TIC Park Centre 9, LLC v. Wojnar et al

Filing 166

ORDER granting in part and denying in part 162 Plaintiff's Motion to Compel. Signed by Magistrate Judge Edwin G. Torres on 6/5/2018. (js02)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 16-Civ-24569-COOKE/TORRES
TIC PARK CENTER, 9 LLC,
a Delaware limited liability company,
Plaintiff,
v.
MICHAEL MANUEL CABOT, et al.,
Defendants.
______________________________________/
ORDER ON PLAINTIFF’S MOTION TO COMPEL
This matter is before the Court on TIC Park Center, 9 LLC’s (“Plaintiff”)
motion to compel against Mark Wojnar (“Mr. Wojnar”), Patricia Wojnar (“Mrs.
Wojnar”) (collectively, the “Wojnars”), and Jeffrey K. Miller (“Mr. Miller”), Park
Centre Med-Suites, LLC, Gardens Med-Suites, LLC, and Medical Practice
Operations, Inc. (collectively, the “Miller Defendants”).

[D.E. 162].

The Miller

Defendants responded to Plaintiff’s motion on May 22, 2018 [D.E. 163] to which
Plaintiff replied on May 30, 2018.1 [D.E. 164]. Therefore, Plaintiff’s motion is now
ripe for disposition. After careful consideration of the motion, relevant authority,
and for the reasons discussed below, Plaintiff’s motion is GRANTED in part and
DENIED in part.

The Wojnars failed to file a response in opposition to Plaintiff’s motion to
compel.
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I.

BACKGROUND

Plaintiff commenced this action to seek remedies in relation to a 2014 loss of
a multi-million dollar investment in commercial property (the “Property”) in Miami
Gardens, Florida. The gist of Plaintiff’s Complaint is that the Miller Defendants
engaged in leasing schemes to steal money from the Property and then concealed
the leasing schemes and aided the Property’s ultimate loss to foreclosure.
Plaintiff is a qualified and accredited investor who purchased a tenant in
common interest in the Property in 2007.

As part of that purchase, Plaintiff

entered into a property and asset management agreement regarding the Property
with Mariner Property Management Services, LLC, which was controlled by Cabot
and Mr. Wojnar.

Mariner Property Management Services, LLC managed the

Property from 2007 until April 2011, when Plaintiff and other tenants in common
selected a new manager for the Property.

Midgard Management, Inc. began

managing the Property in April 2011.
Plaintiff alleges that Mariner Property Management Services, LLC, Cabot
and Mr. Wojnar violated their duties under the Property Management Agreement
and a separate Tenant in Common Agreement by entering into two fraudulent
leases with Park Center Med-Suites, LLC and Garden Med-Suites, LLC in 2010 –
who then subleased the Property to other tenants.

Cabot and Mr. Wojnar

purportedly used the Mariner Entities as a facade for their own personal economic
benefit and harbored monies wrongfully taken from Plaintiff’s Property, including
through an entity established in their wives’ names.

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As a result of those subleases, Plaintiff alleges that $130,000 in rental income
that otherwise would have been paid to the Property between 2011 and 2012 was
diverted from the Property to the owner of those two entities, Mr. Miller, and
$164,848.59 in broker commissions was paid to WTK Realty, LLC, which Plaintiff
alleges were disguised payments of Property income to Cabot and Mr. Wojnar. In
other words, Mr. Miller allegedly acted through alter egos that made payments of
unlawfully obtained monies to Miller’s primary business entity, Medical Practice
Operations, Inc. (“MPO”).

After Midgard Management, Inc. took over the

management of the Property in April 2011, it brought eviction actions against Park
Centre Med-Suites, LLC and Garden Med-Suites, LLC.
Among other defenses to Plaintiff’s complaint, the Miller Defendants claim
(1) that their actions are protected by the business-judgment rule, (2) that their
actions are commercially reasonable, (3) that the Property suffered from the recent
economic recession rather than misconduct, and (4) that there was inadequate
capital for the Property to meet its financial obligations.2
II.

