Newmark Realty Capital, Inc. v. BGC Partners, Inc. et al

Filing 357

ORDER ON 353 STATEMENT RE PLAINTIFF'S RESPONSES TO REVISED SECOND SET OF REQUESTS FOR ADMISSIONS. Signed by Magistrate Judge Susan van Keulen on 5/11/2018. (ofr, COURT STAFF) (Filed on 5/11/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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NEWMARK REALTY CAPITAL, INC.,
Plaintiff,

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United States District Court
Northern District of California

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Case No.16-cv-01702-BLF (SVK)

v.
BGC PARTNERS, INC., et al.,
Defendants.

ORDER ON STATEMENT RE
PLAINTIFF'S RESPONSES TO
REVISED SECOND SET OF REQUESTS
FOR ADMISSIONS
Dkt. No. 353

Before the Court is the statement submitted by Defendants regarding Plaintiff’s responses

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to Defendants’ Second Set of Requests for Admission, as revised pursuant to the Court’s order

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dated May 7, 2018 (ECF 343), as well as a declaration submitted by Plaintiff regarding this

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dispute. ECF 353, 355. The Court ORDERS as follows:

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Request for
Admission
167: Admit that
NRC did not
purchase any
Google AdWords
before 2014.

Plaintiff’s
Response
Plaintiff has
conducted a
reasonable and
diligent
investigation and
the information it
knows or can
readily obtain is
insufficient to
enable it to admit or
deny this request.

Defendants’
Position
Defendant does
not believe
Plaintiff has
conducted a
“reasonable and
diligent”
investigation.
Google AdWords
are purchased
through Google.
Plaintiff has access
to its Google
AdWords history,
would show all
keywords Plaintiff
has ever bid on,
including the first
time it bid on
them. Plaintiff
need only review
its own AdWords
history to

Proposed
Compromises
Plaintiff’s
position:
Plaintiff does
not believe a
compromise is
appropriate.
Plaintiff’s
principals are
not aware of
ever purchasing
AdWords. They
hired a third
party for various
marketing
purposes.

Order
Response is
adequate.

determine whether
it purchased
keywords before
2014. Plaintiff has
not produced its
complete Google
AdWords data (in
spite of
Defendants’
discovery requests
and Plaintiff’s
promise to do so);
a proper answer to
this RFA is
important to
establish the fact
that Plaintiff did
not purchase
AdWords prior to
2014.

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United States District Court
Northern District of California

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169: Admit that
N&CO.’s attorney
wrote to NRC’s
attorney at
Sheppard, Mullin,
Richter &
Hampton LLP in
July 17, 2001,
stating that
“Newmark has
used the trademark
NEWMARK in
connection with
real estate
brokerage for
almost 50 years,
and has offered
certain financial
services, including
financing (e.g.
private
placements) and
mortgage
brokerage, in the
real estate field
since at least as
early as 1988.”

Plaintiff denies that
the letter states the
single comment
quoted in the
Request. It states
much more,
including that
Defendant wanted
to enter into a
coexistence
agreement whereby
Defendant would
agree not to use or
register
NEWMARK with
mortgage banking
or loan servicing,
and Plaintiff would
refrain from using
or registering
NEWMARK with
real estate
brokerage, real
estate management,
construction and
telecommunication
services.

Plaintiff’s
response is written
as a complete
denial, but it is
really a qualified
admission.
Plaintiff should
indicate, unless it
has a basis to deny
as much, that
N&CO’s attorney
wrote a letter
stating the quoted
language, and it
may qualify that
admission by
saying the letter
included additional
statements. But an
outright denial is
not appropriate
here.

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Plaintiff’s
position:
Plaintiff does
not believe a
compromise is
appropriate
because Plaintiff
used the exact
same language
from
defendants’
RFA responses,
which
defendants have
aggressively
defended.
Defendants
responses,
served Dec. 1,
2017, regarding
the exact same
letter read:
“[Defendant]
denies that the
letter ‘states’ the
single comment
quoted in the
Request. It states
much more,

Response is
an admission
as to
authentication
and receipt of
the document
only.
As such, the
parties may
each use the
letter as
evidence of
factual bases
for their
respective
arguments.

