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Motion No. 5132599
NAILAH K. BYRD
CUYAHOGA COUNTY CLERK OF COURTS
1200 Ontario Street
Cleveland, Ohio 44113
Court of Common Pleas
MOTION TO...
November 21,2023 10:02
By: MICHAEL R. STAVNICKY 0063726
Confirmation Nbr. 3023233
BRIAN COLL CV 23 983915
vs.
Judge: MICHAEL J. RUSSO
DAVID NIEDERST, ET AL.
Pages Filed: 28
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IN THE COURT OF COMMON PLEAS
CUYAHOGA COUNTY, OHIO
BRIAN COLL ) Case No: CV-23-983915
)
Plaintiff,
) JUDGE TIM MCGINTY
vs. )
)
DAVID NIEDERST, et al. )
)
Defendants. )
PLAINTIFF’S MOTION TO COMPEL
Plaintiff, by and through his undersigned counsel hereby files its Motion to Compel
Discovery Responses from Defendant.
I. INTRODUCTION AND FACTS
Plaintiff filed this lawsuit on August 14, 2023. On August 29, 2023, Plaintiff served
consolidated discovery request upon Defendant David Niederst. See Exhibit “1” attached hereto.
Defendant requested one extension from the initial September 27, 2023 answer date and we
consented. However, Defendant has still failed to respond to any discovery. He failed to
respond by October 26, 2023 as required and has still not responded. We have followed up
twice, including issuing a Rule 37 demand, and received no true response from Defendant. See
Emails attached hereto as Exhibits “2” - “4.” As set forth herein, despite Plaintiffs good faith
efforts to resolve this matter without court intervention, Defendant has produced no documents
and answered no discovery.
As set forth herein, Plaintiff is entitled to an order compelling the discovery responses
and all attorneys’ fees incurred herein.
Electronical! Filed 11/21/2023 10:02 / MOTION / CV 23 983915 / Confirmation Nbr. 3023233 / CLAMW
II. LAW AND ARGUMENT
Pursuant to Civil Rule 37, when a party fails to comply with discovery requests the court
may issue an order to compel. Specifically, Civil Rule 37(A), states that “a party seeking
discovery may move for an order compelling an answer, designation, production, or inspection
if... a party fails to answer an interrogatory submitted under Rule 33... a party fails to respond
that inspection will be permitted - or fails to permit inspection - as requested under Civ.R.
34....” There is certainly no question that the control and regulation of the discovery process is
within the discretion of the trial court. Stefawski v. Cleveland Anesthesia Group, Inc. (1987), 37
Ohio App.3d 78. The Courts hold that they “sternly disapproves of tactics which disrupt or
withhold discovery.” Gravill v. Parkhurst (1985), 27 Ohio App.3d 100, 104. Civil Rule 37 also
provides that, “[i]f the motion is granted, the court shall . . . require the party... whose conduct
necessitated the motion, the party or attorney advising the conduct, or both, to pay to the
movant’s reasonable expenses incurred in making the motion, including attorney’s fees.” Civ. R.
37(A)(5). Thus, the attorneys’ fees incurred by Plaintiff are required to be awarded to Plaintiff
by Rule.
Finally, Plaintiffs requests for admissions are admitted as a matter of law because they
have not been timely answered. While Defendant sent a bizarre, self-serving, one line email
claiming it responded, such a response is improper. See Exhibit “5.” Defendant failed to separately
respond to each admission, certify the response or note the basis for any objection. Civil Rule 36
states that “[ejach matter of which an admission is requested shall be separately set forth. The
party to whom the requests for admissions have been directed shall quote each request for
admission immediately preceding the corresponding answer or objection. The matter is
admitted unless, within a period designated in the request, not less than twenty-eight days after
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Electronically Nbr. 3023233 / CLAMW
service of the request or within such shorter or longer time as the court may allow, the party to
whom the request is directed serves upon the party requesting the admission a written answer
or objection addressed to the matter, signed by the party or by the party’s attorney.”
(emphasis added). The Civil Rules make it clear that some generic, one-line denial that is unsigned
and uncertified is unacceptable and improper. Defendant has never properly responded at all.
It is well settled that when a party fails to respond to requests for admissions that the matters
to which the requests for admissions were addressed are admitted. Rafferty v. Scurry (1997) 177
Ohio App.3d 240, 244; Cleveland Trust Co. v. Willis (1985), 20 Ohio St.3d 66, 67. When a party
fails to timely respond to the request for admissions, “the admissions [become] facts of record
which the court must recognize.” Cleveland Trust Co. v. Willis, 20 Ohio St.3d 66, 67, 485
N.E.2d 1052 (1985); See Whitehouse v. The Customer is Everything!, Ltd, 11th Dist. Lake No.
2007-L-069, 2007-Ohio-6936, 2007 WL 4497850, The Ohio Supreme Court holds that
“[fjailure to respond at all to the requests [for admissions] will result in the requests becoming
admissions” which “can be used to establish a fact, even if it goes to the heart of the case.
Cleveland Trust Co. v. Willis (1985), 20 Ohio St.3d 66, 67. Following Willis, courts hold that
“[Requests for admissions conclusively establish facts for the purpose of the pending action....
Further, unanswered requests for admissions are a written admission fulfilling the requirements
for summary judgment, pursuant to Civ.R. 56.” Ohio CAT v. Stoneman, 2015 -Ohio- 3546; 41
N.E.3d 833 (1 llh Dist. 2015). The Ninth District Court of Appeals has also addressed the effect
and force of unanswered admissions in depth:
By the explicit terms of Civ. R. 36(A), a party’s failure to timely respond to
request for admission results in default admissions. It is unnecessary for the
trial court to “deem” them so admitted. When a party fails to timely respond to
request for admissions, ‘the admissions [become] facts of record which the court
must recognize.’ Cleveland Trust Co. v. Willis fl985), 20 Ohio St.3d 66,67....
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Electronical!
From a practical standpoint, however, a party will typically move for the trial
court to “deem” the matters admitted to bring the issue to the trial court’s
attention and to make default admissions, which may not have been filed
previously with the court, part of the trial court record.
National City Bank v. Moore, Summit App, No. 19465, 2000 WL 235529, at 2, unreported
(March 1, 2000) (emphasis added). Similarly, the controlling 8th District holds that once a party
fails to respond to requests for admission within the time frame mandated by Civ. R. 36(A) - a
motion to deem the requests for admissions as admitted is superfluous. Natl. Mat. Ins. Co. v.
McJunkin, Cuyahoga App. No. 58458, 1990 WL 56548, at *2 (May 3, 1990). Defendant has not
properly or timely answered the requests for admission served upon him and the discovery
responses are months late. Thus, all unanswered admissions in the case at bar have been
admitted as a matter of law.
The undersigned does not like filing a motion to compel, but in this case no discovery
responses have ever been produced. In light of Defendant’s failure to properly respond to the
Discovery Requests, Plaintiff requests an Order compelling Defendant to respond to the
document requests and interrogatories within 7 days. All unanswered or improperly answered
admissions are admitted as a matter of law. Civ.R. 36 and Willis. Under the Civil Rules, it is
also within the discretion of this Court to enter an order which (1) designates certain facts within
the scope of the Discovery Requests as established, (2) prohibits the Defendant from supporting
or opposing certain claims or defenses within the scope of the Discovery Requests, or (3) strikes
out pleadings or parts thereof or renders judgment by default against the Defendant. See Civ. R.
37(B). Plaintiff is entitled to an order compelling answers to the interrogatories and the
production of all responsive documents from Defendant. Plaintiff is entitled to an order finding
all admissions deemed admitted. Plaintiff may also be entitled to an order prohibiting Defendant
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Electronical!
from presenting a defense in this matter and entering a default judgment against Defendant.
Civ.R. 37(B). Plaintiff requests that the Court grant this motion.
III. CONCLUSION
For the foregoing reasons. Plaintiff seeks an order compelling Defendant to fully and
completely respond to all document requests and interrogatories, finding the admissions admitted as
a matter of law, and such other and further relief as the Court finds appropriate. Plaintiff is also
entitled to an award of all costs and attorneys’ fees in accordance with Cuvil Rule 37.
