Abraham v. Leigh et al

MEMORANDUM OF LAW in Support re: 141 MOTION to Compel Plaintiff Robyn Abraham to produce documents . . Document

S.D.N.Y.January 23, 2019

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ROBYN ABRAHAM, Plaintiff, -against- ABBY LEIGH in her individual capacity and as Executrix of the ESTATE OF MITCH LEIGH, THE VIOLA FUND, ABBY LEIGH LTD, MARTHA WASSERMAN in her individual capacity and as Executrix of the ESTATE OF DALE WASSERMAN, HELLEN DARION, in her individual capacity as Executrix of the ESTATE OF JOSEPH DARION, and ALAN HONIG, Defendants. Case No. 17-cv-5429 (KPF) MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT ABBY LEIGH’S MOTION TO COMPEL DIRECTED TO PLAINTIFF Defendant Abby Leigh, as Executrix of the Estate of Mitch Leigh (the “Executrix”), submits this memorandum of law in support of her motion to compel Plaintiff, Robyn Abraham, to produce discovery sufficient to prove Plaintiff’s domicile as of the commencement of this action.1 This discovery is necessary because the record evidence now suggests the possibility that complete diversity is lacking, thereby divesting this Court of jurisdiction. The requested discovery would resolve the ambiguity in the record and ensure that this case is properly before this Court. 1 Pursuant to this Court’s Individual Practices and Local S.D.N.Y. Rule 37.2, the parties have met and conferred on this issue and addressed it with the Court. At a telephonic conference held with the Court and all parties on December 18, 2018, the Court denied the request for this discovery. Case 1:17-cv-05429-KPF Document 142 Filed 01/23/19 Page 1 of 7 2 BACKGROUND In her Requests for Production directed to Plaintiff Robyn Abraham, the Executrix requested documents regarding Plaintiff’s residence, as follows: 1. Any and all deeds, leases, or other agreements related to any place of residence owned, leased, rented, or occupied by you between January 2014 and August 2014. 2. Any and all deeds, leases, or other agreements related to any place of residence owned, leased, rented, or occupied by you at the time you filed any Complaint in this matter. Plaintiff did not provide any documents in response. Instead, Plaintiff objected to both requests, stating that each one “seeks irrelevant information, [and is] unlikely to lead to discovery of admissible evidence.” Plaintiff also objected on the grounds that both requests were “unduly broad and unduly burdensome.” In a subsequent production, Plaintiff produced a handful of documents which Plaintiff contended showed her California residence, but which revealed nothing more than a business address in California. Plaintiff did not produce a single document showing that she resided in California, the state which she claimed as her residence for diversity jurisdiction purposes. The Executrix also requested documents specifically targeted to identifying Plaintiff’s citizenship for diversity jurisdiction purposes, as follows: 3. Any and all government-issued identification cards (including but not limited to driver’s licenses), voter registration cards, and automobile registrations which were valid (a) January 2014 and August 2014 and (b) at the time you filed any Complaint in this matter. Case 1:17-cv-05429-KPF Document 142 Filed 01/23/19 Page 2 of 7 3 Plaintiff did not initially produce any documents. Plaintiff objected on the grounds that the request “seeks irrelevant information, unlikely to lead to the discovery of admissible evidence.” Plaintiff later produced a driver’s license issued by the state of Florida and a residence permit issued by the United Kingdom. The Executrix and Plaintiff held multiple meet-and-confer discussions on these discovery requests, but Plaintiff would not agree to produce any additional documents related to Plaintiff’s citizenship. Plaintiff agreed only to reproduce clearer photoscans of documents which were difficult to read. Plaintiff indicated that she could not produce documents reflecting a home address because of confidentiality concerns. Counsel for the Executrix made clear their intention to keep any such documents confidential under the terms of the parties’ stipulated confidentiality order (Dkt. #97).2 However, despite jointly drafting and agreeing to the terms of the confidentiality stipulation, Plaintiff did not find the protection set forth in this document sufficient. Unable to reach agreement with Plaintiff, the Executrix requested an informal discovery conference with the Court by a letter sent on November 30, 2018, pursuant to Rule 3(C) of the Court’s Individual Rules of Practice in Civil Cases. The parties thereafter submitted further letters related to discovery, and the Court scheduled a discovery conference on December 18, 2018, to address all outstanding discovery disputes After consideration of the parties’ correspondence and further discussion during the conference, the Court determined that no further discovery on the question of citizenship was necessary because Plaintiff was not a resident of New York or Arizona. The Court also concluded that no further discovery related to Plaintiff’s residence was necessary for purposes of the damages 2 In other words, the Executrix intended to maintain the confidentiality of such documents and information and, if the Executrix believed the information or documents necessary for a filing or other public document, to file such document under seal. Case 1:17-cv-05429-KPF Document 142 Filed 01/23/19 Page 3 of 7 4 analysis, because Plaintiff’s counsel informed the Court that Plaintiff did not have any residence and lived in hotels in the UK. (12/18/18 Tr. 47:15-48:5). The Executrix’s counsel raised the concern that, without discovery to confirm complete diversity, the issue of the Court’s subject matter jurisdiction would be unsettled—perhaps even leaving open the possibility