Motion for Issuance of Out of State Commission in RED MANGO FC LLC vs. HOWARD GROSSER| Trellis.Law

On July 17, 2012 a Party Discovery was filed involving a dispute between Red Mango Fc Llc, and Grosser, Howard, for CNTR CNSMR COM DEBT in the District Court of Dallas County.

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Filed
13 September 11 P4:32
Gary Fitzsimmons
District Clerk
Dallas District
CAUSE NO. DC-12-07867

RED MANGO FC LLC, § IN THE DISTRICT COURT
§
Plaintiffs/Counter-Defendant, §
§
vs. §
§
HOWARD GROSSER § OF DALLAS COUNTY, TEXAS
§
Defendant/Counter-Plaintiff, §
and §
PHROZEN ASSETS LLC, §
§
Third-Party Defendant. § 160TH JUDICIAL DISTRICT

DEFENDANT HOWARD GROSSER’S RESPONSE TO MOTION FOR ISSUANCE OF
A COMMISSION FOR AN OUT-STATE SUBPOENA FOR DEPOSITION

Defendant/Counter-Plaintiff Howard Grosser (“Defendant Grosser”) respectfully submits

this Response to Plaintiff Red Mango FC, LLC’s (“Mango”) Motion for Issuance of a

Commission for Deposition to Lawrence Grosser, and in support thereof, would show the Court

as follows:

I. INTRODUCTION

Mango filed this breach of contract case alleging that Defendant Grosser breached its

franchise agreement with Mango by failing to allow Mango to electronically withdraw funds

from Defendant Grosser’s bank account and by failing to pay certain monies as part of the

franchise agreement. To the contrary, Defendant Grosser will demonstrate that Mango’s fraud to

induce Defendant Grosser to purchase Mango’s franchise, Mango’s failure to fulfill the terms of

the franchise agreement, Mango’s violation of the covenant of good faith and fair dealing, and

Mango’s violation of state and federal law preclude Mango’s recovery in this lawsuit.

To prove its breach of contract claim against Defendant Grosser, Mango now seeks to

DEFENDANT HOWARD GROSSER’S RESPONSE TO MOTION FOR ISSUANCE Page 1
OF A COMMISSION FOR AN OUT-STATE SUBPOENA FOR DEPOSITION
4812-6026-1141/02505-201
depose the Defendant’s brother, Lawrence Grosser. However, Mango has failed to demonstrate

what knowledge Lawrence Grosser—a non-party to the franchise agreement at issue—may have

concerning Mango’s breach of contract claim. Defendant Grosser, therefore, objects to Mango’s

Second Amended Motion for Issuance of a Commission for an Out-Of-State Subpoena for

Deposition to Lawrence Grosser because there is no reasonable indication that Lawrence

Grosser’s deposition is calculated to lead to the discovery of admissible evidence, nor has Mango

made a showing that less intrusive methods of discovery have been unsatisfactory, insufficient,

or inadequate. Additionally, Mango cannot complain that Lawrence Grosser will not be deposed

in light of Mango’s refusal to produce its president, Miguel Foegal, who has demonstrated

knowledge of this matter. For these reasons, Mango’s motion should be denied

II. ARGUMENT

A. This Court Should Not Issue a Commission for an Out-of-State Subpoena
for Deposition to Lawrence Grosser

First, there is no reasonable indication that Lawrence Grosser’s deposition is calculated to

lead to the discovery of admissible evidence. Larry Grosser is not an owner, director, or

manager of Defendant Grosser’s company Phrozen Assets. To the contrary, Lawrence Grosser is

simply an employee, and he does not appear to have knowledge of any allegations in this case.

The fact that Lawrence Grosser is Defendant Grosser’s brother does not alter this reality.

Second, Lawrence Grosser has no unique or superior personal knowledge of any

relevant facts in this matter that is unavailable through more convenient means. TEX. R. CIV.

