Preview
Filed 13 September 6 P5:00
Chris Daniel - District Clerk
Harris Coun\
ED101) 017699528
By: anita perez
CAUSE NO. 2012-30259
BRENDA SIEBERT IN THE DISTRICT COURT OF
Vv.
KINGWOOD ATHLETIC CLUB, HARRIS COUNTY, TEXAS
KELLY ACQUISITION, INC.,
DAVID KELLY,
THE FITNESS CONTRACTORS, SPEED
INCORPORATED AND
SPEED DODSON 165TH JUDICIAL DISTRICT
DEFENDANTS KELLY ACQUISITION, INC. AND DAVID KELLY’S
RESPONSE TO PLAINTIFF’S MOTION TO COMPEL RESPONSES
TO PLAINTIFF’S SECOND REQUEST FOR PRODUCTION TO DEFENDANT KAC
Defendants Kelly Acquisition, Inc. and David Kelly (the “Kelly Defendants”) file this
Response to Plaintiff's Motion to Compel Responses to Plaintiff's Second Request for
Production to Defendant KAC, demonstrating that the Kelly Defendants’ objections are valid,
and that the Kelly Defendants nonetheless have produced or are working to produce some
responsive material. In support thereof, the Kelly Defendants would show the Court as follows:
I
INTRODUCTION
Plaintiff asks the Court to compel responses to Plaintiff's second requests for production,
served to the Kelly Defendants on June 28, 2013.' The Kelly Defendants timely served
objections and responses to the disputed discovery on July 31.2. The Kelly Defendants are
continuing to work to obtain responsive documents which are not readily available, and will
supplement their response once this additional material has been obtained.
1 See Exhibit A, Plaintiff's second requests for production with certificate of service and fax stamp.
See Exhibit B, the Kelly Defendants’ responses to Plaintiff's second requests for production with certificate
of service and proof of transmission.
Plaintiff, however, points to a single, immaterial dispute — Speed Dodson’s self-serving
suggestion that KAC was having financial difficulties — and then seeks the Court’s blessing to
engage in an impermissible fishing expedition. Plaintiff's requests for production and the relief
she seeks in her motion go far outside the scope of appropriate discovery in this lawsuit.
Plaintiff has demanded that the Kelly Defendants produce documents in possession of persons
not party to this suit, such as Barbara Wilson, former General Manager of Defendant Kingwood
Athletic Club. Plaintiffs motion also seeks information concerning businesses in which
Defendant David Kelly is involved, but which are not party to this suit. Plaintiff has failed to
demonstrate an entitlement to any of the discovery made the subject of her motion, which should
be denied.
Il.
REQUEST TO CONTINUE HEARING
As a preliminary matter, Plaintiff's motion is set for hearing on Monday, September 9.
Counsel for the Kelly Defendants is set for trial in the U.S. District Court for the Western
District of Texas, Austin Division, in the matter of Jeffrey DeMuynck, Sr. and Lynn Marie
DeMuynck v. Cintas Corporation, Cause No. A-11-CA-748-SS.? Plaintiff's counsel has
represented that he will move the hearing on this motion, but has not yet done so as of the date of
this filing. In an abundance of caution, the Kelly Defendants hereby respectfully request that
Plaintiff's motion not be heard on September 9, and that the oral hearing, if one is necessary, be
postponed until after the DeMuynck trial is completed. The Kelly Defendants estimate that the
trial will take two weeks.
3 See Exhibit C, order setting trial.
Ill.
ARGUMENT
Plaintiff's second requests for production seek business and financial information
conceming Kelly Acquisition, Inc. and Kingwood Athletic Club (“KAC”) and documents
obtained from Barbara Wilson. Plaintiffs motion further asks the court to rule “[t]hat the scope
of discovery includes any and all documents in the possession of Peter Freeman, and any other
business Mr. [David] Kelly operates at the same site and those documents in the possession of
Barbara Wilson. This response will address the requests for production and relief requested in
Plaintiff's motion by category.
