SANDRA J. FEUERSTEIN, District Judge.
On January 2, 2012, plaintiffs served Dino Harrison, the registered agent of defendant Hardin Contracting Inc., with a subpoena, dated December 12, 2011, for document production and appearance at a deposition.
On August 27, 2013, upon Dino Harrison's failure to comply with the June 26, 2012 order, Judge Platt: (1) ordered Dino Harrison (a) to respond to the document requests in the subpoena so that his response was received at the offices of Trivella & Forte, LLP, 1311 Mamaroneck Avenue, Suite 170, White Plains, NY 10605
After Dino Harrison failed to comply with Judge Platt's August 27, 2013 Order, i.e., by failing to produce the documents requested in the subpoena and to appear for the deposition on October 8, 2013 at 10:00 a.m., plaintiffs moved for an order holding Dino Harrison in contempt or, in the alternative, directing him to respond to the document requests in the subpoena and to appear for a deposition. By Order dated December 15, 2014, I
Dino Harrison failed to respond to the document requests in the subpoena, dated December 12, 2011, or to appear for the deposition on February 10, 2015 as directed by the December 15, 2014 Order. (See Declaration of Jonathan Bardavid ["Bardavid Decl."], ¶ 13 and Ex. H). Plaintiffs now move pursuant to Rule 45(g) of the Federal Rules of Civil Procedure and Local Civil Rule 83.6 of the Local Rules of the United States District Courts for the Southern and Eastern Districts of New York for an order holding Dino Harrison in civil contempt and requiring him to pay them their reasonable attorneys' fees and costs in attempting to secure the production of the subpoenaed documents and his appearance at a post-judgment deposition. Although plaintiffs served the motion upon Dino Harrison on July 28, 2015, and filed it as unopposed on November 11, 2015, Dino Harrison has not responded to the motion to date.
"A court may hold a party in contempt if (1) the order the party failed to comply with is clear and unambiguous, (2) the proof of noncompliance is clear and convincing, and (3) the party has not diligently attempted to comply in a reasonable manner." CBS Broad. Inc. v. FilmOn.com, Inc., 814 F.3d 91, 98 (2d Cir. 2016); accord Paramedics Electromedicina Comercial, Ltda. v. GE Med. Sys. Info. Techs., Inc., 369 F.3d 645, 655 (2d Cir. 2004). Since plaintiffs have submitted clear and convincing proof that Dino Harrison has failed, without adequate excuse, to obey the subpoena dated December 12, 2011 and this Court's various orders related to it, all of which were clear and unambiguous, the branch of their motion seeking to hold Dino Harrison in civil contempt is granted and Dino Harrison is held in contempt pursuant to Rule 45(g) of the Federal Rules of Civil Procedure.
"Civil sanctions have two purposes: to coerce compliance with a court order and to compensate a plaintiff." CBS, 814 F.3d at 101; see also Local 28 of Sheet Metal Workers' Int'l Ass'n v. E.E.O.C., 478 U.S. 421, 443, 106 S.Ct. 3019, 92 L. Ed. 2d 344 (1986) ("[S]anctions in civil contempt proceedings may be employed for either or both of two purposes: to coerce the defendant into compliance with the court's order, and to compensate the complainant for losses sustained." (quotations and citation omitted)). Accordingly, plaintiffs' request to recover the reasonable attorneys' fees and costs they incurred in attempting to secure the production of the subpoenaed documents and Dino Harrison's appearance at a post-judgment deposition is granted.
However, although plaintiffs seek attorneys' fees and costs in the total sum of seven thousand one hundred thirty-two dollars and two cents ($7,132.02), (see Bardavid Decl., ¶ 14), their contemporaneous time records, (id., Ex. I), demonstrate that they only incurred attorneys' fees in the total amount of four thousand five hundred one dollars and twenty-five cents ($4,501.25) and costs in the total amount of one thousand three hundred fourteen dollars and ninety-one cents ($1,314.91).