P. 192.4(a) (discovery may be limited where “the discovery sought is unreasonably

cumulative or duplicative, or is obtainable from some other source that is more convenient,

less burdensome, or less expensive”); see also In re Arras, 24 S.W.3d 862, 864 (Tex. App.—

El Paso 2000, orig. proceeding). Among the more convenient, less burdensome, and less

DEFENDANT HOWARD GROSSER’S RESPONSE TO MOTION FOR ISSUANCE Page 2
OF A COMMISSION FOR AN OUT-STATE SUBPOENA FOR DEPOSITION
4812-6026-1141/02505-201
expensive forms available to Mango are requests for disclosure, requests for production,

interrogatories, requests for admission, and deposition from the real party in interest

Defendant Grosser. Thus, the information sought via deposition and subpoena duces tecum

from Lawrence Grosser is unreasonably cumulative and duplicative. Consequently, Lawrence

Grosser is not a proper person to have a commission ordered and this Court should deny

Mango’s motion.

B. Mango Cannot Complain That Larry Grosser is Not to Be Deposed Based on
Mango’s Refusal to Produce its President, Miguel Foegal

In an attempt to ascertain the facts behind Mango's fraud to induce Defendant Grosser to

purchase Mango's franchise, Mango's failure to fulfill the terms of the franchise agreement,

Mango's violation of the covenant of good faith and fair dealing, and Mango's violation of state

and federal law, Defendant Grosser noticed Miguel Foegal—Mango’s President and Chief

Operating Officer—for deposition on July 11, 2013.1 To date, Mango has repeatedly refused to

produce Mr. Foegal for deposition even though both Defendant and his counsel have been in

Dallas for other depositions, and in spite of Mr. Foegal’s relevant knowledge of this case.

The deposition of Mr. Foegal is completely proper because (a) the information in Red

Mango’s 2013 Franchise Disclosure Document is different than the information provided to

Defendant Grosser to induce him to purchase Red Mango’s franchise, and (b) this new

information was personally certified in a sworn statement by Mr. Foegal just 2 ½ months ago

stating that “all material facts stated in all those documents [Franchise Disclosure Document as

well as other documents] are accurate and those documents [Franchise Disclosure Document as

well as other documents] do not contain any material omissions [sic as to lack of punctuation] I

1
(Ex. A: (Defendant-Counterplaintiff’s First Notice of Oral Deposition of Miguel Foegal served May 10, 2013)).

DEFENDANT HOWARD GROSSER’S RESPONSE TO MOTION FOR ISSUANCE Page 3
OF A COMMISSION FOR AN OUT-STATE SUBPOENA FOR DEPOSITION
4812-6026-1141/02505-201
further certify that I am duly authorized to make this certification on behalf of the franchisor and

that I do so upon my personal knowledge [sic as to lack of punctuation]” [Emphasis added].2

The deposition testimony of Mango’s president, who issued personally sworn statements

concerning this case, is at least as relevant as the testimony of Defendant’s brother, who plays no

substantive role in the Defendant’s franchise and has no apparent knowledge of this case.

Mango, therefore, cannot complain that Lawrence Grosser will not be deposed in light of its

refusal to produce Mr. Foegal.

III. CONCLUSION

For the reasons set forth above, the Court should deny Mango’s Second Amended Motion

for Issuance of a Commission for an Out-Of-State Subpoena for Deposition to Lawrence

Grosser. If the Court chooses to issue a Commission for the deposition of Lawrence Grosser, the

Court should also compel Mango to produce Miguel Foegal for deposition. Defendant Grosser

further requests that the Court grant any other relief to which Defendant Grosser is entitled.

2
(Ex. B: (Plaintiffs’ Brief in Support of their Motion for Sanctions served July 26, 2013 at page 8).

DEFENDANT HOWARD GROSSER’S RESPONSE TO MOTION FOR ISSUANCE Page 4
OF A COMMISSION FOR AN OUT-STATE SUBPOENA FOR DEPOSITION
4812-6026-1141/02505-201
Dated: September 11, 2013 Respectfully submitted,

By: /s/Christopher J. Akin
Christopher J. Akin
Texas State Bar Number 00793237
LYNN TILLOTSON PINKER COX, LLP
2100 Ross Avenue, Suite 2700
Dallas, Texas 75201
T: 214.981.3812
F: 214.981.3839
cakin@lynnllp.com

And

Mitchell J. Kassoff
Admitted Pro Hac Vice
Two Foster Court
So. Orange, N.J. 07079-1002
T: 973.762.1776
franchiselawyer@verizon.net

ATTORNEYS FOR DEFENDANT-
COUNTER PLAINTIFF HOWARD
GROSSER AND THIRD-PARTY
PLAINTIFF PHROZEN ASSETS LLC

CERTIFICATE OF SERVICE

This is to certify that on the 11th day of September, 2013, a true and correct copy of the
foregoing Discovery was forwarded to Plaintiff’s counsel by email (as agreed to by said
counsel).

