Party Discovery: FRANK J. GORI vs. PAUL E. KIEBLER IV, ET AL.

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                                NAILAH K. BYRD
                                    CUYAHOGA COUNTY CLERK OF COURTS
                                                    1200 Ontario Street
                                                   Cleveland, Ohio 44113




                                              Court of Common Pleas


                                                     REPEY BRIEF
                                                  June 30,2023 11:30


                                          By: ANDREW J. DORMAN 0063410

                                               Confirmation Nbr. 2897909



  FRANK J. GORI                                                            CV 23 973767

           vs.
                                                                 Judge: SHERRIE MIDAY
  PAUL E. KIBBLER IV, ET AL.




                                                    Pages Filed: 6




Electronically Filed 06/30/2023 11:30 / BRIEF / CV 23 973767 / Confirmation Nbr. 2897909 / BATCH
                                   IN THE COURT OF COMMON PLEAS
                                       CUYAHOGA COUNTY, OHIO

       FRANK GORI                                        )   CASE NO.: CV 23 973767
                                                         )
               Plaintiff,                                )   JUDGE SHERRIE MIDAY
                                                         )
       vs.                                               )
                                                         )   DEFENDANT PAUL E. KIEBLER, IV &
      PAUL E. KIEBLER, IV, et al.                        )   PEPPER PIKE CAPITAL PARTNERS,
                                                         )   LLC'S REPLY IN SUPPORT OF
               Defendants.                               )   MOTION TO QUASH PLAINTIFF'S
                                                         )   SUBPOENA ISSUED TO STEVE
                                                         )   POGOZELSKI
                                                         )



             Defendant Paul E. Kiebler IV (“Defendant Kiebler”) and Pepper Pike Capital

     Partners, LLC (“Pepper Pike”) (collectively, the “Defendants”) by and through counsel,

     hereby replies in support of his Motion to Quash (“Motion”) the subpoena issued to Steve

     Pogozelski (the “Subpoena”) because it seeks irrelevant personal and confidential financial

     information of Defendant Kiebler, his family, and various business entities unrelated to this

     litigation.

             As a threshold matter, this Court has already quashed Plaintiff’s subpoena issued to

     CF Bank, which similarly sought irrelevant personal financial information regarding

     Defendant Kiebler with no temporal or subject matter limitation. See June 29, 2023 Order

     Quashing CF Bank Subpoena. The same logic applies here, and this Court should similarly

     quash the Subpoena as it seeks (1) irrelevant information such that it imposes an undue burden

     on the Defendants and (2) seeks to circumvent any proper objection to Plaintiff’s discovery

     requests to Defendants by issuing the Subpoena directly to an employee of Pepper Pike. At

     its core, Plaintiff’s Brief in Opposition (“Opp.”), in truth, asks this Court for permission to

Electronically Filed 06/30/2023 11:30 / BRIEF / CV 23 973767 / Confirmation Nbr. 2897909 / BATCH
     use subpoenas to launch a fishing expedition for personal financial records that are wholly

     irrelevant to the salient issues in this instant action.

             First, Plaintiff's Opp. argues that the “subpoena was issued only for personal records

     maintained by Steve Pogozelski and Defendant Kiebler's counsel was advised that it was

     issued only for records that Defendant Kiebler or the other named Defendants did not possess

     or otherwise control.” (Opp. at p. 1-4) (emphasis in original.) Plaintiff's argument, however,

     is belied by the plain language of Plaintiff's own Subpoena. Indeed, the Subpoena seeks:

             All files and/or document compilations created and maintained by Steve
             Pogozelski at any location including but not limited to his home containing
             financial information related to the Defendant Paul E. Kiebler's personal
             financial transactions, debt payments, fund transfers, fund deposits, mortgage
             payments, and/or use of partnership monies by Defendant Paul E. Kiebler.

     (See Exhibit A to Motion to Quash Subpoena to Steve Pogozelski) (emphasis added.) The

     Subpoena, on its face, seeks all documents created and maintained by Steve Pogozelski with

     no limitation or distinction between business records compiled pursuant to his employment

     at Pepper Pike and any personal records. Plaintiff's Subpoena is therefore on its face

     duplicative of Plaintiff's discovery requests sent to Pepper Pike, Steve Pogozelski's employer.

     Once again, it is clear that these discovery requests to Pepper Pike, outlined in Defendants'

     Motion to Quash, as written are overly broad, unduly burdensome, and seeking documents

     well beyond the scope of the relevant issues in this instant action, and as such, Plaintiff is

     seeking to offset any legitimate objection by Pepper Pike and Defendant Kiebler by issuing

     his Subpoena to Steve Pogozelski, an employee of Pepper Pike. This is improper and a clear

     abuse of the discovery process. See Stokes v. Xerox Corp., E.D.Mich. No. 05-CV-71683-DT,

