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Rouson v. Eicoff

June 25, 2007

JESSAMY ROUSON, ON BEHALF OF THE ESTATE OF JOHN H. ROUSON, PLAINTIFF,
v.
TANIA EICOFF AND RICHARD EICOFF, DEFENDANTS.



The opinion of the court was delivered by: Matsumoto, United States Magistrate Judge

MEMORANDUM AND ORDER

Plaintiff Jessamy Rouson requests that this court reconsider its denial of plaintiff's prior motion for sanctions, dated October 25, 2006, regarding defendants' expert's supplemental report. (Seedoc. no. 90, Letter filed by plaintiff, dated 1/30/07; see also doc. no. 78, plaintiff's motion for sanctions, dated 12/4/06.) Notably, however, after the court denied plaintiff's motion for sanctions (see order dated 1/13/07), plaintiff advised the court that "the outstanding issue regarding [defendants' expert's] supplemental report has been resolved." (Doc. no. 89, Letter filed by plaintiff, dated 1/16/07.) Accordingly, because plaintiff represented that the dispute regarding defendants' expert's supplemental report was resolved, thus rendering moot its motion for sanctions as it pertained to defendants' expert report, the court declines to treat the instant motion as a motion for reconsideration, which would be untimely. See Local Civil Rule 6.3 (Notice of motion for reconsideration shall be served within ten (10) days after entry of the court's order). Instead, the court will address the instant motion as a motion for sanctions. For the reasons that follow, the court grants in part and denies in part plaintiff's motion.

BACKGROUND

On June 30, 2004, plaintiff Jessamy Rouson, on behalf of the estate of her father, John Rouson, commenced this action against defendants Tania and Richard Eicoff, alleging that, beginning in 1988, when John Rouson was disabled by two strokes, until Rouson's death in March 2000, the Eicoffs systematically defrauded Mr. Rouson out of several hundred thousand dollars while purportedly caring for Mr. Rouson and managing his finances. (Doc. no. 1, Compl. ¶ 13.) Specifically, plaintiff complains that Tania Eicoff misappropriated funds belonging to Mr. Rouson and held by Chase Manhattan Bank, CitiBank and Marine Midland Bank, by forging Mr. Rouson's signature on checks drawn on these accounts and then depositing them in an account at Northfield Savings Bank, which she established in her and Mr. Rouson's names. (Id. ¶¶ 33, 53-57.) Plaintiff further alleges that Tania Eicoff, by improperly utilizing her designation as Mr. Rouson's "power-of-attorney" and forging Mr. Rouson's signature, withdrew funds from the Northfield Savings Bank account and, without Mr. Rouson's consent, deposited those funds into accounts held by her and her husband for their own personal benefit. (Id. ¶¶ 59-74.) Plaintiff asserts violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1961 et seq. and state law.

On July 12, 2006, the court ordered defendants to provide expert reports and disclosures by October 16, 2006, and to make their experts available for depositions prior to November 15, 2006. (See order dated 7/12/06.) Defendants' counsel, Michael F. Mongelli II, Esq., served plaintiff an expert report on October 16, 2006, which stated, "A complete and thorough examination of all questioned signatures will be conducted." (See doc. no. 75, Letter filed by plaintiff, dated 10/25/06, Exh. A.) On October 25, 2006, plaintiff's counsel, Jonathon D. Warner, Esq., moved for the imposition of sanctions, and requested that defendants, inter alia, be "precluded from offering any expert testimony at trial . . . [or] directed to provide a complete and adequate report in compliance with the Federal Rules. . . ." (Doc. no. 75, Motion for Sanctions filed by plaintiff, dated 10/25/06.) The court ordered, in relevant part, as follows:

The court has reviewed defendants' expert report and agrees with plaintiff that it is "woefully inadequate" to the extent it fails to meet the minimum requirements of Fed. R. Civ. P. 26(a)(2)(B). Defendants shall supplement their expert's report by 11/13/06, and make their expert available for a deposition to be conducted on or before 12/15/06 . . . . If defendants fail to comply with the order to provide complete discovery responses by 11/6/06 and an adequate expert's report by 11/13/06, plaintiff shall immediately notify the court by ECF. Defendants are advised that failure to comply with this court's order is likely to result in sanctions, including but not limited to costs and fees and other sanctions pursuant to Fed. R. Civ. P. 37. (Order dated 10/25/06.)