VIA ELECTRONIC MAIL
Cheryl Mullin
MULLIN LAW, P.C.
2425 N. Central Expressway, Suite 200
Richardson, Texas 75080

/s/Christopher J. Akin
Christopher J. Akin
4812-6026-1141, v. 2

DEFENDANT HOWARD GROSSER’S RESPONSE TO MOTION FOR ISSUANCE Page 5
OF A COMMISSION FOR AN OUT-STATE SUBPOENA FOR DEPOSITION
4812-6026-1141/02505-201
CAUSE NO. DC-12-07867

RED MANGO FC, LLC, § IN THE DISTRICT COURT
§
Plaintiff-Counterdefendant, §
§
v. § 160TH JUDICIAL DISTRICT
§
HOWARD GROSSER and PHROZEN §
ASSETS LLC §
§
Defendant-Counterplaintiff § DALLAS COUNTY, TEXAS
and Third-Party Plaintiff §

DEFENDANT-COUNTERPLAINTIFF’S FIRST NOTICE OF ORAL DEPOSITION

TO: Red Mango FC, LLC, by and through its attorneys of record, Mullin Law, P.C., 2425
N. Central Expressway, Suite 200, Richardson, Texas 75080.

PLEASE TAKE NOTICE that Defendant-Counterplaintiffs Howard Grosser and
Phrozen Assets LLC (“Defendant-Counterplaintiffs”) by and through their attorney of record,
will take the oral deposition of Miguel Foegal on Thursday, July 11, 2013, at 2:00 p.m., at the
offices of Lynn Tillotson Pinker Cox, LLP, 2100 Ross Avenue, Suite 2700, Dallas, Texas 75201.
Defendant-Counterplaintiffs reserve the right to change the time and/or date of the deposition.

The deposition will be conducted before a qualified court reporter authorized to
administer oaths and may be videotaped.

Respectfully submitted,

By: /s/Christopher J. Akin
Christopher J. Akin Mitchell J. Kassoff
Texas State Bar Number 00793237 Admitted pro hac vice
LYNN TILLOTSON PINKER COX, LLP Two Foster Court
2100 Ross Avenue, Suite 2700 So. Orange, N.J. 07079-1002
Dallas, Texas 75201 T: 973.762.1776
T: 214.981.3812 Email: franchiselawyer@verizon.net
F: 214.981.3839
Email: cakin@lynnllp.com

ATTORNEYS FOR DEFENDANT-COUNTER PLAINTIFF HOWARD GROSSER AND
THIRD-PARTY PLAINTIFF PHROZEN ASSETS LLC

DEFENDANT-COUNTERPLAINTIFFS’ FIRST NOTICE OF ORAL DEPOSITION PAGE 1 OF 2

EXHIBIT A
CERTIFICATE OF SERVICE

This is to certify that on the 10th day of May, 2013, a true and correct copy of the
foregoing document was forwarded to Plaintiff’s counsel Mullin Law, P.C., 2425 N. Central
Expressway, Suite 200, Richardson, Texas 75080 by email (as agreed to by said counsel).

