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Burgie v. Euro Brokers

September 5, 2008


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


On February 18, 2005, plaintiff Maritza Burgie ("plaintiff") commenced this action against defendants Euro Brokers, Inc. ("Euro Brokers") and First Unum Life Insurance Company ("Unum"). Plaintiff alleges that as a survivor of September 11, 2001 attack on the World Trade Center she suffers severe emotional and physical injuries due to her proximity to the attack, that, following the attack, Euro Brokers terminated her employment in violation of the Family and Medical Leave Act ("FMLA"), 29 U.S.C. §2617(a), the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. §1001 et seq., and the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §12101, et seq., and that First Unum denied her benefits under her disability policy in violation of ERISA and the ADA and in breach of its contract with her. Now before this Court is plaintiff's appeal from then*fn1 Magistrate Judge Matsumoto's March 14, 2008, Order closing discovery, as well as plaintiff's motions to reopen discovery for six months, for a stay precluding Euro Brokers from filing for summary judgment, and for reinstatement of her claims against First Unum.*fn2 Also before this Court is defendant Euro Brokers' motion to enter judgment against plaintiff's counsel, Ruth M. Pollack, in the amount of $4,665.00, and to hold plaintiff's counsel in contempt. For the reasons stated below, plaintiff's motions are denied and Euro Brokers' motion is granted in part and denied in part.


Familiarity with the underlying facts of this case, as set forth in prior decisions, is presumed. Only those facts relevant to the present motions are discussed.

Magistrate Judge Matsumoto issued, pursuant to Federal Rules of Civil Procedure 16(b) and (e) and 26(f), three scheduling orders, dated May 11, June 14 and June 28, 2005, directing, inter alia, that plaintiff provide signed authorizations for medical records and that the parties exchange mandatory Rule 26(a) disclosures, discuss a discovery plan, and propound written discovery by, respectively, June 12, July 5, and July 8, 2005.*fn3

May 11, 2005, Order; June 16, 2005, Minute Entry; June 28, 2005, Minute Entry. Plaintiff failed to comply with these orders. On August 2, 2005, defendant Euro Brokers moved for sanctions due to plaintiff's failure to comply.

On August 5, 2005, Magistrate Judge Matsumoto extended the deadline for document discovery to August 12, 2005. Aug. 5, 2005, Order. Plaintiff again failed to meet this deadline and, on August 12, 2005, Magistrate Judge Matsumoto extended plaintiff's time to serve requests for documentary discovery to September 9, 2005, Aug. 15, 2005, Minute Entry, and later granted a further extension, to March 31, 2006. Nov. 11, 2005, Minute Entry. On March 27, 2006, Magistrate Judge Matsumoto ordered the parties to resolve any outstanding discovery disputes or submit them for judicial resolution by April 26, 2006. Mar. 27, 2006, Minute Entry.

On March 30, 2006, Magistrate Judge Matsumoto, ruling on Euro Brokers' motion for sanctions, ordered plaintiff's counsel, Ruth Pollack, to pay Euro Brokers a monetary sanction in the amount of $4,665.00, representing a portion of the costs and fees expended by Euro Brokers on the sanctions motion, which Magistrate Judge Matsumoto concluded was "just and authorized by Rule 37(b)(2)." Mar. 30, 2006, Opinion and Order, at 41. Magistrate Judge Matsumoto further ordered Pollack to pay the sanction by April 20, 2006. Id. at 47.*fn4

Plaintiff's counsel thereafter served requests for document production and interrogatories upon Euro Brokers on July 15, 2006, over a year after Magistrate Judge Matsumoto's initial deadline of July 8, 2005. Over Euro Brokers' objection, Magistrate Judge Matsumoto granted plaintiff leave to serve her late discovery requests. Jul. 18, 2006, Minute Entry. At the July 18, 2006 conference, Magistrate Judge Matsumoto extended the deadline for the completion of all discovery, including depositions, to October 31, 2006. Id.

On August 18, 2006, defendant Euro Brokers responded to plaintiff's document requests, producing over 450 pages, as well as responding to plaintiff's interrogatories.

On October 30, 2006, Magistrate Judge Matsumoto granted plaintiff's request for an extension of time to complete discovery to January 31, 2007. Oct. 30, 2006, Order.

On January 26, 2007, this Court granted Unum's motion to dismiss the ADA and contract claims and Unum's motion for summary judgment with respect to plaintiff's ERISA claim.*fn5 See Burgie v. Euro Brokers, Inc., 2007 WL 210419, at *1 (E.D.N.Y. 2007).

