McCurry Studios LLC v. Web2Web Marketing, Inc.

Filing 36

ORDER TO UNITED STATES MARSHAL TO SERVE PANKAJ GUPTA AND WEB2WEB MARKETING, INC. (whalc2, COURT STAFF) (Filed on 8/21/2014).

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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STEVE MCCURRY STUDIOS, LLC,

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For the Northern District of California

United States District Court

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Plaintiff,

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No. MC 13-80246 WHA
v.

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ORDER TO UNITED STATES
MARSHAL TO SERVE PANKAJ
GUPTA AND WEB2WEB
MARKETING, INC.

WEB2WEB MARKETING, INC., d/b/a
ACTEVA.COM,
Defendant.
/

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This is an order to the United States Marshal to serve Pankaj Gupta and defendant

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Web2Web Marketing, Inc. with this order, an order further requiring Mr. Gupta and defendant to

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appear in Courtroom 8 on the 19th floor of the United States Courthouse, 450 Golden Gate

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Avenue, San Francisco, CA 94102, at 8:00 A.M. ON OCTOBER 2, 2014, to give testimony and to

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produce documents to the extent stated below. This order is necessary in light of Mr. Gupta and

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defendant’s repeated failure to comply with plaintiff’s subpoenas. Accordingly, with the

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assistance of plaintiff’s counsel in locating Mr. Gupta, the United States Marshal shall now serve

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this order on Mr. Gupta and defendant. If Mr. Gupta disobeys this order, the United States

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Marshal will be subsequently ordered to find and arrest him and hold him in detention until such

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time as he complies.

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Here is the background. In the District of Delaware, plaintiff obtained a default judgment
against defendant and then registered that judgment in this district. Among other items, the
default judgment permitted plaintiff “to move for a reassessment” of the compensatory damages,

1

based “on a showing of good cause” and “information provided in [defendant’s] accounting or

2

otherwise received or discovered by plaintiff” (Dkt. No. 1). Since then, plaintiff has tried

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(unsuccessfully on numerous occasions) to personally serve defedant’s president and CEO —

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Mr. Gupta — with subpoenas. On May 9, 2014, an order granted plaintiff’s motion to serve both

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Mr. Gupta and defendant with subpoenas and future documents by alternative means, such as e-

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mail.

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On June 3, 2014, plaintiff mailed and e-mailed several subpoenas for Mr. Gupta and

testify at a deposition scheduled for July 30, 2014. The document production was due by July 3,

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2014. Plaintiff also mailed and e-mailed Mr. Gupta and defendant deposition notices for the July

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For the Northern District of California

defendant to produce documents and other information concerning the company’s assets, and to

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United States District Court

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30 date.

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Neither defendant nor Mr. Gupta produced any documents by July 3, 2014. Nor have

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plaintiff’s e-mails to Mr. Gupta bounced back or otherwise generated a return message indicating

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that his e-mail address no longer worked (Pulliam Decl. ¶¶ 10–11). In fact, on July 29, 2014 —

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the day before the scheduled deposition — Mr. Gupta called plaintiff’s counsel and confirmed

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that he had received all of the subpoenas (id. ¶¶ 13–18). He also asked during that phone call

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what the consequences would be if he did not appear for deposition, and stated that he would

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appear on July 30, 2014, only to produce documents, not for deposition. Later that day at 8:18

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p.m., Gupta left a phone message with plaintiff’s counsel, stating that he would not appear the

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next day for purposes of being deposed. He then failed to appear for the deposition, and has

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since sent only one box of documents to plaintiff. According to plaintiff’s counsel, those

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documents do not appear to include any corporate or financial records for either defendant or

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Gupta (id. ¶ 19).