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170: Admit that
following receipt
of the July 17,
2001 letter from
N&CO.’s attorney
(referenced in
RFA No. __
above), NRC did
not conduct any
investigation to
determine whether
N&CO. was, in
fact, offering
“certain financial
services, including
financing . . . and
mortgage
brokerage.”

Plaintiff has
conducted a
reasonable and
diligent
investigation and
the information it
knows or can
readily obtain is
insufficient to
enable it to admit or
deny this request.

United States District Court
Northern District of California

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172: Admit that, as Denied.
of October 22,
2001 (when
NRC’s counsel at
Sheppard, Mullin,
Richter &
Hampton LLP
responded to a
September 21,
2001 letter from
N&CO.’s

Plaintiff did not
conduct a
“reasonable or
diligent”
investigation.
Either it has record
of an investigation,
or it does not. Its
principal, Michael
Heagerty, was
Plaintiff’s point
person for the
correspondence
between the
parties. It is not
credible for him to
claim not to know
whether he
conducted any
investigation into
N & Co.’s
services. Based on
his deposition
testimony,
Defendants are
unaware of any
other principal that
would have
conducted an
investigation. This
is relevant because
a reasonable
investigation
would have
revealed that N &
Co. was offering
financing services,
including
mortgage
brokerage
services. Plaintiff
must admit or
deny this RFA.
Plaintiff produced
the letter in
discovery, and it
includes the
quoted language.
Plaintiff has no
basis to deny this
RFA. If the Court
denies Defendants’
request for
Plaintiff to
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including that
…”
Plaintiff’s
Response is
adequate.
position:
Plaintiff does
not believe a
compromise is
appropriate. Mr.
Heagerty does
not recall
conducting “any
investigation to
determine
whether N&CO.
was, in fact,
offering certain
financial
services,
including
financing . . .
and mortgage
brokerage”
“following
receipt of the
July 17, 2001
letter,” which
was over 17
years ago. The
Court previously
recognized that
it was
reasonable for
Plaintiff not to
recall events that
allegedly
occurred many
years ago, and in
this case, nearly
two decades
ago.

Response is
adequate.
Nothing in
the Court’s
orders
restricts the
parties’ rights
under Fed. R.
Civ. P. 36, 37
should, in the

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Northern District of California

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counsel), NRC
stated that N&CO.
could use
NEWMARK for
mortgage
brokerage services
in the “Eastern
half of the United
States.”

supplement this
response,
Defendants request
the Court do so
without prejudice
to Defendants’
ability to seek fees
pursuant to Fed. R.
Civ. P. 36 and 37
when Defendants
establish that the
RFA was
improperly denied.

future, a
response be
demonstrated
to be
improper.

Defendants
intended to include
the letter as an
attachment to this
chart, but at 10:35
a.m. refused to
allow Defendants
to jointly file the
chart if the letter
was attached.
Defendants seek
leave of the Court
to provide the
attachments.
173: Admit that,
See discussion of
Plaintiff’s
Response is
Plaintiff has
adequate.
from September
RFA No. 170,
position:
conducted a
21, 2001 (the date reasonable and
applicable here.
Plaintiff does
of the letter NRC’s
not believe a
diligent
counsel received
compromise is
investigation and
from N&CO.’s
appropriate. Mr.
counsel) to the end the information it
Heagerty does
of 2002, NRC did knows or can
not recall
not conduct any
conducting “any
readily obtain is
investigation to
investigation to
insufficient to
determine whether enable it to admit or
determine
N&CO. was, in
whether N&CO.
deny this request.
fact, offering
was, in fact,
mortgage
offering
brokerage
mortgage
services.
brokerage
services” from
September 21,
2001 to the end
of 2002,” which
was
approximately
16-17 years ago.
The Court
previously
recognized that
it was
reasonable for
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174: Admit that
N&CO.’s attorney
wrote to Michelle
Kahn of Sheppard,
Mullin, Richter &
Hampton LLP on
January 31, 2006,
and attached a coexistence
agreement that
included the
following
language: “NCRE
[Newmark & Co.
Real Estate, Inc.]
is a commercial
real estate services
company,
providing, inter
alia, the following
services” and
listed, in part,
“investment sales
and financial
services, namely,
debt and equity
financing,
merchant banking,
and financial
analysis and
consulting
services.”

