CHARLES PUGLIS, SHERWOOD NOBLE,
DANIEL O’CALLAGHAN,
Plaintiffs,
v.

DECISION
and
ORDER
13-CV-85V(F)

U.A. PLUMBERS AND STEAMFITTERS LOCAL
NO. 22 PENSION FUND,
BOARD OF TRUSTEES OF U.A. PLUMBERS AND
STEAMFITTERS LOCAL NO. 22 PENSION FUND, and
DEBRA KOROPOLINSKI, in her capacity as Plan
Administrator, for the U.A. Plumbers and Steamfitters
Local 22 Pension Fund,
Defendants.
________________________________________
GARY METZGAR, RICHARD MUELLER,
SHERWOOD NOBLE, DANIEL O’CALLAGHAN,
CHARLES PUGLIA, KEVIN REAGAN,
RONALD REAGAN,
Plaintiffs,
v.
U.A. PLUMBERS AND STEAMFITTERS LOCAL
NO. 22 PENSION FUND,
BOARD OF TRUSTEES OF U.A. PLUMBERS AND
STEAMFITTERS LOCAL NO. 22 PENSION FUND,
DONALD BROWN, JR., RICHARD COSTANZO,
JEREMIAH DONOVAN, DAVID GRIMBLE,
PATRICK LOOMIS, RANDOLPH LUTZ,
ROBERT E. MAZE, DAVID QUACKENBUSH,
PETE SEAGER, SR., DANIEL BRITZZALARO,
RICHARD EVANS, JOHN NUTTLE, VAN MOLLENBERG,
DAVID MUSKOPF, JOHN SAMAR, GEORGE SCHALK,
E. MICHAEL REDMOND, DEBRA KORPOLINSKI,
Defendants.
____________________________________________
APPEARANCES:

CHRISTEN ARCHER PIERROT, ESQ.
Attorney for Plaintiffs
45 S. Grove Street, B
East Aurora, New York 14052

17-CV-726V(F)

COLLIGAN LAW LLP
Attorneys for Plaintiffs
MATTHEW K. PELKEY, of Counsel
12 Fountain Plaza, Suite 600
Buffalo, New York 14202
BLITMAN & KING
Attorneys for Defendants
JULES L. SMITH, of Counsel
The Powers Building
16 West Main Street, Suite 207
Rochester, New York 14614

