Blemaster v. Sabo et al

Filing 67

ORDER granting in part and denying in part 53 Motion to Compel; granting 56 Motion for Extension of Time to File. See PDF document. Signed by Judge John W Sedwick on 10/25/17.(JWS)

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UNITED STATES DISTRICT COURT

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DISTRICT OF ARIZONA

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Michael Blemaster,

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Plaintiff,
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vs.
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Horatiu Cornelius Sabo, Rare Cornel )
Sabo, et al.,
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Defendants.
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Horatiu Cornelius Sabo & Rare
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Cornel Sabo,
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Counterclaimants,
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vs.
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Michael Blemaster,
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Counterdefendant.
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2:16-cv-04557 JWS
ORDER AND OPINION
[Re: Motions at Dockets 53 & 56]

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I. MOTIONS PRESENTED
At docket 53 plaintiff and counterdefendant Michael Blemaster (“Blemaster”)
moves to compel defendants and counterclaimants Horatiu Cornelius Sabo and Rare
Cornel Sabo (collectively, “the Sabos”) to provide further responses to his discovery

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requests pursuant to Federal Rule of Civil Procedure 37(a) and moves for an order

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extending his discovery deadline pursuant to Rule 16(b). The Sabos oppose at
docket 54. Blemaster replies at docket 55.

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At docket 56 Blemaster moves for an order extending the deadline for filing a

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motion for leave to amend his complaint pursuant to Rule 16(b). The Sabos oppose at

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docket 61. Blemaster replies at docket 62.

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Oral argument was not requested and would not assist the court.

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II. BACKGROUND

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This action presents a dispute regarding the ownership of real property in

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Phoenix formerly owned by Ana Viorica Tataru (“Tataru”). Tataru executed a

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beneficiary deed in 2014 under which the property would be conveyed to her sons, the

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Sabos, upon her death. 1 Tataru died on May 18, 2016.

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Blemaster asserts that approximately two weeks before Tataru’s death a

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company called RCU, Inc. (“RCU”) entered into a $420,000 purchase option contract

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with Tataru.2 RCU describes itself as a “licensed Arizona Real Estate agent who buys

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and sells property for a profit.”3 On May 3 an “affidavit and memorandum of agreement

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concerning real estate” executed by RCU and Tataru was recorded with Maricopa
County Recorder’s office.4 Blemaster alleges that on May 15 he entered into a real

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Doc. 1-3 at 49–50.

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Id. at 14–16.
Id. at 14.
Id. at 18.

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estate purchase contract with RCU under which he acquired RCU’s interest in Tataru’s
property for $490,000. 5

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Before these real estate transactions closed, Blemaster alleges that he “was

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informed that Horatiu was going back to Romania, and intended to wait a year before

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coming back to Arizona to decide whether to sell the Property to Blemaster.”6

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Blemaster filed this two-count action in the Arizona Superior Court seeking (1) specific

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performance of the purchase contract and (2) breach-of-contract damages.7 The

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Sabos removed the case to this court pursuant to 28 U.S.C. § 1332 8 and have asserted
quiet title counterclaims against Blemaster.9
Blemaster served the Sabos with 17 requests for admission (“RFAs”), 9
interrogatories, and 6 requests for production of documents (“RFPs”).10 Blemaster’s

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present motion challenges the Sabos’ responses to all of these discovery requests
except for RFA No. 2.

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Id. at 20–23.

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Doc. 1-1 at 8 ¶ 13.

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Doc. 1-3 at 2–27.

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Doc. 1.
Doc. 4, 5.
Doc. 53 at 17–55.

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III. STANDARDS OF REVIEW
A.

Rule 37

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If a party fails to cooperate in discovery, the requesting party may move to

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compel.11 “The party who resists discovery has the burden to show that discovery

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should not be allowed, and has the burden of clarifying, explaining, and supporting its

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objections.”12 “Broad discretion is vested in the trial court to permit or deny

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discovery[.]”13
B.

Rule 16(b)(4)
Rule 16(b)(4) provides that a scheduling order “may be modified only for good

cause and with the judge’s consent.” District courts are “given broad discretion in
supervising the pretrial phase of litigation, and [their] decisions regarding the preclusive

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effect of a pretrial order . . . will not be disturbed unless they evidence a clear abuse of

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discretion.”14 “Unlike Rule 15(a)’s liberal amendment policy which focuses on the bad

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faith of the party seeking to interpose an amendment and the prejudice to the opposing

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party, Rule 16(b)’s ‘good cause’ standard primarily considers the diligence of the party

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seeking the amendment.”15 “Courts within this Circuit ‘have articulated and undertaken
[a] three-step inquiry in resolving the question of “diligence” in the context of

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Fed. R. Civ. P. 37(a)(1).
DIRECTV, Inc. v. Trone, 209 F.R.D. 455, 458 (C.D. Cal. 2002).
Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002).

