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Baier v. Princeton Office Park, L.P.

United States District Court, D. New Jersey

October 22, 2018

GOETZ BAIER, Plaintiff,
v.
PRINCETON OFFICE PARK, L.P., et al. Defendants.

          MEMORANDUM OPINION AND ORDER

          DOUGLAS E. ARPERT, UNITED STATES MAGISTRATE JUDGE.

         This matter comes before the Court on a Motion by Plaintiff Goetz Baier (“Baier”) to compel nonparty Realty Management Associates (“RMA”) and Defendant Lawrence Berger (“Berger”) to comply with a Subpoena Duces Tecum. ECF No. 106. Plaintiff also requests an award of attorney's fees incurred in connection with this motion. Id. Mr. Berger and RMA oppose Plaintiff's Motion. ECF No. 107. The Court has fully reviewed the submissions of the parties and considers same without oral argument pursuant to Fed.R.Civ.P. 78(b). For the reasons set forth below, Plaintiff's Motion to Compel Discovery is GRANTED, though Plaintiff's Request for Reasonable Attorney's Fees is DENIED.

         I. BACKGROUND

         The facts and procedural history of this 10-year-old case are well known to the parties and need not be recited at length. Briefly, the underlying action concerns investments Mr. Baier, a native of Germany, indirectly made in Defendants Princeton Office Park, United States Realty Resources, Inc., United States Land Resources, L.P., and other, sometimes related, entities through an investment vehicle called Success Treuhand GmbH. ECF No. 1. Defendant Berger is a principal in many of those entities. Id. at 2-4. A dispute arose between the parties related to Mr. Baier's attempt to withdraw his invested funds and associated profit. Id. at 3-7. The underlying litigation followed. Id. On May 11, 2012, U.S. District Judge Peter G. Sheridan entered a Judgment in favor of Mr. Baier and against Defendants Berger and United States Land Resources L.P., jointly and severally, in the amount of $675, 000. ECF No. 81. That Judgment reflected the consent of the parties.

         Since the entry of the Consent Judgment, Plaintiff has thrice sought the Court's aid in his attempts to collect on the Judgment. In January 2013, Mr. Baier filed a Motion to Compel Defendant to Answer Information Subpoena, based on what the Plaintiff contended were Defendant's insufficient answers to an Information Subpoena. ECF No. 86 at 1-3. Mr. Baier withdrew that motion after Mr. Berger agreed to supplement his answers to the Information Subpoena. ECF Nos. 87, 88. In December 2016, Plaintiff filed a Motion to Alter Judgment to Enter Charging Order seeking to attach for the Judgment Creditor distributions made by 115 business entities to Mr. Berger. ECF No. 94. That motion was denied without prejudice by Judge Sheridan, though the Court ordered that Mr. Baier would be allowed to resubmit the motion with further documentation and briefing. Id. In response to a second discovery dispute, this Court by Text Order dated January 2, 2018 stated that “Plaintiff must file a formal motion to obtain the post judgment relief it seeks.” ECF No. 105. The instant Motion to Compel Production of Documents followed.

         Plaintiff contends Mr. Berger-through a Subpoena served upon a nonparty entity, Realty Management Associates, in which Mr. Berger is a partner with his wife-has failed to adequately and fully respond to discovery demands that are part of Mr. Baier's attempts to collect on the Consent Judgment. ECF No. 106. Defendant counters that the discovery “will not aid in collecting” on the Judgment and really is an effort to “harass, annoy and burden” associated third parties “in an effort to vex the judgment debtor.” ECF No. 107 at 2.

         This latest discovery dispute has two broad categories. First, Plaintiff contends Mr. Berger failed to provide any documents responsive to Request Nos. 1, 12-13, and 19-20 of the Subpoena Duces Tecum. ECF No. 106 at 11. Request No. 1 seeks documents identifying RMA's “partners, owners, members, officers, managers or managing agents.” Id. Request Nos. 12-13 seek documents related to alleged loans made between RMA, Mr. Berger and any other related entities. Id. Request Nos. 19-20 seek documents related to any agreements between or among RMA, Mr. Berger and United States Land Resources. Id. Defendant claims it provided no documents because no documents exist that are responsive to these requests. Plaintiff counters that New Jersey law requires certain documents be filed with the state by all limited partnerships or limited liability companies, ECF No. 106 at 12, while the lack of any documentation for $4, 564, 267.84 of disbursements by RMA or United States Land Realty to Mr. Berger calls into question whether those payments amount to a “scheme to pass off millions of dollars' worth of income used by Berger to fund a princely lifestyle as ‘loans.'” Id. at 22.