/s/Mitchell J. Kassoff
Mitchell J. Kassoff

DEFENDANT-COUNTERPLAINTIFFS’ FIRST NOTICE OF ORAL DEPOSITION PAGE 2 OF 2

EXHIBIT A
Case 3:12-cv-02691-N Document 31-2 Filed 07/26/13 Page 1 of 30 PageID 776

Mitchell J. Kassoff
Admitted pro hac vice
Two Foster Court
So. Orange, N.J. 07079-1002
(973) 762-1776
franchiselawyer@verizon.net

Christopher J. Akin
Texas State Bar Number 00793237
LYNN TILLOTSON PINKER COX, LLP
2100 Ross Avenue, Suite 2700
Dallas, Texas 75201
T: 214.981.3812
F: 214.981.3839
cakin@lynnllp.com

Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

HOWARD GROSSER and PHROZEN ASSETS LLC, )
) Civil Action No. 3:12-CV-2691-N
Plaintiffs, )
)
vs. )
)
)
RED MANGO FC LLC, )
)
Defendant. )
________________________________________________)

PLAINTIFFS’ BRIEF IN SUPPORT OF THEIR MOTION FOR SANCTIONS

EXHIBIT B
Case 3:12-cv-02691-N Document 31-2 Filed 07/26/13 Page 2 of 30 PageID 777

TABLE OF CONTENTS
I. INTRODUCTION ..........................................................................................................................1

II. ARGUMENT ................................................................................................................................6

A. The Dates of the Depositions were Convenient for Both the Witnesses and Defendant’s
Attorneys ............................................................................................................................................6

B. Since the Witnesses Were Already at a Deposition There Was No Basis for them Not to
be Deposed for this Case....................................................................................................................7

C. Improper Conduct by Christianne Edlund When She Would Not Allow any Questioning
that was Not Related to the State Case ..............................................................................................9

D. Improper Conduct by Christianne Edlund When She Instructed a Witness Not to
Answer a Question Based Upon the Attorney/Client Privilege When that Witnesses Stated that
She was not the Attorney for the Witness ..........................................................................................13

E. Deposition Witnesses Failure to Appear for Depositions for this Case when they were
Physically Present, their Failure to Provide the Documents Required Pursuant to Subpoena, their
Failure to Provide Responses to Interrogatories and their Failure to Produce Documents was
Completely Improper .........................................................................................................................16

F. Defendant and/or its Attorneys Tampered with a Witness to Prevent him from being
Deposed in this Case ..........................................................................................................................20

III. CONCLUSION ............................................................................................................................24

EXHIBIT B
Case 3:12-cv-02691-N Document 31-2 Filed 07/26/13 Page 3 of 30 PageID 778

TABLE OF AUTHORITIES

Cases

Barrera v. MTC, Inc., 2012 U.S. Dist. LEXIS 50471, *4, 5 (W.D. Texas February 16, 2012) ........20

B.F. Goodrich Tire Co. v. Lyster, 328 F.2d 411, 415-16 (5th Cir. 1964) ..........................................6

Coane v. Ferrara Pan Candy Co., 898 F.2d 1030, 1033 (5th Cir.1990) ...........................................5

Cochran Consulting, Inc. v. Uwatec USA, Inc, 102 F.3d 1224, 1226-27 (U. S. Court App. Fed.
Cir. 1996) ...........................................................................................................................................18

Cronin v. Midwestern Oklahoma Development Authority, 619 F.2d 856, 864 (10th Cir. 1980)........7

CSI Inv. Partners II, L.P. v. Cendant Corp., 507 F. Supp. 2d 384, 435 (S.D.N.Y. 2007) ................6

Dragon Yu Bag Mfg. Co. Ltd. v. Brand Science, LLC, 282 F.R.D. 343, 344–45 (S.D. N.Y. April
12, 2012) ............................................................................................................................................19

Federal Aviation Administration v. Landy, 705 F.2d 624 (2nd Cir. 1983) .........................................