     2006 U.S. Dist. LEXIS 98888, at *7 (Oct. 5, 2006).




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              Second, Plaintiff’s Opp. argues that his subpoena is proper under Civ. R. 45 under a

     mistaken argument that no privilege exists and that Steve Pogozelski himself has not objected

     to the Subpoena as unduly burdensome. (Opp. at p. 1, 5.) As Plaintiff recognizes, however, a

     subpoena issued under Civ. R. 45 is subject to the limitations of Civ. R. 26(B). Plaintiff’s Opp.

     argues that there is no undue burden on Steve Pogozelski, and in doing so, completely ignores

     the body of case law cited in Defendants’ Motion that the party with the personal right to the

     account may object to a subpoena seeking documents that are irrelevant and impose an undue

     burden. Hanick v. Ferrara, 2020-Ohio-5019, 161 N.E.3d 1,                    58-59, 64 (7th Dist.); citing Federal

     Ins. Co. v. Executive Coach Luxury Travel, Inc., 3rd Dist. Allen No. 1-09-17, 2009-Ohio-5910,

     42-44; see also State ex rel. Ohio Civ. Rights Commission v. Gunn, 45 Ohio St.2d 262, 267, 344

     N.E.2d 327 (1976). Indeed, as laid out in Hanick, a court may properly quash a subpoena

     issued to a non-party when the subpoena seeks irrelevant personal financial records, such that

     it creates an undue burden on the party with the right to the financial records. Id. Because the

     subpoena seeks irrelevant1 personal financial records of Defendant Kiebler, the subpoena

     imposes an undue burden on Defendant Kiebler, such that this Court must quash Plaintiff’s

     subpoena.

              Third, Plaintiff’s Opp. continues to rely on a mistaken argument that the subpoena

     seeks relevant information as Plaintiff seeks to pierce the corporate veil to hold Defendant

     Kiebler personally liable for the compensation he is allegedly owed. (Opp. at p. 5-9.) Plaintiff’s

     argument, however, is premature, and attempts to put the cart before the horse. The question

     at issue in Plaintiff’s Complaint is whether he is owed money by the Defendant entities. (See


     1 This is a straightforward breach of contract issue. Indeed, the salient issue in this instant action is that Plaintiff
     alleges that he is entitled to additional compensation from Defendant Pepper Pike Staffing, LLC pursuant to his
     purported employment agreement. (Compl.           125—135).


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    generally Compl.) The Complaint is devoid of any allegations, however, that (i) Defendant

     Kiebler raided the Defendant entities' coffers, or that (ii) Plaintiff would have received his

     alleged compensation but for Defendant Kiebler's alleged misuse of funds. (See generally

     Compl.) This is fatal to Plaintiff's attempts to pierce the corporate veil, and as such, the

     subpoena at issue seeks documents with no relevance to this instant action. See Connolly v

     Malkamaki, 11th Dist. No. 2001-L-124, 2002 Ohio 6933, P34 (“a simple breach of contract,

     in absence of a more substantial factual predicate indicative of some corporate malfeasance,

     with direct bearing on the plaintiff's injury, is insufficient to meet the second prong of the

     Belvedere test. To decide otherwise, would completely vitiate the holding in Belvedere."); see also

     Prasse Lumber & Material Co. v. Dietrich, 8th Dist. Cuyahoga No. 38872, 1979 Ohio App.

     LEXIS 10797, at *11 (June 14, 1979) (“[u]nder the case law as it has evolved in Ohio, proof

     of failure to observe corporate formalities alone is not sufficient to allow the court to pierce

     the corporate veil. Rather, the plaintiff must also establish a causal connection between the

     act of the defendant shareholders and the injury complained of by the plaintiff.”) Because

     Plaintiff has not, and cannot, establish a connection between Defendant Kiebler's alleged

     conduct, and the compensation Plaintiff is allegedly owed, the documents sought in the

     subpoena are irrelevant and unduly burdensome.

             For these reasons, Defendants respectfully requests that this Court quash Plaintiff's

     Subpoena to Steve Pogozelski for the same reasons this Court quashed Plaintiff's Subpoena

     to CF Bank.

                                                         Respectfully submitted,

                                                         /s/ Andrew J. Dorman____________
                                                         ANDREW J. DORMAN (0063410)
                                                         JOSEPH S. SIMMS (0066584)
                                                         JACK MAIB (0098846)

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                                                         REMINGER CO., L.P.A.
                                                         200 Public Square, Suite 1200
                                                         Cleveland, Ohio 44114
                                                         P: 216-430-2169 phone; F: 216-687-1841 fax
                                                         Email: adorman@reminger.com
                                                                 jsimms@reminger.com
                                                                 jmaib@reminger.com

                                                        Attorneys for Defendant Paul E. Kiebler IV & Pepper
                                                        Pike Capital Partners, LLC




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                                          CERTIFICATE OF SERVICE

             A copy of the foregoing was forwarded via the Court's electronic filing system to all

     counsel of record this 30th day of June, 2023.




                                                         /s/ Andrew J. Dorman____________
                                                         ANDREW J. DORMAN (0063410)




Electronically Filed 06/30/2023 11:30 / BRIEF / CV 23 973767 / Confirmation Nbr. 2897909 / BATCH