Abraham v. Leigh et al

RESPONSE in Opposition to Motion re: 141 MOTION to Compel Plaintiff Robyn Abraham to produce documents . . Document

S.D.N.Y.February 6, 2019

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ____________________________________ : ROBYN ABRAHAM, : : : Plaintiff, : : v. : Case No. 17-cv-5429 (KPF) : ABBY LEIGH., et al., : : Defendants. : ____________________________________: PLAINTIFF ROBYN ABRAHAM’S OPPOSITION TO DEFENDANT ABBY LEIGH’S MOTION TO COMPEL Case 1:17-cv-05429-KPF Document 175 Filed 02/06/19 Page 1 of 10 Plaintiff Robyn Abraham respectfully submits this memorandum of law in support of her opposition to Defendant Abby Leigh’s motion to compel Plaintiff to produce additional documents demonstrating her residence for jurisdictional purposes [Docket Item 141]. BACKGROUND Plaintiff Robyn Abraham (“Plaintiff” or “Ms. Abraham”) filed this case on July 18, 2017 against the three rights-holders to Man of La Mancha (“MOLM), Abby Leigh, Martha Wasserman, and Hellen Darion; and their former representative Alan Honig.1 Hellen Darion was subsequently dismissed from the case, leaving Abby Leigh, Martha Wasserman, and Alan Honig as the remaining defendants. The events giving rise to Ms. Abraham’s claims occurred in 2013 and 2014. During that time, and at the time this suit was commenced, Plaintiff was a citizen of California; Defendants Leigh and Honig were citizens of New York; and Defendant Wasserman was a citizen of Arizona. In August 2018, more than a year after this action was filed, Defendant Leigh issued three document requests seeking, inter alia, any and all of Ms. Abraham’s deeds, leases, or agreements related to any place of residence; any and all of Ms. Abraham’s government-issued identification cards, driver’s licenses, voter registration cards, and automobile registrations valid during the relevant 2014 contract period; and any and all such documents valid at the time the Complaint was filed in 2017. Plaintiff objected on the grounds that the document requests were irrelevant, unduly burdensome, and overly broad for purposes of determining Plaintiff’s residency. Nevertheless, in an effort to cooperate with Defendant’s request and avoid a time- wasting discovery dispute, Plaintiff agreed to produce documents sufficient to demonstrate that 1 Plaintiff also named two entities as Defendants, the Viola Fund and Abby Leigh Ltd., and they have since been dismissed from the case. Case 1:17-cv-05429-KPF Document 175 Filed 02/06/19 Page 2 of 10 2 Plaintiff was a resident of California at all relevant times, noting also that Defendant was free explore the question of where Ms. Abraham resided at her deposition. Defendant Leigh agreed. Plaintiff produced (1) documents from the Beverly Hills Bar in 2013 reflecting Plaintiff’s California address; (2) a New York State Attorney Registration notice for 2013-214 reflecting Plaintiff’s California address; (3) a copy of her U.K. Residence Permit issued in December 2017. Together, these documents showed that Plaintiff resided in California in 2013 and 2014 and became a UK resident after the Complaint was filed. At a subsequent meet and confer with Defendant, counsel for Plaintiff also confirmed that although Ms. Abraham traveled often for work, she did not have residences anywhere else and was a resident of California at all relevant times. Plaintiff also produced a Florida driver’s license but explained that Ms. Abraham visits her mother who lives in Florida several times a year but was not a co-owner of her mother’s Florida home and did not own or rent property in Florida. Finally, counsel explained that Plaintiff’s California home address was highly sensitive and confidential because of heightened safety concerns. If Defendant insisted on seeking Plaintiff’s home address, Plaintiff stated that she would move for a protective order from the Court to preclude any additional inquiry into Ms. Abraham’s personal home address in California and the U.K. Notwithstanding the production of these documents and counsel’s explanation, Defendant Leigh continued to request all property leases or deeds, voter registration cards, car registration records, and other government-issued IDs from Plaintiff, arguing that Defendant was entitled to broad discovery into all of Plaintiff’s records to make certain that Plaintiff did not reside in the U.K. or in Florida during the times in question. The Court resolved this discovery dispute at a conference on December 18, 2018. The Court asked Plaintiff’s counsel where Ms. Abraham resided each year from 2014 through 2017, Case 1:17-cv-05429-KPF Document 175 Filed 02/06/19 Page 3 of 10 3 and counsel affirmed that Ms. Abraham lived in California and did not have a residence anywhere else: THE COURT: In the year 2014, where did Ms. Abraham reside? MS. SHIN: In LA, your Honor. THE COURT: For the entirety of the year 2014 she resided in LA? MS. SHIN: Her citizenship was in LA. She resided mostly in LA, but she spends a lot of time