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287 Franklin Avenue Residents v. Chaim Meisels

May 24, 2012

287 FRANKLIN AVENUE RESIDENTS' ASSOCIATION, ET AL.,
PLAINTIFFS,
v.
CHAIM MEISELS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Kiyo A. Matsumoto, United States District Judge:

MEMORANDUM AND ORDER

Plaintiff Jon Sasmor ("Sasmor") has objected to certain discovery rulings made by Magistrate Judge James Orenstein on January 11, 2012. Sasmor seeks discovery of (i) documents relating to any offers made by defendants to purchase real property and submissions made to banks in connection with any such offers; (ii) any information in defendants' 2009 and 2010 tax returns and schedules pertaining to rental income and the identity of defendants' tax preparers, as well as defendants' W-2 and 1099 forms; (iii) the identity, conduct, and dates of involvement of all individuals involved in certain entities in the last three years; (iv) all categories of documents kept by certain entities in the ordinary course of business, as well as the location and custody of those documents; (v) any information regarding possible common family relationships among defendants and the late Grand Rabbi Moses Teitelbaum or Garcia Iron Works, Inc.; (vi) the identity and involvement of any persons involved in the conveyance of 287 Franklin Avenue from Ronald Henry to the Ronald Henry Land Trust, and the purpose of that conveyance; and (vii) all documents related to 287 Franklin Avenue, 175 Thompkins Avenue, Peter Henry, agreements between defendants and Ronald Henry, and arrangements made for utilities, taxes, and violations at 287 Franklin Avenue. (See ECF No. 82, Appeal of Magistrate Judge Decision to District Court by Jon Sasmor, filed 2/17/2012 ("Sasmor Appeal").)

The court has reviewed the parties' submissions and the transcript of the status conference before Judge Orenstein on January 11, 2012. For the following reasons, Sasmor's appeal of Judge Orenstein's discovery rulings is granted in part and denied in part, as set forth below.

BACKGROUND

The facts relevant to the present request for review are as follows. On March 1, 2011, Jon Sasmor, proceeding pro se, and the 287 Franklin Avenue Residents' Association and other individuals, represented by counsel, (collectively with Sasmor, "plaintiffs") commenced the instant action. (ECF No. 1, Complaint filed 3/1/2011.) On July 7, 2011, plaintiffs filed an amended complaint against Chaim Meisels, Chaim Goldberger, Isaac Teitelbaum, Abraham Schneebalg, Ronald Henry, Nathan Smith, Josh Bosch, Peter Henry, Louis Garcia, Joel Kaufman, Brian Dudjak, Samuel Emmanus, the Ronald Henry Land Trust, Henry Management LLC, People Choice Real Estate, LLC, Kings County Realty Corp., and other unknown individuals (collectively, "defendants"). (See ECF No. 41, First Amended Complaint ("Am. Compl.") filed 7/7/2011.) Defendants Chaim Goldberger, Isaac Teitelbaum, Abraham Schneebalg, the Ronald Henry Land Trust, and Henry Management, LLC, collectively, are referred to herein as the "Trust Defendants." Defendants Louis Garcia, Joel Kaufman, and Kings County Realty Corp., collectively, are referred to herein as the "Garcia Defendants." Defendants Nathan Smith, Josh Bosch, and People Choice Real Estate, LLC, collectively, are referred to herein as the "People Choice Defendants." The amended complaint alleges that defendants, who are individuals, real estate companies that employed those individuals, and related trusts, violated the Racketeer Influenced and Corrupt Organizations Act ("RICO"), including predicate acts of extortion, money laundering, and mail, wire, and bank fraud, and violated New York State consumer protection laws. (Id. ¶¶ 30-40, 97-186, 220-66.)