Denied.

Plaintiff not to
recall events that
allegedly
occurred many
years ago, and in
this case, nearly
two decades
ago.
Defendants
Plaintiff claims
provide the Court
it denied the
with a copy of the RFA because it
referenced January included an
31, 2006 letter and extra “and” in
co-existence
the quoted
agreement
language.
attachment. The
Plaintiff agrees
co-existence
to supplement its
agreement
response to
includes the
admit the RFA if
quoted language.
Defendant
Plaintiff has no
agrees to serve a
basis to deny this
revised RFA.
RFA. If the Court Defendant does
denies Defendants’ not believe
request for
serving a new
Plaintiff to
RFA is
supplement this
necessary and
response,
Plaintiff should
Defendants request be able to
the Court do so
supplement its
without prejudice
response
immediately.
to Defendants’
ability to seek fees
pursuant to Fed. R. Plaintiff’s
Civ. P. 36 and 37
position:
when Defendants
Defendants
establish that the
misquoted the
RFA was
subject coimproperly denied. existence
agreement and
Defendants
Plaintiff has no
intended to include obligation to
the letter as an
admit a
attachment to this
misquote.
chart, but at 10:35 Plaintiff offered
a.m. refused to
to supplement its
allow Defendants
response if
to jointly file the
defendants
chart if the letter
would amend
was attached.
the RFA to
Defendants seek
correct the
leave of the Court misquote.
to provide the
Defendants
refused.
attachments.

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Defendant is
to provide a
corrected
RFA by 5:00
p.m. today,
May 11,
2018, and
Plaintiff is to
respond with
an
unqualified
admission by
noon on May
14, 2018.
The Court
does not
expect to see
this form of
dispute from
the parties'
respective
meet and
confer
leaders. If
this level of
lack of
cooperation
continues, the
Court will
sanction both
parties.

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Northern District of California

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175: Admit that
following receipt
of the January 31,
2006 letter and
attachment from
N&CO.’s counsel
and through the
end of 2006, NRC
did not conduct
any investigation
to determine
whether N&CO.
was, in fact,
offering
“investment sales
and financial
services, namely,
debt and equity
financing
services.”

See discussion of
Plaintiff has
RFA No. 170,
conducted a
applicable here.
reasonable and
diligent
investigation and
the information it
knows or can
readily obtain is
insufficient to
enable it to admit or
deny this request.

176: Admit that
after the U.S.
Patent and
Trademark Office
issued a federal
trademark
registration to
N&CO. on May
20, 2008 for the
mark NEWMARK
KNIGHT

Plaintiff has
conducted a
reasonable and
diligent
investigation and
the information it
knows or can
readily obtain is
insufficient to

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See discussion of
RFA No. 170,
applicable here.

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Plaintiff’s
position:
Plaintiff does
not believe a
compromise is
appropriate. Mr.
Heagerty does
not recall
conducting “any
investigation to
determine
whether N&CO.
was, in fact,
offering
‘investment
sales and
financial
services,
namely, debt
and equity
financing
services’”
“following
receipt of the
January 31,
2006 letter and
attachment from
N&CO.’s
counsel and
through the end
of 2006,” which
was over a
decade ago. The
Court previously
recognized that
it was
reasonable for
Plaintiff not to
recall events that
allegedly
occurred many
years ago, and in
this case, over a
decade ago.
Plaintiff’s
position:
Plaintiff does
not believe a
compromise is
appropriate. Mr.
Heagerty does
not recall
conducting “any
investigation to
determine

Response is
adequate.

