The opinion of the court was delivered by: Leslie G. Foschio United States Magistrate Judge
This action was referred to the undersigned by Honorable William M. Skretny on December 14, 2010, for nondispositive pre-trial matters. The case is presently before the court on Plaintiff's Second Motion to Compel (Doc. No. 63), filed January 20, 2012.
Plaintiff General Motors LLC ("Plaintiff" or "GM"), commenced this action on September 2, 2010, seeking to recover from Defendants Lewis Bros., L.L.C. ("Lewis Bros."), Samuel Lewis ("Samuel Lewis"), and Timothy Lewis ("Timothy Lewis") (together, "Defendants"), the costs GM has incurred, and will incur in the future responding to conditions of environmental contamination caused by Defendants who allegedly have engaged in conduct in violation of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"), 42 U.S.C. § 9601 et seq., resulting in the release of oil contaminated with polychlorinated biphenyl materials ("PCBs") onto adjoining lands owned by GM. Plaintiff asserts twelve claims for relief including (1) enforcement of restrictive covenants ("First Claim"); (2) breach of contract ("Second Claim"); (3) for account stated ("Third Claim"); (4) breach of implied contract or quantum meruit ("Fourth Claim"); (5) unjust enrichment ("Fifth Claim"); (6) trespass ("Sixth Claim"); (7) private nuisance ("Seventh Claim"); (8) recovery under CERCLA § 107 of clean-up expenses from owner of contaminated property ("Eighth Claim"); (9) recovery under CERCLA § 107 of clean-up costs from current operator of facility ("Ninth Claim"); (10) strict liability under New York Navigation Law §§ 172 and 181 ("Tenth Claim"); (11) avoidance of fraudulent conveyances under New York Debtor and Creditor Law §§ 273 and 278 ("Eleventh Claim"), and (12) breach of duty by directors and officers of an insolvent corporation ("Twelfth Claim"). The First through Eighth, and Eleventh Claims are asserted against Lewis Bros., the Ninth Claim is asserted against Timothy Lewis, the Tenth Claim is asserted against Lewis Bros. and Samuel Lewis, and the Twelfth Claim is asserted against Samuel and Timothy Lewis. Defendants' answer was filed on December 13, 2010 (Doc. No. 9).
On March 14, 2011, Plaintiff filed a motion seeking a preliminary injunction (Doc. No. 15) ("PI Motion"), restraining Lewis Bros. from engaging in the wrongful conduct as alleged in the Complaint, and for appointment of a receiver to oversee the activities of Lewis Bros. in preventing hazardous substances from migrating onto GM's property, and to ensure the assets of Lewis Bros. are not diverted from proper corporate purposes. A Scheduling Order filed May 25, 2011 (Doc. No. 37) ("May 25, 2011 Scheduling Order"), directed the parties to engage in expedited discovery to prepare for a hearing on Plaintiff's PI Motion.
Pursuant to the May 25, 2011 Scheduling Order, on May 27, 2011, Plaintiff served Defendants with Interrogatories and Requests for Production ("Discovery Demands"). Defendants' responses to Plaintiff's Discovery Demands, served June 28, 2011, objected to all requests for financial information concerning Lewis Bros., Samuel Lewis, and Timothy Lewis.
On September 21, 2011, Defendants' counsel filed a motion to withdraw (Doc. No. 45). In an order entered September 26, 2011 (Doc. No. 46), the undersigned directed Plaintiff to file any response to the motion to withdraw, and scheduled oral argument on the motion for October 18, 2011, requesting that Defendants, given that corporations are required to appear in federal court by counsel and may not proceed pro se, to advise the court if new counsel had been obtained for Lewis Bros. and provide the identity of such counsel. Nether Samuel nor Timothy Lewis appeared on October 18, 2011 for oral argument and the undersigned denied the motion to withdraw, directing Defendants' counsel to comply with the May 25, 2011 Scheduling Order.
On October 24, 2011, motions to compel discovery were filed by Defendants (Doc. No. 49) ("Defendants' Motion") and by Plaintiff (Doc. No. 50) ("Plaintiff's First Motion"). Oral argument was held before the undersigned on December 8, 2011, following which Defendants withdrew their motion and Plaintiffs' First Motion was denied as premature. (December 8, 2011 Minute Entry (Doc. No. 60)). During the December 8, 2011 oral argument, Defendants' then counsel, John G. Horn, Esq., agreed that Defendant Samuel Lewis would appear for a deposition and would not object to questions regarding the financial information sought by Plaintiff. On January 18, 2012, Defendants' attorney filed a second motion to withdraw as counsel. (Doc. No. 62).
On January 20, 2012, Plaintiff filed its Second Motion to Compel (Doc. No. 63) ("Plaintiff's Second Motion to Compel"), seeking an order compelling Defendants to (1) produce Samuel Lewis, Timothy Lewis, and a representative of Lewis Bros. for deposition on subjects relevant to the pending PI Motion including financial transactions of Lewis Bros. and related entities and the financial condition of those entities and individuals; (2) provide full and complete responses to Plaintiff's discovery demands; (3) supplement and revise, as necessary, any prior responses to Plaintiff's discovery
demands; and (4) make available for deposition any witnesses under the control of Lewis Bros. who are reasonably anticipated to testify at oral argument on Plaintiff's pending PI Motion. Plaintiff's Second Motion to Compel is supported by the attached Affirmation of R. Hugh Stephens, Esq. (Doc. No. 63-1) ("Second Stephens Affirmation"), and exhibits 1 and 2 (Doc. No. 63-2) ("Defendants' Exh(s). __"), and incorporates by reference the Affirmation of R. Hugh Stephens, Esq. filed October 24, 2011 in support of Plaintiff's First Motion to Compel (Doc. No. 50-1) ("First Stephens Affirmation"). On February 3, 2012, Defendants, in opposition to Plaintiff's Second Motion to Compel, filed the Affirmation of John G. Horn, Esq. (Doc. No. 66) ("Horn Affirmation"), of counsel to Defendants' then attorneys, Harter Secrest & Emery LLP ("Harter Secrest"). On February 10, 2012, Plaintiff filed Plaintiff's Reply to Harter Secrest & Emery's Response to Plaintiff's Motion to Compel (Doc. No. 68) ("Plaintiff's Reply"), and exhibits 1 through 7 (Doc. No. 68-1) ("Plaintiff's Reply Exh(s). __").
Oral argument on Plaintiff's Second Motion to Compel and the second motion to withdraw as counsel was held before the undersigned on February 22, 2012 (Doc. No. 70) ("February 22, 2012 Minute Entry"). Following oral argument, the undersigned reserved decision on Plaintiff's Second Motion to Compel, and ordered Plaintiff to provide by March 1, 2012, a statement clarifying which interrogatories and document requests remained outstanding, as well as a memorandum of law regarding the remedy or sanctions Plaintiff seeks, and granted the second motion of Harter Secrest to withdraw as counsel. Accordingly, Plaintiff filed on March 1, 2012, the Affirmation of R. Hugh Stephens (Doc. No. 71) ("Stephens Sur-Reply Affirmation"), with exhibits 1 through 5 (Doc. No. 71-1) ("Plaintiff's Sur-Reply Exh(s). __"), and the Memo [sic] of Law in Support of Plaintiff's Second Motion to Compel (Doc. No. 72) ("Plaintiff's Memorandum").
Based on the following, Plaintiff's Second Motion to ...