Greenwood v. Dittmer, 776 F.2d 785 (8th Cir. 1985).........................................................................7

Gray v. Myrm Holdings, L.L.C., 2012 U.S. Dist. LEXIS 90582, *3 (W.D. Texas June 28, 2012) ...19

In re Steffen, 433 B.R. 879, 883 (M.D. Fla. 2010) ............................................................................19

Lindsey v. Prive Corporation, 161 F.3d 886, 893 (5th Cir. 1998)......................................................17

Mass Engineered Design, Inc. v. Ergotron, Inc., 2008 U.S. Dist. LEXIS 89151, *17 (E.D. Texas
2008) ..................................................................................................................................................6

Mcleod, Alexander, Powel & Apffel, P.C. v. Quarles, 894 F.2d 1482, 1485 (5th Cir. 1990).............17

Peyman v. Rayan, 2011 U.S. Dist. LEXIS 33849, 2011 WL 976925, at *1 (D. Nev. March, 18,
2011) ..................................................................................................................................................16

Pioche Mines Consolidated, Inc. v. Dolman, 333 F.2d 257, 269 (9th Cir. 1964), cert. denied, 380
U.S. 956, 85 S. Ct. 1082, 13 L. Ed. 2d 972 (1965) ............................................................................4

Rangel v. Mascorro, 274 F.R.D. 585, 594 (S.D. Texas 2011)...........................................................15, 16

Resolution Trust Corporation, v. Southern Union Company, Inc., 985 F.2d 196, 197 (5th Cir.
1993) ..................................................................................................................................................17

EXHIBIT B
Case 3:12-cv-02691-N Document 31-2 Filed 07/26/13 Page 4 of 30 PageID 779

Roadway Express, Inc. v. Piper, 447 U.S. 752, 763-64, 100 S. Ct. 2455, 65 L. Ed. 2d 488 (1980). 5

T-Mobile USA, Inc. v. Wireless Exclusive USA, LLC, 2008 U.S. Dist. LEXIS 42441, *4 (N.D.
Texas 2008)........................................................................................................................................5

Toon v. Wackenhut Corr. Corp., 250 F.3d 950, 952 (5th Cir. 2001)..................................................5

Rules

Rule 30 of the Federal Rules of Civil Procedure ...............................................................................4, 5, 7

Rule 37 of the Federal Rules of Civil Procedure ...............................................................................5, 6, 17

Treatise

7 Moore’s Federal Practice § 37.91 (Matthew Bender 3d ed.) ..........................................................16

PLAINTIFFS’ MOTION FOR SANCTIONS
2

EXHIBIT B
Case 3:12-cv-02691-N Document 31-2 Filed 07/26/13 Page 5 of 30 PageID 780

I. INTRODUCTION

In an attempt to avoid having to make this motion Defendant and its attorneys were sent

an email1 which stated in part “I urge you to contact me within four days by email (by 5 PM on

July 29, 2013) with your suggestions to enable us to resolve these issues so that a motion does

not have to be filed with the Court.” [Emphasis in the original]. A response was received only

23 minutes later2 that refused to even discuss the issues. I state again to Defendant and its

counsel that it is not too late for them to work this out between us and suggest that they contact

me to do so.

As to Cheryl Mullin’s refusal to attempt to resolve this matter without having to bring

this motion3 as shown in detail, infra, (a) Ryan Kramer accepted personal service of the

subpoena notice4 and she would have been provided with notice when I had the address of the

court reporter as to the location of the deposition, (b) my conversation with Mr. Kramer’s

attorney was friendly and professional5, (c) Defendant’s attorneys stated the depositions taken

would only be for state court purposes and could not be used in this case6 (even though this was

done by notice of motion and subpoena7), (d) the statement made that there was only one

question to which Defendant’s counsel would not permit a response is untrue8&9 and (e) Cheryl

1
Reproduced in the Certificate of Compliance for this Motion.
2
Reproduced in the Certificate of Compliance for this Motion.
3
Reproduced in the Certificate of Compliance for this Motion.
4
See emails reproduced, infra, pages 20- 22 of this Brief.
5
See email reproduced, infra, pages 22- 23 of this Brief.
6
Pages 6- 7 of the deposition of Richard Jensrud taken on July 8, 2013, the relevant portion
reproduced, infra, pages 8- 9 of this Brief.
7
Appendix pp. 3- 279.
8
Pages 109- 110, 144- 147, 163- 165 of the deposition of Richard Jensrud taken on July 8,
EXHIBIT B
Case 3:12-cv-02691-N Document 31-2 Filed 07/26/13 Page 6 of 30 PageID 781

Mullin has made her usual ad hominem attacks when she has nothing relevant to the case to say,

as shown by this case where she has made every motion to date in this case, delayed this case

and has refused to provide proper discovery. I have been practicing law for more than 30 years

and find it interesting that she knows “everything [sic] other case that you've participated in.”10

Defendant has been employing improper actions to delay this case in the hopes that a

case in the Texas state court involving the same parties that it initiated will be tried first in order

to deprive this Court from resolving the issues stated by Plaintiffs. This has been demonstrated

yet again by Defendant’s motion filed on July 22, 2013 for a continuance in this case.

