Opinion
Index No. 652334/2022 Motion Seq. No. 003
04-12-2023
DEV PRAGAD, Plaintiff, v. JOHNATHAN DAVIS, ETIENNE UZAC, IBT MEDIA INC.TITUS CHOI, DAVID JANG Defendant.
Unpublished Opinion
MOTION DATE 12/15/2022
DECISION + ORDER ON MOTION
MELISSA A. CRANE, JUSTICE
The following e-filed documents, listed by NYSCEF document number (Motion 003) 29, 30, 43, 49, 60, 67 were read on this motion to/for CONSOLIDATE/JOIN FOR TRIAL
Jonathan Davis ("Davis") has filed separate motions in the following four related actions seeking consolidation and other relief. Specifically, Davis moves for an order:
1. Consolidating Index Nos. 652366/2022 ("Davis Action") and 652277/2022 ("IBT Action") pursuant to CPLR 602;
2. Consolidating Index Nos. 652334/2022 ("Pragad Action") and 652344/2022 ("NW Media Action") pursuant to CPLR 602;
3. Upon consolidation, dismissing the Pragad Action and the NW Media Action pursuant to CPLR 3211(a)(4); or "
4. In the alternative, staying the Pragad Action and NW Media Action pursuant to CPLR 2201 until the Davis Action and the IBT Action are resolved.(See N.W. Media Action, 652344/2022, MS 07; Pragad Action, 652334/2022, MS 03; Davis Action, 652366/2022, MS 04; IBT Action, 652277/2022, MS 04).
As an initial matter, the court denied as moot Motion Sequence No. 04 in the IBT Action to the extent it sought to consolidate the Davis Action and IBT Action (see IBT Action, December 19, 2022 Decision and Order, NYSCEF Doc. No. 66, p. 5), The court also denies as moot the portions of the motions in the Davis Action (MS 04), NW Media Action (MS 07), and Pragad Action (MS 03) that seek consolidation of the Davis Action and IBT Action. That relief is moot because the court dismissed the IBT Action in its entirety.
The court notes that the decision and order in the IBT Action stated that motion sequence 4 was "denied as moot" following the dismissal of the IBT Action (December 19, 2022 Decision and Order, p. 5). However, motion sequence 4, like the motions to consolidate in the other actions, also sought consolidation of the Pragad and NW Media Actions (see MS 04, IBT Action). The court clarifies that motion sequence 4 was only denied as moot to the extent that it sought consolidation of the IBT Action and Davis Action. To the extent motion sequence 4 also sought consolidation of the Pragad and NW Media Actions, it is decided in accordance with this decision and order.
However, the court grants Davis's motions to consolidate to the extent that the remaining cases are consolidated for the purpose of only joint discovery. Pursuant to CPLR 602, a court may order actions consolidated where the actions involve a common question of law or fact (Matter of October 31, 2017 Terrorist Attack/Lower Manhattan Litigation, 194 A.D.3d 645, 646 [1st Dept 2021]). A court may also join actions solely for discovery (Lema v 1148 Corp., 176 A.D.3d 653, 654 [1st Dept 2019]; TSFV Holdings, LLC v Mulberry Development, LLC, 59 Misc.3d 1226(A), *2 [Sup Ct, NY County May 17,2018] [consolidating actions for "discovery purposes only" where the actions "involve the same parties and present a similar set of facts"]). Rather than overly complicate these cases by ordering true consolidation, the court exercises its discretion and joins the Pragad, N.W. Media, and Davis actions for discovery only in the interest of judicial economy. The court declines to order a joint trial at this time, pending further development of the case, but the parties may request a pre-motion conference at a later date if they still wish to move for a joint trial.
The court denies Davis's motion to dismiss the Pragad and NW Media Actions pursuant to CPLR 3211(a)(4). In order to dismiss an action on the basis of a prior pending action pursuant to CPLR 3211(a)(4), the movant must establish both identity of the parties and the causes of action asserted (White Light Prods, v On The Scene Prods., 231 A.D.2d 90, 93-94 [1st Dept 1997]).
Dismissal under CPLR 3211(a)(4) is not warranted because the Pragad and NW Media Actions are not substantially identical to the Davis Action. The Davis Action is fundamentally about Pragad's alleged wrongdoing in breach of his fiduciary duties to Davis and N.W. Media (Davis Action Amended Complaint, NYSCEF Doc. No. 28, f 70) while the Pragad/NW Media Actions, on the other hand, include causes of action for conversion and misappropriation of trade secrets based on allegations that Defendants Uzac, Jang, Choi, and Davis conspired to destroy Newsweek documents and misappropriated Newsweek proprietary information (see e.g. N.W. Media Action Complaint, pp. 51-60). Thus, the court declines to dismiss the Pragad/NW Media Actions pursuant to CPLR 3211 (a)(4).
Additionally, the court denies Davis's motion to stay the Pragad/NW Media Actions pursuant to CPLR 2201. The court has broad discretion to grant a motion to stay in order to "avoid the risk of inconsistent adjudications, application of proof and potential waste of judicial resources" (Chaplin v National Grid, 171 A.D.3d 691, 692 [2d Dept 2019]). Here, a stay is not warranted because there is little to no risk of inconsistent adjudications and wasted judicial resources.
In addition, the court notes that the NW Media Action (Index No. 652344/2022), a direct action, has only survived to the extent Defendants Uzac and Choi failed to move to dismiss sufficiently under Sterling Industries Inc. v Ball Bearing Pen Corp., 298 NY 483 (1949). That the NW Media Action may eventually fall by the wayside entirely militates against true consolidation.
The court has considered the parties' remaining contentions and finds them unavailing.
Accordingly, it is
ORDERED that the motions to consolidate pursuant to CPLR 602 (NW Media Action, 652344/2022, MS 07; Pragad Action, 652334/2022, MS 03; Davis Action, 652366/2022, MS 04; IBT Action, 652277/2022, MS 04) are granted to the extent that the three remaining actions (the NW Media Action, Pragwd Action, and Davis Action) are consolidated for the purposes of only joint discovery, and the motions are otherwise denied; and it is further
ORDERED that the joined actions shall bear the following caption:
DEV PRAGAD, for himself, derivatively on behalf of N.W. MEDIA HOLDINGS CORP, and double derivatively on behalf of NEWSWEEK LLC, Plaintiff, v.
JONATHAN DAVIS, ETIENNE UZAC, IBT MEDIA INC., TITUS CHOI, and DAVID JANG, Defendants.
Jonathan Davis, for himself and derivatively on behalf of N.W. Media Holdings Corp., Plaintiff, v.
Dev Pragad, Defendant.
NW MEDIA HOLDINGS CORP., NEWSWEEK LLC, NEWSWEEK DIGITAL LLC, NEWSWEEK MAGAZINE LLC, NEWSWEEK PUBLISHING LLC, N.W. DIGITAL LLC, and N.W. MAGAZINE LLC, Plaintiffs, v.
ETIENNE UZAC, DAVID JANG, and YOUNSEOK CHOI (a/k/a TITUS CHOI), Defendants.
Index Nos. 652334/2022, 652366/2022, 652344/2022
Action Nos. 01, 02, 03
And it is further
ORDERED that all future papers filed with the court shall bear the amended caption; and it is further
ORDERED that movant is directed to serve a copy of this Order with notice of entry on the County Clerk, who shall mark their records to reflect the consolidation for joint discovery; and it is further
ORDERED that Service upon the County Clerk must be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "E-filing" page on the court's website -www.nycourts.gov/supctmanh).