Respectfully submitted,
/s/ Michael R. Stavnicky________
(Reg. No. 0063726)
Singerman, Mills, Desberg & Kauntz Co., L.P.A.
3333 Richmond Road, #370
Beachwood, Ohio 44122
mstavnicky@smdkl aw. com
(216) 292-5807
Attorneys for Plaintiff
CERTIFICATE OF SERVICE
A copy of the foregoing was served by regular mail, email or electronic court service
where applicable, this 21st day of November 2023 upon all parties or counsel of record.
/s/Michael R. Stavnicky
Michael R. Stavnicky
Electronical! / Filed 11/21/2023 10:02 / MOTION / CV 23 983915 / Confirmation Nbr. 3023233 / CLAMW
Mike Stavnicky
From: Hope Cloud
Sent: Tuesday, August 29, 2023 2:29 PM
To: jjp@kjk.com
Cc: Mike Stavnicky
Subject: Brian Coll v. David Niederst, et al.
Attachments: Discovery Requests to David Niederst (OOS39884xAOC49).DOCX; Discovery Requests to
David Niederst (00539990xAOC49j.pdf
Mr. Pinney,
On behalf of Mr. Michael Stavnicky, attached please find Plaintiff's Consolidated Discovery Requests including Requests for
Admissions to Defendant David Niederst in the above-referenced matter,
Should you have any questions, please do not hesitate to contact Mr. Stavnicky.
Regards,
Hope Cloud
Litigation Paralegal
Singerman, Mills, Desberg & Kauntz Co., L.P.A.
3333 Richmond Road, Suite 370
Cleveland, OH 44122
e. hcloud@,smdklaw.com p. 216.292.5807
w. smdklaw.com f. 216.292.5867
SINGERMAN MILLS
DESBERG &KAUNTZg»
IXHRIINCt... PEACI Ol M t ND
CONFIDENTIALITY NOTE: THE INFORMATION IN THIS E-MAIL AND ANY ATTACHMENTS IS SENT BY AN ATTORNEY OR
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EXHIBIT
Electronically Filed 11/21/2023 10:02 / MOTION / CV 23 983915 / Confirmation Nbr. 3023233 / CLAMWj|
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IN THE COURT OF COMMON PLEAS
CUYAHOGA COUNTY, OHIO
BRIAN COLL ) CASE NO. CV-23-983915
)
Plaintiff, ) JUDGE MICHAEL RUSSO
)
vs. )
)
DAVID NIEDERST, et al. )
)
Defendants. )
PLAINTIFF’S CONSOLIDATED DISCOVERY REQUESTS
INCLUDING REQUESTS FOR ADMISSIONS TO
DEFENDANT DAVID NIEDERST
Pursuant to Rules 33, 34 and 36 of the Ohio Rules of Civil Procedure, Plaintiff by and
through its undersigned counsel, hereby serves the following Interrogatories, Requests for
Production of Documents and Admissions upon Defendant. Pursuant to Rule 33, written answers or
objections to the within Interrogatories are to be served on undersigned counsel within twenty-eight
(28) days after service hereof.
Pursuant to Rule 34, Defendant shall produce, give access to and make available for copying
and inspection to Plaintiff, its duly authorized attorneys or agents, any and all of the documents
responsive to the following Requests for Production of Documents. It is requested that the aforesaid
production, examination and copying of documents commence at the offices of Singerman, Mills,
Desberg & Kauntz Co., L.P.A., 3333 Richmond Road, Suite 370, Beachwood, Ohio 44122 within
twenty-eight (28) days after service hereof at 10:00 a.m. and continue thereafter until concluded; or
in lieu thereof, Defendant may attach copies of said documents to its responses to these document
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requests.
Pursuant to Rule 36, Defendant shall answer each Request for Admission contained herein
within twenty-eight (28) days after service hereof. Failure to answer shall be deemed an admission.
INSTRUCTIONS AND DEFINITIONS
1. 'Phis discovery request is to be deemed continuing in nature. It is hereby requested
that any newly discovered or additional information or documents be supplied immediately to
undersigned counsel upon any such information or documents coming to the attention of Defendant
or their counsel. Defendant shall further provide, by way of supplementary compliance herewith,
such additional information or documents as they, or any other person on their behalf, may hereafter
obtain, which will augment the information or documents produced in response to the below
discovery requests.
2. All documents requested herein are to be produced if they are in the custody,
possession or control of, or are available or accessible to Defendant. Further, if Defendant knows
that documents responsive to any of these requests are in the custody, possession or control of a
third person, they shall identify the documents and their custodian. When this discovery calls for a
document which once was but no longer is in the possession or control of either Defendant, its
present location and custodian, if known, or its last known location and custodian, shall be
identified.
3. If a requested document is unavailable due to loss, destruction or otherwise, identify
the document and explain why it is not available. If any information or documents called for by
these discovery requests is withheld on the basis of a claim of privilege, the nature of the
information or documents being withheld, the nature of the claimed privilege and the nature of the
information or documents in respect to which the privilege is claimed shall be set forth.
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4. Where the text herein makes it appropriate, each singular word shall include its
plural and each plural word shall include its singular. “Any” as well as “or” shall be construed
either disjunctively or conjunctively as necessary to bring within the scope of these document
requests all documents which might otherwise be construed to be outside their scope. Each of the
following words includes the meaning of every other word: “each,” “every,” “all,” and “any.” The
present tense shall be construed to include the past tense, the past tense shall be construed to include
the present tense.
5. For the purposes of the below document requests, the term “document” shall mean:
Any and all information in tangible form, of any nature whatsoever, including the originals
and all non-identical copies thereof, in your possession, custody or control, regardless of where
located, and shall include, without limiting the generality of the foregoing, all letters, telegrams,
telexes, teletypes, correspondence, contracts, drafts, agreements, insurance policies, notes to files,
reports, memoranda, mechanical and electronic recordings, tapes, or transcripts, information stored
in computers or other data storage or processing equipment translated or translatable into usable
form, blueprints, flow sheets, calendar or diary entries, memoranda of conversations, telephonic or
otherwise, and of meetings or conferences, studies, reports, interoffice and intraoffice
communications, listings, price lists, quotations, offers, inquiries, bulletins, circulars, statements,
manuals, summaries, newsletters, compilations, minutes of stockholders', directors' and committee
meetings, minutes and memoranda of all other meetings, agendas, charts, graphs, propositions,
offers, articles, announcements, newspaper clippings, books, records, cables, books of account,
ledgers, vouchers, canceled checks, invoices, acknowledgements, orders, bills, opinions, certificates,
promissory notes and other evidence of indebtedness, prospectuses, registration statements and
analyses or other such statistical data and all other copies of documents as hereinbefore defined by
whatever means made.
If a document has been prepared in several copies, or additional copies have been made, and
the copies are not identical (or which by reason of subsequent modification or revision of a copy by
the addition of notations, or other modifications, including, but not limited to, underlining, showing
of blind copies, crossing out, initialing, comments, signatures, documents clipped or stapled thereto,
etc., are no longer identical) each nonidentical copy is a separate “document” for the purposes of
these document requests.
6. For purposes of the below discovery requests, the following terms shall have the
meanings set forth below:
A. The terms “relate,” “relating,” or “relative to” as used herein, shall mean:
referring to, relating to, regarding, embodying, connected with, commenting on, responding to,
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supporting, showing, describing, analyzing, criticizing, reflecting or constituting.
B. The term “Lawsuit” as used herein shall mean that certain lawsuit currently
pending in the Court as identified on page 1 hereof.
C. The term “Duramax” as used herein shall mean Duramax Holdings LLC.
D. The term “AMD” as used herein shall mean AMD Plastic LLC.
DISCOVERY REQUESTS
Interrogatory Number 1: What is the name, address, and telephone number of every individual
with knowledge of the claims or defenses in this Lawsuit?
Answer:
Interrogatory Number 2: (a) Identify any and all other lawsuits in the past two years where
Defendant was a party to lawsuit? (b) What is the case caption, case number and venue of each such
lawsuit?
Answer:
Interrogatory Number 3: Identify any and all facts that support any of your affirmative defenses
to Plaintiffs Complaint.
Answer:
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Interrogatory Number 4: What are the names of any and all witnesses. Defendant anticipates
calling at trial whether on direct or cross?