In this ERISA action Plaintiffs allege unlawful reductions and/or elimination of
Plaintiffs’ accrued pension benefits in violation of 29 U.S.C. §§ 1054(g), 1132(a)(1)(B),
breach of fiduciary duty, and declaratory relief. By papers filed July 26, 2017 (Dkt. 69),
Defendants move to compel (1) Plaintiffs’ depositions, and (2) Plaintiffs’ full responses
to Defendants’ Interrogatory No. 4 requesting Plaintiffs’ employment information, i.e., for
Plaintiffs’ employment from one month prior to the commencement of Plaintiffs’ pension
benefits to January 31, 2012, Dkt. 69-1 ¶¶ 22-23. Defendants also request expenses
pursuant to Fed.R.Civ.P. 37(b)(2)(C) based on Plaintiffs’ failure to comply with the
court’s Order, filed April 24, 2017 (Dkt. 67) (“the April 24, 2017 Order”), which granted,
without opposition, Defendants’ motion to compel Plaintiffs’ answers to Defendants’
First Set of Interrogatories and Document Requests and required Plaintiffs’ answers not
later than May 5, 2017 (“Defendants’ motion”).
In opposition, Plaintiffs filed Plaintiffs’ cross-motion for consolidation pursuant to
Fed.R.Civ.P. 42(a) of the instant action (“Metzgar I”) with a recently, August 1, 2017, 17CV-725V(F) “(Metzgar II”) filed action alleging similar but not identical claims against
Defendants in Metzgar I as well as several former trustees and a former Plan
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administrator, for a protective order pursuant to Fed.R.Civ.P. 26(c) (“Plaintiffs
Consolidation Request”), and a stay of discovery and further proceedings pending a
determination of Plaintiffs’ Consolidation Request (“Plaintiffs’ motions”). Both Metzgar I
and Metzgar II have been referred to the undersigned for all pretrial matters. See
Metzgar I Dkt. 40; Metzgar II Dkt. 7. Defendants in Metzgar I (Defendants in Metzgar II
have not yet appeared) oppose Plaintiffs’ motions contending Plaintiffs’ motions, if
granted, would unnecessarily delay resolution of the threshold governing question of
whether Plaintiffs properly retired under Defendants’ Plan, Dkt. 74 at 4, that as Metzgar
II is therefore substantially duplicative of Metzgar I, Metzgar II, not Metzgar I, should be
stayed or dismissed, Dkt. 74 at 6, and that discovery in Metzgar I, including Defendants’
motion to compel Plaintiffs’ complete answers to Interrogatory No. 4 and Plaintiffs’
depositions, should proceed. Dkt. 74 at 4-5. Defendants also maintain that
consolidation is not proper as to do so will merely delay an early and definitive
determination of the merits of both cases. Dkt. 74 at 8.
In reply, Plaintiffs argue that consolidation will serve judicial economy and avoid
duplicative litigation costs and the possibility of inconsistent outcomes. Dkt. 74 ¶¶ 1213. Plaintiffs also contend Plaintiffs commenced Metzgar II promptly following
completion of Plaintiffs’ appeal in June 2017 challenging Defendants’ December 2016
determination that Plaintiffs had since 2008 upon commencing Plaintiffs’ early, i.e., prior
to reaching age 65, retirement, been improperly paid hundreds of thousands of dollars
in early retirement pension benefits and authorizing set-offs against Plaintiffs’ future
pension checks, i.e., after reaching age 65 entitling Plaintiffs to normal retirement
benefits, Dkt. 75 ¶¶ 4-5, and therefore the belated commencement of Metzgar II was not

3 

through any delay caused by Plaintiffs. Id. Oral argument was conducted August 17,
2017 (Dkt. 76).
As an overview, Plaintiffs allege that beginning in 2008 Plaintiffs were granted
early retirement pensions by the Plan yet continued working for construction industry
employers who made contributions to the Plan which Defendants later determined
rendered Plaintiffs’ receipt of early retirement pensions erroneous. Plaintiffs allege
Plaintiffs’ decision to continue employment in the construction industry was permitted by
the Plan. Plaintiffs allege Defendants, upon determining that such erroneous benefits
had been received by Plaintiffs, amended the Plan in December 2011, and terminated
Plaintiffs’ early retirement pensions beginning in February 2012 when five of the
Plaintiffs elected to forgo further pension benefits and to continue employment in the
construction industry which Defendants contend disqualified Plaintiffs from receiving
early retirements from the Plan at the outset of Plaintiffs’ early retirement election.
Thereafter, in December 2016, Defendants further amended the Plan to authorize a setoff in the amount of 25% of Plaintiffs’ monthly pension payments received after Plaintiffs
attained age 65, to which Plaintiffs were then entitled under the Plan, as a means to
recoup the prior pension payments made according to Defendants by the Plan in error.
The instant action alleging violations of ERISA’s anti-cut back provision based on
Defendants’ termination of Plaintiffs’ early retirement benefits was commenced in
January 2013. On August 1, 2017, Plaintiffs commenced a second action following
Plaintiffs’ unsuccessful appeal of Defendants’ December 2016 amendment authorizing
the disputed set-offs of the early retirement benefits Defendants subsequently
determined were erroneously paid.

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1.

Plaintiffs’ Motions.
a)

Consolidation.

