Baker v. Dorfman

Full title: RICKY BAKER, Plaintiff v. DAVID A. DORFMAN, P.L.L.C. and DAVID A. DORFMAN…

Court: United States District Court, S.D. New York

Date published: Apr 17, 2000

99 CIV. 9385 (DLC) (S.D.N.Y. Apr. 17, 2000)

Opinion

99 CIV. 9385 (DLC)

April 17, 2000

Gregory Antollino, New York, NY, for Plaintiff.

Clyde Jay Eisman, New York, NY, for Defendants.

OPINION and ORDER

DENISE COTE, District Judge.

The present dispute arises out of the defendants' failure to respond to requests for admission that were served on them by the plaintiff Ricky Baker ("Baker") on January 19, 2000. The defendants have filed a "Motion for Judicial Declaration that Defendants are not Precluded from Responding to Plaintiff's Requests for Admission," which the Court construes as a request pursuant to Rule 6(b)(2), Fed.R.Civ.P., for a nunc pro tunc extension of time to respond to the requests for admission.

PROCEDURAL HISTORY

Because the defendants' request for relief is based largely on the procedural history of this case, that history is set forth here in detail.¹ The instant action follows on the heels of its predecessor, filed on October 9, 1997, in this Court. In the prior action Baker asserted that defendant David A. Dorfman ("Dorfman") had committed malpractice by failing to pursue Baker's claims against the City of New York in a timely fashion. In an Opinion of September 17, 1998, Baker's motion for partial summary judgment was granted, establishing Dorfman's liability for legal malpractice. Following a jury trial in November 1998, Dorfman was found to have also committed fraud. The jury awarded Baker $285,000 for emotional distress, $70,000 in lost earnings, $5,000 for out-of-pocket expenses, and $25,000 in punitive damages, for a total damage award of $385,000. By Order of April 5, 1999, the Court amended the judgment to add $11,178.05 in legal expenses and $7,312.50 in prejudgment interest. Dorfman's appeal from the judgment is pending.

1 Because this is not the first time that counsel has attempted a partial summary of the procedural history in this case, this recitation is also given in the hope that it will assist the parties in connection with any further motion practice for which this history is relevant.

In an effort to collect on the judgment, on September 1, 1999, Baker brought this action against Dorfman's professional limited liability corporation, David A. Dorfman, P.L.L.C. (the "PLLC"). The original complaint sought a declaratory judgment that the PLLC is a successor in interest to Dorfman and as such, is liable on the underlying judgment.

On October 12, 1999, the PLLC filed an "amended" answer to the complaint (no previous answer had been filed) that included nine affirmative defenses. On October 15, 1999, Baker filed a motion to amend the complaint to add David A. Dorfman as a defendant and to strike the second through ninth affirmative defenses asserted in the answer.² At approximately the same time, on October 14, 1999, Baker served but did not file a notice of motion that he would seek sanctions pursuant to Rule 11, Fed.R.Civ.P., against Dorfman and his attorney if they did not withdraw the defenses that were the subject of the motion to strike.

2 The motion was originally returnable on October 29, 1999, but at the request of defense counsel, the return date was extended to November 29, 1999, by stipulation endorsed by the Court on November 1, 1999.

By stipulation and order executed by the parties on November 10 and November 12, 1999, and endorsed by the Court on November 19, the motion to amend the complaint was granted and defendants were to answer or move with respect to the amended complaint by December 13, 1999. The stipulation indicated that defendants did not waive any arguments pertaining to the merits of the complaint or, in reference to the motion to strike, consent to any other portion of the pending motion. By letter dated November 19, defense counsel inquired whether his understanding was correct, that the stipulation granting the motion to amend the complaint had the effect of mooting the motion to strike defenses to the original complaint. Counsel explained that his responsive pleading or motion was due on December 13, and that there was therefore in his view no reason to litigate the merits of the defenses to the original complaint. The Court responded through a memorandum endorsement of November 24 as follows:

The defendant shall either withdraw the defenses which are the subject of the motion or submit his opposition by December 3; reply is due December 10. In the event there is no opposition, the defenses are deemed waived for this and subsequent pleadings in this action.

