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L.P. v. Flamingo West, Ltd.

United States District Court, District of Colorado

May 4, 2015

BOXER F2, L.P., a Texas limited partnership, Plaintiff,
v.
FLAMINGO WEST, LTD., d/b/a LEGALWIZ PUBLICATIONS, BRONCHICK & ASSOCIATES, WILLIAM BRONCHICK, and BRONCHICK & ASSOCIATES, P.C., Defendants.

ORDER GRANTING PLAINTIFF’S MOTION TO RENEW MOTION FOR SANCTIONS PURSUANT TO FED. R. CIV. P. 37(B)(2) (DOCKET NO. 89)

MICHAEL J. WATANABE United States Magistrate Judge

In July 2014, Plaintiff moved to compel discovery. (Docket No. 40.) Finding that Plaintiff was entitled to the requested discovery, the Court granted the motion on August 28, 2014. (Docket No. 59.) In December 2014, Plaintiff moved for sanctions, believing Defendants’ compliance with the Court’s August 28th discovery order to be inadequate. (Docket No. 67.) The Court agreed, and on February 11, 2015, entered an order:

(1) finding that Defendants had “conducted themselves in bad faith and ha[d] intentionally failed to honor their discovery obligations under the Federal Rules of Civil Procedure”;
(2) characterizing Defendants’ conduct as “flagrant “and their arguments as “frivolous, ” “patently invalid, ” “cheap[ly] semantic, ” “flatly contrary” to the law, and “without any valid justification”;
(3) determining that an appropriate sanction would be imposition of adverse inferences establishing the well-pleaded factual allegations in the complaint aimed at establishing transferee liability under various legal theories; but
(4) granting Defendants one last chance to produce the ordered discovery before imposition of adverse inferences.

(Docket No. 86, available at Boxer F2, L.P. v. Flamingo W., Ltd., 2015 WL 586692 (D. Colo. Feb. 11, 2015).) In an effort to reduce further gamesmanship over the precise wording or scope of Plaintiff’s discovery requests, the Court ordered Defendants simply to produce “[a] complete copy of each named Defendants’ accounting records, in native electronic format as stored by Defendants’ accounting software (which records shall be deemed to satisfy [specified discovery requests].” (Docket No. 86, p.14; 2015 WL 586692, at *7.) The Court also granted Plaintiff explicit leave to renew its motion for sanctions should Defendants fail to comply with the Court’s order. (Docket No. 86, p.14; 2015 WL 586692, at *8.)

Plaintiff renewed its request for sanctions. (Docket No. 89.) The Court has reviewed the parties’ filings (Docket Nos. 89, 92, 93, 94, 99, 100, 102, & 103); held a motion hearing on April 29, 2015, and considered the testimony of witnesses, the exhibits received into evidence, and arguments by counsel (Docket No. 117, 118, & 123); taken judicial notice of the court’s entire file in this case; and reviewed the relevant Federal Rules of Civil Procedure, statutes, and case law. Now being fully informed, the Court makes the following findings of fact, conclusions of law, and order.

Findings of Fact

The Court finds:

(1) On February 25, 2015, Defendants provided Plaintiff the accounting records for Bronchick & Associates, P.C., and Flamingo West, Ltd. (d/b/a Legalwiz Publications, Inc.) in native QuickBooks Enterprise format, via Dropbox hyperlink;

(2) Defendants did not provide Plaintiff a functioning username and password with which to access the records, until March 24, 2015;

(3) On March 24, 2015, the username and password provided to Plaintiff allowed access to a limited amount of information, and as of March 24, 2015, Defendants were not in compliance ...


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