Sweet et al v. Audubon Financial Bureau, LLC et al

Filing 118

ORDER by Magistrate Judge William P. Lynch granting 107 Motion to Compel. (mej)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

WENDELL SWEET and
STEVEN SWEET,
Plaintiffs,
v.

CV 13-258 BRB/WPL

AUDUBON FINANCIAL BUREAU, LLC;
DOMENICO D’ANGELO; ADAM MARCH;
DANIEL VALENTINE; and MIGUEL GUZMAN,
Defendants.

ORDER GRANTING PLAINTIFFS’ MOTION TO COMPEL
Plaintiffs Wendell and Steven Sweet filed a motion to compel “full and complete
supplemental responses” to certain discovery requests from Defendant Daniel Valentine. (Doc.
107.) Valentine filed a response in opposition to the motion (Doc. 114), and Plaintiffs filed a
reply (Doc. 117). Plaintiffs propounded interrogatories and requests for production to Valentine
on September 6, 2016. (Docs. 100, 108.) They argue that Valentine’s responses to Interrogatories
2-8 and Requests for Production 1-5 are insufficient and evasive. After this motion was filed,
Valentine provided supplemental responses on December 6, 2016. (Docs. 115, 116.) In reply,
Plaintiffs’ contend that supplemental responses remain deficient as to Interrogatories 2-7 and
Requests for Production 1, 2, 4, and 5. Having reviewed the briefing and the relevant law, and
being otherwise fully informed on these matters, I grant the motion to compel.
Federal Rule of Civil Procedure 33, governing interrogatories to parties, provides that
“interrogatories must be answered (A) by the party to whom they are directed . . . .” FED. R. CIV.
P. 33(b)(1). Additionally, “[e]ach interrogatory must, to the extent it is not objected to, be

answered separately and fully in writing under oath.” FED. R. CIV. P. 33(b)(3). A party objecting
to an interrogatory must specify its grounds for the objection. FED. R. CIV. P. 33(b)(4); e.g., Doe
v. Nat’l Hemophilia Found., 194 F.R.D. 516, 520 (D. Md. 2000). Any objection not raised or not
raised with specificity is waived. Miller v. Pruneda, 236 F.R.D. 277, 281 (N.D. W. Va. 2004).
An incomplete or evasive answer is not considered an answer, but rather a failure to answer.
Villareal v. El Chile, Inc., 266 F.R.D. 207, 212 (N.D. Ill. 2010) (citing FED. R. CIV. P. 37(a)(4)).
Pursuant to Federal Rule of Civil Procedure 34, a party must either produce documents
responsive to a request for production (“RFP”) or “state with specificity the grounds for
objecting to the request, including the reasons” and “state whether any responsive materials are
being withheld on the basis of that objection.” FED. R. CIV. P. 34(b)(2). As with interrogatories,
general objections to a request for production are insufficient and will be overruled. See
Convertino v. U.S. Dep’t of Justice, 565 F. Supp. 2d 10, 12-13 (D.D.C. 2008).
As an initial matter, it appears that Valentine did not sign or verify his responses. Failure
to verify an answer to an interrogatory renders that answer incomplete. Villareal, 266 F.R.D. at
212. Rule 33 is clear that interrogatories must be answered and signed by the party to whom they
are directed. See Cabales v. United States, 51 F.R.D. 498, 499 (S.D.N.Y. 1970). On this basis,
Valentine’s answers to the Interrogatories are incomplete. Valentine has fourteen days from the
date of entry of this Order to provide complete answers, including verification.
Interrogatory No. 2: Interrogatory No. 2 asked Valentine to provide information about his
employment history for the last ten years. Specifically:
For the last ten years, for every company for which you have provided services,
worked at, owned, or were an officer, director, employee or independent
contractor (including self-employment):

