Lumbermens Mutual Casualty Co. v. Maffei et al
Order on Motion to Compel
UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA
ALBERT MAFFEI, et al.,
OPINION AND ORDER
Motion at Docket 56]
I. MOTION PRESENTED
At docket 56, defendant Albert Maffei (“Maffei”) moves for an order compelling
plaintiff Lumbermens Mutual Casualty Company (“Lumbermens”) to provide discovery
responses to certain requests for production and interrogatories. The motion has been
fully briefed. Oral argument would not assist the court.
In the case at bar judgment creditor Lumbermens seeks to set aside certain
conveyances as fraudulent in order to collect on a judgment against defendant Albert
Maffei, which was recovered in an earlier lawsuit in this court.1 The earlier case was
filed on October 18, 2001, pursuant to the Miller Act2, by Remtech, Inc. That litigation
As filed, the lawsuit was case number A01-309 CV. Using the current system of case
identification, the case number is 3:01-cv-309.
40 U.S.C. § 3131 et seq., formerly cited as 40 U.S.C. § 270a-e.
arose from a dispute about performance of a construction project in Cold Bay, Alaska.3
The United States awarded a construction contract to Luciano Enterprises, LLC
(“Luciano”) for the Cold Bay, Alaska, White Alice Radar Restoration Project (“Project”).4
As the general contractor, Luciano was required to provide a surety bond
guaranteeing performance of the contract and payment of those providing labor and
materials to the Project. Luciano obtained the necessary bonds, and when the surety
insisted that its obligations on the bonds be indemnified, Luciano procured several
indemnitors, including Albert Maffei.
After being sued on the payment bond by Remtech, Inc., a provider of equipment
and labor on the Project, Lumbermens brought a third-party claim against Luciano and
Maffei, among others, alleging they were required to indemnify Lumbermens from
Remtech’s claim and other smaller claims.5 On February 12, 2003, Remtech and
Lumbermens entered a settlement agreement,6 but other aspects of the litigation
continued. Eventually, after the dispute had been reduced to Lumbermens’ claims
against Luciano and Maffei, and in anticipation of the upcoming jury trial, the court
realigned the parties: Lumbermens was aligned as plaintiff and Luciano and Maffei as
Lumbermens’ claims against defendants were tried to a jury commencing
February 8, 2005. The jury returned verdicts for Lumbermens against defendants on
February 15, 2005, in the amount of $1,485,696.87.8
The conveyances which Lumbemens attacks as fraudulent and seeks to set
aside in the case bar are conveyances of property by Maffei and conveyances by Maffei
Doc. 9 at 2-3; doc. 11 at 2-3 in case number 3:01-cv-309.
Id. at 3.
Doc. 11 at 15 in case number 3:01-cv-309.
Doc. 84, ex. A in case number 3:01-cv-309.
Doc. 188 in case number 3:01-cv-309.
Doc. 209 and 210 in case number 3:01-cv-309
and his wife, Bonita Maffei, to the Maffei Family Limited Partnership and others. Most of
the conveyances were made in November of 2001 and December of 2002 to the Maffei
Family Limited Partnership, but others were made as late as November of 2002.9
The discovery requests at issue and Lumbermens’ responses to them were filed
as exhibits A and B to Maffei’s memorandum in support of the motion to compel.10 They
are described and discussed in more detail below.
III. STANDARD OF REVIEW
Discovery rules are liberally construed to effect the just, speedy, and inexpensive
resolution of litigation.11 Discovery’s scope is broad. The Federal Rules of Civil
Procedure afford parties the right to “obtain discovery regarding any matter, not
privileged, which is relevant to the subject matter involved in the pending action,
whether it relates to the claim or defense of the party seeking discovery . . . .”12 The
rules further specify that “[t]he information sought need not be admissible at the trial if
the information sought appears reasonably calculated to lead to the discovery of
As Maffei has accurately summarized the situation: “The gist of Lumbermens’
complaint is that Albert Maffei made fraudulent conveyances with the intent to hinder,
Doc. 1. Although in his briefing at docket page 2 of docket 72, Maffei himself implies
that the last relevant conveyance was in March of 2002; in paragraphs 57 thru 61 of
Lumbermens’ complaint at docket 1 references are made to several conveyances and related
transactions in November of 2002.
Doc. 56. The documents were not scanned into ECF, but are available in paper form
in the court’s file.
8 Charles Alan Wright, Arthur R. Miller, and Richard L. Marcus, Federal Practice and
Procedure, § 2001 at 44 (2d ed. 1994) (“Wright”).
See Fed. R. Civ. P. 26(b)(1).
delay and defraud Lumbermens, Albert Maffei’s principal creditor, and [these
conveyances were] in violation of AS 34.40.010.”14 The court agrees with Maffei that
“[s]ince the statute and the allegations in the complaint rely on intent, then to explore
that issue, the defendant [is entitled] to discover all matters that have reference to
Lumbermens’ briefing argues at length the obvious proposition that Maffei is not
entitled to re-litigate issues which were decided in the earlier lawsuit. To the extent
Maffei seeks information that would only be useful for that purpose, it is neither relevant
nor reasonably calculated to lead to the discovery of relevant evidence. However,
evidence that is relevant to or is reasonably calculated to shed light on Maffei’s intent at
the time he made the allegedly fraudulent conveyances is discoverable, whether or not
it would also be relevant to the foreclosed re-litigation of issues previously determined.
