Swartz v. 44 Lexington Assocs., LLC
Swartz v. 44 Lexington Assocs., LLC
2024 WL 3634867 (S.D.N.Y. 2024)
August 1, 2024
Failla, Katherine P., United States District Judge
Summary
The court ordered the defendant to respond to certain discovery requests, including providing documentation and reports related to alleged ADA violations at the hotel. The court also reminded both parties of their obligation to comply with discovery rules and encouraged them to resolve disputes without court intervention. No sanctions were imposed, but the parties were instructed to request an extension if needed to complete discovery.
Helen Swartz
v.
44 Lexington Associates, LLC
v.
44 Lexington Associates, LLC
Case no. 1:24-cv-452-KPF
United States District Court, S.D. New York
Filed August 01, 2024
Failla, Katherine P., United States District Judge
MEMO ENDORSED
The Court is in receipt of Plaintiff's pre-motion letter requesting that the “Court order [ ] Defendant herein to provide a full and complete response to [Plaintiff's] discovery requests, including specific responses as to each and every ADA violation alleged by [ ] Plaintiff in her complaint ... which [Defendant] claims do not exist at its property, along with the specific basis therefore and evidence of same,” as well as “that sanctions be entered against [ ] Defendant based upon [its] refusal to comply with the discovery rules.” (Dkt. #21). The Court is also in receipt of Defendant's above response to Plaintiff's pre-motion letter. (Dkt. #22). The Court finds that the parties’ discovery disputes are amenable to resolution without a conference, and hereby DENIES Plaintiff's request for the same. The remainder of this Endorsement sets forth the Court's resolution of those disputes.
Federal Rule of Civil Procedure 26(b)(1) provides that “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense.” Fed. R. Civ. P. 26(b)(1). A matter is “relevant” if it encompasses “any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978). The Court may limit discovery upon a determination that “(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).” Fed. R. Civ. P. 26(b)(2)(C). With these guiding principles in mind, the Court hereby ORDERS as follows:
- The Court finds that Defendant's Responses to Plaintiff's Requests for Admission (“RFA”) are sufficient. As Defendant states above, “Defendant denies that th[e] [alleged] non-conforming conditions exist. Hence, RFA Nos. 3-28 were denied.”
- With respect to Defendant's Responses to Plaintiff's Interrogatories (each a “Rog.”):
- The Court accepts Defendant's good-faith assertion that, concerning Rog. No. 1, “there [are] no inspections” to report.
- The Court accepts Defendant's response to Rog. No. 2, to the extent that Mr. Cartagena Jr. is the sole individual who Defendant intends to rely upon for the purposes of disputing Plaintiff's claims.
- The Court accepts Defendant's objections to Rog. Nos. 3-4, and will not order Defendant to respond to the same, absent a persuasive explanation of their relevancy on the part of Plaintiff.
- The Court accepts Defendant's contention that any answer to Rog. No. 5 is irrelevant in view of the fact that “Defendant does not dispute that the hotel is subject to the 2010 ADAAG,” and will not order Defendant to respond to it, absent a persuasive explanation of its relevancy on the part of Plaintiff.
- The Court rejects Defendant's objections to Rog. No. 6 and hereby ORDERS Defendant to respond in substance thereto. While the Court has no expectation that Defendant produce privileged material, it does not believe that Defendant has made a good-faith attempt to set forth “all facts in support of each of the Defendant's affirmative defenses” to the extent such information is not privileged.
- The Court rejects Defendant's objections to Rog. No. 7 and hereby ORDERS Defendant to respond in substance thereto. Defendant may not deny all allegations in the Complaint and thereafter produce no discovery materials substantiating the legitimacy of such denials. As Plaintiff indicates, Defendant has not produced “any type of documentation, reports, photographs, or any other type of discovery pertaining to whether the hotel contains the ADA violations alleged in paragraphs 16 through 78 of the complaint herein ... or not (i.e., the one disputed issue in this litigation).” Such discovery is plainly relevant to the issues in this case, and the Court does not believe that its production would be unreasonably cumulative, burdensome, or expensive.
- The Court rejects Defendant's objections to Rog. No. 8 and hereby ORDERS Defendant to respond in substance thereto, acknowledging that Defendant has already “agreed in conference to supplement the response with the room numbers” and that Rog. No. 8 is otherwise “fully responded to.”
- With respect to Defendant's Responses to Plaintiff's Requests For Production of Documents (each an “RFP”):
- The Court accepts Defendant's good-faith assertion that, concerning RFP Nos. 1-2, “there [are] no responsive documents in Defendendant's possession, custody[,] or control.”