Answer:
Interrogatory Number 5: For all the persons listed in the answer to the preceding interrogatory,
what are their names, addresses, telephone numbers, titles and the subject matter of their anticipated
testimony?
Answer:
Interrogatory Number 6: Who are all the expert witnesses, Defendant has contacted for any
reason in this matter and/or anticipates calling at trial?
Answer:
Interrogatory Number 7: What are the names, addresses, telephone numbers and the subject
matter of the anticipated testimony, for all the persons listed in the answer to the preceding
Interrogatory?
Answer:
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Interrogatory Number 8: What are the names, addresses, phone numbers and titles of all persons
with knowledge of the facts underlying this lawsuit, including the allegations in the Complaint and
the allegations and defenses in the answer?
Answer:
Interrogatory Number 9: Identify each and every direct conversation, discussion or
correspondence between Plaintiff and Defendant or Defendant and any party relating to an affair
with a person at Huntington Bank. For each such direct communication, identify the individuals
involved in the conversation, the date and the subject matter of the conversation.
Answer:
Interrogatory Number 10: Identify each and every direct conversation, discussion or
correspondence between Plaintiff and Defendant or Defendant and any party relating to having
Plaintiffs wife raped. For each such direct communication, identify the individuals involved in the
conversation, the date and the subject matter of the conversation.
Answer:
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Interrogatory Number 11: Identify all facts supporting the allegations of the Complaint.
Answer:
Interrogatory Number 12: Identify all facts supporting any defenses to the Complaint.
Answer:
Interrogatory Number 13: What is Defendant’s position, title and ownership interest in Stillwater
Seven? When did Defendant become an owner of Stillwater Seven?
Answer:
Interrogatory Number 14: How much money did Defendant pay Duramax for his ownership
interest? When was that payment/s made and by whom? What was your original ownership
percentage in Duramax? What is your current ownership percentage in Duramax?
Answer:
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Interrogatory Number 15: How much money did Defendant pay AMD for his ownership
interest? When was that payment/s made and by whom? What was your original ownership
percentage in AMD? What is your current ownership percentage in AMD?
Answer:
Interrogatory Number 16: Identify any and all owners and officers of Duramax by name, address,
title and ownership interest.
Answer:
Interrogatory Number 17: Identify any and all owners and officers of AMD by name, address,
title and ownership interest.
Answer:
Interrogatory Number 18: Identify any and all payments by date and name for ownership or
investments in Stillwater Seven.
Answer:
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Interrogatory Number 19: Identify any and all loans to Stillwater Seven by date and lender.
Answer:
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Request for Production of Documents No. 1: Produce copies of any and all exhibits that
Defendant expects to introduce or use at trial.
Response:
Request for Production of Documents No. 2: Produce copies of any and all documents relating to
correspondence, texts or emails between Plaintiff and Defendant since 1/1/2020.
Response:
Request for Production of Documents No. 3: Produce copies of any and all documents relating to
communications, correspondence, texts or emails by or to Defendant or any other person of entity
relating to the Plaintiff.
Response:
Request for Production of Documents No. 4: Produce copies of any and all documents relating to
any affirmative defenses.
Response:
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Request for Production of Documents No. 5: Produce copies of any and all documents relating to,
supporting or negating the Plaintiffs damages.
Response:
Request for Production of Documents No. 6: Produce copies of any and all documents supporting
Plaintiffs Complaint or claims.
Response:
Request for Production of Documents No, 7: Produce copies of any and all documents opposing
or negating the claims in the Complaint.
Response:
Request for Production of Documents No. 8: Produce any and all record of payments to Plaintiff
since 5/1/19.
Response:
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Request for Production of Documents No, 9: Produce any and all emails, correspondence or texts
to Lance Polan since 5/1/19.
Response:
Request for Production of Documents No. 10: Produce copies of any and all emails,
correspondence or texts to Scott Berlin since 5/1/19.
Response:
Request for Production of Documents No. 11: Produce copies of any and all operating
agreements, tax returns, ledgers, books and records, accounts payable or accounts receivable
relating to DLB Financial Holdings, LLC since 1/1/19.
Response:
Request for Production of Documents No. 12: Produce copies of any and all operating
agreements, tax returns, ledgers, books and records, accounts payable or accounts receivable
relating to Stillwater Seven since 1/1/19.
Response:
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Request for Production of Documents No. 13: Produce copies of any and all operating
agreements, tax returns, ledgers, books and records, accounts payable or accounts receivable
relating to Nied Capital, LLC since 1/1/19.
Response:
Request for Production of Documents No. 14: Produce copies of any and all operating
agreements, tax returns, ledgers, books and records, accounts payable or accounts receivable
relating to NM Residential, LLC since 1/1/19.
Response:
Request for Production of Documents No. 15: Produce copies of any and all documents relating
to payments by, or loans by Defendant to AMD.
Response:
Request for Production of Documents No, 16: Produce copies of any and all documents relating
to payments by, or loans by Defendant to Duramax.
Response:
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Request for Production of Documents No. 17: Produce copies of any and all documents relating
to investments or buy-ins by Defendant for Duramax.
Response:
Request for Production of Documents No. 18: Produce copies of any and all documents relating
to investments or buy-ins by Defendant for AMD.
Response:
Request for Production of Documents No. 19: Produce copies of any and all documents relating
to investments or buy-ins by Defendant for Stillwater Seven.
Response:
Request for Production of Documents No, 20: Produce copies of any and all promissory notes
between Defendant and AMD.
Response:
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Request for Production of Documents No. 21: Produce copies of any and alt promissory notes
between Defendant and Duramax.
Response:
Request for Production of Documents No. 22: Produce copies of any and all promissory notes
between Defendant and Stillwater Seven.
Response:
Request for Production of Documents No. 23: Produce copies of any and all promissory notes
between Defendant and Stillwater Seven.
Response:
Request for Production of Documents No. 24: Produce copies of any and all documents relating
to communications, emails or texts between Defendant and Huntington Bank since 1/1/21.
Response:
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Request for Admission No. 1: Admit that the Defendant communicated with Huntington Bank.
Answer:
Request for Admission No. 2: Admit that Defendant threatened to have Plaintiffs wife raped.
Answer:
Request for Admission No. 3: Admit that Defendant claimed Plaintiff had an affair with an
employee of Huntington Bank.
Answer:
Request for Admission No. 4: Admit that Defendant breached the operating Agreement of
Duramax.
Answer:
Request for Admission No. 5: Admit that Defendant violated the non-compete relating to
Duramax.
Answer:
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Request for Admission No. 6: Admit that Defendant violated the confidentiality relating to
Duramax.
Answer:
Request for Admission No. 7: Admit that Defendant breached his fiduciary duty to Plaintiff.
Answer:
Request for Admission No. 8: Admit that Defendant defamed Plaintiff.
Answer:
Respectfully submitted.
Zs/Michael R. Stavnicky________
Michael R. Stavnicky
(Reg. No. 0063726)
Singerman, Mills, Desberg & Kauntz Co., L.P.A.
3333 Richmond Road, #370
Beachwood. Ohio 44122
mstavnicky@smdkalw.com
(216) 292-5807
Attorneys for Plaintiff
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CERTIFICATE OF SERVICE
A copy of the foregoing was served via e-mail this 29th day of August 2023, upon the
any and all parties or attorneys of record by email, regular US Mail or electronic court service.
/s/Michael R. Stavnicky________
Attorney for Plaintiff
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Mike Stavnicky
From: Mike Stavnicky
Sent: Thursday, November 16, 2023 11:38 AM
To: Samir B. Dahman
Subject: RE: Coll v. Niederst
I need the discovery responses, they are way overdue. Thanks,
Very truly yours,
Michael R. Stavnicky, Esq.
Singerman, Mills, Desberg & Kauntz Co., L.P.A.
