Bruce Kirby, Inc. et al v. LaserPerformance (Europe) Limited et al

Filing 693

RULING. For the reasons stated in the attached Ruling, the Court GRANTS, in part, and DENIES, in part, Dory Ventures, LLC's 660 Motion to Quash, as narrowed by the parties' 692 September 10, 2021, Joint Statement Regarding Discovery. Signed by Judge Sarah A. L. Merriam on 10/4/2021. (Katz, S.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
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:
BRUCE KIRBY, INC., et al.
:
:
v.
:
:
LASERPERFORMANCE (EUROPE)
:
LIMITED, et al.
:
:
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Civ. No. 3:13CV00297(JAM)

October 4, 2021

RULING ON DORY VENTURES, LLC’S MOTION TO QUASH [Doc. #660]
Non-party Dory Ventures, LLC (hereinafter “Dory”) 1 has filed
a Motion to Quash the subpoena issued to it by plaintiffs Bruce
Kirby, Inc. and Bruce Kirby (collectively the “plaintiffs”).
[Doc. #660]. Plaintiffs have filed an opposition to the motion
to quash [Doc. #674],2 to which Dory has filed a reply. [Doc.
#679]. On July 9, 2021, with leave of Court, plaintiffs filed a

Although Dory emphasizes that it is a non-party to this action,
and that is now true, it was named as a defendant in an action
brought by Global Sailing Limited (“GSL”), see Doc. #329, which
was consolidated into the present case, see Doc. #321. GSL’s
amended complaint alleged that Dory controls defendants
LaserPerformance (Europe) Ltd. and Quarter Moon, Inc. See Doc.
#329 at 5, ¶8. Dory filed a motion to dismiss on December 18,
2017 [Doc. #341], which Judge Jeffrey A. Meyer granted on July
27, 2018 [Doc. #366].
1

Plaintiffs filed their opposition on June 10, 2021, after the
Court granted two unopposed motions to extend the response
deadline. See Docs. #665, #668.
2

1

sur-reply memorandum. [Doc. #687]. 3 Judge Meyer has referred
Dory’s motion to the undersigned. See Doc. #661.
For the reasons stated below, the Court GRANTS, in part,
and DENIES, in part, the Motion to Quash [Doc. #660], as
narrowed by the parties’ September 10, 2021, Joint Statement
Regarding Discovery [Doc. #692].
A.

Background
The Court presumes familiarity with the procedural and

factual background of this matter, which Judge Meyer detailed in
his Order re Post-Trial Motions, and other rulings in this case.
See Bruce Kirby, Inc. v. LaserPerformance (Eur.) Ltd., No.
3:13CV00297(JAM), 2021 WL 328632, at *1-*5 (D. Conn. Feb. 1,
2021); see also id. at *1 n.1 (citing prior rulings).
This case is now post-judgment and pending appeal. See
Docs. #652, #655, #657.4 Plaintiffs allege that defendants

Dory filed a response to plaintiffs’ motion seeking leave to
file a further sur-reply memorandum. See Doc. #685. As stated in
the Court’s July 9, 2021, Order, the Court will consider the
information contained in that document when considering the
merits of the pending motion to quash. See Doc. #686.
3

Defendants have not obtained a stay of execution of the
judgment pending appeal. See Fed. R. Civ. P. 62(b); Rand-Whitney
Containerboard Ltd. P’ship v. Town of Montville, No.
3:96CV00413(HBF), 2007 WL 9754714, at *1 (D. Conn. Jan. 23,
2007) (“Rule 62(d) provides for an automatic stay of a final
judgment once the appellant has posted a supersedeas bond in an
amount approved by the court.”). The pendency of the appeal does
not divest the Court of jurisdiction to dispose of the motion to
quash. See, e.g., Arrowhead Cap. Fin., Ltd. v. Seven Arts Ent.,
Inc., No. 14CV06512(KPF), 2017 WL 3394604, at *6 (S.D.N.Y. Aug.
4