The amended complaint, served on October 13, 1999, contained the same request for a declaratory judgment that had appeared in the original complaint, added Dorfman as a defendant in his individual capacity, and added three causes of action: to charge Dorfman's membership interest in the PLLC; to collect the underlying judgment; and, to obviate litigation should there be a bankruptcy proceeding, a declaration that the entire underlying judgment is recoverable pursuant to the cause of action sounding in fraud.

The amended complaint alleges the following facts. Less than a week after the amended judgment was entered in Baker v. Dorfman, 97 Civ. 7512, Dorfman filed papers with the New York Secretary of State organizing the PLLC for the sole purpose of enabling Dorfman to evade payment of the judgment. The PLLC has the same location, same management and key employees, same clients, and engages in the same business as did David A. Dorfman, the natural person. With the exception of payments totaling approximately $1,300, Dorfman has failed to satisfy the underlying judgment.

By letter of December 2, 1999, the day before opposition to the motion to strike was due, defense counsel requested a further extension of time, until December 10, 1999, to submit opposition. By memo endorsement, the Court required the defendants to submit opposition by December 6, 1999. On that date, the defendants filed a motion to dismiss the complaint together with their opposition to the motion to strike their affirmative defenses. In their opposition, the defendants argued that each of the challenged affirmative defenses was legally sound and that none of them should be stricken. Consequently, on December 13, plaintiff's counsel filed a declaration in support of a motion to sanction the PLLC and/or its attorney for failing to withdraw the seventh through ninth affirmative defenses. On December 17, defense counsel filed a memorandum in opposition to the motion for sanctions on behalf of himself and the PLLC as part of his reply memorandum in support of his motion to dismiss the amended complaint.

On December 13, 1999, plaintiff's counsel contacted Chambers regarding defense counsel's refusal to produce Dorfman for a deposition. In a telephone conference of December 14, 1999, the Court ordered that Dorfman submit to a deposition.

At the initial pretrial conference in this case, held on December 20, 1999, the Court granted the motion to strike the second through ninth affirmative defenses. The Court denied the motion to dismiss the amended complaint, but stayed litigation on the fourth cause of action for a declaration that the entire amount of the underlying judgment was recoverable on a theory of fraud. At the conference, the parties agreed that the motion for sanctions was fully submitted and that discovery would be completed by February 25, 2000, with any motion for summary judgment to be filed by March 17, 2000.

By letter of December 21, 1999, asserting that a motion for sanctions directed against both a party and its attorney may present a conflict of interest for the attorney, defense counsel requested that the defendants have thirty days to retain new counsel and to "make such further submission as that counsel may advise" in light of the pending motion for sanctions. The Court granted the request, adjourning the date that the answer was due to January 18, 2000, or, should new counsel enter an appearance for the defendants, January 28. The Court also reminded the parties of its ruling of the day before that a motion to add affirmative defenses to the answer was necessary for any of the affirmative defenses stricken by the Court on December 20, and that the remaining schedule remained unchanged.

On January 8 and 10, 2000, the defendants and their attorney of record, Stanley Futterman ("Futterman"), executed a consent to replace Futterman with Clyde Eisman ("Eisman"). On January 18, the Court approved the consent on condition that there be no change to the schedule set forth in the December 21, 1999 Order and the December 21, 1999 Endorsement. Nonetheless, after receiving a letter of January 21, 2000 from defense counsel requesting "a brief extension of the schedule," without proposed dates, the Court revised the schedule of the case by Order of January 24, 2000. Under the new schedule, an answer was due by February 18, discovery was to be completed by March 17, and any summary judgment motion was to be served by April 7. By February 10, 2000, the Court had still received no supplemental filing from replacement counsel in opposition to the motion for sanctions nor any requests for additional time. Consequently, the Court issued an Order granting counsel until February 17 to file any additional papers. The supplemental opposition was apparently served on February 17, but it was never filed.³ With a memorandum filed on February 24, submitted in further support of the plaintiff's motion for sanctions, the motion was fully submitted.⁴

3 An amended answer, although apparently served on February 18, has never been filed.

4 On March 13, the Court denied a request received from Futterman on that date to file yet another opposition to the motion for sanctions. Futterman's request reflected no effort to obtain consent from any party for the supplemental submission.