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Johnson, 975 F.2d at 607 (omission in original) (internal quotation marks omitted).

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Id. at 609. See also 6A Charles Alan Wright & Arthur R. Miller, et al., Fed. Prac. &
Proc. Civ. § 1522.2 (3d ed. 2017).

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determining good cause under Rule 16[.]’” 16 Under that inquiry the movant may be
required to show (1) that “he was diligent in assisting the court in creating a workable

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Rule 16 order”; (2) that “his noncompliance with a Rule 16 deadline occurred or will

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occur, notwithstanding his diligent efforts to comply, because of the development of

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matters which could not have been reasonably foreseen or anticipated at the time of the

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Rule 16 scheduling conference”; and (3) that “he was diligent in seeking amendment of

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the Rule 16 order, once it became apparent that he could not comply with the order.”17

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“While a court may take into account any prejudice to the party opposing modification of

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the scheduling order, ‘the focus of the [Rule 16(b)] inquiry is upon the moving party’s

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reasons for seeking modification . . . [i]f that party was not diligent, the inquiry should

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end.’”18

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IV. DISCUSSION

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A.

Requests for Admission
Rule 36(a)(4) prescribes the following standards for RFA answers:
If a matter is not admitted, the answer must specifically deny it or state in
detail why the answering party cannot truthfully admit or deny it. A denial
must fairly respond to the substance of the matter; and when good faith
requires that a party qualify an answer or deny only a part of a matter, the
answer must specify the part admitted and qualify or deny the rest. The
answering party may assert lack of knowledge or information as a reason
for failing to admit or deny only if the party states that it has made

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Morgal v. Maricopa Cnty. Bd. of Sup’rs, 284 F.R.D. 452, 460 (D. Ariz. 2012) (quoting
Grant v. United States, No. 2:11-CV-00360 LKK, No. 2011 WL 5554878, at *4 (E.D. Cal.
Nov. 15, 2011), adopted, 2012 WL 218959 (E.D. Cal. Jan. 23, 2012)).
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Id.

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In re W. States Wholesale Natural Gas Antitrust Litig., 715 F.3d 716, 737 (9th Cir.
2013) (quoting Johnson, 975 F.2d at 609).

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reasonable inquiry and that the information it knows or can readily obtain
is insufficient to enable it to admit or deny.”19

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If a party believes that another party’s answers or objections fail to satisfy these

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standards, it “may move to determine the sufficiency of an answer or objection.”20 A

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party does not comply with Rule 36 by offering evasive denials, which do “not

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‘specifically deny the matter,’” or responses that do “not set forth ‘in detail’ the reasons

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why the answering party cannot truthfully admit or deny the matter.”21 If the court finds

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that an answer does not comply with Rule 36, it “may order either that the matter is

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admitted or that an amended answer be served.”22 Generally speaking, “[p]arties may

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not view requests for admission as a mere procedural exercise requiring minimally

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acceptable conduct. They should focus on the goal of the Rules, full and efficient

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discovery, not evasion and word play.”23

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Blemaster challenges the Sabos’ responses to 16 RFAs. 24 In response, the
Sabos only specifically address their response to RFA No. 12.

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1.

RFA Nos. 1, 4, 5, 7, 8, 10, 11, 15, 16, and 17

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Blemaster argues that the Sabos’ denials to RFA Nos. 1, 4, 5, 7, 8, 10, 15, 16,

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and 17 are deficient because Interrogatory No. 1 requires them to identify the factual

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Fed. R. Civ. P. 36(a)(4).

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Fed. R. Civ. P. 36(a)(6).

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Asea, Inc. v. S. Pac. Transp. Co., 669 F.2d 1242, 1245 (9th Cir. 1981).

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Fed. R. Civ. P. 36(a)(6).
Marchand v. Mercy Med. Ctr., 22 F.3d 933, 936 (9th Cir. 1994).
Doc. 53 at 98–106.

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basis of their denials and they did not do so. This deficiency relates to Interrogatory
No. 1, not these RFAs. The Sabos’ answers to these RFAs are sufficient.

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RFA Nos. 3, 6, and 9

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RFA Nos. 3, 6, and 9 ask the Sabos to adm it that Tataru signed various

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documents. For each, the Sabos admit that the documents speak for themselves and

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deny “any other matter not specifically and expressly admitted.”25 Rule 36 requires

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answering parties to “specifically deny” all matters not admitted. The Sabos turn this

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requirement on its head, specifically admitting a non-responsive matter and then

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generally denying all other matters. The Sabos shall amend their answers to these

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RFAs.

