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Church Mutual Insurance Co. v. Coutu

United States District Court, D. Colorado

September 25, 2017

CHURCH MUTUAL INSURANCE COMPANY, a Wisconsin corporation, Plaintiff,
v.
PHILLIP MARSHALL COUTU, an individual, POWER ADJUSTERS, INC., a Colorado corporation, JUDAH LEON BENSUSAN, an individual, and ATLANTIS CLAIMS SERVICES, LLC, a Florida limited liability company, Defendants.

          ORDER

          Nina Y. Wang, United States Magistrate Judge.

         This matter is before the court on two related motions:

         (1) Motion to Quash Subpoena to Non-Party Keith Frankl and/or the Frankl Law Firm, P.C. (the “Frankl Motion”) filed by Interested Party Keith Frankl [#91, [1] filed July 14, 2017]; and

         (2) Motion to Quash Pursuant to Fed.R.Civ.P. 45(d)(3)(B) of Subpoena Duces Tecum to the Frankl Law Firm and For Protective Order (the “Defendants' Motion”) filed by Defendants Phillip Marshall Coutu (“Mr. Coutu”), Power Adjusters, Inc. (“Power Adjusters”), Judah Leon Bensusan (“Mr. Bensusan”), and Atlantis Claims Services, LLC's (“Atlantis”) (collectively, “Defendants”) [#92, filed July 14, 2017].

         The undersigned considers the Motions pursuant to 28 U.S.C. § 636(b), the Order Referring Case dated March 30, 2017 [#33], and the memorandum dated July 17, 2017 [#93]. Upon careful review of the Motions and associated briefing, the entire case file, and applicable law, this court GRANTS IN PART and DENIES IN PART the Frankl Motion and GRANTS the Defendants' Motion for the reasons stated herein.

         BACKGROUND

         This court has discussed the background of this case in its prior Orders, see e.g., [#103; #120], and does so here only as it pertains to the instant Motions. Plaintiff Church Mutual Insurance Company (“Plaintiff” or “Church Mutual”) initiated this action by filing its Complaint in this District on January 23, 2017. [#1]. Plaintiff's Complaint alleged two claims against the Defendants: (1) civil conspiracy and (2) fraudulent concealment. [Id.]. The events giving rise to Plaintiff's Complaint involved an appraisal award issued to one of Church Mutual's policyholders for repairs completed to the policyholder's roof following a hailstorm. [Id.]. Plaintiff alleged that Defendants conspired to unlawfully inflate the cost of repairs needed for their own economic gains, as each had a stake in a higher appraisal award. [Id.].

         Following several extensions of time to answer or otherwise respond to Plaintiff's Complaint, and pursuant to this court's Order [#46], Plaintiff filed its First Amended Complaint (“FAC”) on April 25, 2017, and asserts the following claims: (1) civil conspiracy against all Defendants (“Claim I”); (2) fraudulent concealment against all Defendants (“Claim II”); (3) federal civil violations of the Racketeer Influenced and Corrupt Organizations Act (“RICO”) against all Defendants (“Claim III”); (4) federal civil RICO conspiracy against Messrs. Coutu and Bensusan (“Claim IV”); and (5) state civil violations of the Colorado Organized Crime Control Act (“COCCA”) against Messrs. Coutu and Bensusan (“Claim V”). [#49]. On June 5, 2017, Defendants filed a Joint Motion to Dismiss all five of Church Mutual's claims [#65], which the undersigned recommended granting in part and denying in part [#120]. Specifically, this court recommended dismissing Plaintiff's RICO and COCCA claims (Claims III-V) for failure to state a claim. See [id.]. Also on June 5, 2017, Defendants filed a Motion to Stay discovery. [#64]. This court denied the Motion to Stay and directed the Parties to limit discovery to the “Montview matter and the relationships between the four Defendants.” See [#103 at 7]. This included formal discovery of information held by John Kezer, related to the adjustment of the Montview claim and his relationship to Defendants and other entities controlled by Defendants, as well as “third party subpoenas only to the extent that they relate to these specific issues and after an agreement by the Parties or a ruling of this court that the discovery sought is not obtainable from Defendants.” [Id. at 8].