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In light of the foregoing, Mr. Gupta is hereby ORDERED to produce the following

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documents in Courtroom 8 on the 19th floor of the United States Courthouse, 450 Golden Gate

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Avenue, San Francisco, CA 94102, at 8:00 A.M. ON OCTOBER 2, 2014. Please refer to plaintiff’s

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subpoenas for definitions of words that are used in the following list:

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All documents constituting, referring to, or relating to any assets of
Acteva, including, without limitation, all deeds, bills of sale, vehicle
registrations and title documents, bank and investment account
statements, accounts receivable lists with aging, ledgers, stock and
bond certificates, membership and partnership agreements and
certificates, appraisals, valuations, offers to purchase or sell any
assets of Acteva, and expressions of interest in purchasing any
assets of Acteva.

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All documents constituting, referring to, or relating to sources of
income of Acteva.

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All documents constituting, referring to, or relating to Acteva’s
financial performance.

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All documents constituting, referring to, or relating to any liabilities
of Acteva, including, without limitation, all accounts and loans
payable lists, promissory notes, mortgages, security agreements,
subordination agreements and other loan documents, and also
including all settlement and forbearance agreements to which
Acteva is a party and copies of all claims, demands, and complaints
against Acteva, including without limitation, all complaints or
demands filed in any judicial or other forum.

•

All documents referring or relating to the finances and/or financial
performance of Acteva, including, without limitation, all audited
and unaudited income and loss statements, balance sheets, cash
flow forecasts and financial statements, and all financial statements
or other financial information and loan applications provided to any
actual or prospective lender or investor or other third-party.

•

All federal, state, and local and any foreign tax returns prepared for
Acteva, whether actually filed or not.

•

All documents constituting, referring to, or relating to any transfer
of assignment or assumption of any of Acteva’s assets or liabilities.

•

All documents constituting, referring to, or relating to any insurance
policies or claims held by Acteva.

•

All documents constituting, referring to, or relating to transactions,
transfers of assets and payments by or between Acteva and one or
more of its officers, directors, shareholders, investors, principals, or
any other person in which any of the foregoing hold an interest,
including, without limitation, family members and corporate
affiliates of any of the foregoing.

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All documents constituting, referring to, or relating to any transfer
of assets, direct or indirect, by Acteva on or after January 1, 2007.

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All documents directly or indirectly referring or related to Steve
McCurry Studios, LLC, or any of its officers, directors, employees,
or counsel, or its claims against Acteva.

•

All record and accountings (including, without limitation, drafts of
accountings) related to Steve McCurry Studios LLC’s business

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For the Northern District of California

United States District Court

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relationships with Acteva and/or amounts collected and distributed
by Acteva related to such business relationship and amounts owed
by Acteva related to such business relationship at any time from
and after January 1, 2007[,] to the present.

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This order recognizes that the above is not the exact list as the one provided in plaintiff’s
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document subpoena (see Dkt. No. 25-3). But the documents bulleted above are what the Court
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believes are the most reasonable ones to request in these circumstances. Mr. Gupta is thus
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ORDERED to

bring the documents bulleted above to the hearing at 8:00 A.M. ON OCTOBER 2,

7
2014. Mr. Gupta should also be prepared to stay that entire day so that he may testify as needed
8
at this hearing. The judge will supervise.
9
In the meantime, all requests regarding contempt and attorney’s fees and costs are
10
Gupta that he is entitled to retain a lawyer and may bring a lawyer with him to the hearing.
For the Northern District of California

United States District Court

postponed until the undersigned judge hears Mr. Gupta’s testimony. This order advises Mr.
11
12
Furthermore, defendant will please remember that a corporation or other entity may appear only
13
through counsel. See Civ. L.R. 3-9(b).
14
The United States Marshal shall now serve this order on Mr. Gupta and defendant. To
15
that end, plaintiff’s counsel will assist the United States Marshal in locating Mr. Gupta. Counsel
16
for plaintiff must attend the hearing on October 2, 2014, and be in a position to copy the
17
documents produced at that time. Both sides are warned that the hearing may not be cancelled
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even by mutual agreement except upon further order of the Court.
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IT IS SO ORDERED.
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Dated: August 21, 2014.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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IN THE UNITED STATES DISTRICT COURT

7
FOR THE NORTHERN DISTRICT OF CALIFORNIA
8
9
STEVE MCCURRY STUDIOS, LLC,

11
For the Northern District of California

United States District Court

10

Plaintiff,

12
13

No. MC 13-80246 WHA
v.