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3.

RFA Nos. 12, 13

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RFA No. 12 asks the Sabos to admit that “no probate proceedings had been

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commenced with respect to [Tataru] or her property as of April 25, 2017.” 26 The Sabos

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respond by objecting that “probate proceedings” is vague and ambiguous. RFA No. 13

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asks the Sabos to admit that they “are the sole members of Ana’s Assisted Living,
LLC.”27 The Sabos respond by objecting that the question is irrelevant and vague and
ambiguous.28

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Id. at 98, 100, 101–02.

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Id. at 103.
Id. at 64.
Id.

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These objections are not justified. With regard to RFA No. 12, the Sabos argue
that “probate proceedings” is vague and ambiguous because that phrase can refer to

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either formal or informal probate proceedings.29 Maybe so, but this objection misses

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the mark because the Sabos do not assert that this distinction w ould make any

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difference to their answer. With regard to RFA No. 13, Blemaster argues that the

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request is relevant because the members of Ana’s Assisted Living, LLC likely possess

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knowledge of facts relevant to the claims at issue in this case. 30 Because the Sabos fail

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to respond to this explanation, their relevancy objection is overruled. Further, their

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“vague and ambiguous” objection is also overruled, as they offer no explanation as to

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how the request is vague or ambiguous. The Sabos shall amend their answers to these

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RFAs.

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4.

RFA No. 14

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RFA No. 14 asks the Sabos to admit that “Ana’s Assisted Living, LLC has

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operated the Property as an assisted living facility since [Tataru’s] death. 31 The Sabos

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respond by objecting that the question is irrelevant and admitting that “Ana’s Assisted

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Living Home, LLC operated a business on the premises for a period of time after
[Tataru] died” and then denying “any other matter not specifically and expressly

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Id. at 3.
Id. at 104.
Id. at 64.

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admitted.”32 This answer is clearly evasive. The Sabos shall amend their answer to
this RFA.

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B.

Interrogatories & RFPs
In response to each of Blemaster’s 9 interrogatories and 6 RFPs, the Sabos

copied-and-pasted the following nonsensical boilerplate objection:
These discovery requests are intended to harass Defendant and
unnecessarily increase the legal fees and expenses incurred by
Defendant; Defendant objects to each request insofar as it seeks
information that is protected from disclosure by the attorney-client
privilege, investigative privilege, or any other privilege; Defendant objects
to each request insofar as it seeks information that is protected from
disclosure by the litigation work-product doctrine; Defendant objects to
each request insofar as it seeks information that is protected from
disclosure by federal law or Arizona law; Defendant objects to the
instructions and definitions in Plaintiff’s requests insofar as they seek to
impose obligations on Defendant that exceed those prescribed by the
applicable rules of procedure; Defendant objects to each request to the
extent the request seeks documents or information available from public
records readily accessible to Plaintiff; Plaintiff objects to each request to
the extent the request seeks information that is not relevant to the subject
matter of this action and is not reasonably calculated to lead to the
discovery of admissible evidence; Defendant objects to each request to
the extent the request seeks documents or information for which the
burden of deriving or ascertaining is substantially the same for the Plaintiff
as for the Defendant; Defendant objects to each request to the extent the
request seeks documents or information for which the burden of deriving
or ascertaining is substantially higher for Defendant as for Plaintiff;
Defendant objects to each request to the extent the request is unduly
burdensome for Defendant; Defendant objects to each request to the
extent the request seeks documents or information already in the
possession, custody, or control of Plaintiff; Defendant objects to each
request to the extent the request is vague, ambiguous, overbroad,
compound, or incomprehensible; Defendant objects to each discovery
request to the extent the request seeks information that is not in Plaintiff’s
possession, custody, or control; Defendant’s response to any discovery
request (1) is not an admission or acknowledgment that such request calls
for information or documents relevant to the subject matter of this

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Doc. 56 at 64 (emphasis added).