On February 27, 2007, at a status conference, plaintiff's counsel asserted that Euro Brokers' discovery was not responsive. Magistrate Judge Matsumoto, although noting that fact discovery had closed and that Pollack had not moved to compel in a timely fashion, re-opened discovery and permitted plaintiff to move to compel compliance with outstanding discovery requests by March 12, 2007. Feb. 27, 2007, Minute Entry. Plaintiff did not thereafter move to compel discovery. Magistrate Judge Matsumoto also ordered that Pollack provide counsel for Euro Brokers and First Unum with the names of all current and former employees that plaintiff would seek to depose by February 28, 2007. She ordered Euro Brokers to provide the last known contact information for current or former employees and to designate those employees whom it would voluntarily produce by March 5, 2007. She additionally ordered that depositions be completed by June 29, 2007. Id.

At a June 29, 2007, status conference, Pollack again asserted that Euro Brokers' document production was deficient. In particular, she sought a black book diary of Ms. Eileen McMahon, one of Euro Brokers' former employees. Magistrate Judge Matsumoto granted plaintiff "one FINAL opportunity to move to compel discovery" by July 13, 2007. June 29, 2007, Minute Entry (emphasis in original). As no depositions had been taken, despite Euro Brokers' counsel's contention that he twice asked Pollack to inform him of dates for scheduling depositions, Magistrate Judge Matsumoto ordered that the depositions of five current or former Euro Brokers employees be completed by August 24, 2007. Id. Specifically, Magistrate Judge Matsumoto ordered plaintiff to serve deposition subpoenas on defense counsel for Eileen McMahon, Mary Paterno, and Roger Schwed by July 13, 2007. Id. Lastly, plaintiff was ordered to serve deposition subpoenas on two former unnamed employees directly, pursuant to Fed. R. Civ. Pr. 45, as Euro Brokers was not authorized to accept service for them. Id. The parties agreed to reserve certain dates in July and August for these depositions. Id.

Plaintiff did not move to compel the written discovery she sought by July 13, 2007. On July 25, 2007, Magistrate Judge Matsumoto, noting she had extended the deadline for doing so several times, accordingly ruled there is "no outstanding discovery." July 25, 2007 Order. Magistrate Judge Matsumoto also ordered the parties to communicate and schedule dates for any remaining depositions, reminding the parties that they had agreed to reserve certain August dates for these depositions. Id.

Between the June status conference and August 24, 2007, the deposition of McMahon commenced, but was not completed. Plaintiff, however, did not depose Paterno or Schwed. At the August 24, 2007, status conference, plaintiff sought an extension of discovery. Magistrate Judge Matsumoto again extended the fact discovery deadline to October 31, 2007, and directed plaintiff to serve subpoenas on Euro Brokers' counsel for the depositions of Paterno and Schwed by September 5, 2007, with the depositions to be conducted on September 20, 2007, and September 27, 2007. August 24, 2007, Minute Entry. Magistrate Judge Matsumoto, over Euro Brokers' objection, also granted plaintiff's motion for four additional hours to complete McMahon's deposition, on a date to be scheduled sometime during the first two weeks of October 2007. Id. Magistrate Judge Matsumoto noted that she would "not consider any further extension unless a request to extend discovery is received no later than 10/28/2007." Id. Pollack did not move to compel further written discovery, nor did she, according to defendants, serve the required deposition subpoenas by the September 5, 2007 deadline.

On October 10, 2007, Euro Brokers informed Magistrate Judge Matsumoto by letter that Pollack failed to remit payment of the $4,665.00 sanction. On this same date, Magistrate Judge Matsumoto ordered Pollack to respond to Euro Brokers' letter by October 12, 2007. Pollack did not respond by October 12, 2007, but Magistrate Judge Matsumoto granted an extension for her to reply to November 9, 2007.

At a November 1, 2007 status conference, plaintiff again complained that Euro Brokers had not complied with its discovery obligations. Magistrate Judge Matsumoto gave plaintiff "one final opportunity to move to compel" written discovery, by making a motion on November 8, 2007. November 1, 2007, Minute Entry. Plaintiff did not do so. Because the depositions of Paterno and Schwed had not been conducted, and because the deposition of McMahon had not been concluded, Magistrate Judge Matsumoto further ordered, pursuant to plaintiff's request, that she serve depositions subpoenas directly on Paterno, Schwed, and McMahon, rather than Euro Brokers' counsel. Magistrate Judge Matsumoto directed that depositions be held on December 18-21, 2007, as agreed by the parties at the conference, provided plaintiff's counsel could effect proper service pursuant to Fed. R. Civ. P. 45. Id.

On November 14, 2007, Euro Brokers informed Magistrate Judge Matsumoto that Pollack still had not responded to its letter concerning her failure to remit the $4,665.00 sanction. Magistrate Judge Matsumoto ordered Pollack to remit payment on the sanction by December 5, 2007. She also noted that if Pollack "fail[ed] to comply with this order by December 7, 2007, the [C]court will consider any further ...

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