Pragad v Davis

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Pragad v Davis 2023 NY Slip Op 31210(U) April 12, 2023 Supreme Court, New York County Docket Number: Index No. 652334/2022 Judge: Melissa A. Crane Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 652334/2022 NYSCEF DOC. NO. 89 RECEIVED NYSCEF: 04/12/2023 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: 60M PART HON. MELISSA A. CRANE Justice -------------------------------------------------------------------. ----X DEV PRAGAD, INDEX NO. MOTION DATE Plaintiff, 652334/2022 12/15/2022 003 MOTION SEQ. NO. - V- JOHNATHAN DAVIS, ETIENNE UZAC, IBT MEDIA INC.,TITUS CHOI, DAVID JANG DECISION + ORDER ON MOTION ·Defendant. ---------------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 003) 29, 30, 43, 49, 60, 67 were read on this motion to/for CONSOLIDATE/JOIN FOR TRIAL Jonathan Davis ("Davis") has filed separate motions in the following four related actions seeking consolidation and other relief. Specifically, Davis moves {or an order: 1. Consolidating Index Nos. 652366/2022 ("Davis Action") and 652277/2022 ("!BT Action") pursuant to CPLR 602; 2. Consolidating Index Nos. 652334/2022 ("Pragad Action") and 652344/2022 ("NW Media Action") pursuant to CPLR 602; · 3. Upon consolidation, dismissing the Pragad Action and the NW Media Action pursuant to CPLR 321 l(a)(4); or 4. In the alternative, staying the Pragad Action and NW Media Action pursuant to CPLR 2201 until the Davis Action and the !BT Action are resolved. (See NW Media Action, 652344/2022, MS 07; Pragad Action, 652334/2022, MS 03; Davis Action, 652366/2022, MS 04; !BT Action, 652277/2022, MS 04). As an initial matter, the court denied as moot Motion Sequence No. 04 in the !BT Action to the extent it sought to consolidate the Davis Action and !BT Action (see !BT Action, December 652334/2022 PRAGAD, DEV vs. DAVIS, JOHNATHAN ET AL Motion No. 003 [* 1] 1 of 5 Page 1 of 5 INDEX NO. 652334/2022 NYSCEF DOC. NO. 89 RECEIVED NYSCEF: 04/12/2023 19, 2022 Decision and Order, NYSCEF Doc. No. 66, p. 5}. 1 The court also denies as moot the portions of the motions in the Davis Action (MS 04), NW Media Action (MS 07), and Pragad Action (MS 03) that seek consolidation of the Davis Action and IBT Action. That relief is moot because the court dismissed the IBT Action in its entirety. However, the court grants Davis's motions to consolidate to the extent that the remaining cases are consolidated for the purpose of only joint discovery. Pursuant to CPLR 602, a comi may order actions consolidated where the actions involve a common question of law or fact (Matter of October 31, 2017 Terrorist Attack/Lower Manhattan Litigation, 194 AD3d 645, 646 [1st Dept 2021]). A court may also join actions solely for discovery (Lema v 1148 Corp., 176 AD3d 653, 654 [1st Dept 2019]; TSFV Holdings, LLC v Mulberry Development, LLC, 59 Misc3d 1226(A), *2 [Sup Ct, NY County May 17, 2018] [consolidating actions for "discovery purposes only" where the actions "involve the same parties and present a similar set of facts"]). Rather than overly complicate these cases by ordering true consolidation, the court exercises its discretion and joins the Pragad, NW Media, and Davis actions for discovery only in the interest of judicial economy. The court declines to order a joint trial at this time, pending further development of the case, but the parties may request a pre-motion conference at a later date if they still wish to move for a joint trial. The court denies Davis's motion to dismiss the Pragad and NW Media Actions pursuant to CPLR 321 l(a)(4). In order to dismiss an action on the basis of a prior pending action pursuant 1 The court notes that the decision and order in the !BT Action stated that motion sequence 4 was "denied as moot" following the dismissal of the !BT Action (December 19, 2022 Decision and Order, p. 5). However, motion sequence 4, like the motions to consolidate in the other actions, also sought consolidation of the Pragad and NW Media Actions (see MS 04, !BT Action). The comt clarifies that motion sequence 4 was only denied as moot to the extent that it sought consolidation of the !BT Action and Davis Action. To the extent motion sequence 4 also sought consolidation of the Pragad and NW Media Actions, it is decided in accordance with this decision and order. 