United States District Court, S.D. New York
MEMORANDUM AND ORDER
KEVIN NATHANIEL FOX, Magistrate Judge.
Plaintiff Hicham Azkour, proceeding pro se, brings this action against defendants Jean Yves Haouzi ("Haouzi"), Franck Macourt ("Macourt"), Jessica Comperiati ("Comperiati") and Little Rest Twelve, Inc. ("LRT") alleging a violation of 42 U.S.C. § 1981. Before the Court is the plaintiff's motion: (1) to compel the defendants to produce documents, pursuant to Rule 37 of the Federal Rules of Civil Procedure; and (2) for a determination of the sufficiency of the defendants' answers to the plaintiff's requests for admissions, pursuant to Rule 36 of the Federal Rules of Civil Procedure. The defendants oppose the motion.
LRT operated a restaurant and bar in Manhattan known as Ajna Bar. The plaintiff worked for LRT from October 2009 until February 2010. In his declaration submitted in support of the instant motion, the plaintiff states that his employment application, which was signed and dated October 10, 2009, reflects that he applied and was hired by LRT as a waiter. Plaintiff avers that he was later told that he would instead be trained as a busboy and food runner. According to the plaintiff, after his employment by LRT was terminated on February 9, 2010, he requested, on several occasions, a post-employment letter of reference; however, LRT's management ignored his request. On February 19, 2010, the plaintiff visited Ajna Bar and met with Jessica Rosa ("Rosa"), then director of human resources for LRT. According to the plaintiff, "[t]he conversation took place in her office and was about my withheld wages and gratuities." Plaintiff avers that "[d]uring that day, I also inspected my personnel file in Ms. Rosa's office, which was located in the basement of Ajna Bar.... All documents, including my employment application, were stored in a large armoire in her office. Many other employees' files were stored inside that same office furniture."
On or about March 30, 2010, the defendants in this action became the new owners and managers of Ajna Bar. Thereafter, according to the plaintiff, Haouzi, along with twenty or thirty armed men, invaded the premises of Ajna Bar and may have taken possession of financial statements and other business documents. However, the accounts of the incident provided by the plaintiff indicate that the facts of the matter are in dispute. For example, the plaintiff states that "after an alleged armed raid by the current managers and their attorneys, on or about March 30, 2010, evidence was allegedly destroyed." The plaintiff also states that "[f]or about 4 years, endless accusations of evidence spoliation have been exchanged in different fora by attorneys for the two management teams." Additionally, according to the plaintiff, it has been alleged that "the former managers refused to disclose the documents... requested" and that the attorney representing the former managers "who are the defendants in [a state court action] accuses the current managers of having destroyed the evidence when they assumed control of defendant [LRT]."
On or about April 1, 2010, the plaintiff requested from Macourt, the new general manager of Ajna Bar, that the defendants provide him with a reference letter. The plaintiff avers that "[d]efendants categorically refused to provide me with such a document because, according to them, they had not hired me and I had never worked for them."
Previously, in January 2010, Azkour had filed: (1) a charge of discrimination with the United States Equal Employment Opportunity Commission ("EEOC"), alleging that LRT's previous owners and managers discriminated and retaliated against him; and (2) a complaint with the United States Department of Labor ("DOL"), alleging that LRT's previous owners and managers violated the FLSA.
On December 20, 2013, in connection with the plaintiff's related FLSA action, LRT wrote to the Court and the plaintiff and offered to provide the plaintiff with a letter of reference on condition that the offer was without prejudice to the defendants' claim that they had no legal obligation to provide such a letter. The plaintiff refused the offer.
The plaintiff filed a third-amended complaint on February 2, 2012, alleging, inter alia, discrimination on the basis of race under 42 U.S.C. § 1981. The defendants filed their answer on October 7, 2013. On or about October 21, 2013, the defendants served on the plaintiff a document entitled "Defendants' Initial Disclosure Pursuant to FRCP Rule 26(a)." This document identifies Haouzi, Macourt and Comperiati as individuals "likely to have discoverable information that the Defendants may use as defenses to Plaintiff's claims." The address provided for each of these individuals is that of defendants' counsel. Thereafter, by an order dated November 1, 2013, the Court, inter alia, set a discovery deadline of February 28, 2014.
On December 27, 2013, the plaintiff wrote to the undersigned stating that he had served his first request for production of documents on defendants' counsel on October 21, 2013, but the defendants "have not so far complied with my request to produce all the documents." (Docket Entry No. 144). Attached to the plaintiff's letter was a copy of the request, entitled "Plaintiff's First Request for Production of Documents, " which sets forth twenty-three such requests.
The plaintiff wrote to the undersigned again on January 15, 2014; attached to the plaintiff's letter was a document dated December 27, 2013, and entitled "Plaintiff's Requests for Admission, " which sets forth fifteen such requests. According to the plaintiff, the defendants "have so far refused to answer my requests for admission and provide me with all the documents I requested." (Docket Entry No. 147).