3333 Richmond Road, Suite 370
Cleveland, OH 44122
e. mstavnicky@smdklaw.com p. 216.292.5807
w. smdklaw.com f- 216.292.5867
Singerman Mills
DESBERG &KAUNTZSk
EXPERIENCE... PEACE OF MIND
CONFIDENTIALITY NOTE: THE INFORMA TION IN THIS E-MAIL AND ANY ATTACHMENTS IS SENT BY AN A 77ORNEY OR
HIS/HER AGENT, AND IS INTENDED TO BE CONFIDENTIAL AND FOR USE BY THE INTENDED RECIPIENT ONLY. THE
INFORMATION MA K BE PROTECTED BY ATTORNEY/CLIENT PRIVILEGE, WORK PRODUCT IMMUNITY OR OTHER LEGAL
RULES. IF THE READER OF THIS MESSAGE IS NOT THE INTENDED RECIPIENT, YOU ARE NOTIFIED THA T THE
RETENTION, DISSEMINATION, DISTRIBUTION OR COPYING OF THIS E-MAIL IS STRICTLY PROHIBITED. IF YOU RECEIVE
THIS E-MAIL IN ERROR, PLEASE NOTIFY US IMMEDIATEL Y BY RETURN E-MAIL OR BY TELEPHONE AT (216) 292-5807
AND IMMEDIATELY DELETE THIS MESSAGE AND ALL ATTACHMENTS. THANK YOU.
From: Samir B. Dahman
Sent: Tuesday, October 24, 2023 8:59 PM
To: Mike Stavnicky
Subject: Coll v. Niederst
Mike,
Mr. Niederst's responses to Mr. Coll's discovery requests are forthcoming. In the interim, he admits RFA No. 1 and
denies all other RFA's.
Best,
Samir
SAMIR B. DAHMAN
Partner in Charge, Columbus | KJK
I EXHIBIT
D 614.427.5750 [ M 614.937.4662 | E sbd@KJK.com
io \EfgCtfOrfl§aiiytFlfed 31/2120231 f0?02i/iM®TbN /W §3 983915 / Confirmation Nbr. 3023233 / CLAM £>
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43 2
1
Mike Stavnicky
From: Mike Stavnicky
Sent: Friday, November 17, 2023 11:33 AM
To: Samir B. Dahman
Subject: FW: Coll v. Niederst
Again, the discovery request are long overdue. Please consider this demand for the discovery a request to resolve a
discovery dispute under Civil Rule 37. If we do not receive the discovery we will be forced to file a Motion to Compel.
Very truly yours,
Michael R. Stavnicky, Esq.
Singennan, Mills, Desberg & Kauntz Co., L.P.A.
3333 Richmond Road, Suite 370
Cleveland, OH 44122
c. mstavnicky@smdklaw.com p. 216.292.5807
w. smdklaw.com f- 216.292.5867
Singerman Mills
Desberg & Kauntzer.
EXPERIENCE... PEACE OF MIND
CONFIDENTIALITY NOTE: THE INFORMA TION IN THIS E-MAIL AND ANY ATTACHMENTS IS SENT BY AN A TTORNEY OR
HIS/HER AGENT, AND IS INTENDED TO BE CONFIDENTIAL AND FOR USE BY THE INTENDED RECIPIENT ONLY. THE
INFORMA TION MA Y BE PROTECTED BY ATTORNEY/CLIENT PRIVILEGE, WORK PRODUCT IMMUNITY OR OTHER LEGAL
RULES. IF THE READER OF THIS MESSAGE IS NOT THE INTENDED RECIPIENT, YOU ARE NOTIFIED THATTHE
RETENTION, DISSEMINATION, DISTRIBUTION OR COPYING OF THIS E-MAIL IS STRICTLY PROHIBITED. IF YOU RECEIVE
THIS E-MAIL IN ERROR, PLEASE NOTIFY US 1MMEDIA TELY BY RETURN E-MAIL OR BY TELEPHONE A T (216) 292-5807
AND IMMEDIATELY DELETE THIS MESSAGE AND ALL ATTACHMENTS. THANK YOU.
From: Mike Stavnicky
Sent: Thursday, November 16, 2023 11:38 AM
To: Samir B. Dahman
Subject: RE: Coll v. Niederst
I need the discovery responses, they are way overdue. Thanks,
Very truly yours,
Michael R. Stavnicky, Esq.
Singerman, Mills, Desberg & Kauntz Co., L.P.A.
3333 Richmond Road, Suite 370
Cleveland, OH 44122
e. mstavnicky@smdklaw.com p- 216.292.5807 exhibit
w. smdklaw.com f. 216.292.5867 lA
w
3
3
3
Electronically Filed 11/21/2023 10:02 / MOTION / CV 23 983915 / Confirmation Nbr. 3023233 / CLAMW
1
Mike Stavnicky
From: Samir B. Dahman
Sent: Friday, November 17, 2023 11:39 AM
To: Mike Stavnicky
Cc: Jeffrey R. Vaisa
Subject: RE: Coll v. Niederst
Mike,
Your client 3 times asked to "pause" the litigation so we put our pens down awaiting settlement documents from you.
It's been 24 hours since you asked for responses. We will have them to you shortly.
Best,
Samir
SAMIR B. DAHMAN
Partner in Charge, Columbus | KJK
D 614.427.5750 | M 614.937.4662 | E sbd@KJK.com
10 West Broad Street, Suite 2500 | Columbus, Ohio 43215
KJK.com | Confidentiality Notice
Newsletter Sign-Up | KJK's Innovative Programs
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From: Mike Stavnicky
Sent: Friday, November 17, 2023 11:33 AM
To: Samir B. Dahman
Subject: FW: Coll v. Niederst
Again, the discovery request are long overdue. Please consider this demand for the discovery a request to resolve a
discovery dispute under Civil Rule 37. If we do not receive the discovery we will be forced to file a Motion to Compel.
Very truly yours,
Michael R. Stavnicky, Esq.
Singerman, Mills, Desberg & Kauntz Co., L.P.A.
3333 Richmond Road, Suite 370
Cleveland, OH 44122
c. mstavnicky@smdklaw.com p. 216.292.5807
w. smdklaw.com f. 216.292.5867
Singerman Mills
Desberg &Kauntze?a
EXPERIENCE... PEACE OF MIND
EXHIBIT
Electronically Filed 11/21/2023 10:02 / MOTION / CV 23 983915 / Confirmation Nbr. 3023233 / CLAMW
1 Is 4
Mike Stavnicky
From: Samir B. Dahman
Sent: Tuesday, October 24, 2023 8:59 PM
To: Mike Stavnicky
Subject: Coll v. Niederst
Mike,
Mr. Niederst's responses to Mr. Coll's discovery requests are forthcoming. In the interim, he admits RFA No. 1 and
denies all other RFA's.