On August 18, 2011, Judge Orenstein issued a scheduling order setting deadlines for discovery. (ECF No. 52, Scheduling Order dated 8/18/11.) On October 1, 2011, plaintiffs served all defendants with interrogatories and document requests. (See ECF No. 57-1, Plaintiffs' First Interrogatories and Document Requests to [Trust Defendants], dated 9/30/2011 ("Requests to Trust Defs."); ECF No. 64-1, Plaintiffs' First Interrogatories and Document Requests to [Garcia Defendants], dated 9/30/2011 ("Requests to Garcia Defs."); ECF No. 64-2, Plaintiffs' First Interrogatories and Document Requests to [People Choice Defendants], dated 9/30/2011 ("Requests to People Choice Defs.").) Although defendants' responses were due within 30 days after being served with the discovery requests, none of the defendants responded within the allotted time. (See ECF No. 57, Letter Motion to Compel Responses [from Trusts Defendants], filed 11/16/2011 ("Mot. to Compel Responses from Trust Defs."); ECF No. 64, Letter Motion to Compel Responses [from Garcia Defendants and People Choice Defendants], filed 11/28/2011 ("Mot. to Compel Responses from Garcia & People Choice Defs.").) See also Fed. R. Civ. P. 33(b)(2), 34(b)(2) (providing that a party must respond to interrogatories and document requests within 30 days after service thereof). Thereafter, the parties engaged in numerous discussions regarding plaintiffs' discovery requests. (See ECF No. 57-3, Emails to and from Attorney David Stern, dated Nov. 3, 8, 11, and 13, 2011 ("Stern E-mails") at 2; ECF No. 57-4, Letter from Sasmor to Attorney David Stern, dated 11/11/2011 (summarizing the correspondence between Sasmor and counsel for the Trust Defendants between November 2 and November 11, 2011); ECF No. 64-6, Emails to and from Attorney Marc Illish ("Illish E-mails"); ECF No. 64-3, [Garcia Defendants'] First Set of Responses to Plaintiffs' Interrogatories and Document Requests ("Garcia Defs. Unexecuted Draft Responses"); ECF No. 64-4, [People Choice Defendants'] First Set of Responses to Plaintiffs' Interrogatories and Document Requests ("People Choice Defs. Unexecuted Draft Responses").)

On November 16 and November 28, 2011, respectively, Sasmor filed motions to compel defendants to respond to plaintiffs' outstanding interrogatories and document requests. (See ECF No. 57, Mot. to Compel Responses from Trust Defs; ECF No. 64, Mot. to Compel Responses from Garcia & People Choice Defs.)

On December 5, 2011, all of the parties appeared before Judge Orenstein to discuss their outstanding discovery disputes. (ECF No. 66, Minute Entry for Proceedings held on 12/5/2011.) Judge Orenstein ordered the parties to meet and confer in a further attempt to resolve or narrow their discovery disputes, and to submit a joint status report no later than December 15, 2011 identifying any outstanding disputes. (Id.) Judge Orenstein further directed defendants to promptly respond and produce records in response to those interrogatories and document requests to which they had no reasonable objection. (Id.)

On January 11, 2012, Judge Orenstein held another status conference (the "January 11, 2012 status conference"), where the parties discussed and Judge Orenstein ruled on each disputed discovery request one-by-one. (See ECF No. 73, Minute Entry for Proceedings held on 1/11/2012; ECF No. 98, Transcript of Civil Cause for Conference before the Honorable James Orenstein, dated 1/11/2012 ("1/11/2012 Tr.").)

On January 25, 2012, Sasmor filed a motion seeking reconsideration of several rulings made by Judge Orenstein at the January 11, 2012 status conference. (See ECF No. 76, Motion for Reconsideration, filed 1/25/2012 ("Sasmor Motion for Reconsideration").) The Trust, Garcia, and People Choice Defendants opposed Sasmor's motion for reconsideration. (See ECF No. 77, Response to Motion for Reconsideration [by Trust Defendants], filed 1/30/2012; ECF No. 78, Response to Motion for Reconsideration [by Garcia and People Choice defendants], filed 1/30/2012.) On February 3, 2012, Judge Orenstein denied Sasmor's motion for reconsideration in its entirety, explaining that:

[Sasmor] presents no argument or fact in support of the motion [that] satisfies the strict standard for such relief pursuant to Local Civil Rule 6.3. I grant the defendants' request to make their supplemental disclosures in accord with my earlier discovery rulings no later than February 10, 2012.

(Order dated 2/3/2012.)

On February 17, 2012, Sasmor timely appealed to this court Magistrate Judge Orenstein's denial of reconsideration and the underlying discovery rulings. (See ECF No. 82, Sasmor Appeal.)