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a. identify (i.e., state the full name, all known addresses and telephone
numbers) the company;
b. state your role, title and provide a description of the duties you were
assigned or the services you provided;
c. state the dates of your association with the company;
d. state how you were compensated for your services;
e. identify your immediate supervisor; and
f. describe in detail the reason you stopped working for or providing services
to the company.
(Doc. 117 Ex. 1 at 2.) Plaintiffs contend that Valentine’s original and supplemental answers were
incomplete and evasive. Valentine unilaterally limited the request to the last five years and
provided incomplete information for two entities with which he was associated, and objected that
the Interrogatory was “overbroad and unduly burdensome” and not reasonably calculated to lead
to admissible evidence. (Id. at 3.) In response to the motion, Valentine contends that Plaintiffs
are on a fishing expedition and that Interrogatory No. 2 was “over broad and unduly
burdensome,” but that he provided information on relevant business.
Valentine provided no authority for limiting his response to five years or for providing
incomplete information. Additionally, this case was filed in 2013 and has been delayed for three
years. I agree with the Plaintiffs that ten years is a reasonable time period under the
circumstances. Further, Valentine failed to explain how this Interrogatory is “unduly
burdensome.” Finally, Valentine cited no authority for unilaterally limiting the Interrogatory.
This case involves claims of deception and corporate cloaking. Under the circumstances, I agree
with the Plaintiffs’ that Valentine’s response to Interrogatory No. 2 was insufficient. Within
fourteen days from the date of entry of this Order, Valentine will provide a full response to
Interrogatory No. 2. Valentine is reminded that he is required to verify his response to this
Interrogatory and to certify under oath that the response is complete.

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Interrogatory No. 3: Interrogatory No. 3 stated:
Concerning your association with Audubon Financial Bureau, LLC (“AFB”):
a. describe all activities you have performed for or on behalf of AFB and the
dates for which you performed these activities;
b. state whether you have ever been involved in a decision to hire or fire any
AFB employee and if so:
i. identify the employee;
ii. state the dates of employment for this employee;
iii. describe your role;
iv. identify all other persons involved in a decision to hire or fire this
employee.
c. describe any compensation, direct or indirect, you received from AFB and
the dates this compensation was received; and
d. if your association with AFB ended at some point, describe in detail the
reason it ended.
(Id. at 3.) Plaintiffs argue that Valentine’s original and supplemental responses to subpart c of
this Interrogatory are insufficient, evasive, and internally inconsistent with his other responses.
Valentine objected to this subpart as “vague and ambiguous” because it failed to define the term
“compensation.” (Id. at 4.) This objection is absurd. Compensation is a common and colloquial
term. Valentine clearly understood the meaning of the term, at least in part, to include health
benefits and a weekly draw. (Id.) Accordingly, Valentine’s objections on this point are overruled
and he is directed to provide a complete response to Interrogatory No. 3(c) within fourteen days
from the date of entry of this Order and to verify that response.
Interrogatory No. 4: Interrogatory No. 4 asked Valentine:
Separately for Ryan Paxton, Randy Zaffaran, Nick Doxey, Adam March,
Domenico D’Angelo, Miguel Guzman, and Kyan Julius:
a. state all residential addresses and personal phone numbers of which you
are aware[;]
b. describe how you know this person, when you first met them, the history
of your relationship with them and your current relationship; and
c. state the approximate date of your last contact or communication with the
person and describe the circumstances and/or content of the same.

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(Id. at 4.) Valentine did not object to this Interrogatory and has thus waived any potential
objections. Miller, 236 F.R.D. at 281. I agree with Plaintiffs that his response was insufficient.
Indeed, Valentine did not even mention each individual named in the Interrogatory. Within
fourteen days from the date of entry of this Order, Valentine will provide a complete, verified
response to this Interrogatory.
Interrogatory No. 5: Interrogatory No. 5 asked Valentine:
For every office which you kept (including any shared office) at any time in the
last ten years;
a. state the full street address for the office;
b. describe the business activities you performed at this office;
c. state the name of each company that performed business activities at this
same office at the same time you did and for each:
i. State your role, title and provide a description of the duties you
were assigned or the services you provided;
ii. State the dates of you[r] association with this company;
iii. State how you were compensated for your services;
iv. Identify your immediate supervisor; and
v.
[D]escribe in detail the reason you stopped working for or
providing services to the company.
(Doc. 117 Ex. 1 at 5.) Valentine objected that the Interrogatory is vague and ambiguous by
failing to define “every office which you kept,” overly broad, burdensome, harassing, and not
reasonably calculated to lead to admissible evidence. (Id.) In response to the motion, Valentine
argues that this Interrogatory is duplicative of Interrogatory No. 2. (Doc. 114 at 5.) I disagree.
Valentine could easily have provided services to a company where he never had an office. The
Interrogatories are related, but not duplicative. Valentine’s objection that the phrase “every office
which you kept” is vague or ambiguous is overruled. While the phrasing is perhaps
unconventional, the meaning is clear. Valentine is directed to use his common sense to fully