Response is
adequate.

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FRANK, which
covered in part
“investment sales
and financial
services, namely,
debt and equity
financing,” NRC
did not conduct
any investigation
to determine
whether N&CO.
was, in fact,
offering “debt and
equity financing.”

enable it to admit or
deny this request.

177: Admit that, in
1991, one or more
of NRC’s founders
were aware of the
New America
Network.

Plaintiff has
conducted a
reasonable and
diligent
investigation and
the information it
knows or can
readily obtain is
insufficient to
enable it to admit or
deny this request.

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Northern District of California

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Defendants
question whether
and how Plaintiff
conducted a
reasonable and
diligent
investigation. As
Defendants
understand it,
Plaintiff was
founded by three
individuals.
Plaintiff should
ask those
individuals
whether they were
aware of the New
America Network
(of which
Defendant
Newmark & Co.
was a member).

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whether N&CO.
was, in fact,
offering ‘debt
and equity
financing.’”
“after the U.S.
Patent and
Trademark
Office issued a
federal
trademark
registration to
N&CO. on May
20, 2008,”
which was over
a decade ago.
The Court
previously
recognized that
it was
reasonable for
Plaintiff not to
recall events that
allegedly
occurred many
years ago, and in
this case, over a
decade ago.
Plaintiff’s
Response is
position:
adequate.
Plaintiff does
not believe a
compromise is
appropriate.
Plaintiff
interviewed two
of its founders
(the third is no
longer with the
company), and
neither of them
could recall their
awareness from
twenty seven
years ago. The
Court previously
recognized that
it was
reasonable for
Plaintiff not to
recall events that
allegedly
occurred many
years ago, and in
this case, nearly
three decades

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180: Admit that, in
March 2012,
NRC’s Eric Von
Berg and Tom
Dao received a
financing proposal
from N&CO.’s
Ben Bullock
related to Menlo
Equities.

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Northern District of California

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181: Admit that
N&CO.’s Ben
Bullock’s
representation of
Menlo Equities is
an example of
N&CO. providing
mortgage banking
services.

Defendants
question whether
and how Plaintiff
conducted a
reasonable and
diligent
investigation. In
this instance,
Defendants
provided the
financial proposal
to Plaintiff and the
Court. See Dkt.
239, Ex. 15.
Plaintiff is well
aware of this
document, has
easy access to it,
and it is unclear
how its
investigation does
not allow it to
admit or deny the
request.
Defendants should
not have to depose
Mr. Dao and Mr.
Von Berg to
confirm that they
received the
financing
proposal, when
their appear on the
email chain. The
RFA will limit the
need to dispute
this inarguable
issue. Plaintiff
must admit or
deny the RFA.
RFA 181 is a
Plaintiff is unable
follow-on to RFA
to determine the
180, which
meaning of
identifies the
“mortgage banking Menlo Equities
services” as used by engagement.
Defendants in this
request and
Plaintiff should
Plaintiff has
interpret
“mortgage banking
insufficient
services” under its
information to
commonlyadmit or deny this
understood
request.
meaning and
respond to the
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Plaintiff has
conducted a
reasonable and
diligent
investigation and
the information it
knows or can
readily obtain is
insufficient to
enable it to admit or
deny this request.

ago.
Plaintiff’s
position:
Plaintiff offered
to supplement its
response to deny
this request.
Neither Mr. Dao
nor Mr. Von
Berg thought of
Mr. Bullock as
being
“N&Co.’s.”
Rather, they
believed Mr.
Bullock was
employed by
Cornish &
Carey.

