Securities & Exchange Commission v. Hasho

134 F.R.D. 74, 1991 U.S. Dist. LEXIS 1777, 1991 WL 17844
CourtDistrict Court, S.D. New York
DecidedFebruary 11, 1991
Docket90 Civ. 7953 (DNE)
StatusPublished
Cited by2 cases

This text of 134 F.R.D. 74 (Securities & Exchange Commission v. Hasho) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Securities & Exchange Commission v. Hasho, 134 F.R.D. 74, 1991 U.S. Dist. LEXIS 1777, 1991 WL 17844 (S.D.N.Y. 1991).

Opinion

OPINION & ORDER

EDELSTEIN, District Judge:

Defendant Robert Hasho has moved to vacate the default judgment entered against him on December 27, 1990. For the following reasons, defendant’s motion is granted.

I. BACKGROUND

On December 13,1990, the Securities and Exchange Commission (the “SEC” or “plaintiff”) filed its complaint in this action alleging that defendants engaged in unlawful high pressure sales of speculative stock to unwary customers and caused trades to be entered in customer accounts without customer authorization. Also, on December 13, 1990, the SEC applied for an order to show cause and order expediting discovery (the “Order”) in connection with a motion for a preliminary injunction. This Court signed the Order and set a return date for a hearing on the SEC’s motion for January 14, 1991.

The Order authorizes the parties to take depositions upon oral examination of all defendants and non-parties subject to three days notice. The Order also authorizes the parties to make requests for the production of documents returnable within three days of service of such a request.

On December 14, 1990, defendant Robert Hasho (“defendant”) was personally served with all the papers in the action, a request for the production of documents, and a notice of deposition. The request for the production of documents called for defendant to produce certain documents on December 17, 1990. The notice of deposition called for defendant to appear and testify at the SEC’s New York Regional Office on December 19, 1990.

Defendant did not produce the documents requested, but did appear for his deposition on December 19, 1990. At that time, defendant was sworn as a witness, but refused to answer questions because he had not yet procured counsel to represent him. Plaintiff agreed to adjourn defendant’s deposition to December 24, 1990. On the morning of December 24, defendant informed plaintiff that he would not appear for the deposition.

On December 26, 1990, plaintiff contacted my chambers regarding the difficulties it was having in obtaining discovery from a number of defendants, including Robert Hasho. This Court ordered that a conference be held on December 27, 1990 at 9:30 a.m., and instructed plaintiff to notify the recalcitrant defendants of the order. Although plaintiff notified Robert Hasho of the conference and told defendant that it was going to seek a default judgment against him, defendant failed to appear at the conference.

[76]*76At the December 27, Í990 conference, plaintiff sought an order pursuant to Fed. R.Civ.P. 37 holding defendant in default in connection with his failures to provide discovery to plaintiff and for his failure to appear at the court ordered conference. This Court held defendant in default and ordered the recalcitrant defendants to attend a conference before this Court on January 2, 1991.

Defendant appeared at the January 2, 1991 conference through counsel. At this conference, the Court ordered defendant, and the other recalcitrant defendants, to provide discovery to the SEC. On January 4, 1991, after another conference, the parties entered a stipulation maintaining the status quo in order to resolve a number of problems with discovery. The January 14, 1991, hearing date was adjourned sine die. On January 8, 1991, Robert Hasho testified at depositions and provided documents pursuant to the request for production.

II. DISCUSSION

Pursuant to Fed.R.Civ.P. 37, a court may impose a range of sanctions for a party’s failure to cooperate in discovery. The sanctions range from an order to reimburse the opposing party for expenses caused by the failure to cooperate to orders of dismissal and default judgment. These sanctions serve three purposes: (1) they ensure that a party will not profit from his own failure to comply; (2) they serve as a specific deterrent to secure compliance in the case at hand; and (3) given that a party is at fault, they may serve as a general deterrent to other parties in the case, or parties in other cases. Cine Forty-Second St. Theatre v. Allied Artists, 602 F.2d 1062, 1066 (2d Cir.1979) (citations omitted). Dismissal and default judgment are the harshest sanctions available under Rule 37 and are to be deployed “only in rare situations.” Id. at 1064; see U.S. Freight Co. v. Penn Central Transp. Co., 716 F.2d 954, 955 (2d Cir.1983) (involving a “continuing saga of dilatory conduct”); Penthouse Int’l, Ltd. v. Playboy Enter., 663 F.2d 371, 388 (2d Cir.1981) (involving perjurious testimony and false representations of counsel against a background of prolonged and vexatious obstruction of discovery); Paine, Webber, Jackson & Curtis, Inc. v. Inmobiliaria Melia de Puerto Rico, Inc., 543 F.2d 3, 6 (2d Cir.1976) (involving willful failure to appear at a deposition for over seven months and failure to produce documents), cert. denied, 430 U.S. 907, 97 S.Ct. 1178, 51 L.Ed.2d 583 (1977).

Pursuant to Fed.R.Civ.P. 60(b)(1); a party may seek relief from a final judgment for “mistake, inadvertence, surprise, or excusable neglect.” Courts in this Circuit have gone beyond the bare wording of Rule 60(b)(1) and have established a three factor test which looks at: (1) whether the default is willful; (2) whether defendant has a meritorious defense; and (3) the level of prejudice that may occur to the non-defaulting party if relief is granted. Davis v. Musler, 713 F.2d 907, 915 (2d Cir.1983). All doubts are to be resolved in favor of the party seeking relief under Rule 60(b) so as to ensure that actions will be resolved on their merits. Kumar v. Ford, 111 F.R.D. 34, 39 (S.D.N.Y.1986); see Traguth v. Zuck, 710 F.2d 90, 94 (2d Cir.1983) (there is a “strong policy favoring the resolution of genuine disputes on their merits”). Further, Rule 60(b) should be interpreted “to preserve the delicate balance between the sanctity of final judgments ... and the incessant command of the court’s conscience that justice be done in light of all the facts.” First Fidelity Bank v. Gov’t of Antigua & Barbuda, 877 F.2d 189, 196 (2d Cir.1989) (quoting Bankers Mortgage Co. v. United States, 423 F.2d 73, 77 (5th Cir.), cert. denied, 399 U.S. 927, 90 S.Ct. 2242, 26 L.Ed.2d 793 (1970)).

In the instant action, this Court entered a default judgment against defendant on December 27, 1990, because of his failure to appear for his deposition, his failure to produce documents, and his failure to appear at a court ordered conference. At the time this Court entered the default judgment against defendant, it appeared as if he had willfully disobeyed the discovery process and would continue to do so.

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784 F. Supp. 1059 (S.D. New York, 1992)
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141 F.R.D. 29 (S.D. New York, 1992)

Cite This Page — Counsel Stack

Bluebook (online)
134 F.R.D. 74, 1991 U.S. Dist. LEXIS 1777, 1991 WL 17844, Counsel Stack Legal Research, https://law.counselstack.com/opinion/securities-exchange-commission-v-hasho-nysd-1991.