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proceeding, (2) is without prejudice to Defendant's right to contend at a
hearing or in any other proceeding in this action, or in any other action or
proceeding, that such response is inadmissible, irrelevant, immaterial, or
not a proper basis for discovery, (3) and is without prejudice to or waiver
of any objection to any future use of such discovery that Defendant may
make; Defendant continues to investigate the facts and issues in this
litigation and reserves the right to rely, at a hearing or any other
proceeding in this litigation, or any other action or proceeding, upon
documents and information in addition to that provided in response to the
requests; Defendant reserves teh [sic] right to amend, explain, change,
amplify, and otherwise supplement these responses as required by the
rules of procedure.33

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This is a flagrant violation of the discovery rules. Rule 33(b)(4) requires that “the

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grounds for objecting to an interrogatory must be stated with specificity” and cautions

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that “[a]ny ground not stated in a timely objection is waived, unless the court, for good

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cause, excuses the failure.” Similarly, Rule 34(b)(2)(B) requires that “[f]or each item or

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category,” an objecting party must “state with specificity the grounds for objecting to the

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request, including the reasons.” The Sabos’ boilerplate objections are inappropriate,

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tantamount to no objection at all. 34 The Sabos shall serve amended answers to

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Blemaster’s interrogatories and RFPs that respond to each specific discovery request.
In addition, sanctions are mandatory under Rule 26(g). Rule 26(g) states that
every objection to a discovery request must be signed by an attorney or party (if
unrepresented) who, “[b]y signing, certifies that to the best of the person’s knowledge,

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information, and belief formed after a reasonable inquiry” the objection is

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Doc. 53 at 69–81.

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See Walker v. Lakewood Condo. Owners Ass’n, 186 F.R.D. 584, 587 (C.D. Cal. 1999)
(““Boilerplate, generalized objections are inadequate and tantamount to not making any
objection at all.”).

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(i) consistent with these rules and warranted by existing law or by a
nonfrivolous argument for extending, modifying, or reversing existing law,
or for establishing new law;
(ii) not interposed for any improper purpose, such as to harass, cause
unnecessary delay, or needlessly increase the cost of litigation; and
(iii) neither unreasonable nor unduly burdensome or expensive,
considering the needs of the case, prior discovery in the case, the amount
in controversy, and the importance of the issues at stake in the action. 35

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The duty to certify discovery responses “requires the lawyer to pause and consider the

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reasonableness of his request, response, or objection.” 36 Courts have held that the act

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of making boilerplate objections is prima facie evidence of a Rule 26(g) violation,

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“because if the lawyer had paused, made a reasonable inquiry, and discovered facts

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that demonstrated the burdensomeness or excessive cost of the discovery request, he

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or she should have disclosed them in the objection, as both Rule 33 and 34 responses

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must state objections with particularity, on pain of waiver.”37

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Rule 26(g)(3) requires the court to impose an “appropriate” sanction against the
signer of a discovery response, “the party on whose behalf the signer was acting, or

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both” when the certification violates the rule “without substantial justification.” The
sanction “may include an order to pay the reasonable expenses, including attorney’s

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Fed. R. Civ. P. 26(g)(1).
Fed. R. Civ. P. 26(g) advisory committee’s note to 1983 amendment.

Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354, 359 (D. Md. 2008). See also
Liguria Foods, Inc. v. Griffith Labs., Inc., 320 F.R.D. 168, 189 (N.D. Iowa 2017) (“The ‘natural
and probable consequences’ of ‘boilerplate’ objections is delay and impediment of discovery,
not the narrowing of issues and the avoidance of expense and delay toward which the
discovery rules are aimed. Ordinarily, I would also likely find that the impropriety of employing
such frivolous objections in every single discovery response also demonstrates the parties’
obstructionist attitude toward discovery and would further confirm suspicions that the responses
were interposed for an improper purpose.”).

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fees, caused by the violation.”38 The court finds that the Sabos’ boilerplate objections
are objectively unreasonable, asserted without a reasonable inquiry into the facts. In

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light of this discovery violation, the court will order the Sabos’ counsel to pay the

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reasonable attorney’s fees and costs that Blemaster incurred in challenging these

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objections.

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C.

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Motion to Extend Blemaster’s Discovery Deadline
On August 10, Blemaster filed his present motion to extend “all unexpired

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deadlines for him to complete discovery and to make any required disclosures” until 90

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days after the date the Sabos serve responses to his written discovery requests that

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comply with the discovery rules.39 He states that this extension is necessary because

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he needs those responses in order to prepare f or “any witness depositions and to

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provide potential experts.”40 Blemaster has shown that he has not been able to satisf y

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his discovery obligations because of the Sabos’ inadequate discovery responses, not

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because of any lack of diligence on his part, and that he promptly sought amendment of

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the scheduling order. His motion will be granted.

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D.

Motion to Extend Blemaster’s Deadline to Amend His Complaint
At docket 16, defendant Horatiu Cornelius Sabo (“Horatiu”) moved for judgment

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on the pleadings due to Blemaster’s failure to allege or attach to his complaint a

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contract bearing the Sabos’ signatures, in violation of Arizona’s statute of frauds. The

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Fed. R. Civ. P. 26(g)(3).
Doc. 53 at 13–14.
Id. at 13.