2

Quarter Moon, Inc. (“QMI”) and LaserPerformance (Europe) Ltd.
(“LPE”) (hereinafter QMI and LPE are collectively referred to as
“defendants”) have failed to pay any portion of the combined
$5.38 million judgment entered in favor of plaintiffs on
February 2, 2021. See Doc. #674 at 5. 5
Pursuant to Rule 69 of the Federal Rules of Civil
Procedure, plaintiffs have commenced discovery in aid of
executing the judgment. On March 19, 2021, plaintiffs issued a
subpoena to Dory commanding it to produce 27 categories of
documents by April 5, 2021. See generally Doc. #660-1. Dory
originally moved to quash that subpoena on the grounds that the
subpoena: (1) does not provide for a reasonable time to comply;
and (2) is unduly burdensome. See generally Doc. #660-2.
On May 19, 2021, after several failed meet-and-confer
efforts, see Docs. #662, #667, Dory responded to the document
requests contained in the subpoena, objecting to each of the 27
requests. See Docs. #674-2, #679 at 7-18. On June 10, 2021,
plaintiffs filed an opposition to Dory’s motion to quash

8, 2017) (“The Court is permitted to grant Plaintiff relief
pursuant to Rule 69 notwithstanding Defendants’ appeal. It is
well-established that federal courts have the authority to
enforce their judgments, and retain jurisdiction over
supplementary proceedings to do so.” (citation and quotation
marks omitted)).
Throughout this ruling, the Court refers to the page citations
contained in the cited documents’ ECF header.
5

3

contending, in pertinent part, that Dory has failed to sustain
its burden of establishing that responding to the document
requests would pose an undue burden. See generally Doc. #674.
The Court held a telephonic discovery status conference on
August 20, 2021, at which counsel for Dory and counsel for
plaintiffs appeared. See Doc. #691. At the conclusion of that
conference, the Court ordered the parties to make additional
efforts to resolve their disputes. The Court further ordered
that by September 10, 2021, plaintiffs and Dory “file a joint
notice on the docket stating which, if any, discovery requests
have been resolved by agreement.” Doc. #690. Plaintiffs and Dory
timely filed the joint notice on September 10, 2021 (hereinafter
the “Joint Notice”). See Doc. #692. Although the Joint Notice is
somewhat unclear, it appears that Dory and plaintiffs have
narrowed the instant dispute to: (1) the appropriate temporal
scope of the document requests; (2) the proper definitions of
certain entities; and (3) the substantive scope of certain
document requests. See id. at 1-8.
B.

Legal Standard
“In aid of the judgment or execution, the judgment creditor

... may obtain discovery from any person ... as provided in
these rules or by the procedure of the state where the court is
located.” Fed. R. Civ. P. 69(a)(2); see also Phoenix Bulk
Carriers (BVI), Ltd. v. Triorient, LLC, No. 20CV00936(JGK)(RWL),
4

2021 WL 621226, at *2 (S.D.N.Y. Feb. 17, 2021) (“As the rule
expressly recognizes, discovery in aid of enforcement may be
sought against ‘any person,’ including non-parties.”). “[B]road
post-judgment discovery in aid of execution is the norm in
federal ... courts.” EM Ltd. v. Republic of Argentina, 695 F.3d
201, 207 (2d Cir. 2012), aff’d sub nom. Republic of Argentina v.
NML Cap., Ltd., 573 U.S. 134 (2014); Universitas Educ., LLC v.
Nova Grp., Inc., No. 11CV01590(LTS)(HBP), 2013 WL 57892, at *8
(S.D.N.Y. Jan. 4, 2013) (“Judgment creditors are given a wide
berth in discovery under Rule 69 to locate and identify the
judgment debtor’s assets.”).
“The scope of discovery under Rule 69(a)(2) is constrained
principally in that it must be calculated to assist in
collecting on a judgment.” EM Ltd., 695 F.3d at 207. “Discovery
sought pursuant to Rule 69, therefore, must relate to the
existence or transfer of a judgment debtor’s assets.” Allstate
Ins. Co. v. Mirvis, No. 08CV04405(SLT)(PK), 2017 WL 384318, at
*1 (E.D.N.Y. Jan. 25, 2017) (citation and quotation marks
omitted); see also Nova Grp., 2013 WL 57892 at *6 (“Because the
scope of Rule 69 discovery includes any information reasonably
calculated to lead to the discovery of a judgement debtor’s
assets, it may necessarily be aimed at non-parties who have
information, including financial records, related to those
assets.”). With respect to non-parties specifically, “post5

judgment discovery ... is limited to a search for the judgment
debtor’s hidden assets.” Triorient, 2021 WL 621226, at *3
(citation and quotation marks omitted).
C.