On January 16, 2014, the defendants' counsel wrote to the plaintiff advising him, inter alia, that he was enclosing "a copy of all the records that our clients have been able to locate responsive to your document request." Annexed, improperly, as an exhibit to the plaintiff's memorandum of law in support of the instant motion is a set of documents which appears to constitute the defendants' production. The documents provided include: (i) a letter dated February 9, 2010, from Rosa, the former director of human resources for LRT, to the plaintiff advising him, among other things, of his suspension with pay pending an investigation into his EEOC complaint; (ii) an e-mail message dated February 14, 2012, from the plaintiff to an employee of LRT advising of the plaintiff's resignation from employment; (iii) an undated statement by LRT's employee responding to the complaints made by the plaintiff concerning the circumstances of his termination from employment; (iv) a Federal Insurance Contributions Act ("FICA") Tip Credit Report for LRT for the periods March 1, 2009, to February 28, 2010, and April 1, 2009, to March 31, 2010; (v) two documents entitled "Payroll Journal" for LRT for the periods December 28, 2009, to January 3, 2010, and January 4, 2010, to January 10, 2010; (vi) six documents entitled "Payroll" prepared on a weekly basis for "25 Little West 12 St" for the period January 4, 2010, through February 14, 2010; (vii) a document entitled "Labor" prepared for "25 Little West 12th Street" for the period February 1, 2010, to February 7, 2010; (viii) three documents entitled "FOH Payroll"; (ix) e-mail correspondence between employees of LRT concerning payments made to the plaintiff, among others; and (x) an Accident/Incident Report dated February 19, 2010, apparently prepared by security personnel concerning the plaintiff's visit to Ajna Bar on that date and his alleged forced removal from the premises. The defendants' responses to the plaintiff's requests for admission were also provided to the plaintiff on January 16, 2014.
The plaintiff wrote to the Court on January 22, 2014, acknowledging that the defendants' counsel had produced documents in response to his requests but characterized the production as "scraps of paper, which he purports [sic] to be the documents I requested." (Docket Entry No. 148).
By an order dated February 18, 2014, the Court directed the plaintiff to serve and file any motion to compel on or before March 13, 2014. The plaintiff complied with the Court's order and filed the instant motion timely. In support of his motion, the plaintiff submitted a memorandum of law, including exhibits annexed thereto improperly, see Local Civil Rule 7.1(a)(3) of this court, and a declaration.
The plaintiff, through his motion, contends that the defendants have failed to comply fully with his request for the production of documents, have refused to make the initial disclosures mandated by Rule 26(a) of the Federal Rules of Civil Procedure and have "answered evasively" his requests for admission.
A. Production of Documents
The plaintiff contends that the defendants failed to produce certain elements of his personnel file, including his employment application, resume and "signed W-4 forms" and documents related to, among other things, an investigation conducted by the Department of Labor. As previously noted, according to the plaintiff, when he visited the defendants' bar on February 19, 2010, "all documents pertaining to his employment were stored and preserved at [that location] [17 Little West 12th Street, New York, New York]." However, "after an alleged armed raid by the current managers and their attorneys... evidence was allegedly destroyed." The plaintiff contends that, notwithstanding the alleged destruction of his employment records, "the current managers and owners are the ones liable for the preservation of any evidence and the production of the herein requested documents." He states: "Defendants are under the obligation to preserve employment records, especially when they became aware that Plaintiff twice complained to the EEOC regarding Defendants' violation of [Title VII] and the Americans with Disabilities Act."
B. Rule 26(a) Disclosure
The plaintiff contends that the defendants have failed to provide him with the name, address and telephone number of each individual likely to have discoverable information, as well as other information, in accordance with Federal Rule of Civil Procedure 26(a)(1)(A). In this connection, the plaintiff notes that the defendants' counsel failed to provide him with "the address and telephone number of a witness, namely, Kristal Mallookis, who testified for Defendants in the instant matter."
As noted earlier, the defendants served on the plaintiff their initial disclosure pursuant to Fed.R.Civ.P. 26(a) on or about October 21, 2013. That document identified Haouzi, Macourt and Comperiati as individuals "likely to have discoverable information that the Defendants may use as defenses to Plaintiff's claims" and provided as contact information for them their counsel's business address.
C. Requests for Admission
The plaintiff contends that the defendants "answered evasively" his requests for admission. Specifically, the plaintiff challenges five of the defendants' responses to his requests for admission. These requests, and the defendants' answers to them, are as follows:
Request No. 1:
Admit that on December 20, 2013, you offered to provide Plaintiff with a post-employment letter of professional reference ("reference letter") if he agreed that said letter be not used as evidence against you in the present matter and in Azkour v. Little Rest Twelve, Inc., et al., ...