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International Brotherhood of Electrical Workers Local No. 43 Pension, Annuity v. Meacham Electrical Contractors

April 7, 2010

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS LOCAL NO. 43 PENSION, ANNUITY AND HEALTH AND WELFARE FUNDS, BY PAUL KLOC, AS PLAN MANAGER; CENTRAL NEW YORK JOINT APPRENTICESHIP AND TRAINING COMMITTEE FOR THE ELECTRICAL INDUSTRY, BY PETER DULCICH, AS TRAINING DIRECTOR; NATIONAL ELECTRICAL BENEFIT FUND, BY JOHN M. GRAU AND EDWIN D. HILL, AS TRUSTEES; CENTRAL NEW YORK LABOR MANAGEMENT COOPERATION COMMITTEE, BY WILLIAM TOWSLEY AND ERNEST KUHN, AS TRUSTEES; NECA-IBEW NATIONAL LABOR-MANAGEMENT COOPERATION COMMITTEE TRUST FUND, BY JOHN M. GRAU AND JOHN J. BARRY, AS TRUSTEES; I.B.E.W. LOCAL UNION NO. 42, BY WILLIAM TOWSLEY, AS BUSINESS MANAGER; FINGER LAKES NEW YORK CHAPTER, NATIONAL ELECTRICAL CONTRACTORS ASSOCIATION, BY MARILYN OPPEDISANO, CHAPTER MANAGER, PLAINTIFFS,
v.
MEACHAM ELECTRICAL CONTRACTORS, INC.; NNYS INC.; SHELDON MEACHAM, INDIVIDUALLY AND AS AN OFFICER OF MEACHAM ELECTRICAL CONTRACTORS, INC. AND NNYS, INC., DEFENDANTS.



The opinion of the court was delivered by: Hon. Norman A. Mordue, Chief Judge

MEMORANDUM-DECISION AND ORDER

I. BACKGROUND

On June 2, 2008, the Court granted plaintiffs' motion for default judgment against defendants and entered judgment in favor of plaintiff's in the amount of $24, 882.74. On August 27, 2008, plaintiffs served a request for production of documents and a notice to take deposition on defendants, but received no response. On March 11, 2009, plaintiffs filed a motion to enforce the judgment and compel discovery. On July 23, 2009, the Court granted plaintiffs' motion and ordered defendants to submit a written response to plaintiffs' document production request and produce all documents plaintiffs requested. The Court ordered that defendants appear for a deposition in accordance with the notice of deposition plaintiffs previously served. The Court further ordered that defendants pay $1,758.16 to plaintiffs' attorneys - the legal fees plaintiffs incurred in bringing the motion to enforce.

In a letter dated July 28, 2009, plaintiffs informed defendants that a document review and deposition were scheduled for August 10, 2009 at plaintiffs' attorney's office in Syracuse,

New York. Plaintiffs enclosed a copy of the Court's order directing discovery with the letter. Plaintiffs advised defendants that they would "seek a Court Order holding you in contempt and further sanctioning you for violating Judge Mordue's Order, if they failed to respond. Plaintiffs received no response and defendants did not appear for deposition. In a letter dated August 20, 2009, plaintiffs requested that defendants contact plaintiff's attorney to reschedule the deposition. Again, plaintiffs advised defendants that they would seek sanctions if they continued to ignore the Court's Order. Defendants did not respond and on November 2, 2009, plaintiffs filed the instant motion.

In a letter dated November 24, 2009, plaintiffs requested an adjournment regarding the instant motion because they "recently discovered that the defendant Sheldon Meacham has relocated to Oklahoma. Thus, it will take longer than anticipated to effectuate service" of the motion for contempt on defendants.

On January 11, 2010, defendants filed a response to plaintiffs' motion for contempt and to compel compliance. According to defendants' attorney, the Court's judgment, plaintiffs' letter dated August 27, 2008 requesting the production of documents and that defendants submit to deposition, and the Court's Order entered on July 23, 2009 compelling discovery, "were never served on my client nor did he have knowledge thereof." Defendants' attorney stated that defendant Sheldon Meacham "has submitted documents requested by Plaintiffs and has advised that he will fully cooperate with Plaintiffs' reasonable requests." Additionally, according to defendants' attorney, Mr. Meacham "is ready, willing and able to be deposed in Ponca City Oklahoma where he works and presently resides of ir Plaintiffs desire will appear in Syracuse, New York if the Plaintiffs are willing to be responsible for the reasonable expenses to be incurred by the Defendant".

In reply, plaintiffs assert that they properly completed service of the relevant papers by mailing them to Mr. Meacham's last known address, as listed on his 2008 federal income tax returns, in Lowville, New York. Plaintiffs further assert that Mr. Meacham's production of documents was deficient. Plaintiffs requested "documentation from January 2007 to date relating to defendants' financial interests, transfer of property, employment information, financial condition and debts and obligations." Plaintiffs state that Mr. Meacham only produced "tax returns, results of a judgment search and a joint checking account statement."

In reply to Mr. Meacham's indication that he would submit to deposition in Oklahoma or in Syracuse, at plaintiffs' expense, plaintiffs request the Court direct Mr. Meacham to appear for a deposition in Syracuse.

Defendants responded that Mr. Meacham would "complete a list of his living expenses and furnish those to plaintiffs' counsel" and would also "provide additional information when available and/or requested including an income and expenses statement inclusive of support of his wife and three children."

II. DISCUSSION

Plaintiffs seek an order pursuant to Rule 37(b)(2) of the Federal Rules of Civil Procedure finding defendants in contempt for disobeying the Court's July 23, 2009 Order.

Plaintiffs also seek an order directing defendants to appear for a deposition in Syracuse, New York, produce their records, and pay plaintiffs' attorneys' fees and a fine.

The Court has wide discretion to impose sanctions under Rule 37 for failing to comply with a court order. Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 107 (2d Cir. 2002). The sanctions available under Rule 37(b) for failing to comply with a court order include an order: establishing facts; precluding certain evidence, issues or claims; striking pleadings or dismissing an action; or treating the failure to comply as a contempt of court. Rule 37(b) also provides that "[i]n lieu of any of the foregoing orders [awarding sanctions] or in addition thereto, the court shall require the party failing to obey the order or the attorney advising that party or both to pay the reasonable expenses, including ...


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