On February 25, 2000, plaintiff's counsel wrote to the Court regarding difficulties he was having obtaining discovery from the defendants.⁵ Counsel stated that he was considering a motion to strike the answer for failure to provide discovery, but noted that such a motion would not be based on the defendants' failure to respond to certain requests for admission, because those requests were deemed admitted under Rule 36(a), Fed.R.Civ.P. Plaintiff's counsel explained that on January 19, 2000, he personally served on Eisman a second discovery demand, including requests for admission. The demand clearly stated that a response was due within thirty days. Nonethless, the defendants did not respond or object to the requests, nor request any extensions from the plaintiff or the Court during those thirty days.

5 For example, according to the plaintiff, defendants failed to provide certain documents at Dorfman's deposition as had been agreed. Those documents had been demanded by the plaintiff in a November 17, 1999 Notice of Deposition. As to requested bank records, at the deposition, Dorfman and Eisman, who was representing Dorfman at the deposition, stated that the records were "at the print shop." After his substitution as counsel, Eisman failed to respond to messages left on his answering machine by plaintiff's counsel or a January 19, 2000 letter.

The Court held a conference to address the plaintiff's concerns on March 2, 2000. At the conference, plaintiff again stated that he was no longer seeking responses to requests to admit that were deemed admitted under Rule 36, Fed.R.Civ.P. The Court agreed that those requests were admitted by operation of law. Counsel for the defendants objected to this conclusion and offered to prepare a brief on the issue. The Court responded that the defendants were free to make such a motion, but suggested that in doing so, defendants should address the efforts made by the defendants to comply with the plaintiff's discovery requests in a timely manner. Defendants apparently served the instant motion on March 13, 2000, but it has not been filed.

On February 27, 2000, the defendants served a motion for leave to amend the answer to reassert a stricken defense. The motion has never been filed. The plaintiff filed opposition on March 9, 2000. The defendants neither filed nor served any reply; courtesy copies of the motion were received in Chambers on March 16, 2000.⁶ The Court denied the motion by Opinion and Order of March 21, 2000. On March 28, 2000, the defendants moved by order to show cause to quash a subpoena served by the plaintiff on the Bank of New York on the grounds that it was returnable after the discovery deadline of March 17, 2000. At a hearing on March 31, 2000, the motion was denied.⁷

6 By Order of March 2, 2000, any reply was to be served by March 13, 2000.

7 At that hearing, the Court awarded attorney's fees incurred in opposing the motion to the plaintiff, but by Order of April 6, 2000, vacated the award and denied the motion for fees without prejudice to its renewal upon conclusion of this litigation.

The requests for admission at issue in the instant motion and the defendants' proposed responses are as follows:⁸ Request for Admission No. 6:

8 The Court has not addressed one of the requests for admission based on the plaintiff's statement in a letter of April 11, 2000, that any issue as to that admission is now moot.

There are no documents that have been filed with the Court of Appeals, the Appellate Division, First Department, or the Office of Court Administration regarding the formation of the PLLC.

Proposed Response:

Defendants are unable to deny or admit this Request for Admission as they lack knowledge or information sufficient to form a belief as to the answer; Defendants, however, are not in possession of any documents that have been filed with the Court of Appeals, the Appellate Division, First Department, or the Office of Court Administration regarding the formation of the PLLC.

Request for Admission No. 11:

Without regard to the judgment that plaintiff possesses against Dorfman, there are no business obligations that were honored by Dorfman in his capacity as sole proprietor of his former law practice that are not honored by the PLLC.

