66 F.R.D. 64 | S.D.N.Y. | 1975
OPINION AND ORDER
Plaintiff Mark Charron, a songwriter, has alleged, among other things, that he is owed royalties by defendants Renleigh Music, Inc. and Flomar Music Publishing Inc., publishers of his music. There are before me two motions, one addressed to each of the said defendants, seeking to strike that defendant’s answer and for an inquest on damages for willful failure to respond to a critical interrogatory in which each defendant authorized inspection of its royalty records. Plaintiff also seeks reasonable expenses, including' attorney’s fees on each motion. Since I find a clear joint pattern of conduct by both defendants
The action was commenced by the plaintiff in 1971. In February 1973, plaintiff served interrogatories on both Flomar and Renleigh. Certain interrogatories asked each defendant, among other things, for a statement of royal
In January, 1974, the parties appeared before Magistrate Hartenstine. The issues on the motion were resolved upon the Magistrate’s recommendation, to which defendants agreed, that each defendant would make its books and records on the subject of royalties available to plaintiff for examination. In the answers to interrogatories which defendants subsequently filed, this provision was expressly made by each of them. Flomar’s answer # 4 provided that an appointment should be made with “Jack Hauptman” the comptroller of co-defendant Scepter Records, Inc. Flomar being a former affiliate of Scepter, and Scepter being now in possession of Flo-mar’s records subsequent to Flomar’s dissolution in 1969. Renleigh’s answer # 4 to plaintiff’s interrogatories similarly provided that an appointment to examine Renleigh’s books should be made with one “Alan Honig,” 3 East 57th Street, who is the Treasurer of Renleigh.
Thereafter, plaintiff engaged an accountant, Allen Dolinsky, to do the said examination. On May 6, 1974, plaintiff’s attorney John LeMoult spoke with Flomar’s then lawyer,- Andrew Feinman, senior partner of Feinman & Krasilowsky and told him that on May 8, plaintiff’s accountant would appear at Flo-mar and Renleigh’s offices to examine the books. Feinman said it was appropriate and he would make all the neeessary arrangements.
Subsequently LeMoult spoke with Comptroller Hauptman, who, too, refused to produce anything. Hauptman said it would be necessary for the plaintiff to provide a. specific list of each and every document sought to be examined. LeMoult told him that the documents had been set out in the interrogatories and in the answers thereto and that if Hauptman had any difficulty he could obtain assistance from his counsel. Hauptman declined to do this.
Having received the foregoing treatment, plaintiff understandably made a second motion in June, 1974, now to strike Flomar’s answer, etc.
On September 19, 1974, a new appointment was set up for Dolinsky to meet with Hauptmen. However, upon Dolinsky going to Flomar, Hauptman, while exhibiting certain books, had no books whatsoever showing the sources of income or to whom applicable. As a consequence, on the single issue as to which Dolinsky was there, plaintiff’s royalties, the production of books was completely worthless. Hauptman then told Dolinsky he would look for the other books and give him a call.
The next day, September 20, 1974, Dolinsky had an appointment to meet with Renleigh’s Treasurer Alan Honig, designated in Renleigh’s answer #4, supra, to look at the Renleigh books. It is not disputed that Dolinsky arrived at Renleigh and was told by a secretary that 1) he was “expected,”
Following the frustration of Dolinsky’s second effort to examine the Flo-mar and Renleigh books on September 19 and 20, plaintiff made a third motion on November 15, 1974
Nor have the defendants done anything else since September 20. They claim that it is the plaintiff that is frustrating the discovery by refusing to complete the examination of their books.
The foregoing is a willful, deliberate and thus-far completely successful effort to frustrate the plaintiff in his legitimate discovery. The crucial facts as to the May 8 endeavor to examine Flomar’s books are not disputed. Feinman, attorney for both defendants, agreed to set up the examination. It was in fact not set up, and Flomar’s representative, Field does not dispute he told Dolinsky that there would be no cooperation. Hauptman similarly premised cooperation upon an unacceptable and
LeMoult’s third try upon the substitution of Itzler, while the courteous act of a colleague, was unrewarded. Hauptman did not deliver the relevant books on September 19, and his “promise” to do so subsequently was not kept. Honig’s “absence” on September 20, while a secretary was telling Dolinsky he was “expected,” was yet a further step to avoid disclosure of the royalties due plaintiff. Thus, the plaintiff’s motion in November 1974 was also justified.