A. Business and Financial Data (Requests for Production Nos. 1-5, 9-12)
Plaintiff seeks the following financial and business materials relating to the Kelly
Defendants:
balance sheets, financial statements, and budgets from Kelly Acquisition,
Inc.;
budgets for KAC;
documents relating to contracts with Defendant The Fitness Contractors;
minutes of board or shareholder meetings concerning maintenance of
KAC fitness equipment;
documents relating to the sale of KAC and its assets, and concerning the
entity to which the assets were conveyed;
e franchise tax and incorporation data concerning Kelly Acquisition, Inc.
None of this material is germane to the issues in this case, and the breadth of the material
requested demonstrates that Plaintiff is engaging in an impermissible fishing expedition.
Plaintiff contends that KAC financial data is relevant to Plaintiff's gross negligence
claim, because “if KAC had plenty of money, this shows that perhaps the TFC witness is lying,
and if they do not have plenty of money, it shows the KAC witness Ms. Wilson is lying.” First,
3
this is not a gross negligence case, but only a simple negligence case. The Kelly Defendants are
entitled to summary judgment on Plaintiff's gross negligence claim, on grounds to which
financial data is wholly irrelevant. The financial issue Plaintiff identifies is a red herring, an
immaterial disagreement between the defendants. Second, once the gross negligence claims are
properly dismissed as a matter of law, the discovery has nothing to do with the questions of duty,
breach, and damages presented by a simple negligence case. And finally, Plaintiff's discovery is
not limited to determining “if KAC had plenty of money.” Instead, Plaintiff's duplicative and
cumulative requests seek to sift through business and financial minutiae that has nothing to do
with the issue of fact that Plaintiff claims to have identified. These requests are not reasonably
calculated to lead to the discovery of admissible evidence, and should be rejected.
Plaintiff further seeks “documents concerning the approval of entering into any contract
with The Fitness Contractors.” This is vague and ambiguous, and even if the Court compelled a
response to this request, the Kelly Defendants would not know what to produce. The contract
speaks for itself, and the documents in this case include correspondence concerning the
execution of the agreement. Plaintiff appears to be asking only for “more.”
Plaintiff also asks the Court to compel a response to a request for board meetings and
minutes. The Kelly Defendants have already told Plaintiff that after a diligent search, none have
been found. Nevertheless, Plaintiff again appears to be asking for “more.”
Plaintiff also requests, for the first time, documents relating to the sale of KAC’s assets
and the current owner of the building. KAC no longer exists. Further, Plaintiff's financial
discussion is a red herring, creating an immaterial controversy in what should be a simple
negligence case. Once Plaintiff's gross negligence claims are properly dismissed, this discovery
will be wholly irrelevant. Finally, for matters relating to the current owner of the building, it is
unclear why Plaintiff believes the Kelly Defendants would have the requested information; if
Plaintiff needs data concerning the current owner, Plaintiff should go to that entity.
Lastly, Plaintiff requests franchise tax and incorporation documents concerning Kelly
Acquisition, Inc. On information and belief, Kelly Acquisition, Inc. has been wound up; the
Kelly Defendants are currently seeking the documents establishing this. The Kelly Defendants
are also working to obtain the requested franchise tax reports and would refer Plaintiff to the
Texas Secretary of State’s office to obtain incorporation information. Still, none of this
information is germane to duty, breach, or damages, and thus is neither relevant to any issue in
this suit nor reasonably calculated to lead to the discovery of admissible evidence.
B. Material in the Possession of Barbara Wilson (Requests for Production Nos.
7,8)
Barbara Wilson was the general manager of KAC at the time of the accident through
closure. She is no longer an employee of any defendant in this lawsuit. She is certainly not
controlled by the Kelly Defendants. The Kelly Defendants are nevertheless working with
Wilson to obtain and produce the requested documents. For example, the Kelly Defendants
produced fifteen pages that it believes were reviewed by Wilson prior to her deposition, which
constitutes all of the physical documents Wilson gave to the Kelly Defendants’ counsel. The
Kelly Defendants also offered to produce material from an external hard drive Wilson provided
if Plaintiff would make more narrowly tailored requests. Request for Production 7, for example,
is essentially an improper “entire file” request,’ which fails to describe with particularity the
material sought.
