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Karl F. Owen v. No Parking Today

October 19, 2011

KARL F. OWEN PLAINTIFF,
v.
NO PARKING TODAY, INC., DEFENDANT.



The opinion of the court was delivered by: Gabriel W. Gorenstein, United States Magistrate Judge

OPINION AND ORDER

In this lawsuit, Karl F. Owen claims that defendant No Parking Today, Inc. failed to properly pay him overtime as required by the Fair Labor Standards Act of 1938, 29 U.S.C. § 201 et seq., the New York State Labor Law § 190 et seq. and § 652(1), and N.Y. Comp. Codes R. & Regs. tit. 12, § 142-2.2. See Complaint, filed June 23, 2008 (Docket # 1). Owen now moves for sanctions pursuant to 28 U.S.C. § 1927 and Rule 37 of the Federal Rules of Civil Procedure on the ground that No Parking Today's president and sole shareholder, Clayton Thomas, failed to respond to Owen's discovery demands on time. No Parking Today has cross-moved for an order compelling the deposition of plaintiff Karl Owen.*fn1 We discuss each motion separately.

I. MOTION FOR SANCTIONS

A. Facts

The facts underlying the motion to compel are for the most part undisputed. On October 27, 2008, Owen made a document request to No Parking Today. See Plaintiff's First Request for Production of Documents, dated Oct. 27, 2008 (annexed as Ex. 3 to Affirmation of Robert David Goodstein, filed Aug. 1, 2011 (Docket # 38) ("Goodstein Affirm.")) ("First Doc. Request").

Owen requested documents containing "the names and addresses of the persons(s) [sic] who were hired or assigned to perform tasks similar to Karl F. Owen" and "all personnel and payroll records" of those persons. Id. ¶¶ 4--5. Owen also requested documents concerning "contracts, memorandum [sic], pay records relating and/or referring to the relationship between No Parking Today, Inc. and Consolidated Edison." Id. ¶ 8. In its response to the initial document request, No Parking Today stated that the request for "personnel and payroll records" for other employees was "not authorized render [sic] the law." Answer to Plaintiff's Request for Documents, dated Dec. 9, 2008 (annexed as Ex. L to Affirmation in Opposition to Plaintiff's Motion for Sanctions and Exhibits, filed Aug. 31, 2011 (Docket # 51) ("Marino Affirm.")) ¶¶ 4, 5.

On March 5, 2010, Owen sent No Parking Today a letter explaining the deficiencies in No Parking Today's response to the discovery requests. Letter from R. Goodstein to A. Marino, dated Mar. 5, 2010 (annexed as Ex. 4 to Goodstein Affirm.) ("Mar. 5, 2010 Letter"). In response, No Parking Today submitted a letter from Thomas providing the names of five employees who held positions similar to Owen's and explaining that "[a]ll personnel records and payroll records are being obtained from the accountant." Letter from C. Thomas to R. Goodstein, dated May 4, 2010 (annexed as Ex. 18 to Goodstein Affirm.) ("May 4, 2010 Letter") ¶¶ 4--5. Thomas also said that he was resubmitting all of the Con Edison agreements, id. ¶¶ 7--8, and that his accountant was mailing him copies of Owen's 941, W2, and W4 forms. First Doc. Request ¶¶ 19--21; May 4, 2010 Letter ¶¶ 14--16.

On June 7, 2010, Thomas sent No Parking Today's attorney a letter saying that he had been advised by his accountant that he needed to keep documents only for the previous three years and therefore we do not have any of the follow [sic] documents covering 2004 to 2007:

5) Names, address of employees personnel and payroll.

6) Hours worked, rate, time sheets, work order, job request, time sheets or any Con Ed documents.

12) Documents covering the length of employment.

16) Contracts or weekly salary paid.

18) Deductions taken out of ...


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