Proposed Response:

Defendants object to this Request for Admission as the question is unclear; Defendants, [sic] further object to this Request for Admission as it seeks information not appropriate to a Request for Admission; Defendants nonetheless state that Defendants are not aware of any business obligations that were not honored by David A. Dorfman, the solo practitioner, that are not honored by David Alan Dorfman, P.L.L.C.

DISCUSSION

In defense counsel's affidavit in support of this motion, counsel characterizes this motion as one pursuant to Rule 36, Fed.R.Civ.P, to authorize defendants' proposed responses to plaintiff's requests for admission. Plaintiff served the requests for admission on defense counsel on January 19, 2000. Under Rule 36(a), responses were due within thirty days. The defendants failed to serve responses or objections or request any extensions of time within the thirty days allowed. Discovery was ongoing during that time and has now closed. Because the motion in effect requests an extension of time, and because the defendants have objected to the conclusion that matters to which the requests for admission were addressed have been deemed admitted pursuant to Rule 36(a),⁹ the Court construes the motion as being a request for an extension of time pursuant to Rule 6(b)¹⁰

An extension of time in which to respond to discovery requests is available where it is first sought after the time for response has elapsed only if the failure to respond was the result of excusable neglect. See Rule 6(b)(2), Fed.R.Civ.P. Excusable neglect under Rule 6(b) "`is a somewhat `elastic concept' and is not limited to omissions caused by circumstances beyond the control of the movant.'" LoSacco v. City of Middletown, 71 F.3d 88, 93 (2d Cir. 1995) (quoting Pioneer Inv. Servs. Co. v. Brunswick Assocs., 507 U.S. 380, 392 (1993)). In determining whether neglect is excusable, courts consider the danger of prejudice to the adverse party, the reason for and length of the delay, whether it was reasonably within the control of the movant, and whether the movant acted in good faith. See Pioneer Inv. Servs., 507 U.S. at 395. The failure to follow the clear dictates of a procedural rule, however, generally does not constitute excusable neglect. See Canfield v. Van Atta Buick/GMC Truck, Inc., 127 F.3d 248, 250 (2d Cir. 1997) (per curiam). See also Pioneer Inv. Servs., 507 U.S. at 394 ("[I]nadvertence, ignorance of the rules, or mistakes construing the rules do not usually constitute `excusable' neglect.").

Counsel puts forth three arguments, based on the procedural history of this case, that defendants should now be permitted to respond to plaintiff's requests to admit. Those arguments are as follows: (1) there is no prejudice to the plaintiff thereby, particularly in light of the Court's permitting the defendants to respond to other discovery requests by March 6, 2000; (2) the plaintiff's First Combined Demands for discovery, including the requests for admission, were served on January 19, 2000, prior to receipt by counsel of a copy of the signed Consent to Change of Attorneys, faxed to him by former counsel on January 20, 2000; (3) responses to the discovery demands were due prior to January 28, 2000, the date by which the amended answer was originally due, and even prior to February 18, 2000, the extended date for filing of an answer. The defendants also contend that including requests for admission in a set of combined demands is improper.

The defendants' arguments are without merit. Those that are addressed to the timing¹¹ and form of the discovery demands could have been made as objections within the thirty days provided by Rule 36(a). No such objections were made and counsel has offered no excuse for this failure. Accordingly, those objections are waived.

11 As to the timing of the discovery demands, defense counsel does not dispute that the demands were properly served and that defendants themselves had notice of those demands. Indeed, at the March 2, 2000 conference, counsel conceded that he was "of counsel" to defendants' former attorney and that he knew of discovery requests prior to his formal substitution as counsel.

