Minit Mart LLC v. Synergy Petroleum Enterprises, Inc.
Filing
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ORDER by Judge Thomas S. Hixson granting in part and denying in part 33 Discovery Letter Brief. (tshlc1, COURT STAFF) (Filed on 5/8/2024)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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MINIT MART LLC,
Plaintiff,
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United States District Court
Northern District of California
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Case No. 23-cv-02734-TSH
DISCOVERY ORDER
v.
Re: Dkt. No. 33
SYNERGY PETROLEUM ENTERPRISES,
INC.,
Defendant.
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The parties have filed a joint discovery letter brief concerning Minit Mart’s interrogatories
(“rogs”) 7-10 and 15.
Rog 7 asks Synergy to “[i]dentify all communications by or on behalf of Minit Mart in
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which You contend that Minit Mart made any representation regarding the valuation of the
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Properties, and for each such communication, specify: (1) the exact language of such alleged
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representation; (2) the person(s) who allegedly made such representation: (3) the person(s) to
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whom such alleged representation was allegedly made; (4) the medium of such alleged
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representation (e.g., telephone, email, in person, letter); and (5) the date such representation was
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allegedly made.”
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This is a narrowly focused rog directed to a specific topic, namely, representations
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regarding the valuation of the properties. The detail the rog seeks is therefore appropriate. The
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Court finds that Synergy has not answered this rog. Other than some quoted language in the
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original response to rog 7, Synergy has not provided the exact language of the alleged
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representations. Synergy has also failed to specify the people who made the representations. The
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supplemental rog response says “Minit Mart and its representatives/agents, including Russell
United States District Court
Northern District of California
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Robben and its broker, made false representations regarding the value of the portfolio of properties
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. . .” That just lists Robben as an example and does not provide the names of every individual who
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made representations concerning the value of the properties. Further, as to the people to whom
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such representations were made, the supplemental rog response lists three people by name
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(Alzghoul, Sabahi and Olson) but doesn’t say if they were the only such people. For the examples
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that are listed, the supplemental response sometimes specifies the representations were made in
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phone conversations, but mostly fails to provide the detailed information requested by subpart 4 of
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the rog. And, since only examples of representations are listed, this means the medium of other
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alleged representations is not specified at all. Further, other than a reference to April 2023 (which
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is not a date but more of a date range), the rog response does not specify the dates of the
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representations. The supplemental response concludes by saying that “Responding Party is unsure
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of the dates of such conversations,” but it’s unclear if that refers merely to the preceding sentence
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or all of the conversations. The Court ORDERS Synergy to supplement its response to rog 7
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within 30 days.
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With respect to representations made in email or letter, the Court expects that Synergy
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should be able to provide all the requested information. If Synergy believes an email or letter was
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sent that contained responsive information, but it has since been lost or destroyed and therefore
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Synergy cannot provide all the requested information, then the rog response must state that. For
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representations made in person or on the phone, the Court realizes that the rog response depends
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on human memory. Synergy must interview the appropriate people and provide as much of the
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requested information as it is able to obtain. Importantly, the rog response must provide all the
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requested information that Synergy is able to obtain, and it must say that Synergy has no further
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information available to it. For example, in responding to subpart 2 of rog 7, Synergy must say
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something like: “After diligent investigation, Synergy has identified the following people who
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made such representations, and Synergy is aware of no others,” and then list their names. In other
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words, Synergy isn’t required to know more than it knows after having done a diligent
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investigation, but it is required to conduct a diligent investigation, disclose what it learns as a
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result of that investigation, and then say it doesn’t know anything more than that.
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representations about the stores being open for business and doing well were false, and how they
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were false, and Minit Mart makes a similar argument about the car washes. Minit Mart also says
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that it’s unclear whether Synergy is relying on representations about contract status and
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negotiations. The Court does not think that any of that information is responsive to rog 7. Rog 7
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is limited to representations by Minit Mart concerning the valuation of the properties. Rog 7 does
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not ask Synergy to identify false representations, or to say why they are false; nor does it ask about
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anything other than valuation of the properties.
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United States District Court
Northern District of California
Minit Mart makes additional arguments that Synergy failed to contend that the
Rogs 8, 9, 10 and 15 ask Synergy to “[i]dentify each fact that forms the basis (in whole or
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in part) for” its second (unclean hands), third (estoppel), fourth (waiver) and fifteenth (fraud)
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affirmative defenses. Although the rog asks for “each fact” that supports each defense, the Court
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thinks that the level of detail required of Synergy requires a practical analysis. For rogs 8, 9 and
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10, Synergy’s existing responses make clear what its unclean hands, estoppel and waiver defenses
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are. The responses identify the conduct that forms the basis for each defense and provide some
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examples of specific actions in conformity with that conduct. That’s good enough for these
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affirmative defenses.
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But the existing response to rog 15 does not disclose what Synergy’s fraud defense is.
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Like the response to rog 7, the response to rog 15 describes generalized conduct and lists some
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examples of representations. That’s not a fraud defense. It doesn’t matter that the response to rog
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15 is basically the same as the responses to rogs 8, 9 and 10, which the Court has deemed
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adequate. The Court’s practical analysis must take into account that fraud must be pled with
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particularity. See Fed. R. Civ. Proc. 9(b). Between the one-sentence-long fifteenth affirmative
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defense in the Answer and the existing response to rog 15, there is no particularity to this fraud
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defense. Synergy has not provided the “who, what, where and when” for its fraud claim. As with
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rog 7, the Court understands the limits of human memory, but Synergy’s current response to rog
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15 is too generalized and vague to describe a fraud defense. Accordingly, the Court ORDERS
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Synergy to supplement its response to rog 15 within 30 days.
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In sum, the Court GRANTS Minit Mart’s motion to compel as to rogs 7 and 15 and
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DENIES it as to rogs 8, 9 and 10.
IT IS SO ORDERED.
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Dated: May 8, 2024
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THOMAS S. HIXSON
United States Magistrate Judge
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United States District Court
Northern District of California
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