Best,
Samir
SAMIR B. DAHMAN
Partner in Charge, Columbus | KJK
D 614.427.5750 j M 614.937.4662 | E sbd@KJK.com
10 West Broad Street, Suite 2500 | Columbus, Ohio 43215
KJK.com | Confidentiality Notice
Newsletter Sign-Up | KJK's Innovative Programs
Linkedln | Facebook | Twitter
EXHIBIT
Electronically Filed 11/21/2023 10:02 / MOTION / CV 23 983915 / Confirmation Nbr. 3023233 / CLAMW 5
1
Preview
Motion No. 5132599 NAILAH K. BYRD CUYAHOGA COUNTY CLERK OF COURTS 1200 Ontario Street Cleveland, Ohio 44113 Court of Common Pleas MOTION TO... November 21,2023 10:02 By: MICHAEL R. STAVNICKY 0063726 Confirmation Nbr. 3023233 BRIAN COLL CV 23 983915 vs. Judge: MICHAEL J. RUSSO DAVID NIEDERST, ET AL. Pages Filed: 28 Electronically Filed 11/21/2023 10:02 / MOTION / CV 23 983915 / Confirmation Nbr. 3023233 / CLAMW IN THE COURT OF COMMON PLEAS CUYAHOGA COUNTY, OHIO BRIAN COLL ) Case No: CV-23-983915 ) Plaintiff, ) JUDGE TIM MCGINTY vs. ) ) DAVID NIEDERST, et al. ) ) Defendants. ) PLAINTIFF’S MOTION TO COMPEL Plaintiff, by and through his undersigned counsel hereby files its Motion to Compel Discovery Responses from Defendant. I. INTRODUCTION AND FACTS Plaintiff filed this lawsuit on August 14, 2023. On August 29, 2023, Plaintiff served consolidated discovery request upon Defendant David Niederst. See Exhibit “1” attached hereto. Defendant requested one extension from the initial September 27, 2023 answer date and we consented. However, Defendant has still failed to respond to any discovery. He failed to respond by October 26, 2023 as required and has still not responded. We have followed up twice, including issuing a Rule 37 demand, and received no true response from Defendant. See Emails attached hereto as Exhibits “2” - “4.” As set forth herein, despite Plaintiffs good faith efforts to resolve this matter without court intervention, Defendant has produced no documents and answered no discovery. As set forth herein, Plaintiff is entitled to an order compelling the discovery responses and all attorneys’ fees incurred herein. Electronical! Filed 11/21/2023 10:02 / MOTION / CV 23 983915 / Confirmation Nbr. 3023233 / CLAMW II. LAW AND ARGUMENT Pursuant to Civil Rule 37, when a party fails to comply with discovery requests the court may issue an order to compel. Specifically, Civil Rule 37(A), states that “a party seeking discovery may move for an order compelling an answer, designation, production, or inspection if... a party fails to answer an interrogatory submitted under Rule 33... a party fails to respond that inspection will be permitted - or fails to permit inspection - as requested under Civ.R. 34....” There is certainly no question that the control and regulation of the discovery process is within the discretion of the trial court. Stefawski v. Cleveland Anesthesia Group, Inc. (1987), 37 Ohio App.3d 78. The Courts hold that they “sternly disapproves of tactics which disrupt or withhold discovery.” Gravill v. Parkhurst (1985), 27 Ohio App.3d 100, 104. Civil Rule 37 also provides that, “[i]f the motion is granted, the court shall . . . require the party... whose conduct necessitated the motion, the party or attorney advising the conduct, or both, to pay to the movant’s reasonable expenses incurred in making the motion, including attorney’s fees.” Civ. R. 37(A)(5). Thus, the attorneys’ fees incurred by Plaintiff are required to be awarded to Plaintiff by Rule. Finally, Plaintiffs requests for admissions are admitted as a matter of law because they have not been timely answered. While Defendant sent a bizarre, self-serving, one line email claiming it responded, such a response is improper. See Exhibit “5.” Defendant failed to separately respond to each admission, certify the response or note the basis for any objection. Civil Rule 36 states that “[ejach matter of which an admission is requested shall be separately set forth. The party to whom the requests for admissions have been directed shall quote each request for admission immediately preceding the corresponding answer or objection. The matter is admitted unless, within a period designated in the request, not less than twenty-eight days after Filed 11/21/2023 10:02 / MOTION / CV 23 983915 / Confirmation Electronically Nbr. 3023233 / CLAMW service of the request or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by the party’s attorney.” (emphasis added). The Civil Rules make it clear that some generic, one-line denial that is unsigned and uncertified is unacceptable and improper. Defendant has never properly responded at all. It is well settled that when a party fails to respond to requests for admissions that the matters to which the requests for admissions were addressed are admitted. Rafferty v. Scurry (1997) 177 Ohio App.3d 240, 244; Cleveland Trust Co. v. Willis (1985), 20 Ohio St.3d 66, 67. When a party fails to timely respond to the request for admissions, “the admissions [become] facts of record which the court must recognize.” Cleveland Trust Co. v. Willis, 20 Ohio St.3d 66, 67, 485 N.E.2d 1052 (1985); See Whitehouse v. The Customer is Everything!, Ltd, 11th Dist. Lake No. 2007-L-069, 2007-Ohio-6936, 2007 WL 4497850, The Ohio Supreme Court holds that “[fjailure to respond at all to the requests [for admissions] will result in the requests becoming admissions” which “can be used to establish a fact, even if it goes to the heart of the case. Cleveland Trust Co. v. Willis (1985), 20 Ohio St.3d 66, 67. Following Willis, courts hold that “[Requests for admissions conclusively establish facts for the purpose of the pending action.... Further, unanswered requests for admissions are a written admission fulfilling the requirements for summary judgment, pursuant to Civ.R. 56.” Ohio CAT v. Stoneman, 2015 -Ohio- 3546; 41 N.E.3d 833 (1 llh Dist. 2015). The Ninth District Court of Appeals has also addressed the effect and force of unanswered admissions in depth: By the explicit terms of Civ. R. 36(A), a party’s failure to timely respond to request for admission results in default admissions. It is unnecessary for the trial court to “deem” them so admitted. When a party fails to timely respond to request for admissions, ‘the admissions [become] facts of record which the court must recognize.’ Cleveland Trust Co. v. Willis fl985), 20 Ohio St.3d 66,67.... Filed 11/21/2023 10:02 / MOTION / CV 23 983915 / Confirmation Nbr. 3023233 / CLAMW Electronical! From a practical standpoint, however, a party will typically move for the trial court to “deem” the matters admitted to bring the issue to the trial court’s attention and to make default admissions, which may not have been filed previously with the court, part of the trial court record. National City Bank v. Moore, Summit App, No. 19465, 2000 WL 235529, at 2, unreported (March 1, 2000) (emphasis added). Similarly, the controlling 8th District holds that once a party fails to respond to requests for admission within the time frame mandated by Civ. R. 36(A) - a motion to deem the requests for admissions as admitted is superfluous. Natl. Mat. Ins. Co. v. McJunkin, Cuyahoga App. No. 58458, 1990 WL 56548, at *2 (May 3, 1990). Defendant has not properly or timely answered the requests for admission served upon him and the discovery responses are months late. Thus, all unanswered admissions in the case at bar have been admitted as a matter of law. The undersigned does not like filing a motion to compel, but in this case no discovery responses have ever been produced. In light of Defendant’s failure to properly respond to the Discovery Requests, Plaintiff requests an Order compelling Defendant to respond to the document requests and interrogatories within 7 days. All unanswered or improperly answered admissions are admitted as a matter of law. Civ.R. 36 and Willis. Under the Civil Rules, it is also within the discretion of this Court to enter an order which (1) designates certain facts within the scope of the Discovery Requests as established, (2) prohibits the Defendant from supporting or opposing certain claims or defenses within the scope of the Discovery Requests, or (3) strikes out pleadings or parts thereof or renders judgment by default against the Defendant. See Civ. R. 37(B). Plaintiff is entitled to an order compelling answers to the interrogatories and the production of all responsive documents from Defendant. Plaintiff is entitled to an order finding all admissions deemed admitted. Plaintiff may also be entitled to an order prohibiting Defendant Filed 