- The Court rejects Defendant's objections to RFP Nos. 3-4 and hereby ORDERS Defendant to respond in substance thereto. Again, while the Court has no expectation that Defendant produce privileged material, it does not believe that Defendant has yet made a good-faith attempt to produce documents responsive to these requests.
- The Court accepts Defendant's objections to RFP Nos. 5-6, and will not order Defendant to respond to the same, absent a persuasive explanation of the relevancy of the documents requested on the part of Plaintiff. As to RFP No. 6 specifically, the Court accepts Defendant's good-faith assertion that “there are no [ ] responsive documents regarding Defendant.”
- The Court accepts Defendant's good-faith assertion that, concerning RFP No. 7, the only responsive documents in Defendant's possession, custody, or control are privileged.
- The Court rejects Defendant's objections to RFP Nos. 8-9 and hereby ORDERS Defendant to respond in substance thereto. Again, while the Court has no expectation that Defendant produce privileged material, it does not believe that Defendant has yet made a good-faith attempt to produce documents responsive to these requests.
- The Court does not believe that either party's conduct merits sanctioning at this time.
*5 The Court wishes to remind the parties of their obligation to construe and comply with the rules of discovery so as “to secure the just, speedy, and inexpensive determination of [this] action.” Fed. R. Civ. P. 1. The Court urges the parties to meet and confer diligently and in good faith with the goal of resolving their disputes without the Court's intervention and limiting the burdens of discovery to the fullest extent.
Finally, should the parties determine that they need additional time to complete fact discovery, in view of the fact that the current deadline is August 5, 2024 (see Dkt. #15), they are instructed to request an extension for the same by letter to the Court.
The Clerk of Court is directed to terminate the pending motion at docket entry 21.
SO ORDERED.
-------------------------
Honorable Judge Katherine Polk Failla
United States Courthouse
40 Foley Square
New York, NY 10007
Dear Judge Failla,
This is a relatively standard Americans with Disabilities Act lawsuit. Plaintiff Helen Swartz, who lives in Florida, is a serial litigant who has, as of June 12, 2024, sued a whopping 154 hotels in the Southern District, and 14 hotels in the Eastern District. It is difficult to imagine how Ms. Swartz can plausibly establish that she has an intent to return to every single hotel that she has sued in New York City, for example. Plaintiff's revised letter unfortunately lacks any specificity regarding which discovery responses are the subject of this letter and which are not. I will therefore try to address those Requests for Production of Documents and Interrogatories that I believe are the subject of the revised Pre-Motion Letter.
Requests for Admission:
A party cannot be compelled to make an admission, which seems to be Plaintiff's chief issue, since each Response is either “admitted” or a “denied.” Apart from RFA No. 1 (admitted) and RFA No. 2 (requesting that Defendant admit that Plaintiff is actually disabled as that term is used in the Americans with Disabilities Act, a contention that is not within the actual knowledge of Defendant), each RFA seeks an admission that various non-conforming conditions exist at Defendant's hotel. Defendant denies that those non-conforming conditions exist. Hence, RFA Nos. 3-28 were denied.
Requests for Production of Documents
Plaintiff propounded nine Requests. Of those, Plaintiff's Requests for Production of Documents Nos. 1, 7-9 ask for information from Defendant's retained consultant who has not yet been designated as an expert witness, which is classic work product falling within Fed. R. Civ. P. 26(b)(3)(A) (RFP Nos. 1 (retained consultant opinions), 7 (reports regarding ADA compliance), 8-9 (all documents, including the reports of retained consultants, that I, as attorney for Defendant, believe support a particular claim or defense). Federal Rules of Civil Procedure 26(b)(4)(D) provides that “a party may not, by interrogatories or deposition, discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or to prepare for trial and who is not expected to be called as a witness at trial” without a showing of “exceptional circumstances.” Williams v. Bridgeport Music, Inc., 300 F.R.D. 120, 122 (S.D.N.Y. 2014). Defendant has clearly stated in its Response to Nos. 1 and 2 (seeking some sort of written policies that the hotel will comply with the ADA) that, excluding retained consultants and communications limited to counsel, there are no responsive documents.