On November 14, 2006, plaintiff advised the court that, despite the above order, defendants failed to supplement their expert report. (See doc. no. 77, Letter filed by plaintiff, dated 11/14/06.) On November 15, 2006, the parties participated in a status conference, during which the court ordered defendants to provide a supplemental expert report and disclosures by November 29, 2006, and noted that should they fail to do so, they "WILL" be sanctioned. (Order dated 11/15/06.)

Although defendants timely faxed plaintiff a supplemental expert report on November 29, 2006, the signature page was dated November 30, 2006 and signed by defendants' counsel, Mr. Mongelli, but not by defendants' expert, Dennis J. Ryan. (See doc. no. 91, Affidavit filed by defendants, dated 2/7/07 ("Mongelli Aff."), ¶ 9 and Exhibit J.) The report contained a footer on all pages dated November 14, 2006, noted that the expert deposition fee was $2,400, and stated,

Mr. Ryan will express an opinion that based upon the lack of contemporaneous known handwriting samples of the decedent John H. Rouson, it is impossible for any expert, including Plaintiff's forensic handwriting expert Richard M. Williams[,] to come to a conclusion based upon a reasonable degree of forensic document certainty that John H. Rouson did or did not author various questioned documents or that said documents are a "simulation". . . . (Id., Exh. J, emphasis added.)

On December 4, 2006, plaintiff again moved for the imposition of sanctions pursuant to Rule 37 of the Federal Rules of Civil Procedure. (See doc. no. 78, Motion for Sanctions filed by plaintiff, dated 12/4/06.) Plaintiff claimed that defendants failed to provide document discovery, in violation of court orders dated March 31, 2006, April 4, 2006, June 8, 2006 and July 7, 2006. (See id. at 2-4.) Plaintiff further claimed that defendants failed to provide an "adequate" expert report, in violation of court orders dated July 12, 2006, October 25, 2006 and November 15, 2006. (See id. at 3-5.)

On January 11, 2007, plaintiff's counsel also advised the court that he "had yet to receive a supplemental expert report from Mr. Mongelli signed by the expert. His office faxed me a signature page only which was dated November 15th, although the supplemental expert report was purportedly dated November 30th." (Doc. no. 86, Letter filed by plaintiff, dated 1/11/07, emphasis added.) That signature page was unattached to a report, dated November 15, 2006, and signed by both Messrs. Mongelli and Ryan. (See id.) However, the expert report defendants previously faxed to plaintiff on November 29, 2006, stating that Mr. Ryan "will express an opinion," was dated November 30, 2006 on the signature page and signed only by Mr. Mongelli but not Mr. Ryan.

By letter dated December 20, 2006, defendants opposed plaintiff's motion and cross-moved for sanctions against plaintiff for plaintiff's purported "failure to provide any responsive discovery in this matter." (Doc. no. 81, Letter filed by defendants, dated 12/20/06.) Defendants asserted that plaintiff had "unclean hands" with respect to complying with discovery orders because plaintiff failed to: (1) adequately respond to defendants' December 2005 discovery demands; (2) provide document discovery pursuant to the court's April 4, 2006 order; (3) respond to defendants' June 2, 2006 request to depose plaintiff's expert; and (4) meet and confer before bringing discovery disputes before the court. (See id.) Plaintiff replied by letter dated December 21, 2007.

On January 13, 2007, the court denied both parties' motions for sanctions, finding,

Upon review of this court's docket and the submissions of the parties, it appears that neither party has 'clean hands' with respect to their obligation to confer in good faith to resolve discovery disputes and with respect to the sufficiency of their discovery responses . . . . The court notes that both parties too readily accuse the other of failures to comply with discovery without first conferring in good faith and certifying that they have done so, and without identifying and specifying for this court, in the manner prescribed by Local Civil Rules 37.1 and 37.3 and the Federal Rules of Civil Procedure, the specific discovery request(s) and response(s) at issue and the grounds for contending that the discovery response is not adequate. (Order dated 1/13/07.) The court ordered the parties to meet and confer in good faith, and that "[a] complete, signed and dated expert report shall be provided by all of defendants' experts by 1/17/07." (Id.)

