Abouelmakarem v. MDNMA INC.

Background

Plaintiff Nader Abouelmakarem moved under Federal Rule of Civil Procedure 37(a) to compel defendants MSSMINJA INC. and Mahmoud Mustafa to produce discovery. The opinion’s text uses several variations of the corporate defendant’s name, including “MSSMINJA,” “MMSMINJA,” and “MSSMINSJA.”

MSSMINJA’s Invoices and Former Employees

Abouelmakarem sought MSSMINJA’s invoices from 2020 through the present. MSSMINJA represented that it had no such invoices because it stopped operating on February 2, 2023, and surrendered possession of its premises. The court held that failure to preserve the records was not a valid excuse. It stated that MSSMINJA had been required to preserve potentially relevant evidence since approximately December 2021, when the lawsuit was filed, and that Abouelmakarem later demanded preservation of records relating to the claims and defenses.

The court stated that defendants would be precluded from offering any such invoices at trial. It also stated that, in connection with the pretrial order, it would consider a motion to preclude defendants from raising any defense for which the invoices would be relevant.

For requests 6 through 9, the court ordered MSSMINJA to provide the full names and last known addresses of four former employees identified as Zahed, Kris, Salim, and “Amam” or “Aman.” The court found the information relevant under Federal Rule of Civil Procedure 26(a) and required production by February 17, 2023, at 5:00 p.m.

Requests Directed to Mahmoud Mustafa

Abouelmakarem also sought from Mahmoud Mustafa: (1) cancelled checks and bank statements of MDNMA or MSSMINJA INC.; (2) credit-card statements showing Mahmoud’s purchases of flights between the United States and Israel or Palestine, with corresponding data; and (3) the full names and last known addresses of people identified as Diego, Zahed, Kris, and Salim.

The court found the checks and bank statements relevant to Mahmoud’s fourteenth and fifteenth affirmative defenses, which asserted that Abouelmakarem failed to pay vendors and rent or arrange funds for rent. The court rejected the defendants’ conclusory burden objection, noting that discovery objections must state specific grounds. It also explained that Rule 34 requires production of documents within a person’s possession, custody, or control even if the business has closed.

The court found the credit-card statements relevant to Mahmoud’s thirteenth affirmative defense, which alleged that he was an absentee owner who lived overseas most of the time. It found the requested identifying information relevant because the individuals could be witnesses. Mahmoud was required to comply within two weeks of the order, or by February 27, 2023.

Disposition

The court granted the motion to compel. The opinion does not state that the motion was granted only in part. Judge Lewis J. Liman signed the order on February 13, 2023.