11/21/2023 10:02 / MOTION / CV 23 983915 / Confirmation Nbr. 3023233 / CLAMW Electronical! from presenting a defense in this matter and entering a default judgment against Defendant. Civ.R. 37(B). Plaintiff requests that the Court grant this motion. III. CONCLUSION For the foregoing reasons. Plaintiff seeks an order compelling Defendant to fully and completely respond to all document requests and interrogatories, finding the admissions admitted as a matter of law, and such other and further relief as the Court finds appropriate. Plaintiff is also entitled to an award of all costs and attorneys’ fees in accordance with Cuvil Rule 37. Respectfully submitted, /s/ Michael R. Stavnicky________ (Reg. No. 0063726) Singerman, Mills, Desberg & Kauntz Co., L.P.A. 3333 Richmond Road, #370 Beachwood, Ohio 44122 mstavnicky@smdkl aw. com (216) 292-5807 Attorneys for Plaintiff CERTIFICATE OF SERVICE A copy of the foregoing was served by regular mail, email or electronic court service where applicable, this 21st day of November 2023 upon all parties or counsel of record. /s/Michael R. Stavnicky Michael R. Stavnicky Electronical! / Filed 11/21/2023 10:02 / MOTION / CV 23 983915 / Confirmation Nbr. 3023233 / CLAMW Mike Stavnicky From: Hope Cloud Sent: Tuesday, August 29, 2023 2:29 PM To: jjp@kjk.com Cc: Mike Stavnicky Subject: Brian Coll v. David Niederst, et al. Attachments: Discovery Requests to David Niederst (OOS39884xAOC49).DOCX; Discovery Requests to David Niederst (00539990xAOC49j.pdf Mr. Pinney, On behalf of Mr. Michael Stavnicky, attached please find Plaintiff's Consolidated Discovery Requests including Requests for Admissions to Defendant David Niederst in the above-referenced matter, Should you have any questions, please do not hesitate to contact Mr. Stavnicky. Regards, Hope Cloud Litigation Paralegal Singerman, Mills, Desberg & Kauntz Co., L.P.A. 3333 Richmond Road, Suite 370 Cleveland, OH 44122 e. hcloud@,smdklaw.com p. 216.292.5807 w. smdklaw.com f. 216.292.5867 SINGERMAN MILLS DESBERG &KAUNTZg» IXHRIINCt... PEACI Ol M t ND CONFIDENTIALITY NOTE: THE INFORMATION IN THIS E-MAIL AND ANY ATTACHMENTS IS SENT BY AN ATTORNEY OR HIS/HER AGENT, AND IS INTENDED TO BE CONFIDENTIAL AND FOR USE BY THE INTENDED RECIPIENT ONL F. THE INFORMATION MAY BE PROTECTED BY ATTORNEY/CL1ENT PRIVILEGE, WORK PRODUCT IMMUNITY OR OTHER LEGAL RULES. IF THE READER OF THIS MESSAGE IS NOT THE INTENDED RECIPIENT, YOU ARE NOTIFIED THAT THE RETENTION, DISSEMINATION, DISTRIBUTION OR COPYING OF THIS E-MAIL IS STRICTLY PROHIBITED. IF YOU RECEIVE THIS E-MAIL IN ERROR, PLEASE NOTIFY US 1MMEDIA TELY BY RETURN E-MAIL OR BY TELEPHONE AT (216) 292-5807 AND IMMEDIA TEL F DELETE THIS MESSAGE AND ALL A TTACHMENTS. THANK YOU. EXHIBIT Electronically Filed 11/21/2023 10:02 / MOTION / CV 23 983915 / Confirmation Nbr. 3023233 / CLAMWj| 1 1 IN THE COURT OF COMMON PLEAS CUYAHOGA COUNTY, OHIO BRIAN COLL ) CASE NO. CV-23-983915 ) Plaintiff, ) JUDGE MICHAEL RUSSO ) vs. ) ) DAVID NIEDERST, et al. ) ) Defendants. ) PLAINTIFF’S CONSOLIDATED DISCOVERY REQUESTS INCLUDING REQUESTS FOR ADMISSIONS TO DEFENDANT DAVID NIEDERST Pursuant to Rules 33, 34 and 36 of the Ohio Rules of Civil Procedure, Plaintiff by and through its undersigned counsel, hereby serves the following Interrogatories, Requests for Production of Documents and Admissions upon Defendant. Pursuant to Rule 33, written answers or objections to the within Interrogatories are to be served on undersigned counsel within twenty-eight (28) days after service hereof. Pursuant to Rule 34, Defendant shall produce, give access to and make available for copying and inspection to Plaintiff, its duly authorized attorneys or agents, any and all of the documents responsive to the following Requests for Production of Documents. It is requested that the aforesaid production, examination and copying of documents commence at the offices of Singerman, Mills, Desberg & Kauntz Co., L.P.A., 3333 Richmond Road, Suite 370, Beachwood, Ohio 44122 within twenty-eight (28) days after service hereof at 10:00 a.m. and continue thereafter until concluded; or in lieu thereof, Defendant may attach copies of said documents to its responses to these document Electronical y Filed 11/21/2023 10:02 / MOTION / CV 23 983915 / Confirmation Nbr. 3023233 / CLAMW requests. Pursuant to Rule 36, Defendant shall answer each Request for Admission contained herein within twenty-eight (28) days after service hereof. Failure to answer shall be deemed an admission. INSTRUCTIONS AND DEFINITIONS 1. 'Phis discovery request is to be deemed continuing in nature. It is hereby requested that any newly discovered or additional information or documents be supplied immediately to undersigned counsel upon any such information or documents coming to the attention of Defendant or their counsel. Defendant shall further provide, by way of supplementary compliance herewith, such additional information or documents as they, or any other person on their behalf, may hereafter obtain, which will augment the information or documents produced in response to the below discovery requests. 2. All documents requested herein are to be produced if they are in the custody, possession or control of, or are available or accessible to Defendant. Further, if Defendant knows that documents responsive to any of these requests are in the custody, possession or control of a third person, they shall identify the documents and their custodian. When this discovery calls for a document which once was but no longer is in the possession or control of either Defendant, its present location and custodian, if known, or its last known location and custodian, shall be identified. 3. If a requested document is unavailable due to loss, destruction or otherwise, identify the document and explain why it is not available. If any information or documents called for by these discovery requests is withheld on the basis of a claim of privilege, the nature of the information or documents being withheld, the nature of the claimed privilege and the nature of the information or documents in respect to which the privilege is claimed shall be set forth. Electronical!/ Filed 11/21/2023 10:02 / MOTION / CV 23 983915 / Confirmation Nbr. 3023233 / CLAMW 4. Where the text herein makes it appropriate, each singular word shall include its plural and each plural word shall include its singular. “Any” as well as “or” shall be construed either disjunctively or conjunctively as necessary to bring within the scope of these document requests all documents which might otherwise be construed to be outside their scope. Each of the following words includes the meaning of every other word: “each,” “every,” “all,” and “any.” The present tense shall be construed to include the past tense, the past tense shall be construed to include the present tense. 5. For the purposes of the below document requests, the term “document” shall mean: Any and all information in tangible form, of any nature whatsoever, including the originals and all non-identical copies thereof, in your possession, custody or control, regardless of where located, and shall include, without limiting the generality of the foregoing, all letters, telegrams, telexes, teletypes, correspondence, contracts, drafts, agreements, insurance policies, notes to files, reports, memoranda, mechanical and electronic recordings, tapes, or transcripts, information stored in computers or other data storage or processing equipment translated or translatable into usable form, blueprints, flow sheets, calendar or diary entries, memoranda of conversations, telephonic or otherwise, and of meetings or conferences, studies, reports, interoffice and intraoffice communications, listings, price lists, quotations, offers, inquiries, bulletins, circulars, statements, manuals, summaries, newsletters, compilations, minutes of stockholders', directors' and committee meetings, minutes and memoranda of all other meetings, agendas, charts, graphs, propositions, offers, articles, announcements, newspaper clippings, books, records, cables, books of account, ledgers, vouchers, canceled checks, invoices, acknowledgements, orders, bills, opinions, certificates, promissory notes and other evidence of indebtedness, prospectuses, registration statements and analyses or other such statistical data and all other copies of documents as hereinbefore defined by whatever means made. If a document has been prepared in several copies, or additional copies have been made, and the copies are not identical (or which by reason of subsequent modification or revision of a copy by the addition of notations, or other modifications, including, but not limited to, underlining, showing of blind copies, crossing out, initialing, comments, signatures, documents clipped or stapled thereto, etc., are no longer identical) each nonidentical copy is a separate “document” for the purposes of these document requests. 