It is basic that under Fed.R.Civ.P. 42(a) (“Rule 42(a)”), consolidation of actions
for pretrial proceedings and trial may be ordered where such actions involve a common
question of law or fact. J.H. v. Williamsville Central School District, 2015 WL 2080221,
at *4 (W.D.N.Y. May 4, 2015) (Rule 42(a) requires only either a common question of law
or fact, which common questions need not predominate) (citing authorities). The court
has broad discretion in balancing the interests of parties, witnesses and court as well as
the time and expense entailed by separate proceedings. J.H., 2015 WL 2080221, at *3.
The fact that the actions have different parties is not a bar for consolidation. See
Garber v. Randell, 477 F.2d 711, 714 (2d Cir. 1973) (considering fact that some claims,
defenses, or parties in separate actions may be different is not determinative as to
whether cases may be consolidated, but only factors to be considered in determining
whether benefits outweigh prejudice on consolidation motion); see also Nat’l Ass’n of
Mortgage Brokers v. Bd. of Governors of Federal Reserve System, 770 F.Supp.2d 283,
286 (D.D.C. 2011). Here, Defendants concede Metzgar I and Metzgar II involve
common issues of law and fact. Dkt. 74 (“Metzgar II involves the same facts and
duplicates the central issue present in Metzgar I – did Plaintiffs retire [in accordance
with the terms of Defendants’ Pension Plan]”). A review of the complaints in Metzgar I
and Metzgar II indicates both actions allege at least two identical claims, i.e.,
Defendants’ violation of 29 U.S.C. § 1054(g) (prohibiting unauthorized reductions or cutbacks by plan amendment in a beneficiary’s pension benefits), and 29 U.S.C. §
1132(a)(1)(B) (wrongful termination of benefits). Metzgar I also alleges a breach of
fiduciary duty (without reference to any ERISA provision) against Defendant
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Koropolinski, the current Plan administrator and a claim for declaratory relief. In
addition to these claims, Metzgar II alleges violation of 29 U.S.C. § 1132(a)(3) (breach
of fiduciary duty) against Defendant Koropolinski, 29 U.S.C. § 1140 (prohibiting
discriminatory treatment of Plan participants) against all Defendants in Metzgar I as well
as nine past trustees of the Plan and the prior Plan Administrator, 29 U.S.C. § 1109(a)
(personal liability of plan trustees for reimbursement of improperly paid benefits) (Ҥ
1109(a)”), and a claim for injunctive relief against Defendants’ further attempt to recoup
the alleged improper pension payments to Plaintiffs by set-offs against Plaintiffs’
pension checks after reaching the Plaintiffs’ eligibility age for pension under the Plan. In
view of Defendants’ failure to oppose Plaintiff’s motion to consolidate for lack of the
prerequisite common questions of law or fact, the court considers Defendants’
additional contentions that Metzgar II should be dismissed or stayed pending disposition
of Metzgar I, Dkt. 74 at 4-5, based on the asserted identicality with Metzgar II.1
(“Defendants Request”). Defendants also contend, Dkt. 74 at 7, in filing Metzgar II,
Plaintiffs’ circumvented the Scheduling Order which required motions to amend to add
claims or parties to be filed by November 4, 2016. (Dkt. 56). Plaintiffs oppose
Defendants’ Request contending Metzgar I and Metzgar II are not identical actions
given that in contrast to Metzgar I, Metzgar II adds new defendants and additional
claims including the alleged wrongful reductions in Plaintiff’s current pension benefits
based on Defendants interpretation of the Plan in December 2016 authorizing the Plan’s
attempt to recoup the pension benefits previously paid to Plaintiffs through substantial –
25% of each monthly pension check ‒ set-offs in Plaintiffs’ monthly pension checks

