Transatlantic Bulk Shipping Ltd. v. Saudi Chartering S.A.

112 F.R.D. 185, 1987 A.M.C. 908, 1986 U.S. Dist. LEXIS 20153
CourtDistrict Court, S.D. New York
DecidedSeptember 19, 1986
DocketNo. 84 Civ. 3054(PNL)
StatusPublished
Cited by2 cases

This text of 112 F.R.D. 185 (Transatlantic Bulk Shipping Ltd. v. Saudi Chartering S.A.) 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
Transatlantic Bulk Shipping Ltd. v. Saudi Chartering S.A., 112 F.R.D. 185, 1987 A.M.C. 908, 1986 U.S. Dist. LEXIS 20153 (S.D.N.Y. 1986).

Opinion

LEVAL, District Judge.

This is a motion by plaintiff for sanctions arising from defendants’ continued failure to produce numerous demanded documents in violation of three court orders. Plaintiff, Transatlantic Bulk Shipping, Ltd. (successor Ascanius Transportation Corp.) moves pursuant to Rule 37(b) Fed.R.Civ.P., to strike defendants’ answer and motion to dismiss.1 I find plaintiff is entitled to sanctions. Defendants have simply thumbed their noses at their obligations. They have produced only a small number of documents and have done so only after great delay and in instances only after plaintiff had succeeded in showing the existence of the documents. Many categories of demanded documents have not been produced.

Plaintiff, Transatlantic Bulk Shipping, Ltd. (successor Ascanius Transportation Corp.), a Liberian corporation engaged in ocean carriage, is the owner of the M/V Ascanius, a Liberian flag vessel. The corporate defendants, Saudi Chartering S.A. (“SC”), Saudi International Shipping (“SIS”), Saudi U.S. Lines (“SUSL”), and Saudi Europe Line (“SEL”) are Panamanian corporations which plaintiff alleges are interchangeable alter egos of defendant Mohammed Abdul Orri (“Orri”), a businessman residing in Greece who allegedly owns and controls the four corporate defendants. (Amended Complaint, 1121).

The complaints2 allege that defendants maliciously and willfully defrauded plaintiff by entering into a charter agreement with plaintiff on January 27, 1984 for the charter of plaintiff's vessel, the M/V As-canius, knowing that they were financially unable and unwilling to pay plaintiff the required charter hire. Plaintiff now seeks to recover $700,000 pursuant to the agreement. In July 1984 plaintiff initiated arbitration in London, pursuant to a provision in the agreement, to enforce the charter agreement. Defendant SC sent a telex to the arbitration panel admitting liability. Accordingly, in August 1984 the London arbitrators awarded plaintiff $476,218 in damages against SC. To date, SC has not paid any part of this award. Plaintiff petitioned this court to confirm the arbitration award pursuant to 9 U.S.C. § 207. I dismissed the petition because of plaintiff’s failure to demonstrate that this court had jurisdiction over defendant SC (See April 16, 1985 Memorandum and Order).

The procedural history of this action is one of delay and deceit on defendants’ part. [187]*187In violation of three court orders and innumerable document demands spanning a period of over two years, defendants have failed to produce numerous documents which are, not surprisingly, vital to plaintiffs ability to effectively rebut defendants’ motion to dismiss and possibly to prove its case. As to some documents, defendants’ counsel asserts, without any substantiation, that the documents “do not exist.” Demands by this court and plaintiff for defendants to substantiate the assertion have been ignored. Meanwhile, plaintiff has demonstrated the existence of several allegedly nonexistent documents.

On October 25, 1984 plaintiff served defendants with a notice of deposition for defendant Mohammed Orri and a demand for documents. The notice and demand were ignored. Defendants failed to produce Orri for deposition or to produce a single document. On February 8, 1985, this court ordered defendants to produce Orri and all of the demanded documents within 20 days. (Pltf’s Exh. 3.) At Orri’s insistence, the depositions were held in Greece 41 days later. Orri failed to answer numerous questions and defendants failed to produce most of the documents I had ordered produced. On June 19, 1985, this court issued a second order directing defendants to produce, within one week, the demanded documents (or a written response) and an affidavit by Orri answering the questions he refused to answer at the depositions. (Pltf’s Exh. 5.) Although two weeks late, Orri eventually submitted the affidavit. Although some documents were produced, many were not. On July 10 I issued a third order that all demanded discovery be produced by August 1, 1985. Again the documents were not produced. Over this period a few demanded documents were produced, but only after plaintiff succeeded in demonstrating that such documents existed.

In response to the motion for sanctions, as to some categories of unproduced documents, defendants rely on the unsubstantiated assertion by their attorney that such documents do not exist. (As to other categories, no explanation whatever is offered.) The attorney, Mr. Sheehan, offers no source or support for his assertion. He admits to having no personal knowledge of the defendants’ documents. No affidavit of any person with knowledge is proffered to show non-existence of the documents. Plaintiff, furthermore, has shown facts supporting the inference that, contrary to defendants’ claim, such documents do exist. These inferences are not rebutted.

The unrebutted inferences suggesting the demanded documents’ existence are numerous. A few examples follow.

Request # 18

Plaintiff’s Demand:

All cancelled checks, check books, check book stubs, statements, pass books, advices of credits and debits, and any other documents pertaining to any bank accounts maintained by or on behalf of defendants in any bank from Jan. 1, 1984 to Nov. 8, 1984.

Defendants’ Response:

In addition to the documentation produced at the deposition of Mr. Orri, the bank statements of Saudi Lines are attached hereto as Ex. A. We are advised that checks or passbooks are not used for these accounts.

After defendants had claimed that “checks or passbooks are not used for [defendants’] accounts,” plaintiff presented incontrovertible evidence of the existence of numerous checks including portions of defendants’ financial records produced at Orri’s deposition which showed lists of defendants’ checks under a heading “unpre-sented cheques.” Defendants then changed their representations admitting that the checks did exist and stating they would soon be produced. Months later a few of the listed checks were produced. The few checks that were produced are nonsequential with large gaps in the numbers. Defendants have provided no explanation for the gaps. The bank statements defendants did produce show numerous debit entries that are not explained by any checks produced or by any other form of [188]*188transfer produced. No checkbooks or stubs have been produced.

Defendants’ conduct with respect to plaintiff’s demand for checks has unquestionably been both obstructive and dishonest. Had plaintiff not pushed in defendants’ face the incontrovertible evidence of the existence of checks, plaintiff would have received nothing but the false response that checks are not used.

Request #11

All documents pertaining to wire transfers or other forms of remittances or receipts to or from any bank account maintained by or on behalf of Defendants or any of them in any bank from Jan. 1, 1984 to Nov. 8, 1984.
The wire transfers for Mr. Orri’s account and the account statements of [the corporate defendants] are attached.

Defendants indeed produced wire transfers for Orri’s accounts but no documents pertaining to wire transfers for the corporate defendants. The response did not deny their existence; it ignored the issue.

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Bluebook (online)
112 F.R.D. 185, 1987 A.M.C. 908, 1986 U.S. Dist. LEXIS 20153, Counsel Stack Legal Research, https://law.counselstack.com/opinion/transatlantic-bulk-shipping-ltd-v-saudi-chartering-sa-nysd-1986.