ANALYSIS

There are two issues to address in Plaintiff’s motion to compel. The first
issue is directed against the Miller Defendants and the Wojnars for their failure to
cooperate in producing their income tax returns. As background, Plaintiff’s motion
relates to a prior Order that we issued on February 12, 2018 [D.E. 147], where we
The Court has diversity jurisdiction over all claims asserted in the complaint
because Plaintiff is a citizen of New York and Defendants are citizens of
Massachusetts, Florida, or Delaware.
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found that income tax returns were relevant to the disposition of this case. We
therefore granted Plaintiff’s prior motion and compelled the Wojnars to provide
written authorization forms for the release of their tax returns within seven (7)
days from the date of that Order. The second issue presented is Plaintiff’s motion to
compel better responses and documents from Mrs. Wojnar because she failed to
timely respond to Plaintiff’s discovery requests or produce a privilege log. We will
address both issues in turn.
We begin with the first issue that the Miller Defendants and the Wojnars
failed to provide their income tax returns. In our February 12, 2018 Order, we
compelled the Wojnars to execute authorization forms for the release of their income
tax returns by February 19, 2018. Neither timely executed a release. Plaintiff
claims that when they finally did, the authorization forms were defective and that
the Internal Revenue Service (the “IRS”) rejected them. Plaintiff suggests that the
Wojnars either deliberately misspelled their names on the authorization forms or
that the IRS rejected the returns for another reason. As such, Plaintiff alleges that
the Wojnars have refused to cooperate in obtaining their income tax returns and
that they must be compelled to provide additional authorization forms.
As an initial matter, Plaintiff’s motion to compel against the Wojnars is
unclear because it makes conclusory assertions that the Wojnars knowingly filed
defective authorizations and then retreats from that accusation to allege that the
reason for the IRS denial is still unknown.

In any event, it appears that the

Wojnars have not provided revised authorization forms for their income tax returns

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once it became known on April 13, 2018 that the IRS rejected the initial request.
Because revised authorization forms are necessary to obtain the Wojnars’ income
tax returns, Plaintiff’s motion to compel is GRANTED and the Wojnars are
compelled to provide the necessary items within seven (7) days from the date of this
Order.
As for the Miller Defendants, Plaintiff suggests that the release of their tax
returns have encountered an administrative delay and that they have refused to (1)
place any phone calls to the IRS, (2) obtain the items from accountants, or (3)
submit written taxpayer requests to the IRS. Because the Miller Defendants have
failed to produce the information requested, Plaintiff concludes that its motion to
compel must be granted.
Plaintiff’s motion against the Miller Defendants fails because they have fully
complied with their discovery obligations. By Plaintiff’s own admission, the Miller
Defendants signed their authorization forms and provided them to Plaintiff.

It

appears that Plaintiff wants the Miller Defendants to do more to expedite the
process, but the time needed to process the returns is within the sole purview of the
IRS – not the Miller Defendants. In other words, there is nothing left for the Miller
Defendants to do. And although the IRS has not moved swiftly in producing the tax
returns requested, the Miller Defendants have fully complied with their discovery
obligations under the Local and Federal Rules. Accordingly, Plaintiff’s motion to
compel against the Miller Defendants is DENIED.

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The final issue is Plaintiff’s motion to compel Mrs. Wojnar to provide better
responses to Plaintiff’s document requests.

Mrs. Wojnar failed to respond to

Plaintiff’s motion to compel, meaning that Plaintiff’s motion may be granted by
default under S.D. Fla. Local R. 7.1. However, the Court’s independent review of
the substantive grounds supporting the motion shows that Plaintiff violated the
Local Rules – in at least two instances – in seeking the relief requested. Plaintiff
served Mrs. Wojnar with its requests for production on January 22, 2018 and her
responses were due, at the latest, on February 26, 2018 (considering an additional
three days for mailing and the intervening weekend).

See Fed. R. Civ. P. 34.

Plaintiff claims that Mrs. Wojnar produced only a handful of documents in an
unorganized manner and made unfounded objections with no privilege log. Because
Mrs. Wojnar improperly construed Plaintiff’s requests, Plaintiff concludes that she
must be compelled to produce the documents requested.
Plaintiff’s motion is unpersuasive because it violates Local Rule 26.1(g),
which requires that discovery motions be filed within thirty days of an occurrence
for the motion:
All motions related to discovery, including but not limited to motions
to compel discovery and motions for protective order, shall be filed
within thirty (30) days of the occurrence of grounds for the motion.
Failure to file a discovery motion within thirty (30) days, absent a
showing of reasonable cause for a later filing, may constitute a waiver
of the relief sought.
S.D. Fla. L.R. 26.1(g). Plaintiff noticeably fails to indicate in its motion when Mrs.
Wojnar responded to its discovery requests.

