United States District Court, Eastern District of New York
July 23, 1991
CHESTER BROMAN, MICHAEL CARBONE, ET AL., PLAINTIFFS,
SPLIT ROCK ASSOCIATES, INC. AND EILEEN WERNER, DEFENDANTS.
The opinion of the court was delivered by: Wexler, District Judge
MEMORANDUM AND ORDER
In the above-referenced action, plaintiffs, Trustees of the Local 282
Welfare, Pension and Annuity Trust Funds ("the Funds"), move for entry of
judgment against defendants Split Rock Associates, Inc. ("Split Rock"),
and Eileen Werner or, alternatively, for sanctions against defendants and
Hauppauge Equipment Leasing Corp. ("Hauppauge"), an affiliate of Split
Rock, in order to to remedy Hauppauge's failure to submit to a
court-ordered deposition and audit.
The dispute from which the present case arises involves plaintiffs'
effort to obtain judgment against Split Rock in the approximate amount of
$260,000. This figure constitutes the difference between Split Rock's
obligation to pay contributions to the Funds for the period prior to May
1, 1989, and payments already made by Split Rock.
The parties entered into a settlement agreement ("the agreement") on or
about May 31, 1989, pursuant to which defendants agreed to pay $330,000
to the Funds. Split Rock did pay $50,000 at the time of the agreement, as
mandated therein. Defendants also agreed to pay the remaining balance at
the monthly rate of the greater amount as between $1,000 or 2% of Split
Rock's gross receipts for the prior month.
As part of the agreement, Split Rock was required to submit monthly
gross receipt reports to the Funds and to permit the Funds to audit their
books and records. Obligations were also included in the agreement so
that Split Rock would "not engage in construction or excavating work as
defined [in Split Rock's contract with Local 282, IBT] under any other
corporate name or other structure than Split Rock Associates, Inc. in the
geographical area covered by said contract." Ostensibly, this was
designed to prevent Split Rock from transferring its gross receipts to
avoid the 2% payment mandate.
Plaintiffs claim that they made numerous unsuccessful attempts to audit
the books and records of Split Rock, even after this Court threatened
defendants with entry of judgment if noncompliance continued. Plaintiffs
additionally allege that upon the limited audit that Split Rock allowed
them to perform, it was determined that Split Rock paid gross receipts to
affiliated entities in direct violation of the agreement. To confirm
this, plaintiffs served subpoena duces tecum and notices of depositions
and document requests on four known affiliates of Split Rock, including
Hauppauge, and to determine the precise
amount owed to the Funds pursuant to the 2% payment schedule. Fred Werner,
who was to appear for Split Rock and its affiliates, subsequently refused
to accommodate plaintiffs on their discovery requests, and thus plaintiffs
brought the initial motion for entry of judgment.
On September 28, 1990 this Court held a hearing on the plaintiffs'
initial motion for entry of judgment. At this hearing, representatives of
the defendant did not dispute the testimony of plaintiffs' auditor
indicating that Split Rock had gross receipts in the months of May,
October, November, and December of 1989, and January through April of
1990 that should have been subject to the 2% payment obligation.
Additionally, undisputed testimony revealed that Split Rock's gross
receipts were being funneled through Hauppauge. This Court ordered that
Hauppauge submit to a deposition and audit to determine the extent to
which the gross receipts were being channeled through Hauppauge, but
reserved judgment on plaintiffs' motion for entry of judgment.
The parties scheduled the original deposition and audit for October
22, 1990, but Fred Werner's request for adjournment was granted. The
parties then rescheduled the meeting for December 4, 1990. On the day
before the deposition and audit was to take place, Werner told plaintiffs
that he had taken ill and would not be able to appear on the following
day. Plaintiffs agreed to reschedule the deposition and audit for
December 20, 1990.
