Buffalo Laborers Welfare Fund et al v. Sanders Construction, Inc. et al

Filing 29

DECISION AND ORDER: Plaintiffs' motion to compel (ECF No. 23 ) is GRANTED IN PART. The Court directs Sanders to answer every question in the information subpoena, and mail his responses to Plaintiffs, by February 22, 2021. This is a court order and Sanders must comply. In addition, the Court awards Plaintiffs $1,285 in damages and penalties, pursuant to C.P.L.R. § 2308(b)(1). Sanders shall pay Plaintiffs that amount. SO ORDERED. Signed by Hon. Frank P. Geraci, Jr. on 1/22/2021. Copies of NEF and text order mailed to Defendants at addresses listed in summons. (MFM)

Case 1:16-cv-01036-FPG Document 29 Filed 01/22/21 Page 1 of 3

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
BUFFALO LABORERS WELFARE FUND, et al.,
Plaintiffs,
Case # 16-CV-1036-FPG
v.
DECISION AND ORDER
TIMOTHY SANDERS, et al.,

Defendants.

In March 2016, Plaintiffs and Defendants—Sanders Construction, Inc. and Timothy
Sanders—entered into a settlement agreement to structure a judgment Plaintiffs obtained against
Sanders Construction in prior litigation. See ECF No. 1-1. In December 2016, Plaintiffs filed the
present action, alleging that Defendants failed to pay Plaintiffs and thereby breached the settlement
agreement. ECF No. 1. The Clerk of Court filed an entry of default against Timothy Sanders after
he failed to appear, ECF No. 12, and Plaintiffs moved for default judgment against him. ECF No.
13. In August 2020, this Court granted the motion and directed the entry of judgment against
Sanders in the amount of $257,189.30. ECF No. 19, 21.
On November 18, 2020, Plaintiffs filed a motion (1) seeking to compel Sanders to “respond
to [an] information subpoena” they served upon him, and (2) requiring Sanders to pay “damages
incurred by Plaintiffs in attempting to effect compliance with the information subpoena and in
making [the] motion.” ECF No. 26 at 2. They rely on Federal Rule of Civil Procedure 69 as the
vehicle for their requests.
Under Rule 69, a 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

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located.” Fed. R. Civ. P. 69(a)(2). “Under New York law, a judgment creditor can use an
information subpoena to compel disclosure of information relevant to a judgment debtor’s
satisfaction of the judgment.” Soundkillers LLC v. Young Money Entertainment, LLC, No. 14CV-7980, 2016 WL 4990257, at *3 (S.D.N.Y. Aug. 2, 2016) (citing N.Y. C.P.L.R. § 5223).
“Service of an information subpoena may be by registered or certified mail, return receipt
requested, and the recipient must respond within seven days.” Id. (citing N.Y. C.P.L.R.
§ 5224(a)(3)). “If the recipient does not comply, the judgment creditor cannot immediately move
for contempt under New York law; instead, as it is a nonjudicial subpoena, the enforcement of an
information subpoena is governed by N.Y. C.P.L.R § 2308(b), which provides for a motion to
compel compliance.” Id. (internal quotation marks omitted).
Having reviewed the materials submitted in support of the motion, ECF No. 24, the Court
agrees that Plaintiffs issued a proper information subpoena and served it in accordance with the
requirements of New York law.
Accordingly, the Court directs Sanders to answer every question in the information
subpoena, and mail his responses to Plaintiffs, by February 22, 2021. The Court cautions Sanders
that if he fails to comply with this order, the Court may impose sanctions and may hold him in
contempt of court. See id. at *3-4. These sanctions can include “escalating fines for each day of
continued non-compliance,” compensatory damages and attorney’s fees, and even arrest and
imprisonment to compel compliance. Chevron Corp. v. Donziger, 384 F. Supp. 3d 465, 504
(S.D.N.Y. 2019); see Leadsinger, Inc. v. Cole, No. 05-CV-5606, 2006 WL 2266312, at *21
(S.D.N.Y. Aug. 4, 2006).
Plaintiffs also request an award of $1,335, which consists of $50 in costs, $50 as a penalty,
and $1,235 in attorney’s fees. See ECF No. 26 at 5. Under C.P.L.R. § 2308(b)(1), if a person fails

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to comply with an authorized information subpoena, a court may impose costs not exceeding fifty
dollars, a penalty not exceeding fifty dollars, and “damages sustained by reason of the failure to
comply.” Such damages “include reasonable attorneys’ fees incurred in making the motion to
compel and enforcing the information subpoena.” Giuliano v. N.B. Marble Granite, No. 11-MC753, 2014 WL 2805100, at *4 (E.D.N.Y. June 20, 2014). The Court finds it appropriate to impose
the $50 penalty, and—after reviewing the materials in support, ECF No. 25—concludes that the
requested attorney’s fees are reasonable and shall be assessed. However, Plaintiffs do not identify
what costs they incurred, and therefore the Court declines to award $50 in costs.
CONCLUSION
For the reasons discussed above, Plaintiffs’ motion to compel (ECF No. 23) is GRANTED
IN PART. The Court directs Sanders to answer every question in the information subpoena, and
mail his responses to Plaintiffs, by February 22, 2021. This is a court order and Sanders must
comply. The Court cautions Sanders that if he fails to comply with this order, the Court may hold
him in contempt of court and may impose sanctions.
In addition, the Court awards Plaintiffs $1,285 in damages and penalties, pursuant to
C.P.L.R. § 2308(b)(1). Sanders shall pay Plaintiffs that amount.
IT IS SO ORDERED.
Dated: January 22, 2021
Rochester, New York
______________________________________
HON. FRANK P. GERACI, JR.
Chief Judge
United States District Court

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