United States District Court, E.D. New York
L. Pollak United States Magistrate Judge Eastern District of
before the Court is a motion by the plaintiffs in these
related actions to impose limits on the Court-ordered
inspection of premises scheduled for October 30, 2017.
(See Pls.' Mot.,  Oct. 25, 2017). The Court
previously addressed the inspection in ruling on the
plaintiffs' motion for a protective order and to quash
the subpoena directed to the premises' owner,
Christie's Fine Art Storage Services, and assumes
familiarity with the earlier opinion. See Toussie v.
Allstate Ins. Co., No. 14 CV 2705, 2017 WL 4773374
(E.D.N.Y. Oct. 20, 2017).
explained below, plaintiffs' motion is without merit and
is therefore denied.
Plaintiffs' Motion for Discovery Limits
Court has reviewed plaintiffs' motion seeking to impose
limits on the inspection scheduled for October 30, 2017.
(See Pls.' Mot. at 1-2). The motion largely
seeks the same relief already denied by the Court in ruling
on the plaintiffs' motion to quash. Toussie v.
Allstate Ins. Co., 2017 WL 4773374, at *2-5.
(See Mot. to Quash,  Oct. 17, 2017). Although
plaintiffs purport to raise new concerns, Mr. Toussie's
Affidavit explains that “it was substantially for [the
reasons raised in the current motion] that objections were
lodged to conducting the inspection[.]” (Toussie Aff.,
Oct. 26, 2017, ECF No. 115). Even if the matters raised in
the motion and affidavit were new, there is no reason
plaintiffs or their counsel could not have presented them to
the Court earlier. Furthermore, plaintiffs have provided no
justification for yet another untimely filing, nor have they
at all addressed the concerns repeatedly raised by the Court
about their delay of discovery in these actions.
the Court has reviewed the motion and supporting affidavit
and discerns no reason to modify or supplement its earlier
Order regarding the inspection. The Court agrees with
Allstate's submission, which includes pictures of the
premises provided by Christie's, that “almost every
box is going to require moving in order to carefully inspect
its contents.” (Def.'s Opp'n at 2, Oct. 27,
2017). The Court is persuaded that the process outlined by
Allstate and the procedure provided by the Federal Rules
sufficiently address the issues raised by the plaintiffs.
Court therefore denies plaintiffs' motion seeking to
impose limitations on the October 30, 2017 inspection of
Christie's premises. The Court once again
“reaffirms its earlier rulings permitting an inspection
of Christie's as described in Allstate's
subpoena.” Toussie v. Allstate Ins. Co., 2017
WL 4773374, at *3.
Plaintiffs' Conduct During Discovery
arguments and issues raised in plaintiffs' motion are not
at all new, nor are the Court's concerns about
plaintiffs' conduct. In its earlier Order, the Court
noted that these matters “have been pending for years
and . . . discovery has progressed slowly.” Toussie
v. Allstate Ins. Co., 2017 WL 4773374, at *1. The Court
further observed that “this Court has considered these
arguments [by plaintiffs] and twice ruled that an inspection
is warranted[.]” Id. at *2; see id.
(explaining that “[p]laintiffs' concerns are not
tethered to the realities of these cases”). The October
20, 2017 Order marked the third time the Court ruled on these
and related issues. See, e.g., id. at *3
(ruling that “[g]iven the delay engendered by the
inconsistencies noted by the defendant, and because the issue
of what property remains in the plaintiffs' possession
and what property was lost during Hurricane Sandy is central
to this litigation, the Court reaffirms its earlier rulings
permitting an inspection of Christie's as described in
Allstate's subpoena”). Remarkably, this Order marks
the fourth time the Court has ruled on these concerns.
Court is deeply troubled by the pattern of seeking to thwart
proper discovery requests and to delay this litigation. That
plaintiffs chose to file, less than two business days before
the scheduled inspection and without conferring with
Allstate, a motion seeking relief the Court already denied
three times-and that Mr. Toussie swore in his
Affidavit that he has been aware of all of the issues raised
for quite some time-makes the motion even more troubling.
Federal Rules prohibit frivolous motions, as well as those
that are interposed for an improper purpose. See,
e.g., Fed.R.Civ.P. 11(b)(1), (2); id. R.
26(g)(1)(B). Sanctions for violating the certification
requirements of Rule 26 are mandatory. See
Fed.R.Civ.P. 26(g)(3) (providing that “[i]f a
certification violates this rule . . . the court, on motion
or on its own, must impose an appropriate
sanction”) (emphasis added). It would be generous to
conclude that the instant filing “strays perilously
close to the line drawn by Rule[s] 11” and 26 of the
Federal Rules of Civil Procedure. Demirovic v.
Ortega, No. 15 CV 327, 2017 WL 4621089, at *2 n.7
(E.D.N.Y. Oct. 13, 2017) (internal quotation marks omitted)
(quoting Point 4 Data Corp. v. Tri-State Surgical Supply
& Equipment Ltd., No. 11 CV 726, 2015 WL 13037562,
at *12 (E.D.N.Y. Sept. 10, 2015)). Although sanctions have
not been requested at this time, the Court expects that going
forward, plaintiffs and their counsel will adhere to the
Federal Rules and this Court's prior Orders and will not
continue to re-litigate the same issues previously decided by
reasons set forth above, the Court denies plaintiffs'
motion to limit the October 30, 2017 ...