Boaziz v. Torati
| Decision Date | 01 June 2016 |
| Docket Number | 14-CV-8024 (RA) (RLE) |
| Parties | MORDECHAI BOAZIZ, Plaintiff, v. HEZI TORATI, et al., Defendants. |
| Court | U.S. District Court — Southern District of New York |
REPORT AND RECOMMENDATION
I. INTRODUCTION
Plaintiff Mordechai Boaziz ("Boaziz") commenced this breach of contract and fraud action against Defendants Hezi Torati ("Torati") and Amerevision Capital, LLC ("Amerevision") on October 6, 2014. (Doc. No. 1.) On March 25, 2016, the Honorable Ronnie Abrams entered judgment against Defendants in the amount of $140,000 plus post-judgment interest, and post-judgment collection costs, including incurred legal fees. (Doc. Nos. 59 and 60.) On April 6, 2015, Judge Abrams referred this case to the undersigned for post-judgment discovery, and determination of reasonable attorneys' fees. (Doc. Nos. 64 and 112.) On January 26, 2016, Boaziz issued a subpoena and noticed a deposition for non-party Alessandra Marx ("Marx"), Torati's wife. (Doc. Nos. 94 and 95.) Boaziz issued another subpoena for Marx on February 11, 2016. (Doc. No. 99.)
Before this Court are Boaziz's motion for attorneys' fees related to post-judgment discovery efforts, and Marx's motion to quash the subpoenas and deposition. Boaziz argues that he has expended time and effort since March 2015 attempting to execute the judgment against Torati. Marx argues that as a nonparty, her financial information is irrelevant to executing judgment against Torati. She further argues that Boaziz's demands for her financial information subjects her to an undue burden. For the reasons that follow, I recommend that Boaziz's motion for attorneys' fees be GRANTED, and Marx's motion to quash be DENIED.
II. BACKGROUND
Following the Court's entry of a final consent judgment against Torati, Boaziz served Torati with post-judgment discovery requests on March 30, 2015. (Declaration of Michael Bernstein in Support of Plaintiff's Application for Attorney's Fees ("Bernstein Decl.") at 2.) Boaziz also noticed Torati's deposition for May 5, 2015. (Id.) On April 2, 2015, Torati emailed Boaziz that he was unavailable for a deposition during the month of May. (Id.) The Parties appeared before the Court on April 15, 2015, by telephone. The Court ordered Torati to respond to Boaziz's discovery by May 1, 2015, and to attend the deposition on May 8, 2015.
Having received no responses from Torati, Boaziz sought Court intervention on May 4, 2015. The Court held another telephone conference on May 5, 2015. Abraham George ("George") appeared on Torati's behalf, although he had not been retained. (Declaration of Abraham George ("George Decl.") at 2.) George argued that Torati believed that a Florida court had jurisdiction over the case that "trumped" this Court's jurisdiction. (Id.) He stated, however, that Torati would turn over the requested documents by 5:00 p.m. the following day, May 6, 2015. (Bernstein Decl. at 3.) George does not recall stating that he would submit discovery responses the next day, but "cannot say with 100% certainty that [he] did not make that statement." (George Decl. at 2.) Torati did not respond to Boaziz's discovery until the evening of May 7, 2015. (Bernstein Decl. at 4.) He appeared for his deposition on May 8, 2015. (Id.)
In responding to Boaziz's interrogatories, requests for production, and deposition questions, Torati refused to answer and asserted Fifth Amendment privileges to every question asked. (Id.)Boaziz requested a conference with the Court, which was set for July 22, 2015. At that conference, the Parties informed the Court that they were attempting to settle their post-judgment discovery disputes without Court intervention. On August 26, 2015, however, Boaziz again requested a conference before the Court. (Doc. No. 77.) The Parties appeared by telephone on September 17, 2015. Torati appeared pro se. The Court overruled Torati's Fifth Amendment objections, and ordered him to produce amended responses by October 2, 2015.
Boaziz requested a conference with the Court on October 16, 2015, following failed settlement discussions between the Parties. (Doc. No. 79.) The Court denied the conference. On November 2, 2015, before Judge Abrams, Boaziz moved to compel Torati to: (1) file and serve complete answers to his interrogatory responses without the right to assert objections; and (2) provide all documents within five days of the order. Boaziz also asked that all Defendants be found jointly and severally liable for sanctions for violating the Court's September 17 Order. (Doc. No. 82.)