One of Defendants’ attempts at delay has involved refusing to comply with proper

Notices of Deposition, Subpoenas and Subpoenas Duces Tecum of the corporate

representative(s) of Red Mango FC, LLC11, Sheri Kastner12, Richard Jensrud13, Mandy

Gribble14, Sal Rincione15, Bob DiBartolomeo16 and Miguel Foegal17. Service of these

documents was made by email18 in accordance with agreements among counsel that all service

2013, relevant portions reproduced, infra, pages 9- 13 of this Brief.
9
Pages 6- 7 of the deposition of Richard Jensrud taken on July 8, 2013, the relevant portion
reproduced, infra, pages 8- 9 of this Brief.
10
See the Certificate of Compliance for this Motion.
11
Appendix p. 3.
12
Appendix p. 45.
13
Appendix p. 84.
14
Appendix p. 123.
15
Appendix p. 162.
16
Appendix p. 201.
17
Appendix p. 240.
18
Appendix p. 279.

PLAINTIFFS’ MOTION FOR SANCTIONS
2

EXHIBIT B
Case 3:12-cv-02691-N Document 31-2 Filed 07/26/13 Page 7 of 30 PageID 782

could be made by email.

Since these same deponents (with the exception of Miguel Foegal, Defendant’s President

and Chief Operating Officer) were present for depositions for another case between the same

parties and for similar issues it is most egregious that Christianne Edlund and Cheryl L. Mullin

(Defendant’s attorneys) and Mitzi Brown (Defendant’s General Counsel) would not permit

questions concerning this litigation pursuant to federal notices and subpoenas. Mitzi Brown,

Defendant’s General Counsel, appeared at all depositions and participated in some of the

depositions. Mitzi Brown’s attendance at the depositions and her actions and inactions endorsed

and ratified the improper actions for which this motion is made. These federal notices and

subpoenas were provided 1 ½ months before the scheduled dates for the dates of the depositions

on the dates specified by Defendant’s attorneys that would be convenient for both the witnesses

and them.

The sole purpose of Defendant’s, Cheryl L. Mullin’s, Christianne Edlund’s, Mullin Law,

P.C.’s and Mitzi Brown’s actions was to cause Plaintiffs and their attorney additional legal costs,

expenses and legal fees to return to Dallas from Massachusetts and New Jersey, respectively, to

depose the same witnesses for this case. Since the witnesses (with the exception of Miguel

Foegal, Defendant’s President and Chief Operating Officer, who did not attend his federally

noticed and subpoenaed deposition with 1 ½ months notice) were literally at the table being

deposed this conduct was completely improper in not allowing questions for this case. This fact

alone mandates the imposition of monetary sanctions since Defendant’s attorneys and General

Counsel were placed on notice at the time of the depositions that they and their clients would be

responsible for not permitting the federal depositions to occur while the witnesses were

physically present for another deposition at the same time they were noticed and subpoenaed for

PLAINTIFFS’ MOTION FOR SANCTIONS
3

EXHIBIT B
Case 3:12-cv-02691-N Document 31-2 Filed 07/26/13 Page 8 of 30 PageID 783

this case.

Defendant’s attorney Christianne Edlund improperly instructed a witness not to answer a

question based upon the attorney/client privilege when that witness stated under oath that

Christianne Edlund did not represent her, which is proven infra.

In addition to Christianne Edlund’s, Cheryl L. Mullin’s and Mitzi Brown’s actions

regarding witnesses to be produced by them, Defendant, Christianne Edlund, Cheryl L. Mullin

and Mitzi Brown tampered with Ryan Kramer, a non-party witness, so that he would not appear

for his deposition after he accepted service of process for his federal subpoena.