But, it appears that Mrs. Wojnar

responded on March 16, 2018 – well after the time she was required to respond.
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Mrs. Wojnar then appears to have produced more documents on April 18, 2018 to
which Plaintiff believes were inappropriate. If Plaintiff wanted to seek relief for
Mrs. Wojnar’s discovery responses, Plaintiff should have filed a motion to compel
within thirty days of Mrs. Wojnar’s failure to provide all of the information
requested. Instead, Mrs. Wojnar sporadically produced documents over the course
of several months and Plaintiff now seeks relief many months later when it should
have filed a motion to compel long ago.
The purpose of Local Rule 26.1 is to promote “the prompt resolution of
discovery disputes by requiring the parties to timely bring to the court’s attention
matters that the parties cannot resolve amongst themselves.” Muzaffarr v. Ross
Dress for Less, Inc., 2013 WL 5311233, at *1 (S.D. Fla. Sept. 23, 2013) (quoting
Manno v. Healthcare Revenue Recovery Grp., LLC, 2012 WL 1409532, at *2 (S.D.
Fla. Apr. 23, 2012)). Here, Plaintiff has failed to timely bring this issue to the Court
and has failed to establish any reasonable cause for the delay.

Plaintiff has

therefore waived its right to the relief sought and its motion to compel is DENIED.
See, e.g., Procaps S.A. v. Patheon Inc., 2014 WL 1237553, at *3 (S.D. Fla. Mar. 26,
2014) (denying motion to compel filed 96 days after the occurrence of grounds for
the motion as untimely absent a showing of reasonable cause for the
delay); Muzaffarr, 2013 WL 5311233 at *1 (denying motion to compel filed 52 days
after the occurrence of the grounds for the motion); Manno, 2012 WL 1409532 at
*2 (denying motion to compel filed three days late due to a calendaring error caused
by a leap year).

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Even if we ignore that problem, Plaintiff’s motion is defective because it fails
to state “verbatim the specific item to be compelled, the specific objections, the
grounds assigned for the objection, and the reasons assigned as supporting the
motion as it relates to that specific item.”

Pena v. Drodriguez, LLC, 2016 WL

4429608, at *2 (S.D. Fla. July 1, 2016) (quotation marks omitted). Indeed, Local
Rule 26.1(g) provides the following:
[M]otions to compel discovery . . . shall, for each separate . . . request .
. . state: (A) verbatim the specific item to be compelled; (B) the specific
objections; (C) the grounds assigned for the objection (if not apparent
from the objection); and (D) the reasons assigned as supporting the
motion as it relates to that specific item. The party shall write this
information in immediate succession (e.g., specific request for
production, objection, grounds for the objection, reasons to support
motion; next request for production, objection, grounds for the
objection, reasons to support motion; and so on) to enable the Court to
rule separately on each individual item in the motion.
S.D. Fla. L.R. 26.1(h)(2).3
Here, Plaintiff’s motion merely suggests that Mrs. Wojnar misconstrued the
discovery requests and that the documents she provided were inadequate. This is
plainly insufficient under the Local Rules because there is no substance to
Plaintiff’s motion.

Nowhere in Plaintiff’s motion does it provide the reasons

assigned as supporting the motion as it relates to any specific item and therefore
the motion is procedurally flawed and must be DENIED.

See Habersham

Plantation Corp. v. Molyneux, 2011 WL 1832782, at *3 (S.D. Fla. May 5,
The Local Rule is important for the Court’s purposes because it requires a
party to cull through extraneous requests and focus on what is truly necessary for
the proper adjudication of a case. Plaintiff seeks to opt out of that Rule and
undermine that purpose by essentially asking the Court to do Plaintiff’s work. We
decline to do so.
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2011) (striking a motion to compel for failure to comply with Rule 26.1(h)(2), which,
the court noted, “is not discretionary”); Boston v. Garcia, 2013 WL 1165062, at *1
(E.D. Cal. Mar. 20, 2013) (denying plaintiff’s Rule 36(a)(6) motion where it was “not
clear from plaintiff's motion and attachments [which of defendant’s] responses . . .
were insufficient and why” and explaining that “at a minimum, as the moving party
plaintiff has the burden of informing the court why he believes the defendants’
responses are deficient, why the defendants’ objections are not justified, and why
the information he seeks through discovery is relevant to the prosecution of this
action.”).
III.

CONCLUSION

For the foregoing reasons, it is hereby ORDERED AND ADJUDGED that
Plaintiff’s motion to compel [D.E. 162] is GRANTED in part and DENIED in
part:
A. Plaintiff’s motion to compel the Wojnars to provide revised IRS
authorization forms is GRANTED. The Wojnars must provide revised
forms to Plaintiff within seven (7) days from the date of this Order.
B. Plaintiff’s motion to compel the Miller Defendants to expedite the IRS’s
consideration of their income tax returns is DENIED.
C. Plaintiff’s motion to compel Mrs. Wojnar to provide better responses to
Plaintiff’s document requests is DENIED.

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DONE AND ORDERED in Chambers at Miami, Florida, this 5th day of
June, 2018.
/s/ Edwin G. Torres
EDWIN G. TORRES
United States Magistrate Judge

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