Defendant
may re-serve
the RFA
without
reference to
“N&Co’s”
and Plaintiff
will respond
with an
unqualified
admission.
Alternatively,
Defendant
may accept
an
unqualified
denial from
Plaintiff to
the RFA as
written.
Defendant
will inform
Plaintiff of its
selection by
5:00 p.m.
today, May
11, 2018, and
Plaintiff will
serve its
supplemental
response by
noon on May
14, 2018.

Defendants’
proposal: For
the purposes of
this request, and
to avoid any
dispute, Plaintiff
should interpret
“mortgage
banking
services” as it
uses the term on
its website,
which is that
mortgage
banking is the

Defendant is
not obligated
to make any
change to this
RFA.
Plaintiff to
serve its
supplemental
response by
noon on May
14, 2018.

RFA based on that
understanding,
which seems to be
what it did in
response to RFA
No. 183.

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Plaintiff agrees
to supplement its
response to this
RFA, though
cannot confirm
when it will do
so.

United States District Court
Northern District of California

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arranging for
funding for for
commercial
properties and
property
portfolios. If
Plaintiff objects
to this definition
of “mortgage
banking,” then
Defendants ask
that it admit or
deny the RFA
using the above
language in
place of
“mortgage
banking
services.”

182: Admit that
NRC showed to
ING the financing
proposal NRC
received from
N&CO. regarding
Menlo Equities.

Plaintiff’s
position:
Plaintiff agrees
to supplement its
response based
on the definition
defendants
proposed for the
first time this
morning.
Defendants
Plaintiff’s
Response is
Plaintiff has
question whether
proposal:
adequate.
conducted a
and how Plaintiff
Plaintiff does
reasonable and
conducted a
not believe a
diligent
reasonable and
compromise is
investigation and
diligent
appropriate.
the information it
investigation.
Plaintiff
knows or can
Either Tom Dao or conducted a
Eric Von Berg
reasonable
readily obtain is
would have
investigation,
insufficient to
emailed indicating including
enable it to admit or
whether the above- interviewing
deny this request.
described proposal both Tom Dao
was shown or sent and Eric Von
to ING (a financial Berg and neither
institution).
of them recall
whether they
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United States District Court
Northern District of California

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183: Admit that
NRC was aware in
2011 that Cornish
& Carey
Commercial
offered mortgage
banking services.

Plaintiff is unable
to determine the
meaning of
“mortgage banking
services” as used by
Defendants in this
request and
Plaintiff has
insufficient
information to
admit or deny this
request.

Plaintiff must
admit or deny this
RFA without
basing the denial
on an objection to
the meaning of a
particular term,
especially given
the proposed
compromise.

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ever “showed to
ING the
financing
proposal NRC
received from
N&Co,
regarding Menlo
Equities.”
Defendants’
proposal: For
the purposes of
this request, and
to avoid any
dispute, Plaintiff
should interpret
“mortgage
banking
services” as it
uses the term on
its website,
which is that
mortgage
banking is the
arranging for
funding for for
commercial
properties and
property
portfolios. If
Plaintiff objects
to this definition
of “mortgage
banking,” then
Defendants ask
that it admit or
deny the RFA
using the above
language in
place of
“mortgage
banking
services.”
Plaintiff agrees
to supplement its
response to this
RFA, though
cannot confirm
when it will do
so.

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Plaintiff’s
position:
Plaintiff agrees
to supplement its

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Plaintiff to
serve its
supplemental
response by
noon on May
14, 2018.