Defendant has continued to refuse to provide the documents pursuant to Plaintiffs’ First

Set of Document Requests19 or responses to Plaintiffs’ First Set of Interrogatories20 served ten

months ago.

Defendant, Cheryl L. Mullin, Christianne Edlund, Mullin Law, P.C. and Mitzi Brown are

going to state that their actions were proper because there is a pending motion to stay discovery.

This argument fails for two reasons. The first reason is that Defendant already made a motion

for a protective order and to stay discovery, which was denied by this Court by its Order dated

April 25, 2013. Defendant made this second motion to stay discovery only after a month after

this Court denied Defendant’s firstmotion to stay discovery. The second reason is that ithas

been held that:21

Counsel’s view seems to be that a party need not appear if a motion under Rule
30(b), F.R.Civ.P. is on file, even though it has not been acted upon. Any such
rule would be an intolerable clog upon the discovery process. Rule 30(b) places

19
Appendix p. 287.
20
Appendix p. 300.
21
Pioche Mines Consolidated, Inc. v. Dolman, 333 F.2d 257, 269 (9th Cir. 1964), cert.
denied, 380 U.S. 956, 85 S. Ct. 1082, 13 L. Ed. 2d 972 (1965).

PLAINTIFFS’ MOTION FOR SANCTIONS
4

EXHIBIT B
Case 3:12-cv-02691-N Document 31-2 Filed 07/26/13 Page 9 of 30 PageID 784

the burden on the proposed deponent to get an order, not just to make a motion.
And if there is not time to have his motion heard, the least that he can be expected
to do is to get an order postponing the time of the deposition until his motion can
be heard. He might also appear and seek to adjourn the deposition until an order
can be obtained. (Rule 30(d)). But unless he has obtained a court order that
postpones or dispenses with his duty to appear, that duty remains. Otherwise, as
this case shows, a proposed deponent, by merely filing motions under Rule 30(b),
could evade giving his deposition indefinitely. Under the Rules, it is for the court,
not the deponent or his counsel, to relieve him of the duty to appear.

This is exactly the improper conduct in which Defendant, Christianne Edlund, Cheryl L.

Mullin, Mullin Law, P.C. and Mitzi Brown have engaged. Even if Defendant and its counsel

take the position that some witnesses did appear and were questioned (even though this was

limited to the state court case) this does not excuse the failure of Miguel Foegal, Defendant’s

President and Chief Operating Officer, to appear for his deposition when he received 1 ½ months

notice pursuant to both a notice of deposition and a subpoena.

In addition, it has held that “It is clear, however, that it is not the filing of such a motion

that stays the deposition, but rather a court order.”22

This Court has held:

“Rule 37 sanctions must be applied diligently both ‘to penalize those whose
conduct may be deemed to warrant such a sanction, [and] to deter those who
might be tempted to such conduct in the absence of such a deterrent.’” Roadway
Express, Inc. v. Piper, 447 U.S. 752, 763-64, 100 S. Ct. 2455, 65 L. Ed. 2d 488
(1980).23

The Eastern District of Texas has held:

Courts are given discretion under Federal Rule of Civil Procedure 37(b) and their
inherent powers to impose sanctions for discovery abuse. See, e.g., Coane v.
Ferrara Pan Candy Co., 898 F.2d 1030, 1033 n.2 (5th Cir.1990); Toon v.
Wackenhut Corr. Corp., 250 F.3d 950, 952 (5th Cir. 2001). Under both Rule
37(b) and when wielding its inherent power a court must apply its sanction power

22
Federal Aviation Administration v. Landy, 705 F.2d 624, 634-35 (2nd Cir. 1983).
23
T-Mobile USA, Inc. v. Wireless Exclusive USA, LLC, 2008 U.S. Dist. LEXIS 42441, *4
(N.D. Texas 2008).