         In the second category, Plaintiff contends Mr. Berger and RMA are unfairly withholding documents associated with and authenticating the disbursements to Mr. Berger and other related parties chronicled in a 74-page spreadsheet provided by RMA in response to Request Nos. 2, 5-7, 10-11, and 14-17 of the Subpoena Duces Tecum. Id. Mr. Berger and RMA counter that such documentation, where it exists, would be unduly burdensome to produce and not proportionate to Plaintiff's needs. ECF No. 107.

         II. LEGAL STANDARD

         It is well established that the scope of discovery in federal litigation is broad. Fed R. Civ. P. 26(b)(1). “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense.” Id.; see also Pearson v. Miller, 211 F.3d 57, 65 (3d Cir. 2000). Moreover, information sought by the parties need not be admissible in evidence to be discoverable. Fed.R.Civ.P. 26(b)(1). During the course of discovery, “[a] party may serve on any other party a request within the scope of Rule 26(b)” to produce documents “in the responding party's possession, custody, or control.” Fed.R.Civ.P. 34(a)(1). Of course, the responding party is not obliged to produce documents it does not possess or can not obtain. See Bumgarner v. Hart, Civ. No. 05-3900, 2007 WL 38700, at *5 (D.N.J. Jan. 4, 2007) (holding that the Court cannot order production of documents that are not in the responding party's possession or control), Not only must the requested documents be in the responding party's possession or control, they also must be relevant. The precise boundaries of the Rule 26 relevance standard depend upon the context of each particular action, and the determination of relevance is within the discretion of the District Court. Barnes Found. v. Twp. of Lower Merion et al., Civ. No. 96-372, 1996 WL 653114, at *1 (E.D.Pa. 1996).

         While the scope of discovery is undoubtedly broad, the Federal Rules also provide that a Court “must limit the frequency or extent of discovery otherwise allowed” if it concludes that: (1) the discovery sought is cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (2) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (3) the burden or expense of the proposed discovery outweighs its likely benefit. Fed.R.Civ.P. 26(b)(2)(C). Further, “the Court has a responsibility to protect privacy and confidentiality interests” and “has authority to fashion a set of limitations that allow as much relevant material to be discovered as possible ... while preventing unnecessary intrusions into legitimate interests that may be harmed by the discovery of material sought.” Schmulovich v. 1161 Rt. 9 LLC, Civ. No. 07-597, 2007 WL 2362598, at *1-2 (D.N.J. Aug. 15, 2007); see also Pearson, 211 F.3d at 65; Fed.R.Civ.P. 26(c).

         Rule 37(a) allows a party to file a motion to compel discovery where the opposing party fails to respond adequately to a document request propounded pursuant to Rule 34. Fed.R.Civ.P. 37(a)(3)(B)(iv). Ultimately, it is within the Court's discretion whether to grant a motion to compel disclosure. In re Cendant Corp. Sec. Litig., 343 F.3d 658, 668 (3d Cir. 2003).

         III. DISCUSSION

         Plaintiff seeks to collect on the Consent Judgment in favor of Mr. Baier and against Defendants, including Mr. Berger. That Judgment thus far is unsatisfied. Plaintiff states Mr. Berger has claimed he has “virtually no unencumbered assets and no income.” See Pl.'s Br. in Supp. of Mot. to Compel Produc. at pg. 6. In light of the failure of Defendants, including Mr. Berger, to satisfy this Consent Judgment and pursuant to Fed.R.Civ.P. 26, Plaintiff served on Mr. Berger as well as a related but nonparty entity, RMA, a Subpoena Duces Tecum. That Subpoena sought information regarding the ownership ...


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