The touchstone is the relationship between what Maffei seeks and his intent at the time
of the conveyances.
The court discusses the discovery requests in the paragraphs below.16 In
responding to each of the requests, Lumbermens made the same objection–that the
request sought information relevant to issues already determined in the earlier lawsuit
and so was not relevant. In its response to the motion, Lumbermen’s objects that it has,
in fact, produced much of the information sought in the requests for production of
documents. However, that objection is not timely.17
Request For Production No. 1. Maffei’s first request asks for a letter dated
October 23, 2001, sent to him by Darren Thomas of Lumbermens, along with the
enclosure which was a copy of the indemnity agreement. Lumbermens’ relevance
Doc. 56, p. 2.
Id., p. 3.
As explained above, Maffei’s requests are found in Exhibit A Lumbermens’ responses
are in Exhibit B to docket 56.
Fed. R. Civ. P. 34 (b). The party responding to a request for production has 30 days in
which to do so.
objection lacks merit. The contents of Thomas’ communication to Maffei on the date in
question is at least reasonably calculated to shed light on the circumstances in which
Maffei’s intent was formed. Lumbermens shall produce the documents requested.
Request For Production No. 2. Here, Maffei asks for all documents “to or from
Darren W. Thomas” relating to the agreement sent under cover of his letter of
October 23, 2001. In this instance the relevance objection is generally well taken. The
request does not seek information sent to or from Maffei. It is Maffei’s intent, not that of
Thomas, which is at issue. However, some of the communications could have been
between Thomas and Maffei. Lumbermens shall produce any communications between
Maffei and Thomas, but is not otherwise required to respond to this request.
Request For Production Number 3: This request seeks “the disclosure statement
and all copies of the indemnity agreement produced as initial disclosures” in the original
lawsuit initiated by Remtech. The request does not by its terms seek things sent to
Maffei, nor is it reasonable to simply assume and append that qualification to the
request. Because it is only Maffei’s intent which is at issue, Lumbermens will not be
required to respond to this request.
Request For Production Number 4: This request seeks “the affidavit of Bruce
Dickstein dated November 25, 2002, together with all exhibits attached thereto filed in
Case No. A01-309 CIV.” Even if there might be information in or attached to the
affidavit which would shed some light on Maffei’s intent (unlikely), Maffei can obtain the
requested information from the court’s file in Anchorage. Asking Lumbermens to
produce another copy is unwarranted, despite its failure to raise a specific objection
along these lines.18 Lumbermens will not be required to respond to this request.
Interrogatory Nos. 1 and 2: These interrogatories ask for basic information about
Darren Thomas effective October 23, 2001. That is the date he sent the letter which the
court has ordered Lumbermens to produce. Lumbermens shall respond to these
See Fed. R. Civ. P. 1
Interrogator No. 3: This interrogatory seeks information relevant to Thomas’
knowledge, and possibly his intent, but not Maffei’s intent. Lumbermens need not
Interrogatory No. 4 and Request For Production No. 5: The interrogatory calls for
information about communications between Thomas and Maffei which could lead to the
discovery of admissible evidence. If there were any such communication, then its
production would be appropriate. Lumbermens shall respond to interrogatory no. 4 and
request no. 5.
The court has considered each of the remaining requests and interrogatories.
They relate to Mr. Dickstein. These discovery requests are not reasonably calculated to
lead to the discovery of admissible evidence. Lumbermens need not respond to any of
In the event of success on the merits of the motion, Maffei asks the court to
consider whether sanctions should be imposed and whether to award attorneys’ fees.
The court finds no basis for imposing sanctions. Although Lumbermens’ failure to
provide certain discovery has been determined to be erroneous by the court, it is also
the case that not all discovery sought has been required. Moreover, although the one
objection stated by Lumbermens is insufficient with respect to several of the requests, it
appears to the court to have been made in the good faith (and correct) belief that the
information was relevant to claims already resolved in the earlier lawsuit. Finally, it
does appear to the court that Maffei has access to nearly all of what he asked
Lumbermens to produce.
With respect to an award of attorneys’ fees, the court notes several points. First,
attorneys’ fees are routinely awarded in cases involving discovery disputes. Second,
Maffei is representing himself (and only himself) in connection with this discovery
dispute. Third, lay persons who represent themselves are not awarded compensation
for the time they spend on their own litigation. Fourth, public policy considerations
weigh against making a distinction between pro se litigants who are lawyers and those
who are not. Fifth, Maffei actually has access to much--perhaps most--of the
information he asked Lumbermens to provide. The court concludes that in the
circumstances here, an award of attorneys’ fees inappropriate.
For the reasons above, the motion at docket 56 is GRANTED in part as follows:
1) Lumbermens shall respond to Request for Production No. 1.
2) If there were communications between Thomas and Maffei in addition
to that sought by Request for Production No. 1, then Lubmermens shall
produce them in response to Request for Production No. 2.
3) Lumbermens shall respond to Interrogatory Nos. 1, 2, and 4.
4) If there is material responsive to Request for Production No. 5,
Lumbermens shall produce it.
5) The responses required by the preceding shall be made within 30 days
from the date of this order.
In all other respects, the motion at docket 56 is DENIED.
JOHN W. SEDWICK
UNITED STATES DISTRICT COURT JUDGE
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