652334/2022 PRAGAD, DEV vs. DAVIS, JOHNATHAN ET AL Motion No. 003 [* 2] 2 of 5 Page 2 of 5 INDEX NO. 652334/2022 NYSCEF DOC. NO. 89 RECEIVED NYSCEF: 04/12/2023 to CPLR 321 l(a)(4), the movant must establish both identity of the parties and the causes of action asserted (White Light Prods. v On The Scene Prods., 231 AD2d 90, 93-94 [1st Dept 1997]). Dismissal under CPLR 32ll(a)(4) is not warranted because the Pragad and NW Media Actions are not substantially identical to the Davis Action. The Davis Action is fundamentally about Pragad's alleged wrongdoing· in breach of his fiduciary duties to Davis and NW Media (Davis Action Amended Complaint, NYSCEF Doc. No. 28, ,r 70) while the Pragad/NW Media Actions, on the other hand, include causes of action for conversion and misappropriation of trade . secrets based on allegations that Defendants Uzac, Jang, Choi, and Davis conspired to destroy Newsweek documents and misappropriated Newsweek proprietary information (see e.g. NW Media Action Complaint, pp. 51-60). Thus, the court declines to dismiss the Pragad/NW Media Actions pursuant to CPLR 321 l(a)(4). Additionally, the court denies Davis's motion to stay the Pragad/NW Media Actions pursuant to CPLR 2201. The court has broad discretion to grant a motion to stay in order to "avoid the risk of inconsistent adjudications, application of proof and potential waste of judicial resources" (Chaplin v National Grid, 171 AD3d 691, 692 [2d Dept 2019]). Here, a stay is not warranted because there is little to no risk of inconsistent adjudications and wasted judicial resources. In addition, the court notes that the NW Media Action (Index No. 652344/2022), a direct action, has only survived to the extent Defendants Uzac and Choi failed to move to dismiss sufficiently under Sterling Industries Inc. v Ball Bearing Pen Corp., 298 NY 483 (1949). That the NW Media Action may eventually fall by the wayside entirely militates against true consolidation. The court has considered the parties' remaining contentions and finds them unavailing. Accordingly, it is 652334/2022 PRAGAD, DEV vs. DAVIS, JOHNATHAN ET AL Motion No. 003 [* 3] 3 of 5 Page 3 of 5 INDEX NO. 652334/2022 NYSCEF DOC. NO. 89 RECEIVED NYSCEF: 04/12/2023 ORDERED that the motions to consolidate pursuant to CPLR 602 (NW Media Action, 652344/2022, MS 07; Pragad Action, 652334/2022, MS 03; Davis Action, 652366/2022, MS 04; JET Action, 652277/2022, MS 04) are granted to the extent that the three remaining actions (the NW Media Action, Pragad Action, and Davis Action) are consolidated for the purposes of only joint discovery, and the motions are otherwise denied; and it is further ORDERED that the joined actions shall bear the following caption: -----------------------------------------~------------------------------X DEV PRAGAD, for himself, derivatively on behalf of NW MEDIA HOLDINGS CORP, and double derivatively on behalf of NEWSWEEK LLC, Index No. 652334/2022 Action No. 01 Plaintiff, V. JONATHAN DAVIS, ETIENNE UZAC, IBT MEDIA INC., TITUS CHOI, and DAVID JANG, Defendants. -------------------------------------------------------------------------X. Jonathan Davis, for himself and derivatively on behalf of NW Media Holdings Corp., Plaintiff, Index No. 652366/2022 Action No. 02 V. Dev Pragad, Defendant. --------------------------------------------------------------------------X 652334/2022 PRAGAD, DEV vs. DAVIS, JOHNATHAN ET AL Motion No. 003 [* 4] 4 of 5 Page 4 of 5 INDEX NO. 652334/2022 NYSCEF DOC. NO. 89 RECEIVED NYSCEF: 04/12/2023 ---------------------------------------------------------------· ----------X NW MEDIA HOLDINGS CORP., NEWSWEEK LLC, NEWSWEEK DIGITAL LLC, NEWSWEEK MAGAZINE LLC, NEWSWEEK PUBLISHING LLC, NW DIGITAL LLC, and NW MAGAZINE LLC, Plaintiffs, Index No. 652344/2022 Action No. 03 V. ETIENNE UZAC, DAVID JANG, and YOUNSEOK CHOI (a/k/a TITUS CHOI), Defendants. --------------------------------------------------------------------------X And it is further ORDERED that all future papers filed with the court shall bear the amended caption; and it is further ORDERED that movant is directed to serve a copy of this Order with notice of entry on the County Clerk, who shall mark their records to reflect the consolidation for joint discovery; and it is further ORDERED that Service upon the County Clerk must be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "E-filing" page on the court's website www.nycourts.gov/supctmanh). 04/12/2023 DATE CHECK ONE: CASE DISPOSED GRANTED APPLICATION: CHECK IF APPROPRIATE: . • NON-FINAL DISP.OSITION DENIED ETTLEORDER SUBMIT ORDER NCLUDES TRANSFER/REASSIGN 652334/2022 PRAGAD, DEV vs. DAVIS, JOHNATHAN ET AL Motion No. 003 [* 5] GRANTED IN PART 5 of 5 FIDUCIARY APPOINTMENT • • OTHER REFERENCE Page 5 of 5

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