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

Filing 84

DECISION AND ORDER GRANTING Defendants' requests for attorney's fees incurred in connection with Defendants' motion to compel discovery (Dkt. 69), as awarded by the court's Decision and Order filed August 29, 2017 (Dkt. 77). Signed by Hon. Leslie G. Foschio on 10/17/2017. (TAH)

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

DECISION
and
ORDER

Plaintiffs,

13-CV-85V(F)

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, 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.

17-CV-726V(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,
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
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 case alleging Defendants’ violations of ERISA’s anti-cutback
prohibitions and related rules, in a Decision and Order filed August 29, 2017 (Dkt. 77)
(“the D&O”), the court granted Defendants’ motion to compel Plaintiffs’ full responses to
Defendants’ Interrogatories, particularly Interrogatory No. 4, and requests to schedule
Plaintiffs’ depositions (“Defendants’ Motion”), and denied Plaintiffs’ cross motion to
consolidate and stay discovery. The court also directed Plaintiff to show cause why
Defendants’ expenses in connection with Defendants’ motion should not be awarded
pursuant to Fed.R.Civ.P. 37(b)(2)(C) (“Rule 37(b)(2)(C)”), and pursuant to Fed.R.Civ.P.
37(d)(3) (“Rule 37(d)(3)”) with respect to Plaintiffs’ refusal to reschedule Plaintiffs’
depositions which Defendants also sought to compel. In response to the court’s
directions, Plaintiff, by motion filed September 12, 2017 (Dkt. 79), moved for
reconsideration of the D&O and opposed any award of expenses to Defendants. By
Decision and Order filed October 4, 2017 (Dkt. 83), the court denied Plaintiffs’
reconsideration request. The court therefore considers whether Plaintiffs have satisfied
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the requirements of Rule 37(b)(2)(C) and Rule 37(d)(3) that Plaintiffs’ refusals to fully
respond to Defendants’ Interrogatory No. 4 and schedule Plaintiffs’ depositions were
substantially justified or that under the circumstances an award would be unjust. In
Plaintiffs’ reconsideration request, Plaintiffs’ opposition was limited to Plaintiffs’
contention that an award of expenses would be unjust in these circumstances because
Plaintiffs’ failure to provide full answers to Defendants’ Interrogatories resulted from a
“mere misunderstanding” and not an “intentional” violation of the court’s April 24, 2017
Order which granted Defendants’ prior motion to compel Plaintiffs’ responses (Dkt. 79-1
¶ 20). Plaintiffs also contend that Defendants’ motion to compel Plaintiffs’ full
responses to Defendants’ Interrogatories filed April 6, 2017 (Dkt. 64) was then
unnecessary because Plaintiffs’ counsel was then “working to prepare the responses
and serve them under an extended deadline.” Id. Plaintiffs also assert Plaintiffs have
complied with the D&O by serving complete answers to Defendants’ Interrogatory No. 4
which requested Plaintiffs’ pre- and post-retirement information. Id. ¶ 21.
It is well established that unless a responding party shows that its failure to
provide requested discovery was substantially justified, the court upon granting a motion
to compel is required to award the prevailing moving party its reasonable expenses
including attorney’s fees incurred in connection with the motion, see Scott-Iverson v.
Independent Health Association, Inc., 2017 WL 759843, at *2 (W.D.N.Y. Feb. 28, 2017)
(quoting Rule 37(a)(5)(B)), or unless the award in the circumstances would be unjust.
Id. Failure to provide discovery is substantially justified if there exists an objectively
reasonable basis for the failure. Id. (citing caselaw). An award would be unjust if the
failure was attributable to factors beyond the party’s control. Id. Here, Plaintiffs’

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opposition is insufficient to avoid an award for several reasons. First, the failure to
provide complete answers to Defendants’ Interrogatories which gives rise to
Defendants’ request for sanctions is Plaintiffs’ failure to provide complete answers to
Defendants’ Interrogatory No. 4, which was the basis for Defendant’s July 26, 2017
motion to compel as granted by the D&O. Thus, that Plaintiffs’ answers to Defendants’
Interrogatories as directed by the April 24, 2017 Decision and Order were being
prepared ignores that Plaintiffs had interposed objections to Defendants’ Interrogatory
No. 4 which were subsequently overruled by the D&O, and Plaintiffs have failed to
explain why said objections based primarily on an alleged lack of relevancy were
substantially justified, thus necessitating Defendants’ second motion to compel filed July
26, 2017. Accordingly, the record does not support Plaintiffs intended to provide full
responses to Defendants’ Interrogatory No. 4 any time prior to Defendants’ motion.
Plaintiffs point to no facts suggesting that Plaintiffs’ failure to respond fully to
Defendants’ Interrogatory No. 4, which necessitated Defendants’ motion, somehow was
influenced by factors outside of Plaintiffs’ counsel’s control. Nor do Plaintiffs offer any
reason for Plaintiffs’ refusals to schedule Plaintiffs’ depositions in response to
Defendants’ repeated requests (eight), see Dkt. 69-1 ¶¶ 8-20, again necessitating
Defendants’ July 26, 2017 motion. That Plaintiffs intended to file a second lawsuit
alleging additional ERISA claims, see id. ¶ 17, and request consolidation and a stay of
discovery, see id., does demonstrate that Plaintiffs’ refusal to proceed with Plaintiffs’
depositions as Defendants requested was thereby substantially justified, and Plaintiffs
do not so argue. Defendants’ repeated deposition requests were fully warranted by the
fact that discovery was to conclude on July 31, 2017. See id. Plaintiffs’ refusal to agree

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to Defendants’ requests to schedule Plaintiffs’ depositions was therefore based on the
supposition that the court would agree to Plaintiffs’ request, filed in response to
Defendants’ motion, to consolidate and stay discovery, a supposition rejected by the
court as without merit in this case. See D&O at 5-11. Thus, Plaintiffs fail to establish
that an award of Defendants’ expenses pursuant to Rules 37(b)(2) and 37(d)(3) is not
warranted. See Scott v. Arex, Inc., 124 F.R.D. 39, 42 (D.Conn. 1989) (burden to show
substantial justification for noncompliance with discovery or that award pursuant to Rule
37 is unjust is on resisting party). Further, as Plaintiffs do not offer any information as to
how such expenses should be allocated pursuant to Rules 37(b)(2)(C) and 37(d)(3), the
court finds that Plaintiffs’ refusals resulted primarily from decisions by Plaintiffs’ counsel.

CONCLUSION
Based on the foregoing, Defendants’ request for expenses is GRANTED.
Defendants shall file within 14 days Defendants’ affidavit in support of an award of
Defendants’ expenses based on contemporaneously maintained attorney trial records.
Plaintiffs’ response shall be filed within 14 days thereafter. Any reply shall be filed
within 5 days. Oral argument shall be at the court’s discretion. The parties are
encouraged to stipulate to said award so as to avoid further judicial involvement.
SO ORDERED.
/s/ Leslie G. Foschio
________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
Dated: October 17th , 2017
Buffalo, New York

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