The defendants' failure to comply with the clear dictates of Rule 36(a) or to respond to plaintiff's requests for admission in any way is inexcusable, particularly in light of their history of reluctance to participate in discovery in this case. Given the Court's December 21, 1999 Memo Endorsement and January 18, 2000 condition on the consent to change of attorneys, defendants plainly flouted discovery deadlines at their peril. Although counsel appears to argue that his inattention was due to the pressure he was under to meet this Court's deadlines, this only emphasizes his neglect in failing to request any extension.¹²

12 Counsel refers to the amended answer he was preparing, the further opposition to sanctions and the motion to amend the complaint. The amended answer included four brief paragraphs and no affirmative defenses and the further opposition to sanctions included no arguments that were not or could not have been made in the previously submitted opposition, despite former counsel's withdrawal based on a purported conflict of interest with his clients arising from this motion for sanctions. The motion to amend the complaint to reassert a stricken affirmative defense warrants particular discussion. Counsel has sworn in his affidavit in support of the present motion that he spent ten days preparing this motion. The motion to amend, however, is supported solely by a four-page Affidavit in Support. In that affidavit, counsel "supports" the contention that the failure to satisfy a single judgment by itself does not constitute misconduct by mischaracterizing three cases. Any suggestion that counsel was too burdened by these tasks to respond to discovery requests in any way is simply not credible.

Finally, plaintiff would be prejudiced if defendants were now permitted to respond to plaintiff's requests for admissions, as the defendants' proposed responses are nonresponsive. Nor is it clear that the defendants would be prejudiced by the deemed admissions, since the defendants have not shown that truthful responses to the requests for admission would in fact be denials. Because the defendants' failure to respond to the requests is inexcusable, and because the plaintiff would be prejudiced by the defendants' proposed responses to the requests at this time, the motion for permission to respond to the requests for admission must be denied. See, e.g., Weinberger v. Provident Life and Casualty Ins. Co., No. 97 Civ. 9262, 1999 WL 165707, at *1-*2 (S.D.N Y Mar. 25, 1999) (JGK); Sea-Land Serv. Inc. v. Citihope Int'l. Inc., 176 F.R.D. 118, 121-22 (S.D.N.Y. 1997) (LAK).

As a consequence of the failure to comply, the matters about which the requests to admit were made are deemed admitted pursuant to the plain language of Rule 36(a). Despite the defendants' contention that the plaintiff must make a motion for the responses to be deemed admitted, there is no language in Rule 36 to that effect. See, e.g., Sea-Land Serv., 176 F.R.D. at 122 (granting motion for summary judgment based on admissions resulting from failure to respond to requests and denying cross-motion for extension of time to respond). Instead, under Rule 36(a), it is the burden of the party of whom admissions are requested to serve a response, object, or seek an extension, or, in appropriate circumstances, to move for withdrawal or amendment of an admission pursuant to Rule 36(b), Fed.R.Civ.P.

As noted, the Court has construed this motion as one for an extension of time. Were the Court, however, to construe the motion as a request pursuant to Rule 36(b), Fed.R.Civ.P., for permission to file amended responses to requests for admission that are deemed admitted as a result of defendants' failure to respond to requests, the result would be the same. Under that provision,

the court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice that party in maintaining the action or defense on the merits.

Rule 36(b), Fed.R.Civ.P. Courts have noted that it is unclear whether relief under this rule is available to a party that has inexcusably failed to comply with the requirements of Rule 36 (a). See, e.g., Weinberger v. Provident Life and Casualty Ins. Co., No. 97 Civ. 9262, 1999 WL 225537, at *1 (S.D.N.Y. Apr. 19, 1999) (JGK) (HBP); Sea-Land Serv., 176 F.R.D. at 122 n. 10.

Assuming, however, that the rule does apply, defendants have not shown that the authorization of their proposed responses, which, as noted, are nonresponsive, will serve the merits of the action; the plaintiff, on the other hand, has shown that he would be prejudiced thereby. The requirements for relief under Rule 36(b) therefore have not been met.

CONCLUSION

For the reasons stated, the defendants' motion is denied. The defendants shall file all previously unfiled submissions within five days of the entry of this Order. The request for an extension of time for discovery relating to the affirmative defense of unclean hands is denied as moot.

SO ORDERED:

Dated: New York, New York April 13, 2000