in the UK. She does not have a residence in the UK. THE COURT: There is no sort of little place she can lay her hat whenever she is in the UK. She is always in a hotel room when she is there? MS. SHIN: She stays in a hotel room, she stays with friends, she stays with her network. THE COURT: In 2015, where did she live? What was she a citizen of? MS. SHIN: LA, your Honor. THE COURT: 2016. MS. SHIN: LA, your Honor. With fulfilling the residency requirements that she was trying to building the UK. THE COURT: 2017. MS. SHIN: Same thing, your Honor. LA and staying as much as she can in the UK. THE COURT: When you say staying as much as she can, less than half the year? MS. SHIN: I am not sure exactly the number of days she stays there. The UK is very specific about how many days you need to stay, at least six months or something that adds up to that, but she does not have a residence in the UK. She stays with friends, people she knows, or a women’s network. Not just in London; all throughout the UK. 12/18/18 Conf. Tr. 43:20-44:23. When asked about Plaintiff’s Florida driver’s license, counsel for Plaintiff stated that Ms. Abraham obtained her Florida license nearly two decades ago when Case 1:17-cv-05429-KPF Document 175 Filed 02/06/19 Page 4 of 10 4 she used to live there; that the address on the driver’s license was the home address for her mother, whom Ms. Abraham visits on occasion; and that Ms. Abraham did not reside in Florida during any relevant time period. See id. at 45:14-19. The Court also observed that the information Defendant sought could be obtained by deposing Ms. Abraham. See id. at 42:20-22 (“THE COURT: You are saying [the documents provided by Plaintiff] are not sufficient. What is it that you seek that can’t be obtained during the deposition of Ms. Abraham?”). Based on the above and counsel’s representation that Plaintiff was a California resident and did not maintain any other residences outside of California from 2013 through the end of 2017, the Court denied Defendant Leigh’s request for additional discovery. See id. at 49:17-18. Defendant filed this motion to compel one week before the close of fact discovery and six days after Ms. Abraham’s deposition. Although the Court, in denying the same motion on December 18, 2018, observed that Defendant could ask questions about Plaintiff’s residence and citizenship at her deposition, Defendant chose not to ask a single question she purported to have had regarding Ms. Abraham’s residence or citizenship. Instead, Defendant rehashes the same arguments previously rejected by the Court, in seeking “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.” Def.’s Mot. at 6. Defendant’s third request for production sought “any and all government-issued identification cards,” any and all voter registration cards, and any and all automobile registrations that were valid in 2014 and at the time of the filing of the Complaint. Case 1:17-cv-05429-KPF Document 175 Filed 02/06/19 Page 5 of 10 5 ARGUMENT Defendant’s motion should be denied because Defendant does not present any new evidence that would call Plaintiff’s domicile into question, nor any new arguments the Court has not previously considered. Federal Rule of Civil Procedure 26(b)(1) permits the discovery of information “if it is relevant to any party’s claim or defense and is proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1) (emphasis added). The advisory committee’s notes further explain that “[a] party claiming that a request is important to resolve the issues should be able to explain the ways in which the underlying information bears on the issues as that party understands them.” Fed. R. Civ. P. 26(b)(1) advisory committee’s note to 2015 amendment. Accordingly, courts will not grant duplicative or cumulative discovery requests bearing on issues that have already been settled by the Court. See, e.g.¸ Sahu v. Union Carbide Corp., 262 F.R.D. 308, 316 (S.D.N.Y. 2009) (denying plaintiff’s motion to compel discovery because defendants had already produced all the documents in their possession and there was no reason to doubt defendant’s representations that the production was complete); Correia v. John Doe #1, No. 05-cv-2006, 2006 WL 2034291, at *1 (S.D.N.Y. Oct. 11, 2006) (admonishing plaintiff for serving repetitive discovery requests and discovery requests that have already been resolved by the court). Defendant’s motion is nothing more than an attempt to revive issues regarding Ms. Abraham’s citizenship in 2014 and 2017 that have already been settled by this Court. Ms. Abraham has already produced bar association documents showing that she lived in California in 2013 and 2014, and Plaintiff’s counsel has stated numerous times that Plaintiff was a resident of California and did not maintain any other residence. Moreover, in response to a specific inquiry by the Court at the discovery conference in December, Plaintiff’s counsel confirmed that Ms. Case 1:17-cv-05429-KPF Document 175 Filed 02/06/19 Page 6 