Discussion
Despite the parties’ efforts to amicably resolve the

instant dispute, the following issues remain for the Court’s
consideration: (1) the appropriate temporal scope for the
document requests; (2) the appropriate scope of the definitions
for certain terms; and (3) the appropriate substantive scope of
requests 1-10, 13, and 16-17. See generally Doc. #692.
Plaintiffs also raise an issue with respect to the nature of
Dory’s production to date. See id. at 7. The Court addresses
each issue in turn.
1.

Temporal Scope of Requests

The document requests in the original subpoena seek
documents dating from February 1, 2011, to the present. See
generally Doc. #674-2. In their original briefing, plaintiffs
contend that this time “period is linked to the facts of this
case – infringing sales of QMI and LPE were found to have
started in February 2011 – the same period in the requests[.]”
Doc. #674 at 14. Dory responds, in pertinent part, that the time
frame requested does not assist plaintiffs “in collecting a
judgment today[,]” and “exceeds any applicable lookback period
for any fraudulent transfer action.” Doc. #679 at 3.
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In the Joint Notice, Dory represents that it “has provided
the Plaintiffs with a supplemental discovery response dated
August 19, 2021 which includes documents and responses from Dory
for the period January 1, 2015 to the present[.]” Doc. #692 at 1
(sic). Plaintiffs, however, maintain the position that the
“proposed time period for discovery from at least 2011 should be
adopted because Kirby’s proposed time period is anchored in the
facts of this case, when Defendants and judgment debtors[] ...
stopped paying royalties in 2011.” Id. at 5.
Now that this matter is post-judgment, the facts of the
underlying case do not entirely control the temporal scope of
the requests. Rather, discovery under Rule 69 is limited to the
judgment debtors’ income and property, and/or hidden assets. See
EM Ltd., 695 F.3d at 207; Triorient, 2021 WL 621226, at *3.
Accordingly, given that Dory is not a party to this litigation,
and plaintiffs have made no showing that attempts have been made
to obtain this information directly from defendants, a ten-year
time frame for these requests is overbroad. Even if a ten-year
time period were appropriate, Dory’s member and director Farzad
Rastegar has provided a declaration stating that Dory maintains
just seven years of records from the end of any calendar year.
See Doc. #679-1 at 1. Accordingly, the Court APPROVES and SO
ORDERS the timeframe used by Dory in responding to the requests.

7

2.

Definitions

During the August 20, 2021, discovery conference the Court
noted that plaintiffs’ discovery requests were facially
overbroad. The Court specifically called plaintiffs’ attention
to the definitions preceding the document requests, including
those defining certain entities. For example, defendant QMI is
defined as
including all predecessors in interest, successors and
assigns, and all current and former affiliates,
including LaserPerformance LLC, divisions, subgroups,
parents, subsidiaries, funds, special purpose vehicles,
agents,
legal
representatives,
members,
owners,
trustees, consultants, officers, directors, employees,
and all other persons or entities acting on behalf of
Quarter Moon, Inc.
Doc. #674-2 at 3. Similarly, defendant LPE is defined as
including all predecessors in interest, successors and
assigns, and all current and former affiliates,
divisions, subgroups, parents, subsidiaries, funds,
special purpose vehicles, agents, legal representatives,
members,
owners,
trustees,
consultants,
officers,
directors, employees, and all other persons or entities
acting on behalf of LaserPerformance (Europe) Limited.
Id. at 4. These definitions, as originally framed, unreasonably
expand the breadth of plaintiffs’ document requests.
In the Joint Notice, plaintiffs and Dory submit competing
proposals for the definitions of QMI, LPE, and Dory. Dory
proposes that
“you” and “your” shall mean Dory Ventures, LLC.
“QMI” shall mean Quarter Moon, Inc.
8

“LPE” shall mean LaserPerformance (Europe) Limited[.]
Doc. #692 at 2-3 (sic). Plaintiffs propose that:
“QMI”
should
mean
LaserPerformance LLC”

“Quarter

Moon,

Inc.