4 See, e.g., K Mart Corp. v. Sanderson, 937 S.W.2d 429 (Tex. 1996).
5
c Documents from Other Non-Parties
Plaintiff contends that the Kelly Defendants are “obligated to produce documents in the
possession of Peter Freeman, and any other business Mr. Kelly operates at the same site and
those documents in the possession of Barbara Wilson.” (Emphasis added.) Plaintiff has not
requested documents from any other business as of this time, so the relief she requests is moot.
In any event, Plaintiff would not be entitled to documents from any other business, because no
other business entity with which Mr. Kelly is involved is a party to this lawsuit. Similarly, Mr.
Freeman and Ms. Wilson are not within the Kelly Defendants’ sphere of control, although the
Kelly Defendants have worked with both of them in an effort to provide Plaintiff with
documents. Plaintiff is simply not entitled to a declaration that such a broad swath of material is
properly within the scope of discovery.
IV.
CONCLUSION AND PRAYER
WHEREFORE, PREMISES CONSIDERED, Defendants Kelly Acquisition, Inc. and
David Kelly respectfully pray that the Court DENY Plaintiff's Motion to Compel Responses to
Plaintiff's Second Request for Production to Defendant KAC, and for all such other and further
relief to which the Kelly Defendants may show themselves justly to be entitled.
(Signature on following page.)
Respectfully submitted,
MARTIN, DISIERE, JEFFERSON & WISDOM, L.L.P.
By: /s/ R. Andrew Schulz
R. Andrew Schulz
State Bar No. 24033048
900 S. Capital of Texas Highway, Suite 425
Austin, Texas 78746
Telephone: (512) 610-4400
Facsimile: (512) 610-4401
ATTORNEYS FOR DEFENDANTS
KELLY ACQUISITION, INC. AND
DAVE KELLY
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the above document has been served via
certified mail and/or facsimile this the 6" day of September, 2013, upon the following counsel of
record:
James Martin
4429 Town Center Place
Kingwood, TX 77339
Craig Shivers
RAMSEY & MURRAY, PC
1500 City West Boulevard, Suite 1000
Houston, Texas 77042
/s/ R. Andrew Schulz
R. Andrew Schulz
Preview
Filed 13 September 6 P5:00 Chris Daniel - District Clerk Harris Coun\ ED101) 017699528 By: anita perez CAUSE NO. 2012-30259 BRENDA SIEBERT IN THE DISTRICT COURT OF Vv. KINGWOOD ATHLETIC CLUB, HARRIS COUNTY, TEXAS KELLY ACQUISITION, INC., DAVID KELLY, THE FITNESS CONTRACTORS, SPEED INCORPORATED AND SPEED DODSON 165TH JUDICIAL DISTRICT DEFENDANTS KELLY ACQUISITION, INC. AND DAVID KELLY’S RESPONSE TO PLAINTIFF’S MOTION TO COMPEL RESPONSES TO PLAINTIFF’S SECOND REQUEST FOR PRODUCTION TO DEFENDANT KAC Defendants Kelly Acquisition, Inc. and David Kelly (the “Kelly Defendants”) file this Response to Plaintiff's Motion to Compel Responses to Plaintiff's Second Request for Production to Defendant KAC, demonstrating that the Kelly Defendants’ objections are valid, and that the Kelly Defendants nonetheless have produced or are working to produce some responsive material. In support thereof, the Kelly Defendants would show the Court as follows: I INTRODUCTION Plaintiff asks the Court to compel responses to Plaintiff's second requests for production, served to the Kelly Defendants on June 28, 2013.' The Kelly Defendants timely served objections and responses to the disputed discovery on July 31.2. The Kelly Defendants are continuing to work to obtain responsive documents which are not readily available, and will supplement their response once this additional material has been obtained. 1 See Exhibit A, Plaintiff's second requests for production with certificate of service and fax stamp. See Exhibit B, the Kelly Defendants’ responses to Plaintiff's second requests for production with certificate of service and proof of transmission. Plaintiff, however, points to a single, immaterial dispute — Speed Dodson’s self-serving suggestion that KAC was having financial difficulties — and then seeks the Court’s blessing to engage in an impermissible fishing expedition. Plaintiff's requests for production and the relief she seeks in her motion go far outside the scope of appropriate discovery in this lawsuit. Plaintiff has demanded that the Kelly Defendants produce documents in possession of persons not party to this suit, such as Barbara Wilson, former General Manager of Defendant Kingwood Athletic Club. Plaintiffs motion also seeks information