Nimkoff Rosenfeld & Schechter, LLP v. RKO Properties, Ltd.
1:07-cv-07983
S.D.N.Y.Sep 18, 2017Background
- Nimkoff Rosenfeld & Schechter, LLP (Nimkoff Firm) sued RKO Properties to recover legal fees from its representation in the state-court "Boymelgreen Action;" RKO counterclaimed for legal malpractice and breach of fiduciary duty.
- Ira D. Tokayer, an attorney who assisted RKO in settling the Boymelgreen Action, was subpoenaed for discovery about an alleged "Escrow Package" of documents the Nimkoff Firm says it delivered to Tokayer in July 2007.
- Nimkoff served interrogatories on Tokayer asking whether and when he received the Escrow Package and its component documents; Tokayer's initial and supplemental answers were internally inconsistent (sometimes saying he did not receive the documents, sometimes that he did not recall).
- Magistrate Judge Pitman ordered clearer answers; Nimkoff moved to compel further supplementation and sought contempt certification for noncompliance.
- Tokayer moved for Rule 11 sanctions against the Nimkoff Parties; RKO moved to compel last-known addresses of certain Nimkoff employees and to compel production of the Nimkoff partnership agreement (or for reconsideration of a prior denial).
- The magistrate judge granted Nimkoff's motion to compel clarified answers, certified the underlying facts for possible contempt (but did not recommend immediate contempt sanctions), denied Tokayer's Rule 11 motion, and denied RKO's discovery/reconsideration requests as untimely or without merit.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Tokayer must provide clear supplemental answers about receipt/timing of the Escrow Package | Nimkoff: Tokayer's prior answers are ambiguous; he must state whether and when he received the Escrow Package or its parts | Tokayer: No further elaboration possible; also argued movant failed to meet-and-confer (and raised Rule 45 procedural points) | Granted: Tokayer ordered to provide sworn written answers to three specific questions within 7 days clarifying receipt and timing; motion to compel granted |
| Whether Tokayer should be held in contempt for noncompliance with discovery order | Nimkoff: Tokayer's inconsistent responses warrant contempt certification | Tokayer: Opposed; sought to justify responses | Magistrate certified facts supporting potential contempt but declined immediate contempt; recommended show-cause order if Tokayer fails to comply within 7 days |
| Whether non-party Tokayer may seek Rule 11 sanctions against Nimkoff Parties | Tokayer: Movant seeks sanctions for allegedly baseless motions and a dismissed suit against him | Nimkoff: Opposed; procedural defects | Denied: Tokayer lacks standing as a non-party to pursue Rule 11 and failed to satisfy Rule 11 safe-harbor requirement |
| Whether RKO may compel last-known addresses and the Nimkoff partnership agreement after discovery closed | RKO: Requests arose from post-deadline depositions and are relevant to defenses/standing | Nimkoff: Discovery closed; request untimely and reconsideration improper | Denied: Address request untimely (discovery closed); partnership agreement motion is untimely and fails reconsideration standards |
Key Cases Cited
- CBS Broad. Inc. v. FilmOn.com, Inc., 814 F.3d 91 (2d Cir. 2016) (civil contempt limited to coercive and compensatory remedies; punitive sanctions not available)
- Paramedics Electromedicina Comercial, Ltda. v. GE Med. Sys. Info. Techs., Inc., 369 F.3d 645 (2d Cir. 2004) (limitations on relief for civil contempt; damages and coercive remedies analyzed)
- New York News, Inc. v. Kheel, 972 F.2d 482 (2d Cir. 1992) (non-party lacks right to intervene to seek Rule 11 sanctions)
- Castro v. Mitchell, 727 F. Supp. 2d 302 (S.D.N.Y. 2010) (motions failing Rule 11 safe-harbor provision must be denied)
- Travelers Indem. Co. v. Metro. Life Ins. Co., 228 F.R.D. 111 (D. Conn. 2005) (meet-and-confer requirement may not apply to enforcement of Rule 45 subpoenas)