Of the remaining six Requests, Defendant has, pursuant to Fed. R. Civ. P. 34, offered in both the Responses and in the discovery conference to make the documents responsive to Nos. 3-4. RFP No. 5 seeks a copy of the Defendant's corporate or other tax returns for the preceding three (3) years, as well as the “corporate tax returns for any of Defendant's parent companies.” Tax returns are privileged, and are literally irrelevant. Defendant has made clear that it is not relying upon any lack of money or finances in connection with a “readily achievable” defense. In other words, Defendant has not and does not claim that it cannot afford to comply with the ADA because it lacks the resources to do so. Moreover, Defendant's parent owns at least 16 hotels in New York City alone, not including other states. Its tax returns are even farther afield, since the parent is not a party, and its tax returns are irrelevant.
*2 RFP 6 seeks any formal or informal complaints regarding ADA violations, not just at the Defendant's property, but for “any other properties owned by the Defendant or any of the Defendant's subsidiaries or parent companies,” i.e., for every single hotel owned by Defendant's parent company, across the entire nation. Although there are no such responsive documents regarding Defendant, there is zero justification for such a burdensome, sweeping and irrelevant request for documents regarding non-party hotels around the country, and there has never been any justification for such as request, even if Defendant could access such documents (and it cannot).
RFP 7 seeks “any investigation of the ADA violations at the subject property.” As discussed, (a) whether there are “ADA violations” is a legal conclusion, and Defendant denies that there are any ADA “violations” on the property, and as explained to counsel, (b) any such “investigation” was done by Defendant's retained consultant and not discoverable as attorney work product.
RFP 8-9 seek the “disclosure of the mental impressions, conclusions, opinions, or legal theories of a party's attorney” in determining what documents support (1) affirmative defenses and (2) denials of allegations. Defendant properly objected to the Requests as calling for the work product and trial preparation of counsel pursuant to Rule 26(b)(3)(B) as phrased and Plaintiff refused to modify or limit the scope of the Requests.
Interrogatories
Plaintiff stayed at Defendant's hotel for one night in 2023. No. 1 seeks identification of any investigations (unlimited by time) of alleged ADA “violations.” Defendant has stated that other than investigations by consulting experts retained by Defendant's counsel, there are none.
However, No. 2 requests persons with knowledge, and Defendant has identified the General Manager of the hotel, who is the person responsible for compliance issues. Again, complete.
Nos. 3-4 seek highly intrusive and irrelevant financial information about Defendant, such as “gross and net annual revenue derived from both the subject property and from all sources for the last 3 years” and the “total amount of assets (whether cash, money in bank accounts, real property, investments, stocks, etc.) owned by the Defendant, as well as by any parent companies of the Defendant.” As stated, Defendant does not claim that it cannot afford to remediate any of the issues raised by Plaintiff, and this sort of overly broad and intrusive financial information is manifestly irrelevant to this lawsuit. In fact, counsel was unable to explain why these interrogatories should be answered.
No. 5 seeks information regarding any renovations costing more than $5,000 ever done on the property. Although such information might be relevant if there was an issue regarding whether the hotel was required to comply with the 1991 ADAAG or the 2010 ADAAG, in which case the date of and area of renovation might indicate that the 2010 rather than 1991 ADAAG would apply, that is not at issue in this case. Defendant does not dispute that the hotel is subject to the 2010 ADAAG. Therefore, any renovations – which are additionally unlimited by any reasonable time – are irrelevant.
No. 6 seeks “all facts in support of each of the Defendant's affirmative defenses herein. Any applicable statutes, caselaw, or other legal authority should be cited.” First, there are 15 affirmative defenses. Thus, this interrogatory is in reality, 15 interrogatories. Second, among other problems, and apart from the legal arguments in Defendant's Motion to Dismiss, it requests the work product of counsel, who is apparently expected to prepare a brief with legal analysis of each defense. No. 7 suffers from the same problems, except that there are 97 different denials of allegations in the Complaint and therefore this Interrogatory is in actuality 97 separate interrogatories, and seemingly seeks to impose a requirement on Defendant to additionally treat those allegations as some sort of Request for Admission. Plaintiff refused to narrow this Interrogatory to, for example, FAC ¶ 21, which lists the results of Ms. Swartz's apparent survey of the property. Again, this response is appropriate in light of the breadth and scope of this Interrogatory. No. 8 has been fully responded to, although Defendant agreed in conference to supplement the response with the room numbers. However, “room dispersal” in not an issue in this case and there is no allegation that Plaintiff was unable to stay in the room of her choice.
*3 Defendant therefore requests that this Court either deny the Pre-Motion Letter request or alternatively, set these issues for a conference.
Very truly yours,
STILLMAN & ASSOCIATES
By: [illegible text]
Philip H. Stillman, Esq.