Plaintiffs allege that they sent Werner a letter on December 18, 1990,
confirming the upcoming meeting. They also claim that the Post Office has
confirmed delivery of the letter to Werner's post office box. Moreover,
plaintiffs allege that they left a telephone message at Werner's office
again confirming the meeting. A court reporter and counsel for plaintiffs
appeared at plaintiffs' office for the scheduled meeting, but Werner did
not. After unsuccessfully trying to reach him, his secretary told counsel
for plaintiffs that he would not appear because it was his understanding
that the meeting had been postponed. Plaintiffs dispute that they had any
knowledge of the postponement. Currently, plaintiffs move for entry of
judgment against defendants, or in the alternative, for sanctions against
defendants and/or Hauppauge, as a result of plaintiffs' inability to
conduct the court-ordered deposition and audit.
In consideration of the three bases set forth below, the Court hereby
enters judgment for plaintiffs.
The Settlement Agreement
Paragraph 10 of the agreement between the parties provides:
If Split Rock Associates, Inc. fails to make payment
as provided in paragraph 2 of this agreement, then,
no sooner than 30 days following the failure to make
such payment as was required by paragraph 2,
judgment may be entered against Split Rock
Associates, Inc. without further notice to it for
the then unpaid balance of the gross amount set
forth at paragraph 1 of this agreement.
See Plaintiff's Notice of Motion at ex. A.
Testimony at the last hearing revealed that Split Rock failed to make
payments for a number of months including May, October, November, and
December of 1989 and January through April of 1990. As such, the plain
language of the agreement clearly empowers this Court to enter judgment
Civil Rules for the Eastern District of New York
Local Rule 3 of the Civil Rules of the Southern and Eastern Districts
of New York provides in pertinent part:
[Upon any motion] [t]he opposing party shall serve
and file with the papers in opposition to the motion
and an answering memorandum, similarly divided,
setting forth the points and authorities relied upon
in opposition. Failure to comply may be deemed
sufficient cause for the denial of the motion or the
granting of the motion by default.
Local Rule 3(b) (emphasis added). Defendants have failed to offer any
the most recent allegations by plaintiff, in direct violation of Local
Rule 3. Accordingly, this Court may enter judgment for plaintiffs
pursuant to Local Rule 3.
Failure to Comply with Discovery
Notwithstanding authority under the agreement and the Local Rules,
defendants' blatant failure to comply with court ordered discovery
warrants entry of judgment in plaintiffs' favor. Defendants' affiliate,
Hauppauge, has, on numerous occasions previously documented, refused to
comply with discovery requests made by plaintiff and ordered by the
Court. Because of this pattern of disregard for court orders and the
guidelines established by Rule 37, the Court is well within its
discretion to enter judgment in favor of plaintiffs. Paine, Webber v.
Inmobiliaria Melia de P.R., Inc., 543 F.2d 3, 6 (2d Cir. 1976), cert.
denied, 430 U.S. 907, 97 S.Ct. 1178, 51 L.Ed.2d 583 (1977).
As plaintiffs correctly note, Split Rock can be held responsible for
the failure of Hauppauge to comply with discovery, since the records held
by Hauppauge may be considered, pursuant to Rule 34, to be within the
custody or control of Split Rock. 4A Moore's Federal Practice, Para.
34.17 (2d ed. 1990); Cooper Indus., Inc. v. British Aerospace, 102
F.R.D. 918, 919 (S.D.N.Y. 1984). This Court ordered the deposition and
audit of Split Rock in order to reach the important determination of
payments owed to plaintiffs. The successive delays by Mr. Werner, who was
to appear on behalf of defendants and their affiliates, are beyond
reason. Accordingly, and in keeping with the parameters of Rule 37, entry
is granted in favor of plaintiffs.
For the reasons stated above, defendants are ordered to pay the full
amount of the unpaid balance as set forth in the settlement agreement
between the parties. In order to establish the exact amount owed,
plaintiffs may submit papers to the Court within ten days of the date of
this order. Defendants may respond to those submissions within ten days
from the filing and service of plaintiffs' submission.
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