Randall et al v. Offplan Millionaire AG et al

Filing 87

ORDER denying 83 Motion to extend time; denying 83 Motion for accomodations for the taking of jurisdictional discovery. Signed by Magistrate Judge Thomas B. Smith on 4/11/2019. (Smith, Thomas)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
NICHOLAS J. RANDALL and FAN FENG,
Plaintiffs,
v.

Case No: 6:17-cv-2103-Orl-31TBS

OFFPLAN MILLIONAIRE AG,
CAPINVEST LLC, JOACHIM OLIVER
NEDELA, STEPHEN JORDAN-QUAYLE,
CARL DHIR, CRESCENT REAL ESTATE
MANAGEMENT, INC., DANIEL J.
DORAN, JR. and LUCRETIA L.
DORAN,
Defendants.
ORDER
Before the Court is Defendant Joachim Oliver Nedela’s Motion for Extension of
Time Relating to March 1, 2019 Order and for Order Requiring Certain Deposition
Expenses to be Paid By Plaintiffs (Doc. 83). The motion is opposed by Plaintiffs (Doc.
84). Since the filing of the motion, Nedela has filed two supplements (Docs. 85 and 86).
Now the motion, as supplemented, is DENIED.
Background
Plaintiffs allege that Defendants violated the Federal Racketeer Influenced Corrupt
Organizations Act, 18 U.S.C. §§ 1961-1968, and the Florida Racketeer Influenced and
Corrupt Organizations Act, FLA. STAT. §§ 895.01-895.06, by collectively conspiring to
participate in an enterprise for the common purpose of engaging in racketeering activity,
specifically wire and mail fraud, concerning the conveyance and maintenance of real
property located in the United States, and that enterprise conduct occurred in Orange

County, Florida, where the majority of the properties are located (Doc. 17, ¶¶ 243-311).
Nedela has made a limited appearance and filed a motion to dismiss for lack of personal
jurisdiction and failure to state a claim upon which relief can be granted (Doc. 56). On
September 12, 2018, Plaintiffs filed a consolidated preliminary response to the motion to
dismiss which included a motion for leave to conduct discovery limited to the issue of
personal jurisdiction, and to stay their response to the motion to dismiss until after the
completion of that discovery (Doc. 64). The same day, Plaintiffs served on Nedela their
First Set of Interrogatories Concerning Personal Jurisdiction and First Request for
Production of Documents Concerning Personal Jurisdiction (Doc. 64-4). Plaintiffs also
served a notice of taking Nedela’s deposition without specifying the date or place while
simultaneously requesting deposition dates and offering to take the deposition at any
location and time convenient to Nedela. He filed a response opposing the request to take
jurisdictional discovery (Doc. 65).
On October 23, 2018, the Court granted Plaintiffs' motion to conduct discovery and
stayed their response to Nedela's motion to dismiss for forty-five days "during which time
[Plaintiffs] may engage in discovery that is limited to the jurisdictional issues raised by
Nedela" (Doc. 66 at 11). The Court found that "Plaintiffs are entitled to obtain the limited
jurisdictional discovery sought for the purpose of responding to Nedela's motion to
dismiss" (Id.).
On November 13, 2018, Plaintiffs and Nedela jointly moved for an extension of the
time to complete jurisdictional discovery and the deadline for Plaintiffs to respond to
Nedela's motion to dismiss (Doc. 67). The parties said Nedela had gathered more than
6,000 documents to review for responsiveness to Plaintiffs' discovery requests and that
they were experiencing difficulty clearing a mutually convenient day to hold Nedela's

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deposition (Doc. 75, citing Doc. 67 at 2). The Court granted the motion and extended to
January 10, 2019 the deadline for Plaintiffs to respond to the motion to dismiss (Doc. 69
at 1).
On November 27 and 30, 2018, Nedela informed the Court that he believes there
are obstacles to conducting the jurisdictional discovery under Swiss law and he sought
relief from the jurisdictional discovery deadlines (See Docs. 70, 70-1, 71, 71-1). On
December 3, 2018, the Court denied without prejudice, Nedela’s request for an additional
extension of time noting: "[t]he Court does not know Swiss law or how it impacts
jurisdictional discovery in this case" (Doc. 72 at 1). The Court added that it "does not now
intend to strictly enforce the discovery deadline established in its Order," and instructed
that "[w]hen the parties better understand the situation in Switzerland, including the
sequence, timing, and results of actions there, they should update the Court which will,
when it has more concrete information, entertain a motion to enlarge the time for
jurisdictional discovery" (Id. at 1-2). Plaintiffs sought an additional brief extension of time
which the Court granted (Docs. 73-74).
On the date for completion of the jurisdictional discovery and the submittal of
Plaintiffs' response to Nedela's motion to dismiss, the parties filed a Joint Notice of
Impasse Regarding Jurisdictional Discovery (Doc. 75). Plaintiffs filed a motion to compel
jurisdictional discovery from Defendant Nedela and he filed a response (Docs. 76, 79). In
these papers, the parties dispute whether Nedela, a German citizen, resident in
Switzerland, can be compelled to produce documents and sit for a deposition on the
issue of whether this Court has personal jurisdiction over him. By Order dated March 1,
the Court found:

