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Care Environmental Corp. v. M2 Technologies Inc.

May 30, 2006


The opinion of the court was delivered by: Sifton, Senior Judge.


Plaintiff, Care Environmental Corporation ("Care"), invokes this Court's diversity jurisdiction to bring this action against M2 Technologies Inc., ("M2"), Dragon Chemical Corporation ("Dragon"), Burlington Bio-medical Corporation ("Burlington") (collectively the "corporate defendants"), against Frank Monteleone, Dominick Sartorio and Roger Brown (collectively the "individual defendants") and against CMB Additives, LLC ("CMB"). Plaintiff's amended complaint alleges twelve claims for relief against defendants, both individually and collectively. Claims One through Five seek judgment against the corporate defendants for breach of contract (count one), services sold and delivered (count two), quantum meruit (count three), account stated (count four), and common law fraud (count five). Count Six alleges a claim against CMB based on successor liability. Counts Seven and Eight seek to pierce the corporate veil and impute corporate liability to the individual defendants. Claims nine through eleven seek recovery against the individual and corporate defendants under New York Debtor & Creditor Laws §§276, 275, and 273, respectively. Now before this Court is defendants' appeal of the Magistrate Judge's Order compelling discovery and plaintiff's motion for attorney's fees. For the reasons set forth below the Magistrate's Order is affirmed and the plaintiff's motion for attorneys fees is denied.


Familiarity with the underlying facts of this case is presumed. Only those facts relevant to the present motion are discussed. Disputes are noted.

In November 2005 plaintiff's counsel served defense counsel with an Initial Request for the Production of Documents ("Request"). On January 3, 2006 defense counsel served plaintiff's counsel with its response and objections to the Request, as they related to the breach of contract claims.*fn1 On January 18, 2006 this Court issued a decision granting in part and denying in part defendants' motion to dismiss specifically the parts of the motion addressed to certain claims of fraud. Thereafter plaintiff's counsel asked defense counsel to produce other documents called for by the Request. Defense counsel refused to respond prior to February 7, a date fixed by the Magistrate Judge for the completion of discovery.

On January 23 defense counsel sent an e-mail to plaintiff's counsel to set up a time to meet and confer*fn2 about defendants' objections to the discovery.

On January 30 the parties participated in a conference with Judge Matsumoto at which she ordered, in relevant part, that, "[t]he parties shall meet and confer in good faith regarding any discovery disputes as soon as possible after 2/6/06."

On February 7, defendants served plaintiff's counsel with the remainder of their responses and objections to the Request. Plaintiff was dissatisfied with defendants' response and objections since defendants produced almost no new documents and declined to produce documents related to the fraud claims on grounds such as attorney-client privilege, confidential commercial information, and on the ground that the requests were not calculated to lead to admissible evidence and were intended to harass, annoy or embarrass.

Thereafter, on February 14, 2006 plaintiff made a motion to compel discovery before Magistrate Judge Matsumoto. Defendants did not respond to the motion.

On March 1 the parties exchanged e-mails concerning the scheduling of a time to meet and confer about defendants' discovery objections.

According to the plaintiff on March 2 it had a two hour substantive conversation with defendants about defendants' discovery objection.

According to the defendants on March 10 the parties met and conferred about defendants' discovery objections. That same day the parties spoke with the Magistrate. During that conversation the defendants contended for the first time that plaintiff's motion to compel should be denied because plaintiff had not satisfied the requirements of Rule 37(a)(2)(a). That same day, the Magistrate ruled on the motion, stating:

Upon review of the plaintiff's unopposed motion seeking an order compelling defendants to respond to plaintiff's document demands, and upon a determination that the documents sought by the plaintiff are relevant to the claims and defenses in this cation and that defendants have failed to establish that the documents are privileged and/or that a protective order is warranted, and upon the representation by plaintiff's counsel that defendant's counsel was duly served by Federal Express with plaintiff's motion to compel, the court granted plaintiff's motion to compel.

By letter motion dated March 24, 2006 defendants appealed the Magistrate's order on the grounds that the parties did not "meet and confer" concerning the discovery disputes, as required by both the Federal Rule of Civil Procedure 37(a)(2)(A) and the Magistrate's January 30th Order. On April 3, 2006 plaintiff ...

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