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court denied the motion because the Sabos were in possession of the purchase
contract signed by Tataru.41 Horatiu moved for reconsideration, arguing that the

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contract is irrelevant because Tataru “is not a defendant in this case, and neither is her

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estate.”42 The court denied Horatiu’s reconsideration motion because the complaint

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adequately alleges that Tataru transferred her legally enforceable obligations under the

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contract to the Sabos at death via the beneficiary deed.43

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Based on Horatiu’s argument in his reconsideration motion that Tataru’s estate is

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the proper defendant,44 Blemaster wants to amend his complaint to add the estate as a

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defendant. He cannot do so at the present, however, because a personal

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representative (“PR”) for Tataru’s estate has not yet been appointed. Thus, Blemaster

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now moves for an extension of the September 1, 2017 deadline for adding parties until

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the shorter of either “(a) 90 days; or (b) 14 days from the appointment of a personal

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representative” of Tataru’s estate.45 In response, the Sabos assert that Blemaster’s

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request shows “carelessness, if not intentional delay,” because when the scheduling

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order was entered Blemaster “knew about Mrs. Tataru’s death, knew about her sons

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Doc. 43.
Doc. 44 at 2.

Doc. 46. See A.R.S. § 33-405(A) (“A deed that conveys an interest in real property . . .
to a grantee beneficiary designated by the owner and that expressly states that the deed is
effective on the death of the owner transfers the interest to the designated grantee beneficiary
effective on the death of the owner subject to all conveyances, assignments, contracts,
mortgages, deeds of trust, liens, security pledges and other encumbrances made by the owner
or to which the owner was subject during the owner’s lifetime.”) (emphasis added).

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Doc. 56 at 9.
Id. at 1.

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and their ownership of the property left to them by their mother, and knew about the
LLC.”46

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Given that a beneficiary deed is an instrument that transfers title to real property

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to the grantee outside of probate,47 it is not clear to the court why Tataru’s estate must

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be added as a defendant in this case. That said, the merits of Blemaster’s proposed

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amendment is not currently before the court. All the court must decide now is whether

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Blemaster has been diligent in seeking to amend the scheduling order. Blemaster

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states that the need to amend his complaint arose when he realized, from Horatiu’s

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reconsideration motion, that one of the Sabos’ defenses is that Tataru’s estate is the

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only proper defendant. Horatiu filed that motion on May 17, 2017. Blemaster filed a

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petition for probate and for appointment of a PR on July 19, 2017, and the present

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motion for an extension of time on September 1. Blemaster has shown that he
promptly sought amendment of the scheduling order. His motion will be granted.

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V. CONCLUSION
Based on the preceding discussion, the motion at docket 53 is GRANTED IN

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PART AND DENIED IN PART as follows: the Sabos must amend their answers to
Blemaster’s interrogatories, RFPs, and RFA Nos. 3, 6, 9, 12, 13, and 14. T he Sabos

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Doc. 61 at 2.

See A.R.S. § 14-6101(B); 12 Darren T. Case, Brent W. Nelson & T.J. Ryan, Arizona
Estate Planning and Probate Handbook § 4:2 (12th ed. 2017) (“The probate process generally
does not cover assets passing outside of the decedent’s estate, either by contract or operation
of law. This may include assets with designated beneficiaries other than the decedent’s estate
. . . , joint accounts, property passing by rights of survivorship, real property passing by
beneficiary deed, or assets titled in the name of a trustee that are not payable to the decedent
or his or her estate.”) (emphasis added).

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must do so no later than December 1, 2017. All unexpired discovery deadlines as of
August 10, 2017, are hereby extended until 90 days after the Sabos serve the discovery

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responses compelled by this order; in all other respects, the motion is denied. The

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motion at docket 56 is GRANTED. Blemaster may have until the shorter of (a) 90 days

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from the date of this order or (b) 14 days after the appointment of a personal

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representative for the Tataru estate to file a motion to amend his complaint. The

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Sabos’ counsel are ordered to pay Blemaster’s reasonable expenses for challenging

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their boilerplate objections to his interrogatories and RFPs. If the parties cannot

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stipulate to the amount of expenses that the Sabos’ counsel must pay Blemaster, then

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within 14 days from the date of this order Blemaster shall file a properly supported

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motion showing his reasonable expenses, and the Sabos shall respond within 7 days

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after the motion is filed. No reply may be filed unless requested by the court.
DATED this 25th day of October 2017.

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/s/ JOHN W. SEDWICK
SENIOR JUDGE, UNITED STATES DISTRICT COURT

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