   Although Defendants have not formally moved to dismiss Metzgar II, as Plaintiffs have opposed
Defendants’ request to dismiss, the court considers such request as a motion.
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1

upon Plaintiffs reaching age 65, constituting an adverse benefit determination in
violation of § 1054(g). Although Plaintiffs allege the December 2016 determination as a
factual basis for Plaintiffs’ § 1054(g) claim, see Metzgar II Complaint ¶ 61, (Plaintiffs’
First Cause of Action), Metzgar II does not allege a separate § 1054(g) claim based
solely on the December 2016 determination. Second, Metzgar II, unlike Metzgar I, also
alleges discriminatory administration of the Plan against Plaintiffs because Plaintiffs
refused to agree to a settlement of Plaintiffs’ claim offered to similarly situated Plan
participants. Metzgar II Complaint ¶¶ 109-117 in violation of 29 U.S.C. § 1140 (“§
1140(a)”) (Plaintiffs’ Fourth Cause of Action). Third, Metzgar II, but not Metzgar I,
alleges Defendants are liable under 29 U.S.C. § 1109(a) to personally reimburse the
Plan for any losses based on Defendants’ allegedly erroneous payments to Plaintiffs in
connection with Plaintiffs’ early retirement pensions subsequently revoked in 2011. See
Metzgar II Complaint ¶¶ 118-122. Defendants contend that such differences are
irrelevant in that the controlling question common to both cases upon which Defendants’
liability depends under all of Plaintiffs’ claims is whether, under the terms of the Plan
and applicable requirements of the Internal Revenue Code, Plaintiffs properly elected to
take early retirement. Dkt. 74 at 7.
In the exercise of its inherent power to “foster judicial economy,” “‘comprehensive
disposition of litigation,’” and to avoid unnecessary and vexatious concurrent litigation of
the “same subject matter,” courts have discretion when “faced with a duplicative” suit
either to “stay the second suit, dismiss it without prejudice, enjoin the parties from
proceeding with it, or consolidate the two actions.” Curtis v. Citibank, N.A., 226 F.3d
133, 38 (2d Cir. 2000) (citing caselaw). In exercising such discretion, courts are
required to “consider the equities of the situation.” Id. (plaintiff’s attempts to circumvent
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adverse rulings on plaintiff’s delayed attempts to amend complaint in job discrimination
case warranted dismissal of second duplicative complaint (citing Colorado River Water
Conservation Dist. v. United States, 424 U.S. 800, 817 (1976))). A subsequent action is
duplicative of an earlier action where “[a]djudication of the claims [in the second action]
would necessarily involve findings on the exact same facts required to resolve the
claims in the first action.” DiGennaro v. Whitehair, 467 Fed.Appx. 42, 44 (2d Cir. 2012)
(bracketed material added). Here, adjudication of the merits of the new causes of
actions, i.e., reductions in Plan’s monthly pension benefits, liability of Plan trustees for
payment of alleged erroneous early pension benefits, and discrimination, alleged in
Metzgar II will require, as Defendants assert, a threshold judicial decision whether
Defendants’ terminations of Plaintiffs’ early retirement benefits after Defendants
determined that Plaintiffs did not in fact properly retire by continuing employment with
employers in the construction industry which were also Plan contributors were in
compliance with ERISA. If Defendants’ December 2011 determination is found to be
correct, then Plaintiffs’ other claims will necessarily also lack merit; conversely, if
Defendants’ threshold determination challenged in Metzgar I is found in violation of
ERISA, then the merits of the additional claims raised in Metzgar II will be addressed.
Plaintiffs’ reliance on the fact that Defendants later, in 2016, authorized recoupment and
reductions in Plaintiffs’ regular pension payments ignores that the legality of this later
‘self-help’ action by Defendants nevertheless turns on whether Defendants’ initial
decision to terminate Plaintiffs’ early retirement benefits in 2012 constituted a violation
of § 1054(g). Thus, Plaintiffs’ assertion that Metzgar I and Metzgar II are not duplicative
is unavailing. See DiGennaro, 467 Fed.Appx. at 44 (subsequent claims duplicative
where such claims “would necessarily involve findings on same facts required to resolve
8 

