United States District Court, D. Colorado
TERRELL FREDERICK, on behalf of LF, his minor child, TERRELL FREDERICK, individually, Plaintiffs,
PANDA NO. 1, LLC, Defendant.
ORDER ADOPTING IN PART THE APRIL 9, 2018
CERTIFICATION AND RECOMMENDATION OF MAGISTRATE JUDGE
William J. Martínez United States District Judge.
Terrell Frederick, individually and on behalf of his minor
child LF (“Plaintiff”), sued Defendant Panda No.
1, LLC (“Defendant”), for violating the Americans
with Disabilities Act (“ADA”), 42 U.S.C.
§§ 12101 et seq. This matter is before the
Court on the November 16, 2017 Order to Show Cause (ECF No.
70), Defendant's “Motion for Order to Show Cause:
Contempt Against Litigation Management & Financial
Services, LLC” (“Defendant's Motion”)
(ECF No. 85), and the April 9, 2018 Certification on Contempt
of Court and Recommendation by United States Magistrate Judge
Kathleen M. Tafoya (“Recommendation”) (ECF No.
88). For the reasons set forth below, the Court adopts in
part Judge Tafoya's recommendation, imposes modified
sanctions, and dismisses Plaintiff's claims with
BACKGROUND & PROCEDURAL HISTORY
summary is drawn from the Recommendation, the parties'
filings in this case, and Plaintiff's response to the
Court's Order to Show Cause (ECF No. 92).
Terrell Frederick filed this lawsuit, and forty-two other
separate but nearly identical lawsuits, against forty-three
Colorado Springs restaurants and retail establishments
alleging violations of the ADA. (ECF No. 88 at 2.) Plaintiff
made nearly identical allegations against the establishments,
changing only the date of visit and the alleged barriers at
each location. (Id.) Plaintiff's daughter has
dystonic cerebral palsy, has mobility issues, and uses a
service dog. (ECF No. 82-1 at 4.)
maintains that it did not violate the ADA and there are no
barriers to access. Defendant further contends that these
lawsuits were brought to generate settlements and
corresponding attorneys' fees that would benefit
Litigation Management and Financial Services, LLC
(“LitMan”). (ECF No. 88 at 2.) To support
its theory, Defendant sought written discovery and deposition
testimony from both Plaintiff and a representative of LitMan
about LitMan's role in the litigation. (Id.; ECF
Nos. 38-1; 85-2.) When Plaintiff failed to timely respond to
Defendant's discovery requests, Defendant filed its first
Motion to Compel on August 23, 2017. (ECF No. 38.) Judge
Tafoya noted that Plaintiff's counsel had “refused
all efforts at conferral.” (ECF No. 88 at 8.)
Plaintiff's counsel disputes this characterization,
stating that he was willing to engage in communication with
Defendant, but “[d]efense counsel may not have liked
the responses that he was receiving during these
conferrals.” (ECF No. 92 at 7.) Conferral requires more
than a mere willingness to communicate; it requires that the
parties “compare views, consult together.”
See Heinrich v. Master Craft, 2014 WL 2179353, at *1
(D. Colo. May 24, 2014). Plaintiff has not put forward
evidence to dispute Judge Tafoya's conclusion that
Plaintiff's counsel refused to confer with Defendant
regarding discovery responses.
responded to the Motion to Compel with a single paragraph
stating that Plaintiff had (belatedly) “produced his
responses to Defendant's discovery requests” as of
August 30, 2017. (ECF No. 42.) Judge Tafoya characterized
Plaintiff's response as a “direct lie”
because no discovery had been produced at that time. (ECF No.
88 at 3.) Again, Plaintiff's counsel resists this
characterization. (ECF No. 92 at 8.) He goes on to explain
that his belated responses were justified because Defendant
took similar liberties with responding to discovery requests.