Moreover, Dino Harrison is directed to respond to the document requests in the subpoena, dated December 12, 2011, a copy of which is attached hereto, so that his response is received at the offices of Trivella & Forte, LLP, 1311 Mamaroneck Avenue, Suite 170, White Plains, NY 10605,
Dino Harrison's payment of plaintiffs' reasonable attorneys' fees and costs in the total sum of five thousand eight hundred sixteen dollars and sixteen cents ($5,816.16) and production of the documents requested in the subpoena, dated December 12, 2011,
Plaintiffs shall serve a copy of this Order upon Dino Harrison by personal service on or before May 9, 2016 and file proof of such service with the Court.
SO ORDERED.
YOU ARE COMMANDED to appear in the United States District Court at the place, date, and time specified below to testify in the above case.
X YOU ARE COMMANDED to appear at the place, date, and time specified below to testify at the taking of a deposition in the above case.
X YOU ARE COMMANDED to produce and permit inspection and copying of the following documents or objects at the place, date, and time specified below (list documents or objects):
Documents listed in Exhibit A
[] YOU ARE COMMANDED to permit inspection of the following premises at the date and time specified below.
Any organization not a party to this suit that is subpoenaed for the taking of a deposition shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which the person will testify. Federal Rules of Civil Procedure, 30(b)(6).
ISSUING OFFICER'S NAME, ADDRESS AND PHONE NUMBER
David R. Hock, Esq., Cohen, Weiss and Simon LLP, 330 West 42nd Street, New York, NY 10036, (212) 563-4100
The following definitions and instructions apply to all requests for disclosures made herein:
1. "Communication" shall mean the transmittal of information in the form of facts, ideas, inquiries or otherwise.
2. "Document" shall mean writings, drawings, graphs, charts, photographs, phonorecords, and other data compilations from which information can be obtained, translated, if necessary by the respondent through detections devices into reasonably usable form, including without limitation, electronic or data compilations.
3. "Parties" shall refer to the "defendant" or "plaintiff," as applicable, as well as a party's full or abbreviated name or a pronoun referring to a party, and where applicable, its officers, directors, employees, partners, corporate parent, subsidiaries or affiliates. This definition is not intended to impose a discovery obligation on any person who is not a party to the litigation.
4. "Person" shall mean any natural person or any business, legal or governmental entity or association.
5. "Concerning" means relating to, referring to, describing, evidencing or constituting.
6. "All/Each" shall be construed as all and each.
7. "And/Or" shall be construed either disjunctively or conjunctively as necessary to bring within the scope of the discovery request all responses that might otherwise be construed to be outside of its scope.
8. The use of the singular form of any word includes the plural and vice versa.
9. "Hardin" shall mean Hardin Contracting Inc., and/or all predecessors Hardin Contracting Inc.
10. "Property" shall mean real property.
11. "Materials and Equipment" shall mean inventory, materials, machinery, equipment, tools, trucks, automobiles or other personal property.
12. The documents called for are those in the possession, custody or control of Hardin Contracting Inc., or Dino Harrison, wherever located.
13. Unless otherwise specified, the time period covered by this subpoena shall extend from May 1, 2003 through the present.
14. The documents produced are to be segregated by request number.
15. All requests made herein shall be construed to include any supplemental documents responsive to these requests that are later prepared, created or discovered.
16. For each document with respect to which any privilege is claimed, defendant shall identify the date of the document, any title or heading affixed to the document, the name and address of all persons to whom and by whom the document was sent or distributed, the type of document (
You are hereby requested to produce the following documents:
1. The Articles of Incorporation and State Corporate Registration Certificates of Hardin.
2. Corporate Bylaws of Hardin including any and all amendments or riders to such documents.
3. All minutes or drafts of minutes of meetings of the Board of Directors of Hardin and shareholder resolutions.
4. Any and all final tax returns filed on behalf of or by Hardin.
5. All stock certificates issued by or concerning Hardin.
6. All shareholder agreements concerning or referring to Hardin.
7. All corporate notices, filings or reports concerning Hardin filed with, prepared for, or required by, any federal, state, or municipal authority.
8. Any and all real estate deeds, leases, mortgages, mortgage notes, deeds of trust, deeds of trust notes, payment schedules and all documents, including checks, related to payments of any and all leases, mortgages, or deeds of trust on property leased or owned by Hardin or held for Hardin beneficially by any person or trustee.