Three days later, on January 16, 2007, plaintiff informed the court that "the outstanding issue of Mr. Ryan's supplemental expert report has been resolved." (Doc. no. 89, Letter filed by plaintiff, dated 1/16/07.) Plaintiff attached a letter from Mr. Mongelli, dated January 16, 2007, which stated,

[P]lease allow this letter to confirm that there is only one supplemental expert report dated November 15, 2006. There is no separate expert report dated November 30, 2006 . . . The only explanation I have for the November 30, 2006 date on an attachment is that it was printed and attached in a clerical error and thus of course, bears no signature of Dennis J. Ryan. (Id., Attachment 1, Letter filed by defendant, dated 1/16/07, emphasis in original.)

Plaintiff deposed Mr. Ryan on January 22, 2007. On January 30, 2007, plaintiff filed the instant "Motion for Reconsideration," requesting that the court "reconsider plaintiff's prior motion for sanctions as it pertained to defendants' expert disclosure." (Doc. no. 90, Motion filed by plaintiff, dated 1/30/07.) Plaintiff claimed that at Mr. Ryan's deposition, it was revealed that defendants' expert had not examined the evidence and had not reached an opinion by November 30, 2006, as defendants's counsel had led both the plaintiff and this Court to believe. Indeed, the expert, Dennis J. Ryan, produced a supplemental expert report dated November 15, 2006, . . . at the deposition which was different from the previously served and filed expert report. This real report was different . . . in that it did not give any conclusion as to the expert's opinion. The real report stated that the expert "may upon completion of his examination express an opinion." (Id., emphasis in original.) In addition, this most recent report dated November 15, 2006, and produced at the January 22, 2007 deposition, stated that Mr. Ryan's deposition fee was $3,600, not $2,400 as previously noted. (See id., Exh. 2.) Plaintiff's counsel argued that the difference between the report signed by defendant's counsel, but not by defendants' expert, dated November 30, 2006 and received on November 29, 2006, which stated that Mr. Ryan "will express an opinion," and the defendants' expert's signed report dated November 15, 2006 (of which the signature page only was previously produced) and produced in full at the January 22, 2007 deposition, which stated that Mr. Ryan "may upon completion of his examination express an opinion," is a "drastic[]" one. (Id. at 2.) The newly produced report, plaintiff asserted, "is tantamount to serving a report containing no opinion at all." (Id. at 3.)

Accordingly, the court ordered defendants to: submit a sworn statement by defense counsel with the following exhibits attached: (1) all drafts, including signature pages, if any, of Dennis J. Ryan's supplemental expert report which Mr. Ryan submitted to defendants; (2) all drafts defendants returned to and/or discussed with Mr. Ryan; (3) all changes made to Mr. Ryan's report by any person, including the dates those changes were made and the identity of any person making the changes . . . and (4) all expert reports (or parts thereof, including signature pages) provided by defendants to plaintiff and the dates the reports were provided. (Order dated 1/31/07.)

Mr. Mongelli provided the requested documentation on February 7, 2007, but failed to adequately explain the reason for the discrepancy in the defendants' two expert reports, dated November 15 and November 30, 2006. (See generally Mongelli Aff.) First, Mr. Mongelli stated that he -- and not Mr. Ryan -- drafted Mr. Ryan's expert report: "I . . . personally drafted the November 14, 2006 affirmation containing . . . [the] 'will express an opinion' language." (Id. ¶ 9.) Indeed, that report is entitled "Response To Demand For Expert Witness Disclosure," written in the third person, and signed by Mr. Mongelli and not Mr. Ryan. (Id., Exh. J.) Mr. Mongelli further claimed in his Affidavit that he never saw the defendants' expert's report dated November 15, 2006, with the "may upon completion of his review" language, until the morning of Mr. Ryan's January 22, 2007 deposition: "On the morning of the January 22, 2007 deposition, I met with Mr. Ryan in person for the very first time. During our preparation, I came upon the version of the report bearing the November 14, 2006 footer . . . and 'may upon completion of his examination' language for the very first time." (Id. ¶ 12, emphasis in original.) In addition, Mr. Mongelli stated that Mr. Ryan "advised me that [the "will express an opinion" language] was indeed the truth and he would testify to same if Mr. Warner asked him about the different fee and/or language." (Id.)

Under questioning by plaintiff's counsel, Mr. Ryan testified, however, that he changed the report from "will express an opinion" to "may upon completion of his examination express an opinion," and faxed the edited version back to Mr. Mongelli before the deposition:

Q: I think you indicated earlier that you originally got a document that said in paragraph B that you, quote, "Will express an opinion", and then you changed that to "May upon completion ...


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