the claim in the first action”). However, the court also finds that because Plaintiffs wish
to add new claims and defendants based on the purported December 2016 Plan
amendment which occurred in December 2016, after the November 4, 2016 cut-off for
motions to amend established by the Scheduling Order, Plaintiffs have not thereby
sought to circumvent the Scheduling Order.
Although Plaintiffs assert that without consolidation Plaintiffs may be subjected to
unnecessary duplicative discovery practice, particularly potentially duplicative
depositions, Dkt. 73 ¶¶ 22, 33, the court is unpersuaded. As discussed, Discussion,
supra, at 8, because the legality of Defendants’ December 2011 determination that
Plaintiffs had not satisfied the Plan requirements for early retirement, and the
termination of Plaintiffs’ pensions (or alternatively requiring Plaintiffs to terminate
Plaintiffs’ disqualifying continued construction industry employment), will resolve the
merits of Plaintiffs’ core (ERISA anti-cutback) claims, requiring discovery to proceed in
Metzgar I does not imply Plaintiffs will be required to undergo any significantly
duplicative discovery in Metzgar II should it prove necessary to litigate the merits of
Metzgar II. Whether Defendants correctly determined Plaintiffs did not meet the
prerequisites for early, pre-age 65, retirement depends, according to Defendants, Dkt.
74 at 4, on whether Plaintiffs fully intended to retire from the construction industry
covered by the Plan and whether Plaintiffs’ subsequent employment in the industry was
within an exception provided by the Plan. The necessary facts upon which these
questions turn will be developed during discovery in Metzgar I, including Plaintiffs’
depositions. Thus, assuming Metzgar II requires further litigation, it is unlikely Plaintiffs
will be subject to duplicative depositions on such threshold questions as Metzgar II.

9 

Any risk of such possible duplication may be substantially obviated by stipulation that
discovery in Metzgar I is fully applicable in Metzgar II.
As to Plaintiffs’ claim under § 1109(a), seeking to impose personal liability upon
Defendants (as well as newly added Defendants, former Plan trustees, in Metzgar II),
for erroneous payment of Plaintiffs’ early retirement benefits, the court fails to see how
any deposition testimony by Plaintiffs would be needed to support such claim as the
underlying facts are easily reconstructed from Defendants’ records and Defendants’
depositions, if necessary. Plaintiffs’ discrimination claim pursuant to § 1140 (Plaintiffs’
Fourth Cause of Action), alleged by Metzgar II, would entail the need for Plaintiffs’
depositions, assuming all Plaintiffs would need to be deposed with regard to this
unusual claim, but it would not be duplicative of Plaintiffs’ testimony in Metzgar I
depositions. The possibility that Plaintiffs will be inconvenienced by being required to
be deposed in Metzgar II on Plaintiffs’ § 1140 claim is outweighed by the benefits of an
earlier resolution of Plaintiffs’ underlying anti-cut back claims in Metzgar I, without
encumbering such resolution with the additional discovery and motion practice likely to
arise if Metzgar II were not stayed, and consolidation, as Plaintiffs request, were to be
permitted. Of course, Plaintiffs’ claim for preliminary injunction in Metzgar II does not
raise possible duplicative discovery issues nor deprive Plaintiffs of this remedy, as a
formal pleading of such relief is not required, and Plaintiffs may seek preliminary
injunctive relief in Metzgar I based on Plaintiffs’ § 1054(g) claim which also provides the
basis for Plaintiffs’ challenge to Defendants’ December 2016 decision to implement the
set-offs against Plaintiffs’ pension checks by motion pursuant to Fed.R.Civ.P. 65. Such
request for preliminary injunctive relief will require Plaintiffs satisfy the usual
prerequisites of showing irreparable harm, likelihood of success, a balance of equities in
10 