In sum, plaintiff has made three motions, the Magistrate with defendants’ consent has directed an inspection of the books, LeMoult has arranged three times for the examination, and Dolinsky has three times attended, only to achieve utterly nothing.
The operative facts being undisputed, there is no need for an evidentiary hearing. On the basis of-the foregoing, I find that the conduct of defendants Flo-mar and Renleigh, individually and jointly, denying plaintiff royalty records has been willful and deliberate and not due to an inability to comply. Cf. Flaks v. Kogel, 504 F.2d 702 (2d Cir.1974). It is clear that defendants Flomar and Renleigh
I am not unaware of defendants’ offer in Itzler’s most recent affidavit on December 2, 1974 “to afford plaintiff its right to inspect its books and records . .” But this is no more than defendants offered in February 1974, in their answers to interrogatories issued in response to the Magistrate’s direction after plaintiff’s first motion,
The foregoing conduct might well justify unconditionally striking the defendants’ answers. The right to litigate an action on the merits can be forfeited by conduct, particularly where, as here, parties choose to defend by repeatedly refusing to produce during pre-trial discovery factual information essential to the adversary’s prima facie case. However, since caution should be exercised before applying the ultimate sanction, Societe Internationale v. Rogers, 357 U.S. 197, 78 S.Ct. 1087, 2 L.Ed.2d 1255 (1958) and Flaks v. Kogel, supra, I do not apply this remedy at this time.
The motion to strike the answer of each defendant is granted pursuant to Rule 37, Fed.R.Civ.P., unless within 20 days from the date of service of a copy of'this order upon a defendant, said defendant shall, at a time convenient to plaintiff’s accountant, at the chambers of Magistrate Hartenstine in the United States Courthouse, produce for inspection by plaintiff all relevant books and records bearing on plaintiff’s royalties.
The foregoing is so ordered.
. Both defendants have at all times had the same attorneys, the firm of Feinman & Krasilowsky until mid-June 1974, and Martin Itzler, Esq. thereafter.
. There is no affidavit of attorney Feinman denying this fact.
. There is no affidavit of Field denying any of the foregoing.
. Hauptman submitted an affidavit but failed to deny the foregoing statements attributed to him. His version was that Dolinsky had been “unable to inspect Flomar’s books as they could not be located immediately” and that “I have never told [LeMoult] that I would not cooperate nor have I ever been uncooperative.”
. This is the first motion before me.
. Hauptman has never submitted any affidavit contradicting Dolinsky’s account of this second endeavor.
. Ilonig, in his affidavit, claims that Mr. Dolinsky was to have come on September 19, the day before. However, Itzler, who set up the schedule for Flomar on the 19th and Renleigh on ilie 20th, is significantly silent on this subject in his affidavit and Honig does not deny that Dolinsky was told lie was “expected.” Nor is there an affidavit of the secretary with whom Dolinsky dealt denying this critical statement.
. If Honig, as he now claims, was at one of the Renleigh New Jersey offices where he “customarily” was all day every Friday, it is highly significant that 1) no one at Renleigh made an effort to call liim at his “customary” place and tell him of Dolinsky’s presence, and 2) Dolinsky was told Honig was expected to return, only the time of his return being unknown.
. This is the second motion before me.
. Defendants’ cavalier attitude is best revealed in a statement of its counsel:
[I] t has been plaintiff that has failed to cooperate in the prosecution of this action. The instant motion, together with the companion motion made by plaintiff against defendant Flomar also presently before the Court, constitutes yet another frivolous act by i>laintiff serving to waste the time of the Court and counsel.
. There is no question that Messrs. Hauptman and Ilonig, principal actors here, are responsible officers connected with each defendant.
. Itzler has not refuted this sworn statement by LeMoult nor asked leave of the Court to do so.
. That was dishonored on May 8.
. That was dishonored on September 19 and 20.
. In the event any relevant and necessary books or records have become unavailable since the commencement of this action, these motions may be renewed.