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The Court is persuaded by the great weight of authority that
the present circumstances justify production of the documents
in the United States and the taking of Nedela’s deposition at a
suitable location outside Switzerland, with Plaintiffs to
reimburse Nedela’s reasonable travel expenses. Plaintiffs’
motion to compel is therefore GRANTED in part. Nedela shall
make himself available for deposition at a location agreed
upon by the parties, outside of Switzerland, within 30 days.
Plaintiffs shall pay all reasonable costs of Nedela’s travel and
subsistence incurred relating to the deposition. Nedela shall
also produce the documents sought in the request to produce,
consistent with his response to the request, within 15 days of
the date of this Order. To the extent Nedela has asserted that
certain documents are trade secrets, he shall provide a
privilege log.
(Doc. 81 at 12). The instant motion, as supplemented, followed.
Analysis

Production of Documents
Nedela seeks permission to produce the documents sought in Plaintiffs’ request to
produce “on a rolling basis” (Doc. 83 at 1). He has also requested an extension of time
until April 8, 2019 in which to complete the production, citing the need for lengthy review
and redactions in order to assure compliance with Swiss law. Nedela notes that his Swiss
lawyer has filed a petition with the Federal Department of Justice and Police (“FDJP”) in
Switzerland requesting authority to produce the documents without broad redactions of
trade secrets but, “unless and until such authorization is granted, Mr. Nedela must
proceed with the redaction process” (Doc. 83 at 3-4). The passage of time has made
these requests moot.
In supplemental papers, Nedela advises that the review and redaction process has
been completed and he “is prepared to produce the over 5,000 documents as soon as the

parties can reach agreement on the terms of the confidentiality agreement” (Doc. 85 at 2;
Doc. 86 at 2 – emphasis added). To the extent this is a request for a protective order to

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preclude the production unless Plaintiffs execute a confidentiality agreement, it is
DENIED. The Court has already provided for the assertion of appropriate privileges and
the sought-after delay is predicated on the claimed need for redaction of allegedly
privileged information. Considering that Nedela has taken the position that he was just a
figurehead with a mere nominal role in Defendant Offplan Millionaire AG (Doc. 56-1), this
belated insistence on a confidentiality agreement is puzzling. While the parties are free to
enter into a stipulation regarding the documents, the Court sees no reason to order the
execution of a confidentiality agreement as a precondition to document production. The
documents shall be produced, along with any privilege log, within seven calendar days of
the date of this Order.

Deposition
Nedela also resists the taking of his deposition, contending that he “cannot risk
subjecting himself to penalties or criminal liability in a country with whose laws he is
unfamiliar” (Doc. 83 at 5). Nedela offers to travel with his Swiss lawyer to Austria for his
deposition but asks the Court to require that Plaintiffs submit a written opinion confirming
that his appearance in Austria will not subject him to any criminal liability under that
country’s laws. He also requests that Plaintiffs cover the travel expense associated with
his Swiss lawyer’s attendance at the deposition. Nedela contends that Plaintiffs refusal to
agree to this plan is unreasonable.
The Court’s prior Order states that “Nedela shall make himself available for
deposition at a location agreed upon by the parties, outside of Switzerland, within 30
days. Plaintiffs shall pay all reasonable costs of Nedela’s travel and subsistence incurred
relating to the deposition” (Doc. 81 at 12). The Order does not allow expenses for
Nedela’s Swiss lawyer to accompany him to a deposition outside Switzerland, nor would

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such be reasonable under the facts of this case. And, the Court is unaware of any
authority empowering it to compel a lawyer for a plaintiff to provide a legal opinion to a
defendant in the same case. Even if such were ethically appropriate (which is highly
questionable), Nedela already has his own attorneys in the United States and
Switzerland. Given his current representation, Nedela has not shown a credible need to
borrow counsel from Plaintiffs. Accordingly, the motion, to the extent it seeks this relief, is
DENIED.
Perhaps intuiting the Court’s reluctance to go along with his suggestion, Nedela
next advises that his Swiss lawyer has submitted a request to the FDJP for authorization
to give his deposition testimony from Switzerland via videoconference. Nedela advises
that if his lawyers, Plaintiffs’ attorneys and this Court endorse his application for
authorization to conduct the deposition in Switzerland then Nedela’s Swiss lawyer
anticipates that Nedela will be able to appear safely at his deposition with the consent of
the Swiss authorities (Docs. 85 and 86). To the extent this is a request for the Court to
endorse an application it previously found unnecessary, it declines to do so. Additionally,
considering the over 5,000 documents to be produced by Nedela, it is not apparent that a
videoconference will be effective or appropriate, absent agreement by Plaintiffs.
After consideration of all the papers filed, the Court finds no reason to disturb its
previous Order compelling Nedela to sit for his deposition. Although he maintains that he
is “committed to fully complying with the Court’s Order” (Doc. 83 at 2), his most recent
filings cast doubt on this assertion. Considering Nedela’s demonstrated reluctance to
cooperate with the scheduling of his deposition, the parties’ inability to agree to a location
without preconditions, the presence of the documents in Florida, the appearance of
Florida lawyers on Nedela’s behalf, and the absence of any showing that he will be

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prejudiced if the deposition is taken in this district, it is ORDERED that absent agreement
by the parties to alternative arrangements, Nedela shall appear in the Middle District of
Florida for the taking of his deposition within 30 days from the date of this Order. Plaintiffs
shall pay all reasonable travel and subsistence expenses for Nedela to travel for this
purpose and his presence within the United States for this purpose shall not be deemed
relevant to the question of whether the Court has personal jurisdiction over him with
respect to this action.
DONE and ORDERED in Orlando, Florida on April 11, 2019.

Copies furnished to:
Counsel of Record
Unrepresented Parties

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