Plaintiffs’ favor, and an absence of harm to third parties. Plaintiffs may, if Plaintiffs
deem it necessary, also request permission to add the Defendants’ December 2016 setoff decision to the Complaint in Metzgar I pursuant to Fed.R.Civ.P. 15(d), as a
supplemental pleading regarding such decision and its adverse effect on Plaintiffs as
additional particularization to support Plaintiffs’ injunctive request. The court therefore
finds Plaintiffs’ fears of excessive inconvenience to Plaintiffs by duplicative deposition
practice in Metzgar II to be overstated, and, in any event, to be outweighed by the
possibility of early resolution of Metzgar I and the threshold merits for each case.
In sum, given that a definitive and prompt determination of the threshold issue
presented by Defendants’ decision, challenged in Metzgar I, to terminate Plaintiffs’ early
retirement benefits will in all likelihood also completely resolve the new claims
presented in Metzgar II, the court finds the allowing Metzgar II to go forward whether or
not consolidated with Metzgar I, poses the risk that such threshold determination may
be significantly delayed. Specifically, counsel for Defendants in Metzgar I indicated at
oral argument that Metzgar II raised substantial statute of limitations and personal
service questions which will become the basis for a motion to dismiss and which, if
consolidation were to be granted, could hinder early determination of the threshold
question presented by both cases. Thus, the court, in its discretion, finds that
consolidation as Plaintiffs request should not be granted and that further proceedings in
Metzgar II should be, in accordance with Defendants’ Request, STAYED pending the
resolution of the merits of Metzgar I. See Curtis, 226 F.3d at 138 (courts have
discretion to stay duplicative suits). Defendants’ alternative request to dismiss Metzgar
II should be DISMISSED as moot.

11 

b)

Plaintiffs’ Motion for Stay or Protective Order.

As the court finds Metzgar II should be stayed, and Metzgar I should proceed,
Plaintiffs’ motion for a stay or protective order should be DENIED.
2.

Defendants’ Motion to Compel.
Defendants contend Plaintiffs’ answers to Defendants’ Interrogatory No. 4

provided the requested employment information after Plaintiffs commenced receiving
pension benefits from Defendants but did not, as Interrogatory No. 4 also required,
provide Plaintiffs’ “job information for [Plaintiffs’] employment prior to receiving
pensions.” Dkt. 69-1 ¶ 23 (underlining and bracketed material added). Plaintiffs do not
dispute Plaintiffs’ responses failed to provide Plaintiffs’ pre-pension employment
information requested by Interrogatory No. 4 arguing, instead, in opposition to
Defendants’ motion that the refused information need not be provided in as much as
Defendants are, according to Plaintiffs, possessed of such information, Dkt. 73 ¶ 34.
Plaintiffs also maintain that such information is also irrelevant as there is no claim by
Defendants that Plaintiffs were not performing Covered Employment as defined by the
Plan prior to commencing receipt of the pension benefits at issue. Dkt. 73 ¶ 35.
However, Plaintiffs’ objections are significantly belated and ineffective because the April
24, 2017 Order was granted without opposition, no appeal was taken, and, as such, the
Order is now the law of the case. Moreover, even if Plaintiffs’ relevancy objection could
be considered, Defendants have put in issue whether Plaintiffs in fact retired in
accordance with the terms of the Plan when Plaintiffs continued to work for Plan
employers after taking early retirement thereby requiring a comparison of Plaintiffs’ work
before and after commencing retirement to receive the now disputed pension benefits.
Dkt. 74 at 6. Accordingly, Defendants’ Interrogatory No. 4, insofar as it requests
12 

Plaintiffs’ pre and post retirement employment information, seeks, contrary to Plaintiffs’
assertion, information relevant to Plaintiffs’ claims and Defendants’ defenses and
counterclaims for recoupment of pension benefits erroneously paid to Plaintiffs.
Plaintiffs point to no authority supporting Plaintiffs’ relevancy objection as to this issue in
a case asserting claims similar to those of Plaintiffs. It also is the case, as the court has
previously stated in granting Defendants’ earlier motion, filed December 21, 2016, Dkt.
58, to compel Plaintiffs’ mandatory disclosures pursuant to Fed.R.Civ.P. 26(a)(1), see
Dkt. 62, that a party may not avoid discovery on the ground an opposing party may be
in possession of requested relevant information. See Decision and Order filed January
17, 2017 (Dkt. 62 at 2 (citing Kingsway Fin. Services, Inc. v. Pricewaterhouse-Coopers
LLP, 2008 WL 4452134, at *5 (S.D.N.Y. Oct. 2, 2008) (citing cases))). Thus, there is no
justification for Plaintiffs’ continued failure to completely answer Defendants’
Interrogatory No. 4. Defendants’ motion to compel with respect to Interrogatory No. 4
should therefore be GRANTED. However, rather than imposing the harsher sanctions
for Plaintiffs’ unexcused failure to comply fully with the April 24, 2014 D&O, as available
under Fed.R.Civ.P. 37(b)(2)(A) (“Rule 37(b)(2)(__)”), the court will permit Plaintiffs to
avoid such sanctions by promptly serving supplemental answers to Defendants’
Interrogatory No. 4 in full compliance with the requests as stated in such interrogatory
not later than 14 days from the date of this Decision and Order. The court, however,
nevertheless is required to consider awarding Defendants’ request for fees in
accordance with Rule 37(b)(2)(C) as Defendants have requeted.
3.