On November 9, 2015, George entered a Notice of Appearance on Torati's behalf. (Doc. No. 85.) He stated that he had been newly retained. (Doc. No. 86; George Decl. at 3.) He argued that Boaziz's motion to compel was premature, and asked that it be denied. (Id.) George informed the Court that he was gathering the documents Boaziz had requested on May 7 and May 8, 2015, and would produce them no later than November 13, 2015. (Id.) He also asked for five days to determine whether a "small number of items requested by Plaintiff would require a letter motion that would more specifically outline [Torati's] Fifth Amendment arguments," which were based on an investigation by the Manhattan District Attorney's Office. (Id.) He argued that previously Torati had incorrectly entered "a blanket 'Fifth Amendment' objection" when he was notrepresented. (Id.) On November 12, 2015, the Court granted Torati's letter motion, and ordered production by November 16, 2015. (Doc. No. 89.) That same day, Judge Abrams ordered Boaziz to seek discovery relief from the undersigned. (Doc. No. 88.) On November 13, 2015, Boaziz filed with the undersigned the same motion to compel that he had filed before Judge Abrams. (Doc. No. 90.)
On November 18, 2015, the Parties filed a proposed stipulation and protective order for post-judgment discovery production at Torati's request. (Bernstein Decl. at 7; Doc. No. 92.) The Court denied the stipulation on December 15, 2015. Torati produced amended responses to Boaziz's interrogatories on December 21, 2015, along with tax returns from 2011 to 2013. (Bernstein Decl. at 7.) According to Boaziz, Torati failed to produce any other documents, "notwithstanding the fact that the Request for Production sought twenty-one (21) types of documents." (Id; Doc. No. 114 at 1.) Having received no further production, Boaziz contacted Torati on January 25, 2016, to inquire about the status of Torati's production, including the production that the Court had ordered in September 2015. (Bernstein Decl. at 7.) Boaziz filed this motion for attorneys' fees on February 12, 2016. Torati has made no production since the December 2015 responses. (Id.)
Boaziz subpoenaed Marx for depositions for February 15, 2016, and again for February 22, 2016. (Doc. Nos. 94, 95 and 98.) He also re-noticed Torati's deposition for February 22, 2016. (Doc. No. 109 at 2.) Neither Torati nor Marx appeared for deposition. (Doc. No. 109-1, Ex. F.) Boaziz also issued subpoenas duces tecum for TD Bank, Capital One Bank, and 1002 Quentin Road, LLC. (Doc. Nos. 96, 97 and 104.)
Boaziz sought to depose Marx to determine documents related to any "payments, salary, distributions, etc." that Marx received from entities owned and controlled by Torati and his companies, ADD Partners, LLC and SKYgate 010, LLC from July 1, 2014, to the present. (Doc. No. 110 at 7.) Boaziz argues that Torati was attempting to fraudulently convey assets to Marx to delay payment, as evidenced by checks and wire transfers to Marx throughout 2014 totaling $15,000. (Id.)
Boaziz seeks $13,936 in attorneys' fees, and $2,156.15 in costs, for a total of $16,092.15, as sanctions for Torati's "purposeful, unwarranted, and unnecessary actions" in delaying post-judgment discovery and payment of judgment for approximately one year. (Doc. No. 101 at 5; Doc. No. 114 at 1.) He further seeks an order: (1) holding Torati and Marx jointly and severally liable for their failure to attend their depositions, in the form of attorneys' fees and costs, including travel expenses, to be paid within five days of the order; (2) sanctioning Torati for violating the September 17 Order; and (3) compelling Torati to provide amended responses to Boaziz's request for production. (Doc. No. 109 at 2.) According to Boaziz, Torati has only satisfied $10,000 of the judgment, leaving a balance of $130,000, plus post-judgment interest. (Bernstein Decl. at 9.) Boaziz also asks the Court to maintain jurisdiction to award additional fees for any further expenditures of time and costs in executing the remainder of the judgment. (Id.)
Torati's counsel argues that Torati was unrepresented for a period of time, during which he had mistakenly raised the Fifth Amendment objections. (Doc. No. 113 at 1.) Counsel maintains that since he has represented Torati, he has provided Boaziz with financial documents, including individual and corporate tax records, bank account information, assets, and property. (Id.) He has also "confirmed the presence of transactions, employees and agents, and the nature of corporateownerships." (Id.) According to counsel, Boaziz now has information "that would allow him to identify and seize assets" to satisfy the judgment. (Id.) He also argues that the number of hours expended by Boaziz's counsel was not reasonable, and travel expenses should be excluded or reduced from an award of costs as excessive and unnecessary. (Id.)
Marx argues that she is a non-party who should not be compelled to produce documents relating to her financial documents merely because she is Torati's wife. (Doc. No. 108 at 6.) She contends that she is not a business partner, or silent partner, in Torati's businesses and her financial accounts are not relevant. (Id. at 1, 6.) According to Marx, such production would also be an undue burden, or would constitute embarrassment, annoyance, and harassment. (Id. at 6.) Furthermore, Boaziz has already demanded the same...
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