9. Any and all documents, including, but not limited to vehicle registrations, permits, leases, sale agreements, or other documents relating to motor vehicles either presently or formerly registered by Hardin.
10. Any and all records concerning ownership of Material and Equipment (as defined in ¶ 11 under Definitions and Instructions) by Hardin or any person acting on behalf of Hardin.
11. Any and all records concerning rental of Material and Equipment (as defined in ¶ 11 under Definitions and Instructions) by Hardin or any person acting on behalf of Hardin.
12. Any and all records concerning mortgage of Material and Equipment (as defined in ¶ 11 under Definitions and Instructions) by Hardin or any person acting on behalf of Hardin.
13. Any and all records concerning security of Material and Equipment (as defined in ¶ 11 under Definitions and Instructions) by Hardin or any person acting on behalf of Hardin.
14. Any and all records concerning use of Material and Equipment (as defined in ¶ 11 under Definitions and Instructions) by Hardin or any person acting on behalf of Hardin.
15. Any and all quarterly and annual corporate and federal tax returns of Hardin.
16. Any and all quarterly and annual corporate and state tax returns of Hardin.
17. Any and all W-2s, individual earnings cards and/or time cards for all of the employees or independent contractors hired, employed or retained by Hardin.
18. Any and all financial statements, profit and loss statements, balance and income statements, balance sheets, trial balance sheets, ledgers, journals (including cash disbursements and cash receipts), accounting statements, accounting reports, copies of fronts and backs of checks or other documents designed to present the financial condition and/or asset or property holdings of Hardin in summary form, prepared by its officers or directors or on its behalf by any person or entity, or submitted to any financial institutions.
19. Any and all documents concerning any brokerage account of Hardin.
20. Copies of all checks, money orders, cashier's checks, wire transfers, electronic transfers, instruments of payments, negotiable instruments, or other documents representing payments or transfers of assets from Dino Harrison to Hardin, or any of Hardin's officers, directors, shareholders, or companies or entities owned, in full or in part, or controlled by these officers, directors, or shareholders.
21. Any and all bank statements, money market account statements, stock broker account ledgers, passbooks, entry ledgers, computer printouts, or other graphic representations of whatever kind that reflect money, assets or business property held by Hardin at any financial institution, brokerage house, bank, savings institution, safe deposit and trust company, or other financial or credit company.
22. Any and all written service and/or performance contracts, and any documents reflecting such contracts for service or performance between Hardin and any individual, organization, business or other entity that provided or received goods or services to or from Hardin.
23. Any and all documents reflecting any and all oral contracts for service or performance between Hardin and any individual, organization, business or other entity that provided or received goods or services to or from Hardin.
24. Copies of any and all contracts, memoranda, leases and/or agreements relating to the purchase, merger, consolidation, transfer or assignment of the goodwill, trade name, stock and/or assets of Hardin.
25. All records maintained on or concerning employees, owner-operators, temporary employees or independent contractors of Hardin.
26. All documents concerning job bids and/or performance bonds prepared or submitted by or on behalf of Hardin to any contractor(s) or other persons soliciting job bids, including documents concerning the qualifications of Hardin to perform work.
27. All work tickets, job orders or other documents that identify daily work assignments of employees of Hardin.
28. Provide documents that identify any and all accountants of or hired by Hardin.
29. Any and all documents and/or records of appraisals of the fair market value of the assets of Hardin.
30. Produce all service contracts to which Hardin was or is a party, and identify, and produce any and all documents that evidence the transfer or sale of such service contracts to any other person, company or entity.
31. Produce any and all documents related to service contracts to which Hardin was or is a party that were assumed by any other entity.
32. Produce any and all documents related to personnel noted in any and all service, maintenance and/or modernization contracts to which Hardin was or is a party.
33. Copies of any and all contracts, memoranda, leases and/or agreements relating to the purchase, merger, consolidation, transfer or assignment of the goodwill, trade name, stock and/or assets of Hardin.
34. Provide any and all documents identifying customers of Hardin.
