Everlast World's Boxing Headquarters Corporation v. Ringside, Inc. et al

Filing 151

MEMORANDUM AND ORDER denying 139 Motion for Order to Show Cause, subject to additional instruction to Defendants. Signed by Magistrate Judge Kenneth G. Gale on 3/6/15. (df)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
EVERLAST WORLD’S BOXING
HEADQUARTERS CORPORATION,

)
)
)
Plaintiff,
)
)
RINGSIDE, INC., et al.,
)
)
Defendants.
)
___________________________________ )

Case No.: 13-2150-CM-KGG

MEMORANDUM & ORDER ON
PLAINTIFF’S MOTION TO SHOW CAUSE
Before the Court is the “Motion for Order to Show Cause why Defendants
Should not be Held in Contempt of Court” (Doc. 139) filed by Plaintiff. For the
reasons set forth below, Plaintiff’s motion is DENIED, pursuant to additional
instruction set forth herein.
BACKGROUND
The background of this case has been summarized numerous times as a
result of the parties’ chronic discovery disputes which have resulted in an
abundance of Court Orders.
The present action was filed on July 9, 2012, in the
United States District Court for the Southern District of
New York. Claims were asserted against the various
Defendants for breach of contract, trademark
infringement, false designation of origin and unfair
competition, trademark dilution, and unjust enrichment.
(Doc. 1.) In August 2012, Defendants moved to dismiss

the Complaint or, in the alternative, transfer it to the
District of Kansas. (Doc. 6.)
Defendant Ringside filed Suggestions of
Bankruptcy in November 2012, in the United States
Bankruptcy Court for the District of Kansas. (Doc. 17.)
This triggered an automatic bankruptcy stay. The present
action was transferred to the District of Kansas on March
13, 2013. (Doc. 22.)
Judge Berger of the United States Bankruptcy
Court for the District of Kansas denied the Motion to
Enforce Automatic Stay regarding Plaintiff’s claims
against Defendants RAL and Combat, by Order dated
September 27, 2013. This permitted those counts to go
forward in this Court. (See Doc. 37, at 7.) Plaintiff filed
a Motion to Amend the Complaint (Doc. 36) on
December 2, 2013, which was granted on December 23,
2013 (Doc. 41).
(Doc. 71, at 1-2; Doc. 112, at 1-2.)
The document requests at issue were served on March 27, 2014 and are the
subject of a prior discovery Order by the undersigned Magistrate Judge. (Doc.
112.) The procedural background regarding this discovery is contained in that
Order and incorporated by reference herein. (Id., at 2-3.) Prior to that Order,
Defendant Combat Brands produced 99 native files responsive to Requests Nos. 10
and 15. (Doc. 144, at 2.) Following the Order, Defendants produced an additional
101 documents. (Id.)1

1

The supplemental production by Defendants occurred on October 3, 2014 (Doc.
121). Yet Plaintiff waited three months (until January 10, 2015) to write a letter to
Defense counsel complaining about these alleged deficiencies and until February 18,
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Plaintiff now complains that Defendants have not fully responded to
Plaintiff’s First Set of Document Requests, or the Court’s prior Order, thus
necessitating a finding that Defendants are in contempt pursuant to Fed.R.Civ.P.
37. (See Doc. 140.) More specifically, Plaintiff argues that “Defendants did not
produce a single primary source document demonstrating Defendants’ receipt,
transfer, sale or other disposition of Everlast branded merchandise.”2 (Id., at 4.)
Defendants respond that Combat Brands “acquired only pieces” of Ringside
and, as such, “there is a significant amount of information that these defendants
simply do not have.” (Doc. 144, at 2.) Defendants contend that because of the
various computer files they have produced, Plaintiff has “all of the same data that
was originally in those primary source documents” and they “have produced all of
the information they have that is responsive to the Court’s Order.” (Id., at 3
(emphasis in original).)
Further, Defendants contend that “Ringside does not appear to have retained

more than four months, to file the present motion. As a consequence the Court is
reviewing this motion only a few weeks before the Final Pretrial Conference. This delay
violates at least the spirit, if not the letter, of D. Kan. Rule 37.1(b), which requires
motions to compel be filed within 30 days of the alleged default (which would have been
November 2, 2014). The Court is inclined to deny this motion on that basis alone, but
will review the merits out of an abundance of caution.
2

This dispute involves requests for production 10 through 15, which the Court
ordered produced in its previous order.
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– and therefore defendants did not obtain – the documents that would constitute
what plaintiff still seeks in its pending motion: ‘primary source document[s]’ such
as ‘purchase orders, invoices, [and] sales confirmations . . . .’” (Id. (quoting Doc.
140, at 4).) Defendants did, however, produce additional computer documentation
constituting the “bulk of the digital information that resided in the sales and order
database that Combat Brands acquired . . . .” (Id., at 4 (emphasis in original).)
As the Court understands the Defendants’ response, Defendants’ claim that
they have no additional documents to produce. The Court cannot order a party to
produce documents which are not within its possession, custody or control.
Manning v. General Motors, 247 F.R.D. 646, 652 (D. Kan. 2007) (internal
citations omitted). To grant the motion for contempt sanctions, the Court would
have to find that the Defendant’s are being untruthful in their representations that
additional documents do not exist. The Court is unable to make this finding based
on the record.
In its reply, Plaintiff claims, with some evidentiary support, that Defendants
sold additional subject merchandise after acquiring it from Ringside in 2012. If
true, this would leave the absence of documents after that date (which Plaintiff
claims is June of 2012) unexplained by Ringside’s failure to retain or transfer the
document to the Defendants. Because this argument was made in Plaintiff’s Reply,
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the Court does not have the benefit of Defendants’ answer to this specific claim.
However, this is easily remedied.
Each Defendant is ordered to prepare and submit to the Plaintiff an affidavit
stating (if true) that unproduced documents responsive to the Plaintiff’s Requests
for Production of Documents which were obtained or created after June of 2012
when Ringside, Inc. stopped doing business are not within its possession, custody
or control. If such documents are located, the affidavit will identify the documents
and produce them to the Plaintiff, and explain why the documents were not
previously produced. A Certificate of Service will be filed with the Court
indicating compliance with this Order and including the affidavits as attachments.
This will be accomplished within 7 days of the date of this Order.
The motion is otherwise DENIED.
IT IS SO ORDERED.
Dated at Wichita, Kansas, on this 6th day of March, 2015.
S/ KENNETH G. GALE

KENNETH G. GALE
United States Magistrate Judge

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