PLAINTIFFS’ MOTION FOR SANCTIONS
5

EXHIBIT B
Case 3:12-cv-02691-N Document 31-2 Filed 07/26/13 Page 10 of 30 PageID 785

in order to do justice. B.F. Goodrich Tire Co. v. Lyster, 328 F.2d 411, 415-16 (5th
Cir. 1964) (regarding Rule 37, “In the final analysis, a court has a responsibility to
do justice between man and man . . . .”); see Toon, 250 F.3d at 952 (holding that
sanctions under a court’s inherent power should be imposed where there is bad
faith and where the Federal Rules are inapplicable). “Rule 37 sanctions may be
applied both to penalize conduct that warrants sanctions and to deter those who
might be tempted to such conduct in the absence of such a deterrent.” CSI Inv.
Partners II, L.P. v. Cendant Corp., 507 F. Supp. 2d 384, 435 (S.D.N.Y. 2007)
(internal quotation marks omitted). Specifically, when ethical rules are violated,
the Court has a duty to impose appropriate sanctions. See Mylett v. Jeane, 910
F.2d 296, 301 (5th Cir. 1990) (characterizing defense counsel’s attempt to solicit
plaintiff’s counsel to breach fiduciary duties toward his client as a “serious
charge” and requiring the trial court to “take appropriate action”).24

II. ARGUMENT

A. The Dates of the Depositions were Convenient
for Both the Witnesses and Defendant’s Attorneys

In order to have depositions at a time convenient for each witness and Defendant’s

attorneys Plaintiffs’ counsel communicated with Defendant’s counsel.25 Defendant’s counsel

provided the dates for which the depositions should take place.26

Defendant’s attorney stated that that Sheri Kastner, Richard Jensrud, Mandy Gribble, Sal

Rincione and Bob DiBartolomeo would be available for depositions during the week of July 8 to

12.27 Defendant is going to state that these witnesses would be produced only for the state court

case. The purpose of presenting these communications is to show that the dates that the

witnesses (with the exception of Miguel Foegal, Defendant’s President and Chief Operating

Officer, for which no response was made as to his availability) were convenient for both

Defendant’s counsel and the witnesses. This was verified as being correct since these witnesses
24
Mass Engineered Design, Inc. v. Ergotron, Inc., 2008 U.S. Dist. LEXIS 89151, *17, 18
(E.D. Texas 2008).
25
Appendix p. 280.
26
Appendix p. 281.
27
Appendix p. 281.

PLAINTIFFS’ MOTION FOR SANCTIONS
6

EXHIBIT B
Case 3:12-cv-02691-N Document 31-2 Filed 07/26/13 Page 11 of 30 PageID 786

did appear for their deposition for a state court case involving the same parties for similar claims.

B. Since the Witnesses Were Already at a Deposition
There Was No Basis for them Not to be Deposed for this Case

Christianne Edlund (Defendant’s attorney) and Cheryl L. Mullin (Defendant’s attorney)

collectively participated in the depositions of all the witnesses. Mitzi Brown (Defendant’s

General Counsel) attended all the depositions of the witnesses and asked questions during some

of the depositions. For all of the depositions Defendant’s counsel stated they were being

conducted pursuant to the state court case and not this case, despite the federal notice of

deposition and the federal subpoena. These attorneys stated that they refused to allow the

depositions to also be conducted pursuant to this case despite the fact that these same witnesses

were noticed and subpoenaed for depositions pursuant to this case28 at that same time.

Therefore, e

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JORDAN, JIM Track Judge’s New Case

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Document Filed Date

September 11, 2013

Case Filing Date

July 17, 2012

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Parties

AKIN, CHRIS J Attorney for the Defendant
GROSSER, HOWARD Defendant
LEAL, ABEL Attorney for the Plaintiff
MULLIN, CHERYL Attorney for the Plaintiff
RED MANGO FC LLC Plaintiff
VASSAR, DAVID SLOAN Attorney for the Defendant
Christopher Akin Attorneys for Defendants
Samuel Hardy Attorneys for Plaintiffs
Jeremy Fielding Attorneys for Plaintiffs
Christianne Edlund Attorneys for Plaintiffs
Andrew Hawkins Attorneys for Plaintiffs
John Cox Attorneys for Defendants
Britta Stanton Attorneys for Defendants
David Johnson Attorney

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Party Discovery: RED MANGO FC LLC vs. HOWARD GROSSER

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