Plaintiffs’ Depositions.
Defendants further request court intervention to compel Plaintiffs’ depositions

notices with proposed dates which were served by Defendants on February 24, 2017.
13 

Dkt. 69-1 ¶ 4. Plaintiffs failed to immediately respond to Defendants’ requests to
schedule such depositions despite Defendants’ repeated attempts to establish dates,
see Dkt. 69-1 ¶¶ 8-12. In response to Defendants’ effort to schedule Plaintiffs’
depositions within a time period proposed by Plaintiffs, Plaintiffs nevertheless refused to
confirm any such dates and instead advised Defendants a new complaint adding claims
and defendants in Metzgar II would be served and would not agree to schedule any
depositions of Plaintiffs in the instant action pending the new action being filed, a stay of
all discovery in this case, and consolidation with the instant case, Metzgar I, so as to
avoid possible duplication of discovery and deposition practice. Dkt. 69-1 ¶¶ 17-20. In
opposition, Plaintiffs do not dispute Defendants are entitled to take Plaintiffs’ depositions
but contend that the new action, Metzgar II, should be first consolidated with the instant
action, Metzgar I, and further discovery coordinated in the consolidated action in order
to avoid unnecessary duplication and expense. Dkt. 73-5 at 5. However, as discussed,
supra, at 11, based on the court finding that Metzgar II is sufficiently duplicative of
Metzgar I as to warrant a stay of Metzgar II, there will be no discovery, including
depositions in Metzgar II, until such time as the merits of Plaintiffs’ basic claims in
Metzgar I, and the same underlying and threshold claims presented in Metzgar II, are
resolved and the court determines that Metzgar II may, if necessary, proceed.
Accordingly, Defendants’ motion (Dkt. 69) to schedule and conduct Plaintiffs’
depositions in Metzgar I should be GRANTED; such depositions shall be conducted
within 60 days of this Decision and Order.

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CONCLUSION

Based on the foregoing, Plaintiffs motion to consolidate (Dkt. 72, Dkt. 5) is
DENIED; Defendants’ request (Dkt. 74) to stay Metzgar II is GRANTED; Defendants’
alternative motion (Dkt. 74) to dismiss is DISMISSED as moot; Defendants’ motion to
compel (Dkt. 69) is GRANTED. Plaintiff shall show cause not later than 14 days from
this Decision and Order why Defendants’ expenses, including reasonable attorneys
fees, incurred in connection with Defendants’ motion should not be granted in
accordance with Fed.R.Civ.P. 37(b)(2)(C) with respect to Plaintiffs’ failure to comply
with the April 24, 2017 Order to provide complete answers to Defendants Interrogatory
No. 4, and pursuant to Fed.R.Civ.P. 37(c)(3) with respect to Plaintiffs’ refusal to
schedule Plaintiffs’ deposition; Defendants’ response shall be filed not later than 14
days thereafter. Oral argument shall be at the courts discretion. An Amended
Scheduling Order as to further proceedings in Metzgar I will be filed by the court.
SO ORDERED.
/s/ Leslie G. Foschio  

________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
Dated: August 29, 2017
Buffalo, New York

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