concerning businesses in which Defendant David Kelly is involved, but which are not party to this suit. Plaintiff has failed to demonstrate an entitlement to any of the discovery made the subject of her motion, which should be denied. Il. REQUEST TO CONTINUE HEARING As a preliminary matter, Plaintiff's motion is set for hearing on Monday, September 9. Counsel for the Kelly Defendants is set for trial in the U.S. District Court for the Western District of Texas, Austin Division, in the matter of Jeffrey DeMuynck, Sr. and Lynn Marie DeMuynck v. Cintas Corporation, Cause No. A-11-CA-748-SS.? Plaintiff's counsel has represented that he will move the hearing on this motion, but has not yet done so as of the date of this filing. In an abundance of caution, the Kelly Defendants hereby respectfully request that Plaintiff's motion not be heard on September 9, and that the oral hearing, if one is necessary, be postponed until after the DeMuynck trial is completed. The Kelly Defendants estimate that the trial will take two weeks. 3 See Exhibit C, order setting trial. Ill. ARGUMENT Plaintiff's second requests for production seek business and financial information conceming Kelly Acquisition, Inc. and Kingwood Athletic Club (“KAC”) and documents obtained from Barbara Wilson. Plaintiffs motion further asks the court to rule “[t]hat the scope of discovery includes any and all documents in the possession of Peter Freeman, and any other business Mr. [David] Kelly operates at the same site and those documents in the possession of Barbara Wilson. This response will address the requests for production and relief requested in Plaintiff's motion by category. A. Business and Financial Data (Requests for Production Nos. 1-5, 9-12) Plaintiff seeks the following financial and business materials relating to the Kelly Defendants: balance sheets, financial statements, and budgets from Kelly Acquisition, Inc.; budgets for KAC; documents relating to contracts with Defendant The Fitness Contractors; minutes of board or shareholder meetings concerning maintenance of KAC fitness equipment; documents relating to the sale of KAC and its assets, and concerning the entity to which the assets were conveyed; e franchise tax and incorporation data concerning Kelly Acquisition, Inc. None of this material is germane to the issues in this case, and the breadth of the material requested demonstrates that Plaintiff is engaging in an impermissible fishing expedition. Plaintiff contends that KAC financial data is relevant to Plaintiff's gross negligence claim, because “if KAC had plenty of money, this shows that perhaps the TFC witness is lying, and if they do not have plenty of money, it shows the KAC witness Ms. Wilson is lying.” First, 3 this is not a gross negligence case, but only a simple negligence case. The Kelly Defendants are entitled to summary judgment on Plaintiff's gross negligence claim, on grounds to which financial data is wholly irrelevant. The financial issue Plaintiff identifies is a red herring, an immaterial disagreement between the defendants. Second, once the gross negligence claims are properly dismissed as a matter of law, the discovery has nothing to do with the questions of duty, breach, and damages presented by a simple negligence case. And finally, Plaintiff's discovery is not limited to determining “if KAC had plenty of money.” Instead, Plaintiff's duplicative and cumulative requests seek to sift through business and financial minutiae that has nothing to do with the issue of fact that Plaintiff claims to have identified. These requests are not reasonably calculated to lead to the discovery of admissible evidence, and should be rejected. Plaintiff further seeks “documents concerning the approval of entering into any contract with The Fitness Contractors.” This is vague and ambiguous, and even if the Court compelled a response to this request, the Kelly Defendants would not know what to produce. The contract speaks for itself, and the documents in this case include correspondence concerning the execution of the agreement. Plaintiff appears to be asking only for “more.” Plaintiff also asks the Court to compel a response to a request for board meetings and minutes. The Kelly Defendants have already told Plaintiff that after a diligent search, none have been found. Nevertheless, Plaintiff