MANHATTAN (LN) — U.S. Magistrate Judge Gary Stein of the Southern District of New York denied a sanctions motion against Process Server Plus Inc., ruling that a clear legal right to obtain documents from a third party does not establish Rule 34 "control" when a party demonstrates it lacks the practical ability to get them.
Maritza Prince, who sued Jason D. Boroff & Associates, Process Server Plus Inc., and two individual process servers in a putative class action, had sought attorneys' fees under Rule 37 after Process Server Plus missed a February 11, 2026 deadline to produce certified GPS logs for defendants Enrique Diaz and Emmanuel Lanzot. New York City law requires licensed process servers to maintain GPS location, time, and date records through an independent third-party contractor. See N.Y.C. Admin. Code § 20-410.
Process Server Plus's GPS contractor — and general IT person — is Branko Rakamaric, who under city regulations must produce, upon request server, a copy of the electronic records certified to be true and accurate. 6 R.C.N.Y. § 2-233b(a)(4)(v). Rakamaric had earlier insisted on a court order before turning over anything, prompting the parties to jointly seek one. The court issued it February 4, 2026. Rakamaric still did not comply.
Judge Stein acknowledged that Process Server Plus held a clear legal right to the records but held that legal entitlement alone does not establish Rule 34 "control" when a party demonstrates it lacks the practical ability to obtain the documents. Adopting the formulation articulated by Judge Preska in In re Application of Potanina, the court held that the control test does not permit legal entitlement alone to establish control where the party subject to the order makes a showing that it lacks the practical ability to obtain access to the documents.
The practical-ability question turned on the nature of Rakamaric's relationship with Process Server Plus. At an April 17 hearing, PSP President Thomas Dundas testified that Rakamaric is not and has never been a company employee, has no office in PSP's building, performs IT work sporadically on an as-needed hourly basis, and sometimes goes months or years without being engaged. There was never a written contract for either the IT work or the GPS contractor role. Rakamaric's compensation for maintaining the GPS records was $100 per month.
When Dundas pressed Rakamaric to comply with the court order, Rakamaric complained about the burdens the litigation had already imposed on him and indicated he no longer wished to do business with PSP if the demands continued, describing the role as a side business rather than his primary one. PSP's counsel Daniel Tanon went to Rakamaric's home and left a copy of the order in his mailbox. Tanon called and left voicemails. He mailed and emailed a letter warning that "[t]his is a court order and must be abided by." Tanon also attempted to reach Rakamaric through his brother-in-law, whose phone number turned out to be disconnected. Dundas threatened to stop paying Rakamaric's invoices and did so. None of it worked.
Judge Stein held that those efforts were sufficient to show that PSP lacked practical control, and denied the sanctions motion. He left Prince a path forward: she may subpoena Rakamaric directly, and if she wants the subpoena to carry the force of a court order — given Rakamaric's prior insistence on one — she may propose an appropriate form of order to the court.
Dundas has already begun switching PSP's GPS contractor to a different third party because of these events. PSP has not used Rakamaric's IT services since the start of the year, yet Rakamaric continues to send his monthly $100 invoices, which PSP no longer pays.