14
15

ORDER TO UNITED STATES
MARSHAL TO SERVE PANKAJ
GUPTA AND WEB2WEB
MARKETING, INC.

WEB2WEB MARKETING, INC., d/b/a
ACTEVA.COM,
Defendant.
/

16
17

This is an order to the United States Marshal to serve Pankaj Gupta and defendant

18

Web2Web Marketing, Inc. with this order, an order further requiring Mr. Gupta and defendant to

19

appear in Courtroom 8 on the 19th floor of the United States Courthouse, 450 Golden Gate

20

Avenue, San Francisco, CA 94102, at 8:00 A.M. ON OCTOBER 2, 2014, to give testimony and to

21

produce documents to the extent stated below. This order is necessary in light of Mr. Gupta and

22

defendant’s repeated failure to comply with plaintiff’s subpoenas. Accordingly, with the

23

assistance of plaintiff’s counsel in locating Mr. Gupta, the United States Marshal shall now serve

24

this order on Mr. Gupta and defendant. If Mr. Gupta disobeys this order, the United States

25

Marshal will be subsequently ordered to find and arrest him and hold him in detention until such

26

time as he complies.

27
28

Here is the background. In the District of Delaware, plaintiff obtained a default judgment
against defendant and then registered that judgment in this district. Among other items, the
default judgment permitted plaintiff “to move for a reassessment” of the compensatory damages,

1

based “on a showing of good cause” and “information provided in [defendant’s] accounting or

2

otherwise received or discovered by plaintiff” (Dkt. No. 1). Since then, plaintiff has tried

3

(unsuccessfully on numerous occasions) to personally serve defedant’s president and CEO —

4

Mr. Gupta — with subpoenas. On May 9, 2014, an order granted plaintiff’s motion to serve both

5

Mr. Gupta and defendant with subpoenas and future documents by alternative means, such as e-

6

mail.

7

On June 3, 2014, plaintiff mailed and e-mailed several subpoenas for Mr. Gupta and

testify at a deposition scheduled for July 30, 2014. The document production was due by July 3,

10

2014. Plaintiff also mailed and e-mailed Mr. Gupta and defendant deposition notices for the July

11
For the Northern District of California

defendant to produce documents and other information concerning the company’s assets, and to

9

United States District Court

8

30 date.

12

Neither defendant nor Mr. Gupta produced any documents by July 3, 2014. Nor have

13

plaintiff’s e-mails to Mr. Gupta bounced back or otherwise generated a return message indicating

14

that his e-mail address no longer worked (Pulliam Decl. ¶¶ 10–11). In fact, on July 29, 2014 —

15

the day before the scheduled deposition — Mr. Gupta called plaintiff’s counsel and confirmed

16

that he had received all of the subpoenas (id. ¶¶ 13–18). He also asked during that phone call

17

what the consequences would be if he did not appear for deposition, and stated that he would

18

appear on July 30, 2014, only to produce documents, not for deposition. Later that day at 8:18

19

p.m., Gupta left a phone message with plaintiff’s counsel, stating that he would not appear the

20

next day for purposes of being deposed. He then failed to appear for the deposition, and has

21

since sent only one box of documents to plaintiff. According to plaintiff’s counsel, those

22

documents do not appear to include any corporate or financial records for either defendant or

23

Gupta (id. ¶ 19).