         On July 14, 2017, Defendants and Mr. Frankl filed the instant Motions, seeking to quash a subpoena duces tecum (the “Subpoena”) Plaintiff served on Mr. Frankl and the Frankl Law Firm. See [#91; #92]. The Subpoena requests twenty-eight (28) categories of documents regarding Mr. Frankl and the Frankl Law Firm's representation of Defendants or their association with Defendants. See [#91-1]. These include:

1. Produce all contracts, including but not limited to, engagement letters, fee agreements, contingent fee agreements, between You and Philip Coutu, Leon Bensusan, Power Adjusters, Inc., Atlantis Claims Services, LLC, Rooftop Restoration, Inc., Rooftop Roofing, Inc., and/or the Affiliated Coutu Entities.
2. Produce all contracts, between and/or among, any combination of the following: Philip Coutu, Leon Bensusan, Power Adjusters, Inc., Atlantis Claims Services, LLC, Rooftop Restoration, Inc., Rooftop Roofing, Inc., John Kezer, Jones & Keller, P.C., and/or the Affiliated Coutu Entities.
3. Produce all contracts, between Philip Coutu, Leon Bensusan, Power Adjusters, Inc., Atlantis Claims Services, LLC, Rooftop Restoration, Inc., Rooftop Roofing, Inc., and/or the Affiliated Coutu Entities, on the hand [sic], and policyholders presented by Philip Coutu, Leon Bensusan, Power Adjusters, Inc., Atlantis Claims Services, LLC, Rooftop Restoration, Inc., Rooftop Roofing, Inc., and/or the Affiliated Coutu Entities, on the other hand.
4. Produce all communications, including but not limited to, written correspondences and email, between Philip Coutu and Leon Bensusan related to any insurance claim, any demand for an appraisal, any nomination of an appraiser or umpire, and/o any appraisal award.
5. Produce all communications, including but not limited to, written correspondences and email, between Philip Coutu, on the one hand, and Garrett Kurtt or his company Ecoblast, LLC on the other, related to any demand for appraisal, any nomination of an appraiser or umpire, and/or any appraisal award.
6. Produce all demand letters, including but not limited to, correspondence threatening appraisal, threatening complaints to the Division of Insurance or otherwise threatening claims for breach of contract, bad faith breach of contract, and/or violation of C.R.S. §§ 10-3-1115 and -1116, which are related to insurance claims made on behalf of Philip Coutu, Leon Bensusan, Power Adjusters, Inc., Atlantis Claims Services, LLC, Rooftop Restoration, Inc., Rooftop Roofing, Inc., and/or the Affiliated Coutu Entities.
7. Produce all demand letters, including but not limited to, correspondence threatening appraisal, threatening complaints to the Division of Insurance or otherwise threatening claims for breach of contract, bad faith breach of contract, and/or violation of C.R.S. §§ 10-3-1115 and -1116, which are related to insurance claims made on behalf of policyholders represented by Philip Coutu, Leon Bensusan, Power Adjusters, Inc., Atlantis Claims Services, LLC, Rooftop Restoration, Inc., Rooftop Roofing, Inc., and/or the Affiliated Coutu Entities.
8. Produce all complaints, answers, third-party complaints, pleadings containing counter claims, pleadings containing cross claims, motions to intervene, and motions to quash, filed on behalf of Philip Coutu, Leon Bensusan, Power Adjusters, Inc., Atlantis Claims Services, LLC, Rooftop Restoration, Inc., Rooftop Roofing, Inc., and/or the Affiliated Coutu Entities.
9. Produce all complaints, answers, third-party complaints, pleadings containing counter claims, pleadings containing cross claims, motions to intervene, and motions to quash, filed on behalf of policyholders represented by Philip Coutu, Leon Bensusan, Power Adjusters, Inc., Atlantis Claims Services, LLC, Rooftop Restoration, Inc., Rooftop Roofing, Inc., and/or the Affiliated Coutu Entities.
10. Produce all demands for appraisal in insurance claims made on behalf of Philip Coutu, Leon Bensusan, Power Adjusters, Inc., Atlantis Claims Services, LLC, Rooftop Restoration, Inc., Rooftop ...

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