6. For purposes of the below discovery requests, the following terms shall have the meanings set forth below: A. The terms “relate,” “relating,” or “relative to” as used herein, shall mean: referring to, relating to, regarding, embodying, connected with, commenting on, responding to, 3 Electronically Filed 11/21/2023 10:02 / MOTION / CV 23 983915 / Confirmation Nbr. 3023233 / CLAMW supporting, showing, describing, analyzing, criticizing, reflecting or constituting. B. The term “Lawsuit” as used herein shall mean that certain lawsuit currently pending in the Court as identified on page 1 hereof. C. The term “Duramax” as used herein shall mean Duramax Holdings LLC. D. The term “AMD” as used herein shall mean AMD Plastic LLC. DISCOVERY REQUESTS Interrogatory Number 1: What is the name, address, and telephone number of every individual with knowledge of the claims or defenses in this Lawsuit? Answer: Interrogatory Number 2: (a) Identify any and all other lawsuits in the past two years where Defendant was a party to lawsuit? (b) What is the case caption, case number and venue of each such lawsuit? Answer: Interrogatory Number 3: Identify any and all facts that support any of your affirmative defenses to Plaintiffs Complaint. Answer: 4 Electronical / Filed 11/21/2023 10:02 / MOTION / CV 23 983915 / Confirmation Nbr. 3023233 / CLAMW Interrogatory Number 4: What are the names of any and all witnesses. Defendant anticipates calling at trial whether on direct or cross? Answer: Interrogatory Number 5: For all the persons listed in the answer to the preceding interrogatory, what are their names, addresses, telephone numbers, titles and the subject matter of their anticipated testimony? Answer: Interrogatory Number 6: Who are all the expert witnesses, Defendant has contacted for any reason in this matter and/or anticipates calling at trial? Answer: Interrogatory Number 7: What are the names, addresses, telephone numbers and the subject matter of the anticipated testimony, for all the persons listed in the answer to the preceding Interrogatory? Answer: Electronically Filed 11/21/2023 10:02 / MOTION / CV 23 983915 / Confirmation Nbr. 3023233 / CLAMW Interrogatory Number 8: What are the names, addresses, phone numbers and titles of all persons with knowledge of the facts underlying this lawsuit, including the allegations in the Complaint and the allegations and defenses in the answer? Answer: Interrogatory Number 9: Identify each and every direct conversation, discussion or correspondence between Plaintiff and Defendant or Defendant and any party relating to an affair with a person at Huntington Bank. For each such direct communication, identify the individuals involved in the conversation, the date and the subject matter of the conversation. Answer: Interrogatory Number 10: Identify each and every direct conversation, discussion or correspondence between Plaintiff and Defendant or Defendant and any party relating to having Plaintiffs wife raped. For each such direct communication, identify the individuals involved in the conversation, the date and the subject matter of the conversation. Answer: Electronical / Filed 11/21/2023 10:02 / MOTION / CV 23 983915 / Confirmation Nbr. 3023233 / CLAMW Interrogatory Number 11: Identify all facts supporting the allegations of the Complaint. Answer: Interrogatory Number 12: Identify all facts supporting any defenses to the Complaint. Answer: Interrogatory Number 13: What is Defendant’s position, title and ownership interest in Stillwater Seven? When did Defendant become an owner of Stillwater Seven? Answer: Interrogatory Number 14: How much money did Defendant pay Duramax for his ownership interest? When was that payment/s made and by whom? What was your original ownership percentage in Duramax? What is your current ownership percentage in Duramax? Answer: Filed 11/21/2023 10:02 / MOTION / CV 23 983915 / Confirmation Electronically Nbr. 3023233 / CLAMW Interrogatory Number 15: How much money did Defendant pay AMD for his ownership interest? When was that payment/s made and by whom? What was your original ownership percentage in AMD? What is your current ownership percentage in AMD? Answer: Interrogatory Number 16: Identify any and all owners and officers of Duramax by name, address, title and ownership interest. Answer: Interrogatory Number 17: Identify any and all owners and officers of AMD by name, address, title and ownership interest. Answer: Interrogatory Number 18: Identify any and all payments by date and name for ownership or investments in Stillwater Seven. Answer: 8 Electronically Filed 11/21/2023 10:02 / MOTION / CV 23 983915 / Confirmation Nbr. 3023233 / CLAMW Interrogatory Number 19: Identify any and all loans to Stillwater Seven by date and lender. Answer: 9 Electronically Filed 11/21/2023 10:02 / MOTION / CV 23 983915 / Confirmation Nbr. 3023233 / CLAMW Request for Production of Documents No. 1: Produce copies of any and all exhibits that Defendant expects to introduce or use at trial. Response: Request for Production of Documents No. 2: Produce copies of any and all documents relating to correspondence, texts or emails between Plaintiff and Defendant since 1/1/2020. Response: Request for Production of Documents No. 3: Produce copies of any and all documents relating to communications, correspondence, texts or emails by or to Defendant or any other person of entity relating to the Plaintiff. Response: Request for Production of Documents No. 4: Produce copies of any and all documents relating to any affirmative defenses. Response: Electronical!1/ Filed 11/21/2023 10:02 / MOTION / CV 23 983915 / Confirmation Nbr. 3023233 / CLAMW Request for Production of Documents No. 5: Produce copies of any and all documents relating to, supporting or negating the Plaintiffs damages. Response: Request for Production of Documents No. 6: Produce copies of any and all documents supporting Plaintiffs Complaint or claims. Response: Request for Production of Documents No, 7: Produce copies of any and all documents opposing or negating the claims in the Complaint. Response: Request for Production of Documents No. 8: Produce any and all record of payments to Plaintiff since 5/1/19. Response: 11 Electronical! / Filed 11/21/2023 10:02 / MOTION / CV 23 983915 / Confirmation Nbr. 3023233 / CLAMW Request for Production of Documents No, 9: Produce any and all emails, correspondence or texts to Lance Polan since 5/1/19. Response: Request for Production of Documents No. 10: Produce copies of any and all emails, correspondence or texts to Scott Berlin since 5/1/19. Response: Request for Production of Documents No. 11: Produce copies of any and all operating agreements, tax returns, ledgers, books and records, accounts payable or accounts receivable relating to DLB Financial Holdings, LLC since 1/1/19. Response: Request for Production of Documents No. 12: Produce copies of any and all operating agreements, tax returns, ledgers, books and records, accounts payable or accounts receivable relating to Stillwater Seven since 1/1/19. Response: 12 Electronical!1/ Filed 11/21/2023 10:02 / MOTION / CV 23 983915 / Confirmation Nbr. 3023233 / CLAMW Request for Production of Documents No. 13: Produce copies of any and all operating agreements, tax returns, ledgers, books and records, accounts payable or accounts receivable relating to Nied Capital, LLC since 1/1/19. Response: Request for Production of Documents No. 14: Produce copies of any and all operating agreements, tax returns, ledgers, books and records, accounts payable or accounts receivable relating to NM Residential, LLC since 1/1/19. Response: Request for Production of Documents No. 15: Produce copies of any and all documents relating to payments by, or loans by Defendant to AMD. Response: Request for Production of Documents No, 16: Produce copies of any and all documents relating to payments by, or loans by Defendant to Duramax. Response: 13 Electronically Filed 11/21/2023 10:02 / MOTION / CV 23 983915 / Confirmation Nbr. 3023233 / CLAMW