RONALD L. ELLIS, Magistrate Judge.
Plaintiff SerVaas Incorporated ("SerVaas") brought this action pursuant to New York's Uniform Foreign Country Money-Judgment Recognition Act, C.P.L.R. §§ 5301 et seq., and 28 U.S.C. § 1332 against Defendants the Republic of Iraq ("Republic") and the Ministry of Industry of the Republic of Iraq ("Ministry") (jointly referred to as "Iraq"), seeking recognition of a foreign judgment entered in favor of SerVaas by the Paris Commercial Court on April 16, 1991 ("French Judgment"). SerVaas's motion for summary judgment was granted on February 1, 2012. See Docket No. 67. Iraq was ordered to produce materials related to post-judgment discovery on August 29, 2012 ("August 2012 Order"). See Docket No. 86. Before the Court is SerVaas's motion for certification of facts supporting civil contempt and sanctions and Iraq's motion to stay post-judgment discovery pending appeals.
For the following reasons, each side's motion is
Federal Rule of Civil Procedure 37(b)(2)(A)(vii) provides that a court may hold a party in contempt for failure to comply with a discovery order. Contempt authority of magistrate judges is limited by the Federal Magistrates Act, and provides that:
28 U.S.C. § 636(e)(6)(B)(iii). "In certifying the facts under Section 636(e), the magistrate judge's role is `to determine whether the moving party can adduce sufficient evidence to establish a prima facie case of contempt.' Toxey v. United States, No. 10 Civ. 3339 (RJH) (KNF), 2011 WL 4057665, *2 (S.D.N.Y. Aug. 25, 2011). If the facts are certified, the district judge is required to conduct a de novo review where issues of fact are resolved and credibility determinations are made. Bowens v. Atl. Maint. Corp., 546 F.Supp.2d 55, 71 (E.D.N.Y. 2008). If, however, the facts are not certified, "a district court may not proceed further on a motion for contempt where the conduct at issue occurred before a magistrate judge." Toxey, 2011 WL 4057665, at *2; accord Nova Biomedical Corp. v. i-Stat Corp., 182 F.R.D. 419, 423-24 (S.D.N.Y. 1998). A party is held in civil contempt for failing to comply with a discovery order when "(1) the order the contemnor failed to comply with is clear and unambiguous, (2) the proof of noncompliance is clear and convincing, and (3) the contemnor has not diligently attempted to comply in a reasonable manner." Paramedics Electromedicina Comercial, Ltda. v. GE Med. Sys. Info. Technologies, Inc., 396 F.3d 645, 655 (2d Cir. 2004). Failure to comply with the order at issue need not be willful. Id. (citing Donovan v. Sovereign Sec. Ltd., 726 F.2d 55, 59 (2d Cir. 1984)).
SerVaas argues that certification is warranted because Iraq has "failed to produce any documents in response to SerVaas's document requests or to provide any substantive and sworn responses to SerVaas's interrogatories." (Mem. of Law in Supp. of Pl.'s Mot. for Certiftication of Facts Supp. Civil Contempt and Sanctions ("SerVaas's Sanctions Mem. of Law") 9.) SerVaas maintains that Iraq has not operated in good faith because Iraq informed SerVaas that production would be provided on a rolling basis but has not produced any documents. (Id.) SerVaas also argues that Iraq's request for a premotion conference does not eliminate Iraq's duty to produce requested documentation. (Id. at 11.) SerVaas maintains that its request of $10,000 per day until full compliance is reasonable. (Id. at 14.) To support its position, SerVaas asserts that Iraq's actions are "thwarting" its ability to enforce the Court's previous orders. SerVaas contends that "[a]ny delay in obtaining post-judgment discovery . . . substantially increases the likelihood and the time for [Iraq] to transfer, alienate[, or] insulate their assets from enforcement."
Judge Berman's August 2012 Order unambiguously stated that post-judgment discovery was to be completed twenty-one days after the order was issued, satisfying the first element necessary for certification, failure to comply with a court order. Discovery is not complete because Iraq has not produced the requested documents, satisfying the second element for certification, proof of noncompliance. When considering the facts of this case, the final element for contempt is not satisfied.
After the August 2012 Order had been issued, SerVaas contacted Iraq to request a meet and confer. (SerVaas Notice of Mot., Ex. 5.) Eleven days later, on September 10, 2012, counsel for Iraq responded with a proposed date, explaining that the delay was caused by his cocounsel's illness. (SerVaas Notice of Mot., Ex. 6.) On September 17, 2012, Iraq sent letters to the Court requesting a pre-motion conference for its motion to stay discovery pending appeal and an adjournment to the twenty-one day discovery deadline imposed by the August 2012 Order. (SerVaas Notice of Mot., Ex. 9, 10.) In its letter, Iraq attached a declaration from Hanan M. Nassef, Director General of the Legal Department of the Ministry of Justice of the Republic of Iraq, explaining that it would take four to six months for each Ministry to determine whether it had a legal obligation to respond and to produce such responses to SerVaas's discovery request.
A telephone conference had been scheduled for October 31, 2012, but was adjourned because of hurricane Sandy. Thereafter, another conference was scheduled and held on January 15, 2013.