of 10 6 Abraham was a citizen of California at the time she commenced this lawsuit in July 2017, having resided at the same address in California from 2014 through the end of 2017. See 12/18/18 Conf. Tr. 456:2-4 (“THE COURT: From 2014 to 2017, was [Plaintiff] residing in the same residence in LA or did she move houses? MS. SHIN: I believe she stayed in the same residence.”) Defendant’s suggestion that Plaintiff was not a California resident in 2017 because she obtained a U.K. Residency Permit in December is likewise without basis. Putting aside the fact that Defendant has never articulated why Plaintiff’s U.K. residence is in any way relevant to the question of personal jurisdiction, the subject was also addressed by the Court at the same discovery conference in December. At that conference, Plaintiff’s counsel stated that while Ms. Abraham spent time in the U.K. in 2017 to fulfill her residency requirements, she did not maintain a residence there before she was granted residency, either in 2017 or in the years prior, relying on hotels, friends, or a women’s network for lodging. The Court found no “inconsistency” with the fact that Plaintiff “[had] a home in California” while “trying to become a permanent resident of the United Kingdom” in 2017. Id. at 47:15-22. Contrary to Defendant’s contentions, discovery has not revealed any new evidence to suggest that Ms. Abraham was not a California resident at all relevant times. Defendant points to the production of a Florida driver’s license, see Def.’s Mot. at 5, but the Court has already confronted that issue too. At the December discovery conference, Plaintiff’s counsel explained to the Court that Ms. Abraham obtained her Florida license nearly two decades ago when she used to live there; that the address on the driver’s license was the home address for her ailing mother, whom Ms. Abraham visits; and that Ms. Abraham did not have a residence in Florida during any relevant time period. See 12/18/18 Conf. Tr. 45:14-19. Finally, in response to Defendant’s concern that Plaintiff might “maintain [an] argument later regarding diversity in the Case 1:17-cv-05429-KPF Document 175 Filed 02/06/19 Page 7 of 10 7 event that she is unsuccessful,” a concern which Defendant repeats here, see Def.’s Mot. at 5, Plaintiff’s counsel affirmed that she would not be bringing a claim for lack of diversity jurisdiction in the future. See 12/18/18 Conf. Tr. 49:12-23. Separate and apart from the fact that Defendant has presented no new arguments or evidence to warrant reopening discovery into the question of jurisdiction, Defendant should not be permitted to seek information on a topic that could have been explored at Ms. Abraham’s deposition in January. Indeed, Plaintiff informed Defendant during two separate meet-and- confers in December that Defendant was free to ask Ms. Abraham questions about her residency during her deposition. And at the discovery conference, the Court also noted that the information sought could be obtained by deposing Ms. Abraham. See id. at 42:20-22 (“THE COURT: You are saying [the documents provided by Plaintiff] are not sufficient. What is it that you seek that can’t be obtained during the deposition of Ms. Abraham?”) Defendant was therefore not without recourse in getting additional responses to its discovery questions before fact discovery closed. Although Defendant had every chance to ask about the very issues raised in this motion, counsel for Defendant did not pose a single question to Ms. Abraham about her residency, nor did they provide any questions to counsel for Martha Wasserman and Alan Honig who took the deposition. Plaintiff should not now have to shoulder the burden of gathering and collecting documents proving residency, particularly after fact discovery has closed. CONCLUSION For the foregoing reasons, Plaintiff respectfully requests that Defendant Abby Leigh’s Motion to Compel be dismissed. Case 1:17-cv-05429-KPF Document 175 Filed 02/06/19 Page 8 of 10 8 Dated: February 6, 2019 New York, New York Respectfully submitted, By: /s/ Susan L. Shin Susan L. Shin Kent A. Yalowitz Susan S. Hu ARNOLD & PORTER KAYE SCHOLER LLP 250 West 55th Street New York, New York 10019 Tel: (212) 836-8000 Fax: (212) 836-8689 susan.shin@arnoldporter.com kent.yalowitz@arnoldporter.com susan.hu@arnoldporter.com Attorneys for Plaintiff Case 1:17-cv-05429-KPF Document 175 Filed 02/06/19 Page 9 of 10 9 CERTIFICATE OF SERVICE I, Susan S. Hu, hereby certify that a true and correct copy of the foregoing was served upon the parties listed below via email this 6th day of February 2019. Michael J. Broadbent (mbroadbent@cozen.com) H. Robert Fiebach (rfiebach@cozen.com) COZEN O’CONNOR 1900 Market Street The Atrium Philadelphia, PA 19103 Tamar S. Wise (twise@cozen.com) COZEN O’CONNOR 45 Broadway Atrium, Suite 1600 New York, NY 10006 Attorneys for Abby Leigh, as Executrix of the Estate of Mitch Leigh /s/ Susan S. Hu Susan S. Hu Case 1:17-cv-05429-KPF Document 175 Filed 02/06/19 Page 10 of 10