of a later defeat of diversity jurisdiction on the grounds that Plaintiff and Defendant Honig were both citizens of Florida.3 (Id. at 48:19-49:11.) Plaintiff’s pleadings are unclear on this issue; although she alleges a residence in London at the time of filing and citizenship in California in 2014, the Complaint is silent as to citizenship for purposes of diversity jurisdiction as of the time her Complaint was filed. (Id. at 49:3-4; Dkt. #1, Compl. ¶ 7; see also Dkt. #40, Am. Compl. ¶ 7.) Despite this concern, the Court was satisfied with Plaintiff’s counsel’s statement that Plaintiff would not later claim to be a Florida resident. The Court therefore did not require any additional jurisdictional discovery. (Id. at 49:15-23.) ARGUMENT “A plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). To satisfy its burden, in the absence of federal question jurisdiction, a plaintiff must demonstrate that complete diversity of citizenship existed at the time this suit was filed. See Grupo Dataflux v. Atlas Glob. Grp., L.P., 541 U.S. 567, 570–71 (2004); Universal Licensing Corp. v. Paola del Lungo S.p.A. 293 F.3d 579, 581 (2d Cir. 2002). For purposes of diversity jurisdiction, an individual’s citizenship is determined by his or her domicile. Palazzo ex rel. Delmage v. Corio, 232 F.3d 38, 42 (2d Cir. 2000). A plaintiff’s domicile is evidenced by residence coupled with an 3 In a prior, related proceeding, Defendant Alan Honig conceded that he was a citizen of the State of Florida. See Leigh v. Honig, et al., 1:16-cv-07896-KPF at Dkt. #23 ¶ 7; id. at Dkt. #32 ¶ 7. Case 1:17-cv-05429-KPF Document 142 Filed 01/23/19 Page 4 of 7 5 intent to remain in that place. Id. In determining domicile, courts consider various factors including, but not limited to, voting registration and voting practices, payment of taxes, ownership of property, driver’s licenses, current residence, and place of employment. Greenblatt v. Gluck, 265 F. Supp. 2d 346, 351 (S.D.N.Y. 2003). Plaintiff should be required to produce documents evidencing domicile in July 2017, to ensure that this Court has the authority to hear this dispute. This discovery is necessary because the record now contains evidence linking Plaintiff to three different jurisdictions—one of which would defeat complete diversity of citizenship and would divest this Court of jurisdiction. Plaintiff alleged in her Complaint that she was a resident of London as of July 2017, and that only prior to August 22, 2014, she was a resident and citizen of the State of California. (Dkt. #1 ¶ 7.) Yet since filing her initial Complaint, Plaintiff has made statements to this Court and produced documents in discovery calling into question the veracity of this allegation. Plaintiff has since argued, through her counsel, that she was a citizen of California long after August 22, 2014. (See, e.g., 12/18/18 Tr. 44:7-45:3.) Plaintiff has also produced in discovery a Florida driver’s license, which Plaintiff renewed on April 16, 2014, and which is valid until May 22, 2022. The prospect of Plaintiff’s domicile in Florida is concerning—and requires further inquiry—because it would destroy complete diversity and therefore would divest this Court of jurisdiction.4 Because Plaintiff’s domicile in and prior to July 2017 is relevant to the Court’s jurisdiction over this matter, it falls within the purview of allowable discovery under the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 26(b)(1) (discovery requests are proper where they are “relevant to any party’s claim or defense and proportional to the needs of the case”); In re Welspun Litig., 2018 WL 4693586, at *3 (S.D.N.Y. Mar. 4, 2018) (“Relevance, however, is a broad term, and 4 In a prior, related proceeding, Defendant Alan Honig conceded that he was a citizen of the State of Florida. See Leigh v. Honig, et al., 1:16-cv-07896-KPF at Dkt. #23 ¶ 7; id. at Dkt. #32 ¶ 7. Case 1:17-cv-05429-KPF Document 142 Filed 01/23/19 Page 5 of 7 6 encompasses any matter that bears on, or that reasonably could lead to other matters that would bear on, any issue that is or may be in the case.”) (quoting Oppenheimer Fund Inc. v. Sanders, 437 U.S. 340, 351 (1978)). Moreover, the discovery requests do not impose any undue burden on Plaintiff—and to the extent Plaintiff is concerned about maintaining the privacy of her residential history, this concern is readily addressed by the Confidentiality Order that has been entered in this action. See J.P. Morgan Secs. LLC v. Mariano, 2018 WL 522339, at *2 (S.D.N.Y. Jan. 22, 2018) (finding that party’s objections to discovery based on privacy rights “are adequately protected by the Protective Order entered in this action”). Finally, the prospect that complete diversity would be lacking in this case, divesting this Court of jurisdiction to even proceed with this matter, renders the requested discovery proportional to the needs of this case. See, e.g., In re Welspun Litig., 2018 WL 4693586, at *4 (compelling discovery relating to jurisdiction in and around the timeframe of the commencement of the action). CONCLUSION For the reasons set forth herein, the Court should compel Plaintiff to produce documents sufficient to establish each of Plaintiff’s residences during 2014 through 2017, and all documents relevant to the question of Plaintiff’s citizenship for diversity purposes, including those documents responsive to the Executrix’s third request for production. Dated: January 23, 2019 New York, New York Respectfully submitted, COZEN O’CONNOR By: H. Robert Fiebach_______ H. Robert Fiebach (pro hac vice) Michael J. Broadbent (pro hac vice) Tamar S. Wise 277 Park Avenue New York, NY 10172 Case 1:17-cv-05429-KPF Document 142 Filed 01/23/19 Page 6 of 7 7 Attorneys for Abby Leigh as Executrix of the Estate of Mitch Leigh Case 1:17-cv-05429-KPF Document 142 Filed 01/23/19 Page 7 of 7