and

“LPE” should mean “LaserPerformance (Europe) Limited”
“You” and “Your” should
including all current and
subgroups,
parents,
representatives, members,
directors, and all other
Dory Ventures, LLC.”

mean: “Dory Ventures, LLC,
former affiliates, divisions,
subsidiaries,
legal
owners, employees, officers,
entities acting on behalf of

Doc. #692 at 4. Plaintiffs contend their proposed definitions
are “reasonable due to the complex tangled web of entities that
make up Dory, the judgment debtors, and members of the ‘Laser
Group.’” Id. at 4-5.
The parties propose the same definition for “LPE.”
Accordingly, the Court APPROVES and SO ORDERS the proposed
definition of LPE by agreement of the parties.
The Court APPROVES and SO ORDERS the definition of “QMI” as
proposed by plaintiffs. Plaintiffs’ proposal is a reasonable
limitation of the definition of “QMI.” Additionally, the
documentation attached to plaintiffs’ responsive briefing
suggests that QMI is a holding company for LaserPerformance LLC.
See generally Doc. #674-10.
Finally, the Court APPROVES and SO ORDERS the definition of
“You” and “Your” as proposed by Dory. The definition proposed by

9

plaintiffs unreasonably expands the scope of the discovery
requests. Nevertheless, as noted by plaintiffs in the Joint
Notice, Dory does not object to the identity of the other
entities or individuals listed in plaintiffs’ proposed
definition of “you” and “your,” but rather Dory objects “to
answer[ing] discovery requests on behalf of those other entities
or individuals.” Doc. #692-1 at 5. Based on that representation,
and to the extent the Court has adopted the definition as
proposed by Dory, plaintiffs request that “the Court order Dory
to produce a list of all such entities so Kirby may obtain
discovery directly from them.” Doc. #692 at 5. The Court
declines to enter such an order. Rather, if plaintiffs seek such
information, they may use the post-judgment discovery mechanisms
available to them under Connecticut law. See, e.g., Conn. Gen.
Stat. §52-351b(a).
3.

Substantive Scope of Certain Requests

Next, the parties disagree as to the appropriate
substantive scope of requests 1-10, 13, and 16-17. See Doc. #692
at 3, 6. These requests presently seek information about
property and/or assets “in which Defendants have had any legal
or equitable interest at any time since February 1, 2011, and/or
... of which Defendants had the right to exercise any degree of
control at any time since February 1, 2011.” Doc. #660-1 at 1012.
10

Dory proposes that these requests “be limited to assets or
property owned by the Defendants.” Doc. #692 at 3. Plaintiffs
propose that the requests “be modified to seek property and/or
assets ‘held in the name of defendants’ and/or ‘in which
Defendant had had any legal or equitable ownership or creditor
interest[.]” Id. at 6.
Plaintiffs’ proposed limitation is reasonable considering
the purpose of post-judgment discovery as previously discussed.
Accordingly, the Court APPROVES and SO ORDERS plaintiffs’
proposed limitation for requests 1-10, 13, and 16-17.
4.

Dory’s Production to Date

Finally, in the Joint Notice plaintiffs assert that “Dory’s
production is incomplete[]” because it has not produced any
documents from the “boxes” identified by Dory’s manager in his
affidavit. Doc. #692 at 7. Plaintiffs also contend that Dory is
improperly withholding information by producing heavily redacted
documents. See id. Accordingly, plaintiffs request that the
Court: (1) “order Dory to make full and complete production[]”
and (2) order Dory to produce the “documents unredacted, under
the Protective Order entered in this case (Dkt. 7) if
necessary.” Id.
This issue is not properly before the Court in the Joint
Notice. To the extent plaintiffs have any issues with the nature
of Dory’s production, an appropriate motion may be filed on the
11

docket after a meet-and-confer held in compliance with Local
Civil Rule 37.
D.

Conclusion
Thus, for the reasons stated, the Court GRANTS, in part,

and DENIES, in part, the Motion to Quash [Doc. #660], as
narrowed by the parties’ September 10, 2021, Joint Statement
Regarding Discovery [Doc. #692].
It is so ordered. Dated at New Haven, Connecticut, this 4 th
day of October, 2021.
/s/
HON. SARAH A. L. MERRIAM
UNITED STATES MAGISTRATE JUDGE

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