He also perplexingly states that he was “accused of
lying to the court for explaining to the court the exact
reasons why I was withholding the information, ”
suggesting that he had, indeed, provided no or limited
information to the Defendant. (Id.) Whatever the
merits of Plaintiff's counsel's assertions, two
wrongs do not make a right. A review of the record shows that
Plaintiff had not produced any documents in response to
Defendant's request as of August 30, 2017. However,
Plaintiff did not claim to have produced discovery as of that
date, but rather “produced his responses” as of
that date. (ECF No. 42.) This is technically correct because
Plaintiff did respond to Defendant's interrogatories and
request for production that day.
October 3, 2017, Judge Tafoya held a hearing on outstanding
discovery issues. (ECF No. 54 [Minutes]; ECF No. 67
[Transcript].) Plaintiff had objected to and refused to
answer even basic questions about the case. (ECF No. 88 at
3.) Because Defendant's requests and interrogatories were
straightforward and Plaintiff's objections unsustainable,
Judge Tafoya then ordered Plaintiff to provide supplemental
responses on or before October 13, 2017. (ECF No. 88 at 4.)
Judge Tafoya also awarded Defendant attorneys' fees and
costs incurred for bringing the Motion to Compel.
October 13, 2017, Plaintiff filed notice claiming that he had
complied with Judge Tafoya's order to serve amended
responses (ECF No. 57). On October 17, 2017, Defendant filed
a response noting that Plaintiff's responses were still
plagued by deficiencies. (ECF No. 59 at 1-2.) Judge Tafoya
reviewed Plaintiff's responses, agreed that they remained
deficient, and set another hearing for October 30, 2017. (ECF
No. 66 [Minutes]; ECF No. 68 [Transcript].)
October 30, 2017 hearing, Judge Tafoya warned Plaintiff's
counsel that the responses were still deficient.
Plaintiff's counsel once again raised Defendant's
failure to comply with discovery as a reason for
Plaintiff's recalcitrance on discovery. (ECF No. 68 at
20.) Judge Tafoya gave Plaintiff a deadline of November 13,
2017 by which to provide “full and complete responses
to Defendant's discovery requests, together with
unredacted documents.” (ECF No. 66 at 2.)
November 14, 2017, Defendant filed a notice that the
Plaintiff did not provide additional discovery or a privilege
log by November 13, 2017. (ECF No. 69.) Judge Tafoya issued
an Order to Show Cause on November 16, 2017 (ECF No. 70), to
which Plaintiff responded on November 30 (ECF No. 71).
Plaintiff attached unredacted copies of documents to his
response to comply with Judge Tafoya's order including
(1) the fee agreement between Plaintiff and his counsel; (2)
a litigation funding agreement between Plaintiff and LitMan;
and (3) a litigation management agreement between
Plaintiff's counsel and LitMan. (Id.; ECF No.
71-3.) He also explained that he did not timely comply with
Judge Tafoya's order because his computer crashed. (ECF
No. 71 at 2-3.) As Judge Tafoya noted, the documents produced
were in the possession of LitMan and its employees, so
Plaintiff's counsel's computer failure would not have
necessarily impacted Plaintiff's ability to timely
produce documents. (ECF No. 88 at 5.) Plaintiff's counsel
admits that LitMan had the records in its possession, but
explains that his attempts to contact LitMan for such
information went unanswered. (ECF No. 92 at 9.) Plaintiff
also continued to raise Defendant's supposed failure to
comply with discovery requirements. (ECF No. 71 at 3.)
Plaintiff did not supplement responses to the
interrogatories; produce communications between and among
Plaintiff, Plaintiff's counsel, and LitMan; or produce a
privilege log concerning any communications.
November 30, 2017, Plaintiff also filed a Motion to Dismiss
Without Prejudice (ECF No. 72), which Defendant opposed (ECF
early December 2017, Plaintiff sought the Court's
assistance in delaying his deposition. (ECF No. 74.) Judge
Tafoya found that Plaintiff had set forth no legally
cognizable grounds for a stay and that Defendant stated a
need, particularly in light of Plaintiff's continued
failure to meet his discovery obligations. (ECF No. 77.)
deposition revealed information about how the case had been
prepared and litigated, and the division of work among
Plaintiff, Plaintiff's counsel, and LitMan.