24

In light of the foregoing, Mr. Gupta is hereby ORDERED to produce the following

25

documents in Courtroom 8 on the 19th floor of the United States Courthouse, 450 Golden Gate

26

Avenue, San Francisco, CA 94102, at 8:00 A.M. ON OCTOBER 2, 2014. Please refer to plaintiff’s

27

subpoenas for definitions of words that are used in the following list:

28
2

1

•

All documents constituting, referring to, or relating to any assets of
Acteva, including, without limitation, all deeds, bills of sale, vehicle
registrations and title documents, bank and investment account
statements, accounts receivable lists with aging, ledgers, stock and
bond certificates, membership and partnership agreements and
certificates, appraisals, valuations, offers to purchase or sell any
assets of Acteva, and expressions of interest in purchasing any
assets of Acteva.

•

All documents constituting, referring to, or relating to sources of
income of Acteva.

•

All documents constituting, referring to, or relating to Acteva’s
financial performance.

•

All documents constituting, referring to, or relating to any liabilities
of Acteva, including, without limitation, all accounts and loans
payable lists, promissory notes, mortgages, security agreements,
subordination agreements and other loan documents, and also
including all settlement and forbearance agreements to which
Acteva is a party and copies of all claims, demands, and complaints
against Acteva, including without limitation, all complaints or
demands filed in any judicial or other forum.

•

All documents referring or relating to the finances and/or financial
performance of Acteva, including, without limitation, all audited
and unaudited income and loss statements, balance sheets, cash
flow forecasts and financial statements, and all financial statements
or other financial information and loan applications provided to any
actual or prospective lender or investor or other third-party.

•

All federal, state, and local and any foreign tax returns prepared for
Acteva, whether actually filed or not.

•

All documents constituting, referring to, or relating to any transfer
of assignment or assumption of any of Acteva’s assets or liabilities.

•

All documents constituting, referring to, or relating to any insurance
policies or claims held by Acteva.

•

All documents constituting, referring to, or relating to transactions,
transfers of assets and payments by or between Acteva and one or
more of its officers, directors, shareholders, investors, principals, or
any other person in which any of the foregoing hold an interest,
including, without limitation, family members and corporate
affiliates of any of the foregoing.

•

All documents constituting, referring to, or relating to any transfer
of assets, direct or indirect, by Acteva on or after January 1, 2007.

•

All documents directly or indirectly referring or related to Steve
McCurry Studios, LLC, or any of its officers, directors, employees,
or counsel, or its claims against Acteva.

•

All record and accountings (including, without limitation, drafts of
accountings) related to Steve McCurry Studios LLC’s business

2
3
4
5
6
7
8
9

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For the Northern District of California

United States District Court

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15
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1

relationships with Acteva and/or amounts collected and distributed
by Acteva related to such business relationship and amounts owed
by Acteva related to such business relationship at any time from
and after January 1, 2007[,] to the present.

2
3

This order recognizes that the above is not the exact list as the one provided in plaintiff’s
4
document subpoena (see Dkt. No. 25-3). But the documents bulleted above are what the Court
5
believes are the most reasonable ones to request in these circumstances. Mr. Gupta is thus
6
ORDERED to

bring the documents bulleted above to the hearing at 8:00 A.M. ON OCTOBER 2,

7
2014. Mr. Gupta should also be prepared to stay that entire day so that he may testify as needed
8
at this hearing. The judge will supervise.
9
In the meantime, all requests regarding contempt and attorney’s fees and costs are
10
Gupta that he is entitled to retain a lawyer and may bring a lawyer with him to the hearing.
For the Northern District of California

United States District Court

postponed until the undersigned judge hears Mr. Gupta’s testimony. This order advises Mr.
11
12
Furthermore, defendant will please remember that a corporation or other entity may appear only
13
through counsel. See Civ. L.R. 3-9(b).
14
The United States Marshal shall now serve this order on Mr. Gupta and defendant. To
15
that end, plaintiff’s counsel will assist the United States Marshal in locating Mr. Gupta. Counsel
16
for plaintiff must attend the hearing on October 2, 2014, and be in a position to copy the
17
documents produced at that time. Both sides are warned that the hearing may not be cancelled
18
even by mutual agreement except upon further order of the Court.
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IT IS SO ORDERED.
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Dated: August 21, 2014.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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