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Northern District of California

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response based
on the definition
defendants
proposed for the
first time this
morning.
185: Admit that
It does not appear Plaintiff’s
Response is
Plaintiff has
NRC received a
that Plaintiff
position:
adequate.
conducted a
digital copy of
conducted a
Plaintiff does
reasonable and
Real Estate Alert’s
reasonable and
not believe a
diligent
July 20, 2011
diligent search.
compromise is
investigation and
issue, which
Defendant
appropriate.
the information it
reported that
produced a copy of Plaintiff
Newmark Knight
knows or can
the article in
conducted a
Frank was the “top readily obtain is
question to
reasonable and
brokerage” of
Plaintiff. Plaintiff diligent
insufficient to
office property
investigation,
enable it to admit or knows who at its
sales in San Jose
firm receives a
including
deny this request.
/Silicon Valley in
subscription to the interviewing 10
the first half of
Real Estate Alert
principals, none
2011.
publication, and
of which
should inquire
remembered
whether those
ever receiving or
within Plaintiff
reading the
who received the
subject article
Real Estate Alert
seven years ago,
publication
or any time
received this
since then.
particular edition.
186: Admit that, in Plaintiff has
Plaintiff did not
Plaintiff’s
Plaintiff is to
2009, Jamie Dick
conduct a
position:
either admit
conducted a
of Newmark
reasonable and
Plaintiff does
or deny.
reasonable and
Realty Capital
diligent search.
not believe that
Plaintiff is to
diligent
worked in the
As with several of a compromise is serve its
investigation and
same building as
the other RFAs,
appropriate.
supplemental
the information it
James Sladack of
Defendants
Jamie Dick is no response by
knows or can
Newmark Knight
produced in
longer employed noon on May
Frank.
discovery (see
by Plaintiff. As 14, 2018.
readily obtain is
NCRE00194895the Court
insufficient to
96, attached) an
previously
enable it to admit or
email chain in
recognized,
deny this request.
which the sender
Plaintiff is
notes that Messers. unable to admit
Dick and Sladack
a fact that is
“work in the same within the
building.”
knowledge of a
Plaintiff is in a
third party.
position to know
whether both
worked in the
same building,
especially since
Mr. Dick noted he
would “stop by
and say hi.”
Defendants
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intended to include
the letter as an
attachment to this
chart, but at 10:35
a.m. refused to
allow Defendants
to jointly file the
chart if the letter
was attached.
Defendants seek
leave of the Court
to provide the
attachments.
See RFA No. 186. Plaintiff’s
187: Admit that, in Plaintiff has
2009, James
position:
conducted a
Sladack of
Plaintiff does
Unless Plaintiff
reasonable and
Newmark Knight
not believe a
denies receiving
diligent
Frank sent an
the email chain in compromise is
investigation and
email copying
appropriate.
discovery, it did
the information it
Jamie Dick of
This document,
not conduct a
Newmark Realty
knows or can
reasonable search. which
Capital in which
defendants
readily obtain is
he stated that he
raised for the
insufficient to
Plaintiff must
was “with the real enable it to admit or admit or deny this first time this
Newmark” and
morning, was
RFA.
deny this request.
that Jamie Dick
produced by
was “with a
defendants, not
different company
Plaintiff. As
that’s appropriated
Jamie Dick is no
our company
longer with
name.”
Plaintiff,
Plaintiff is
unable to admit
or deny this
request.

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Plaintiff is to
admit the
authenticity
and receipt of
the document.
In the
unlikely
event that
Plaintiff
disputes the
authenticity,
it may submit
factual
support for its
position to
the Court.
Note, that the
fact that the
email was
created by
Defendant is
not, by itself,
adequate
grounds to
question
authenticity
in this
instance.
Plaintiff’s
supplemental
response or
submission to
the Court is
to be served
by noon on
May 14,
2018.

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Genuineness
Requests For
Admission
190: Admit that
NRC’s Mark
Ritchie attached a
copy of Exhibit 1,
titled “Newmark
Realty Capital
Research
Summary,” to his
May 17, 2013
email to Looking
Design, copying
NRC’s Michael
Heagerty.

This Request is
improper because it
is not “asking
Plaintiff to admit or
deny the
genuineness of any
complete document
(not portions of
documents),”
pursuant to the
Court’s Order (Dkt.
343 at 1), and must
be withdrawn.
Further, Defendants
failed to attach as
an exhibit the
referenced May 17,
2013 email which
was allegedly sent
approximately five
years ago, and
Plaintiff is unable
to admit or deny
this request.