Plaintiff's former co-worker Emily Branch asked Plaintiff
if he would be interested in getting involved in ADA cases
because of his daughter's disability. (ECF No. 82-1 at
5.) Plaintiff would be paid $50 initially, and $50 after an
additional period of time per case. (Id. at 5.)
Plaintiff agreed and LitMan provided him with a copy of the
ADA rules, a measuring instrument, forms to fill out for each
establishment, and an iPad with electronic forms.
(Id. at 10-13.)
had correspondence with LitMan concerning his contract with
LitMan, the violations at establishments, and the payments,
but had never been asked to collect or produce the documents.
(Id. at 7, 35.) Indeed, Plaintiff testified that the
first time he had seen Defendant's First Set of Discovery
Requests (dated June 30, 2017) was a week before his
deposition (on December 8, 2017) when Emily at LitMan emailed
him. Similarly, he had not seen Plaintiff's responses to
those requests, or signed those responses. (Id. at
34.) Plaintiff also had not previously seen the November 13,
2017 Order to Show Cause. (Id. at 8.) He was also
unaware of any settlement proposals or settlements in
connection with the 43 cases filed. (Id. at 15,
put Plaintiff in touch with Plaintiff's counsel.
(Id. at 18.) Plaintiff also explained that LitMan
was responsible for paying Plaintiff's counsel, and that
Plaintiff had no obligation to pay his counsel. (Id.
at 10.) Plaintiff was not informed that he could be
responsible for Defendant's fees or costs, or that Judge
Tafoya had ordered attorneys' fees to be paid by
Plaintiff and Plaintiff's counsel. (Id. at 33.)
The prior award of sanctions to Defendant was apparently paid
from Plaintiff's counsel's trust or operating
Plaintiff and Plaintiff's counsel eventually realized
LitMan's interest diverged from Plaintiff's interest.
(ECF No. 92 at 7, 10.) Plaintiff and his counsel
“believe that they were intentionally deceived by
Lit[M]an, which became exceedingly obvious . . . after the
deposition of Mr. Frederick.” (Id. at 10.)
December 18, 2017, Defendant served LitMan with a subpoena
pursuant to Rule 45 and a Rule 30(b)(6) deposition notice for
January 2, 2018 at 9:00 a.m. (ECF No. 85-2; ECF No. 85-3.)
LitMan failed to appear and testify on January 2, and failed
to produce any documents pursuant to the subpoena or
otherwise respond. (ECF No. 85-4.) LitMan did not move to
quash or modify the subpoena or otherwise file any document
to protest the deposition or document requests. LitMan failed
to set forth any legal basis to quash the subpoena, and thus
under Rule 45 was required to comply with it. Defendant
thereafter sought to hold LitMan in contempt of court by
filing a motion for an order to show cause as to why LitMan
should not be held in contempt. (ECF No. 85.) The undersigned
referred the motion to Judge Tafoya for a recommendation.
Tafoya recommended holding Plaintiff, Plaintiff's
counsel, and LitMan in contempt of court for failure to
comply with her prior orders. She also recommended imposing
sanctions on Plaintiff, Plaintiff's counsel, and LitMan.
Judge Tafoya also certified facts supporting a finding of
contempt pursuant to 28 U.S.C. § 636(e)(6). The
Recommendation is incorporated herein by reference.
See 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P.
72(b). Specifically, Judge Tafoya found that LitMan was
“obviously controlling the litigation nominally brought
by [Plaintiff]” and was in the best position to provide
the discovery requested. (ECF No. 88 at 11.) Judge Tafoya
recommended the following sanctions:
1. Hold Plaintiff, Plaintiff's counsel, and LitMan in
contempt for their “clear defiance” of the
October 3, 2017 and October 30, 2017 orders directing