DISCUSSION

I.Legal Standards

A.Standard of Review

A district court may set aside a magistrate judge's order concerning non-dispositive matters only if the order is "clearly erroneous or contrary to law." Fed. R. Civ. P. 72(a); 28 U.S.C. § 636(b)(1)(A). A magistrate judge's pretrial discovery rulings are generally considered non-dispositive and are reviewed under the "clearly erroneous or contrary to law" standard of review. See Thomas E. Hoar, Inc. v. Sara Lee Corp., 900 F.2d 522, 525 (2d Cir. 1990) (finding that matters involving pretrial discovery are generally considered "nondispositive of the litigation" and thus are subject to the "clearly erroneous or contrary to law standard" on review by a district court). An order is clearly erroneous if the reviewing court, based on all the evidence, "is left with the definite and firm conviction that a mistake has been committed." United States v. Isiofia, 370 F.3d 226, 232 (2d Cir. 2004) (quoting Anderson v. Bessemer City, 470 U.S. 564, 573 (1985)). An order is contrary to law "when it fails to apply or misapplies relevant statutes, case law, or rules of procedure." Dorsett v. Cnty. of Nassau, 800 F. Supp. 2d 453, 456 (E.D.N.Y. 2011) (quoting Catskill Dev., L.L.C. v. Park Place Entm't Corp., 206 F.R.D. 78, 86 (S.D.N.Y. 2002)). "Pursuant to this highly deferential standard of review, magistrate[] [judges] are afforded broad discretion in resolving discovery disputes and reversal is appropriate only if their discretion is abused." Dunkin' Donuts Franchised Rests., LLC v. 1700 Church Ave. Corp., No. 07-CV-2446, 2009 U.S. Dist. LEXIS 24367, at *3 (E.D.N.Y. Mar. 24, 2009) (citation and internal quotation marks omitted). Thus, "a party seeking to overturn a discovery ruling [by a magistrate judge] generally bears a heavy burden." Travel Sentry, Inc. v. Tropp, 669 F. Supp. 2d 279, 283 (E.D.N.Y. 2009) (citation and internal quotation marks omitted).

B.Scope of Permissible Discovery

Pursuant to Federal Rule of Civil Procedure 26(b)(1), "[p]arties may obtain discovery of any non-privileged matter that is relevant to any party's claim or defense-including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter." Fed. R. Civ. P. 26(b)(1). Relevance under Rule 26 is "construed broadly to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case." Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978); see also Thomas E. Hoar, Inc. v. Sara Lee Corp., 882 F.2d 682, 687 (2d Cir. 1989) (holding that "the broad scope of discovery delimited by the Federal Rules of Civil Procedure is designed to achieve disclosure of all the evidence relevant to the merits of a controversy"). Further, "[r]elevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Fed. R. Civ. P. 26(b)(1).

Although the scope of discovery is broad, it is not unrestricted. Federal Rule of Civil Procedure 26(b)(2)(C) requires a district court to limit or deny discovery, sua sponte or upon motion, when:

(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action,; or

(iii) the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.

Fed. R. Civ. P. 26(b)(2)(C). "The party seeking the discovery must make a prima facie showing, that the discovery sought is more than merely a fishing expedition." Evans v. Calise, No. 92-CV-8430, 1994 U.S. Dist. LEXIS 6187, at *1 (S.D.N.Y. May 11, 1994); see also United States v. Int'l Bus. Mach. Corp., 66 F.R.D. 215, 218 (S.D.N.Y. 1974) (the burden is on the moving party to establish relevance); Tottenham v. Trans World Gaming Corp., No. 00 Civ. 7697, 2002 U.S. Dist. LEXIS 11313, at *3-4 (S.D.N.Y. June 21, 2002) ("Discovery . . . is not intended to be a fishing expedition, but rather is meant to allow the parties to flesh out allegations for which they initially have at least a modicum of objective support. . . . Discovery requests cannot be based on pure speculation or conjecture."). Therefore, in a motion to compel, it is incumbent upon the moving party to provide the necessary connection between the discovery sought and the claims or defenses asserted in the case.

II.Application

A.Offers to Buy Real Property

First, Sasmor seeks to compel defendants to respond to the remainder of plaintiffs' Interrogatory and Document Request No. 1 ("T1/G1/P1"), which provides, in relevant part:

State the street address of all real property that, within the last three (3) years, you have made an offer to buy on behalf of yourself or someone else, or submitted any paper to any bank; state the result of the offer or submission; and provide all documents in your possession, custody, or control concerning each offer or submission.*fn1

(ECF No. 82-1, Sasmor Appeal Ex. 1.)

At the January 11, 2011 status conference before Judge Orenstein, Sasmor asserted that information regarding offers made by defendants to purchase real property was relevant to establish a pattern of racketeering. (ECF No. 98, 1/11/2012 Tr. at 5.) Sasmor further argued that defendants' offers to buy real property would be relevant to determining the "scope of [defendants'] enterprise" and therefore "would help the Court to examine the scope of injunctive relief that might be appropriate." (Id. at 7.) By way of example, Sasmor explained that "if there were an offer to buy another property in which the defendants were working together with the banks' lawyer and the property was in foreclosure, . . . that might further [plaintiffs'] arguments . . . that there should be an injunction [prohibiting] the defendants [from] continuing ...


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