The actions of Iraq do not warrant a certification of contempt. In Export-Import Bank of Repblic of China v. Grenada, No. 06 Civ. 2469 (HB), 2010 WL 5463876, *4 (S.D.N.Y. Dec. 29, 2010), Grenada was found in contempt after an "inordinate amount of time" had been granted to comply with post-judgment discovery and three motions to compel. Similarly, in Musalli Factory for Gold & Jewelry Co. v. New York Fin. LLC, et al., No. 06 Civ. 82 (AKH), 2010 WL 2382415, *1-3 (S.D.N.Y. June 14, 2010), defendant Amir Boktor was found in contempt after canceling a deposition two days before it was scheduled, failing to respond to a properly served subpoena, failing to comply with a motion to compel his deposition testimony and document production, and failing to appear before the Court for an ordered appearance. Here, Iraq has not shown behavior similar to these cases. Given the difficulty with scheduling the premotion conferences, Iraq's representation as to the time needed to comply with discovery, the misunderstanding as to whether a "standstill" of discovery had been agreed upon, Iraq's discovery obligations were unclear. Nonetheless, Iraq's efforts to comply with the order were reasonable, namely, traveling to Iraq to effectuate discovery, engaging in settlement negotiations, and placing its appeals on administrative leave in furtherance of those settlement negotiations. Based on the Court's familiarity with the case and the Parties' submissions, Iraq has made reasonable efforts to comply with the discovery order. Therefore, SerVaas's motion to certify the facts in support of contempt and sanctions is
Iraq seeks a stay of discovery pending appeal of the August 2012 Order pursuant to Federal Rule of Civil Procedure 62(c), which provides that a court may "suspend, modify, restore, or grant an injunction during the pendency of the appeal." Fed. R. Civ. P. 62(a) (emphasis added). Magistrate judges, however, cannot issue injunctions. See 28 U.S.C. 636(b)(1)(A). The Court cannot treat a discovery order as an injunction. The August 2012 Order stated that any "disagreements regarding discovery [] should be presented to the magistrate judge." August 2012 Order, at 7, This statement necessarily implies that the Court has authority to make necessary modifications to Iraq's duty to produce interrogatories and documents upon showing of good cause. The August 2012 Order does not, however, grant the Court authority to issue an order pursuant to a Federal Rule of Civil Procedure outside its authority.
Iraq maintains that SerVaas's discovery-demands seek information from entities that were not parties to the underlying French Judgment. (Def.'s Mem. of Law in Supp. of Mot. to Stay Post-Judgment Discovery Pending Appeal ("Iraq's Mem.") 2.) Iraq states that compliance would affect "at least thirty-four major ministries of Iraq and 192 Iraqi State-Owned Enterprises."
Even if the Court could issue an injunction, Iraq's motion to stay discovery would be meritless. A district court's order enforcing discovery is not typically considered a "final order" subject to appellate review under 28 U.S.C. § 1602. See Church of Scientology of California v. United States, 506 U.S. 9, 18 n. 11, (1992). Under the collateral order doctrine, however, a discovery order is "`final' if it (1) conclusively determines a disputed question; (2) resolves an important issue completely separate from the merits of the action; and (3) is effectively unreviewable on appeal from final judgment." See EM Ltd. v. Republic of Argentina, 695 F.3d 201, 205-06 (2d Cir. 2012).
Iraq argues that the August 2012 Order is appealable because the Order denied it sovereign immunity under the Foreign Sovereign Immunity Act ("FSIA") and thus is subject to interlocutory appeal. (Def.'s Reply Mem. of Law in Supp. of Mot. to Stay Post-Judgment Discovery Pending Appeal ("Iraq's Reply Mem.") 3.) Iraq maintains that the first two elements of the collateral order doctrine are met because the August 2012 Order concerned questions of sovereign immunity from post-judgment discovery from Iraq and "226 separate and independent foreign sovereign juridical persons." (Id. at 4.) Citing Rubin v. The Islamic Republic of Iran, 637 F.3d 783 (7th Cir. 2011), Iraq argues the third element is satisfied because questions involving sovereign immunity by their very nature satisfy the collateral order doctrine. (Iraq's Reply Mem. 4.)
In EM Ltd., the Second Circuit held that "a district court's power to order discovery to enforce its judgment does not derive from its ultimate ability to attach the property in question but from its power to conduct supplementary proceedings, involving persons indisputably within its jurisdiction.'
The present circumstances do not support an application of the collateral order doctrine. The final element requires an order to be "effectively unreviewable on appeal from final judgment." See EM Ltd, 695 F.3d at 205-06. The August 2012 Order only relates to discovery, not sovereign immunity, which makes the Order appealable through disobedience and contempt. See Id. at 206; accord Arista Records, LLC v. Doe 3, 604 F.3d 110, 116 (2d Cir. 2010). Iraq would not be able to satisfy the final element of the collateral order doctrine, and therefore, is not substantially likely to succeed on appeal for lack of subject matter jurisdiction. If the Court had authority to determine whether a stay could be issued pursuant to Rule 62(a), Iraq's motion to stay post-judgment discovery pending appeal of the August 2012 Order would be denied.
For the foregoing reasons, SerVaas's motion to certify the facts in support of a finding of contempt and sanctions is