Defendants wish
to avoid any later
dispute that the
email from Mr.
Ritchie to the
branding firm
“Looking Glass,”
copying Mr.
Heagerty, and
attaching Exhibit 1
is a genuine email
sent by Mr.
Ritchie.

Defendants’
Improper
proposal:
request.
Defendants have
provided the
email to
Plaintiff.
Plaintiff has no
basis to refuse to
respond to the
RFA.
Defendants
intended to
include the letter
as an attachment
to this chart, but
at 10:35 a.m.
refused to allow
Defendants to
jointly file the
chart if the letter
was attached.
Defendants seek
leave of the
Court to provide
the attachments.
Plaintiff’s
position:
Plaintiff does
not believe a
compromise is
appropriate.
Where
defendants
RFAs requested
an admission as
to the
genuineness of a
document,
Plaintiff duly
responded and
authenticated
such document.
(See,e.g., Resp
to RFA Nos.
189, 191-193.)
This request was
defendants’
improper
attempt to
circumvent the
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194: Admit that
Exhibit 5 attached
hereto is a true and
correct copy of a
document entitled
“Real Estate
Financial
Intermediaries”
that was prepared
by Mark Ritchie of
NRC.

Denied. The
original document
in Exhibit 5 that
was prepared by
Mark Ritchie is
entitled “RECos,”
which stands for
“Real Estate
Companies,” and it
includes a list of
real estate financial
intermediaries as
well as national real
estate services
companies not in
finance, such as
Newmark Grubb
Knight Frank.

Exhibit 5,
referenced in the
RFA, is attached
for the Court’s
review. It is
entitled “Real
Estate Financial
Intermediaries” It
is unclear why
Plaintiff is
renaming it or
denying the
request. Plaintiff
should admit that
this is a document
prepared by Mark
Ritchie of NRC
(Plaintiff) and if it
wishes to qualify it
by, for example,
saying that the
“file name” is
different from the
title in the
document itself, it
may do so.

limitation on
RFAs.
Defendants
provided the
subject
document for the
first time this
morning.
Defendants’
proposal: If
Plaintiff wants
to admit that the
document is a
true and correct
copy of a
document
prepared by
Plaintiff’s Mark
Ritchie bearing
the “heading”
“Real Estate
Financial
Intermediaries”
and its entitled
“RECos,” it may
do so.

Plaintiff’s
position:
Defendants’
compromise is
not appropriate.
It is not
appropriate or
acceptable for
Defendants also
Defendants to
ask the Court to
re-write their
strike Plaintiff’s
request to force
superfluous
Plaintiff to make
argument that the
a statement that
document
is not true.
describes “national Defendants are
real estate services trying to force
companies not in
an improper
finance, such as
admission from
Newmark Grubb
Plaintiff in order
Knight Frank” as
to make an
that has nothing to argument that
do with the RFA.
Plaintiff
considered
If the Court denies “Newmark
Grubb knight
Defendants’
Frank” to be a
request for
financial
Plaintiff to
intermediary,
supplement this
which is not true
14

Plaintiff to
admit or deny
that the
document
identified as
Exhibit 5 was
prepared by
Mark Ritchie
of NRC.
The parties’
respective
positions
regarding the
title of the
document and
its contents or
purpose are
arguments for
motions
and/or trial.
Plaintiff’s
supplemental
response is to
be served by
noon on May
14, 2018.

response,
Defendants request
the Court do so
without prejudice
to Defendants’
ability to seek fees
pursuant to Fed. R.
Civ. P. 36 and 37
when Defendants
establish that the
RFA was
improperly denied.

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and not an
accurate
inference to
make from the
document.

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SO ORDERED.
Dated: May 11, 2018

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United States District Court
Northern District of California

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SUSAN VAN KEULEN
United States Magistrate Judge

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