Request for Production of Documents No. 17: Produce copies of any and all documents relating to investments or buy-ins by Defendant for Duramax. Response: Request for Production of Documents No. 18: Produce copies of any and all documents relating to investments or buy-ins by Defendant for AMD. Response: Request for Production of Documents No. 19: Produce copies of any and all documents relating to investments or buy-ins by Defendant for Stillwater Seven. Response: Request for Production of Documents No, 20: Produce copies of any and all promissory notes between Defendant and AMD. Response: 14 Electronical! / Filed 11/21/2023 10:02 / MOTION / CV 23 983915 / Confirmation Nbr. 3023233 / CLAMW Request for Production of Documents No. 21: Produce copies of any and alt promissory notes between Defendant and Duramax. Response: Request for Production of Documents No. 22: Produce copies of any and all promissory notes between Defendant and Stillwater Seven. Response: Request for Production of Documents No. 23: Produce copies of any and all promissory notes between Defendant and Stillwater Seven. Response: Request for Production of Documents No. 24: Produce copies of any and all documents relating to communications, emails or texts between Defendant and Huntington Bank since 1/1/21. Response: Electronically Filed 11/21/2023 10:02 / MOTION / CV 23 983915 / Confirmation Nbr. 3023233 / CLAMW Request for Admission No. 1: Admit that the Defendant communicated with Huntington Bank. Answer: Request for Admission No. 2: Admit that Defendant threatened to have Plaintiffs wife raped. Answer: Request for Admission No. 3: Admit that Defendant claimed Plaintiff had an affair with an employee of Huntington Bank. Answer: Request for Admission No. 4: Admit that Defendant breached the operating Agreement of Duramax. Answer: Request for Admission No. 5: Admit that Defendant violated the non-compete relating to Duramax. Answer: 16 Electronical! Filed 11/21/2023 10:02 / MOTION / CV 23 983915 / Confirmation Nbr. 3023233 / CLAMW Request for Admission No. 6: Admit that Defendant violated the confidentiality relating to Duramax. Answer: Request for Admission No. 7: Admit that Defendant breached his fiduciary duty to Plaintiff. Answer: Request for Admission No. 8: Admit that Defendant defamed Plaintiff. Answer: Respectfully submitted. Zs/Michael R. Stavnicky________ Michael R. Stavnicky (Reg. No. 0063726) Singerman, Mills, Desberg & Kauntz Co., L.P.A. 3333 Richmond Road, #370 Beachwood. Ohio 44122 mstavnicky@smdkalw.com (216) 292-5807 Attorneys for Plaintiff 17 Electronical! / Filed 11/21/2023 10:02 / MOTION / CV 23 983915 / Confirmation Nbr. 3023233 / CLAMW CERTIFICATE OF SERVICE A copy of the foregoing was served via e-mail this 29th day of August 2023, upon the any and all parties or attorneys of record by email, regular US Mail or electronic court service. /s/Michael R. Stavnicky________ Attorney for Plaintiff 18 Electronical y Filed 11/21/2023 10:02 / MOTION / CV 23 983915 / Confirmation Nbr. 3023233 / CLAMW Mike Stavnicky From: Mike Stavnicky Sent: Thursday, November 16, 2023 11:38 AM To: Samir B. Dahman Subject: RE: Coll v. Niederst I need the discovery responses, they are way overdue. Thanks, Very truly yours, Michael R. Stavnicky, Esq. Singerman, Mills, Desberg & Kauntz Co., L.P.A. 3333 Richmond Road, Suite 370 Cleveland, OH 44122 e. mstavnicky@smdklaw.com p. 216.292.5807 w. smdklaw.com f- 216.292.5867 Singerman Mills DESBERG &KAUNTZSk EXPERIENCE... PEACE OF MIND CONFIDENTIALITY NOTE: THE INFORMA TION IN THIS E-MAIL AND ANY ATTACHMENTS IS SENT BY AN A 77ORNEY OR HIS/HER AGENT, AND IS INTENDED TO BE CONFIDENTIAL AND FOR USE BY THE INTENDED RECIPIENT ONLY. THE INFORMATION MA K BE PROTECTED BY ATTORNEY/CLIENT PRIVILEGE, WORK PRODUCT IMMUNITY OR OTHER LEGAL RULES. IF THE READER OF THIS MESSAGE IS NOT THE INTENDED RECIPIENT, YOU ARE NOTIFIED THA T THE RETENTION, DISSEMINATION, DISTRIBUTION OR COPYING OF THIS E-MAIL IS STRICTLY PROHIBITED. IF YOU RECEIVE THIS E-MAIL IN ERROR, PLEASE NOTIFY US IMMEDIATEL Y BY RETURN E-MAIL OR BY TELEPHONE AT (216) 292-5807 AND IMMEDIATELY DELETE THIS MESSAGE AND ALL ATTACHMENTS. THANK YOU. From: Samir B. Dahman Sent: Tuesday, October 24, 2023 8:59 PM To: Mike Stavnicky Subject: Coll v. Niederst Mike, Mr. Niederst's responses to Mr. Coll's discovery requests are forthcoming. In the interim, he admits RFA No. 1 and denies all other RFA's. Best, Samir SAMIR B. DAHMAN Partner in Charge, Columbus | KJK I EXHIBIT D 614.427.5750 [ M 614.937.4662 | E sbd@KJK.com io \EfgCtfOrfl§aiiytFlfed 31/2120231 f0?02i/iM®TbN /W §3 983915 / Confirmation Nbr. 3023233 / CLAM £> J3 43 2 1 Mike Stavnicky From: Mike Stavnicky Sent: Friday, November 17, 2023 11:33 AM To: Samir B. Dahman Subject: FW: Coll v. Niederst Again, the discovery request are long overdue. Please consider this demand for the discovery a request to resolve a discovery dispute under Civil Rule 37. If we do not receive the discovery we will be forced to file a Motion to Compel. Very truly yours, Michael R. Stavnicky, Esq. Singennan, Mills, Desberg & Kauntz Co., L.P.A. 3333 Richmond Road, Suite 370 Cleveland, OH 44122 c. mstavnicky@smdklaw.com p. 216.292.5807 w. smdklaw.com f- 216.292.5867 Singerman Mills Desberg & Kauntzer. EXPERIENCE... PEACE OF MIND CONFIDENTIALITY NOTE: THE INFORMA TION IN THIS E-MAIL AND ANY ATTACHMENTS IS SENT BY AN A TTORNEY OR HIS/HER AGENT, AND IS INTENDED TO BE CONFIDENTIAL AND FOR USE BY THE INTENDED RECIPIENT ONLY. THE INFORMA TION MA Y BE PROTECTED BY ATTORNEY/CLIENT PRIVILEGE, WORK PRODUCT IMMUNITY OR OTHER LEGAL RULES. IF THE READER OF THIS MESSAGE IS NOT THE INTENDED RECIPIENT, YOU ARE NOTIFIED THATTHE RETENTION, DISSEMINATION, DISTRIBUTION OR COPYING OF THIS E-MAIL IS STRICTLY PROHIBITED. IF YOU RECEIVE THIS E-MAIL IN ERROR, PLEASE NOTIFY US 1MMEDIA TELY BY RETURN E-MAIL OR BY TELEPHONE A T (216) 292-5807 AND IMMEDIATELY DELETE THIS MESSAGE AND ALL ATTACHMENTS. THANK YOU. From: Mike Stavnicky Sent: Thursday, November 16, 2023 11:38 AM To: Samir B. Dahman Subject: RE: Coll v. Niederst I need the discovery responses, they are way overdue. Thanks, Very truly yours, Michael R. Stavnicky, Esq. Singerman, Mills, Desberg & Kauntz Co., L.P.A. 3333 Richmond Road, Suite 370 Cleveland, OH 44122 e. mstavnicky@smdklaw.com p- 216.292.5807 exhibit w. smdklaw.com f. 216.292.5867 lA w 3 3 3 Electronically Filed 11/21/2023 10:02 / MOTION / CV 23 983915 / Confirmation Nbr. 3023233 / CLAMW 1 Mike Stavnicky From: Samir B. Dahman Sent: Friday, November 17, 2023 11:39 AM To: Mike Stavnicky Cc: Jeffrey R. Vaisa Subject: RE: Coll v. Niederst Mike, Your client 3 times asked to "pause" the litigation so we put our pens down awaiting settlement documents from you. It's been 24 hours since you asked for responses. We will have them to you shortly. Best, Samir SAMIR B. DAHMAN Partner in Charge, Columbus | KJK D 614.427.5750 | M 614.937.4662 | E sbd@KJK.com 10 West Broad Street, Suite 2500 | Columbus, Ohio 43215 KJK.com | Confidentiality Notice Newsletter Sign-Up | KJK's Innovative Programs Linked In | Facebook | Twitter From: Mike Stavnicky Sent: Friday, November 17, 2023 11:33 AM To: Samir B. Dahman Subject: FW: Coll v. Niederst Again, the discovery request are long overdue. Please consider this demand for the discovery a request to resolve a discovery dispute under Civil Rule 37. If we do not receive the discovery we will be forced to file a Motion to Compel. Very truly yours, Michael R. Stavnicky, Esq. Singerman, Mills, Desberg & Kauntz Co., L.P.A. 3333 Richmond Road, Suite 370 Cleveland, OH 44122 c. mstavnicky@smdklaw.com p. 216.292.5807 w. smdklaw.com f. 216.292.5867 Singerman Mills Desberg &Kauntze?a EXPERIENCE... PEACE OF MIND EXHIBIT Electronically Filed 11/21/2023 10:02 / MOTION / CV 23 983915 / Confirmation Nbr. 3023233 / CLAMW 1 Is 4 Mike Stavnicky From: Samir B. Dahman Sent: Tuesday, October 24, 2023 8:59 PM To: Mike Stavnicky Subject: Coll v. Niederst Mike, Mr. Niederst's responses to Mr. Coll's discovery requests are forthcoming. In the interim, he admits RFA No. 1 and denies all other RFA's. Best, Samir SAMIR B. DAHMAN Partner in Charge, Columbus | KJK D 614.427.5750 j M 614.937.4662 | E sbd@KJK.com 10 West Broad Street, Suite 2500 | Columbus, Ohio 43215 KJK.com | Confidentiality Notice Newsletter Sign-Up | KJK's Innovative Programs Linkedln | Facebook | Twitter EXHIBIT Electronically Filed 11/21/2023 10:02 / MOTION / CV 23 983915 / Confirmation Nbr. 3023233 / CLAMW 5 1