again appears to be asking for “more.” Plaintiff also requests, for the first time, documents relating to the sale of KAC’s assets and the current owner of the building. KAC no longer exists. Further, Plaintiff's financial discussion is a red herring, creating an immaterial controversy in what should be a simple negligence case. Once Plaintiff's gross negligence claims are properly dismissed, this discovery will be wholly irrelevant. Finally, for matters relating to the current owner of the building, it is unclear why Plaintiff believes the Kelly Defendants would have the requested information; if Plaintiff needs data concerning the current owner, Plaintiff should go to that entity. Lastly, Plaintiff requests franchise tax and incorporation documents concerning Kelly Acquisition, Inc. On information and belief, Kelly Acquisition, Inc. has been wound up; the Kelly Defendants are currently seeking the documents establishing this. The Kelly Defendants are also working to obtain the requested franchise tax reports and would refer Plaintiff to the Texas Secretary of State’s office to obtain incorporation information. Still, none of this information is germane to duty, breach, or damages, and thus is neither relevant to any issue in this suit nor reasonably calculated to lead to the discovery of admissible evidence. B. Material in the Possession of Barbara Wilson (Requests for Production Nos. 7,8) Barbara Wilson was the general manager of KAC at the time of the accident through closure. She is no longer an employee of any defendant in this lawsuit. She is certainly not controlled by the Kelly Defendants. The Kelly Defendants are nevertheless working with Wilson to obtain and produce the requested documents. For example, the Kelly Defendants produced fifteen pages that it believes were reviewed by Wilson prior to her deposition, which constitutes all of the physical documents Wilson gave to the Kelly Defendants’ counsel. The Kelly Defendants also offered to produce material from an external hard drive Wilson provided if Plaintiff would make more narrowly tailored requests. Request for Production 7, for example, is essentially an improper “entire file” request,’ which fails to describe with particularity the material sought. 4 See, e.g., K Mart Corp. v. Sanderson, 937 S.W.2d 429 (Tex. 1996). 5 c Documents from Other Non-Parties Plaintiff contends that the Kelly Defendants are “obligated to produce documents in the possession of Peter Freeman, and any other business Mr. Kelly operates at the same site and those documents in the possession of Barbara Wilson.” (Emphasis added.) Plaintiff has not requested documents from any other business as of this time, so the relief she requests is moot. In any event, Plaintiff would not be entitled to documents from any other business, because no other business entity with which Mr. Kelly is involved is a party to this lawsuit. Similarly, Mr. Freeman and Ms. Wilson are not within the Kelly Defendants’ sphere of control, although the Kelly Defendants have worked with both of them in an effort to provide Plaintiff with documents. Plaintiff is simply not entitled to a declaration that such a broad swath of material is properly within the scope of discovery. IV. CONCLUSION AND PRAYER WHEREFORE, PREMISES CONSIDERED, Defendants Kelly Acquisition, Inc. and David Kelly respectfully pray that the Court DENY Plaintiff's Motion to Compel Responses to Plaintiff's Second Request for Production to Defendant KAC, and for all such other and further relief to which the Kelly Defendants may show themselves justly to be entitled. (Signature on following page.) Respectfully submitted, MARTIN, DISIERE, JEFFERSON & WISDOM, L.L.P. By: /s/ R. Andrew Schulz R. Andrew Schulz State Bar No. 24033048 900 S. Capital of Texas Highway, Suite 425 Austin, Texas 78746 Telephone: (512) 610-4400 Facsimile: (512) 610-4401 ATTORNEYS FOR DEFENDANTS KELLY ACQUISITION, INC. AND DAVE KELLY CERTIFICATE OF SERVICE This is to certify that a true and correct copy of the above document has been served via certified mail and/or facsimile this the 6" day of September, 2013, upon the following counsel of record: James Martin 4429 Town Center Place Kingwood, TX 77339 Craig Shivers RAMSEY & MURRAY, PC 1500 City West Boulevard, Suite 1000 Houston, Texas 77042 /s/ R. Andrew Schulz R. Andrew Schulz