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respond to this Interrogatory and will provide a complete, verified response within fourteen days
from the date of entry of this Order.
Interrogatory No. 6: Interrogatory No. 6 asked Valentine
If you have ever received a check made out to you on an AFB bank account or a
transfer to your account from an AFB bank account:
a. state the date and amount of the check or transfer;
b. identify the person who signed the check or authorized the transfer; and
c. state the reason you received the check or transfer.
(Doc. 117 Ex. 1 at 6.) Valentine did not object to this Interrogatory and thus waived any potential
objections. Miller, 236 F.R.D. at 281. Valentine did, however, respond that he is “unable to
access payroll records” from AFB. (Doc. 117 Ex. 1 at 6.) That may be the case, but is irrelevant.
Valentine certainly has his own records for any checks or transfers made to him from AFB
accounts. Valentine is directed to fully respond to this Interrogatory within fourteen days from
the date of entry of this Order, and is reminded that he must verify his response.
Interrogatory No. 7: Interrogatory No. 7 asked Valentine to
State the bank and account number for every account on which you were
authorized to sign checks or transfer money in the last ten years and for each
account:
a. state the name of the owner of the account;
b. state the date the account was opened and identify the person that opened
the account;
c. describe how the account is used and by whom; [and]
d. state whether the account is still active and, if not, state the date it was
closed and the reason it was closed.
(Id. at 7.) Valentine objected that this Interrogatory is vague and ambiguous to the extent that it
did not define “every account on which you were authorized to sign checks,” that it is overly
broad, burdensome, and harassing. (Id.) Valentine’s objection based on vagueness and ambiguity
is overruled. Valentine is a businessman and is presumed to know what it means to having

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signing authority on an account. A stipulated protective order has been entered in this case,
alleviating any concerns about personal banking information. (Doc. 113.) Given the nature and
circumstances of this case, I agree with the Plaintiffs that this Interrogatory is reasonably
calculated to lead to relevant information. Valentine’s objections are overruled without
prejudice. He will provide a complete, verified response to this Interrogatory within fourteen
days from the date of entry of this Order.
RFP No. 1: RFP No. 1 asked Valentine “[f]or every company for which in the last ten
years [he has] provided services, worked at, owned, or [was] an officer, director, employee or
independent contractor (including self-employment), [to] produce the documents that define or
govern the role [he] played with this company.” (Doc. 117 Ex. 1 at 8.) Valentine objected to this
RFP on the basis that it is overly broad, burdensome, and harassing, and stated that he is not in
possession of responsive documents. (Id.) I find this position difficult to believe given that
Valentine remains an owner of DMP. As previously discussed, I find that this RFP is reasonably
calculated under the circumstances and thus overrule Valentine’s objections. Valentine will fully
respond to this RFP within fourteen days from the date of entry of this Order.
RFP No. 2: RFP No. 2 asked Valentine
Concerning AFB:
a. produce all documents concerning activities you performed for or on
behalf of AFB;
b. produce all documents concerning your involvement in a decision to hire
or fire any AFB employee;
c. produce all documents concerning any compensation, direct or indirect[,]
you received from AFB; and
d. produce all documents concerning the end of your association with AFB.
(Id. at 8-9.) Valentine responded with reference to his Interrogatory responses, which I have
already found were insufficient. Any potential objection to this RFP is overruled on that basis

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and Valentine is directed to fully respond within fourteen days from the date of entry of this
Order.
RFP No. 4: RFP No. 4 asked Valentine to “[p]roduce all documents concerning each
check made out to [him] on an AFB bank account and each transfer to [his] account from an
AFB bank account.” (Id. at 10.) Valentine responded with reference to his responses to
Interrogatories Nos. 6 and 7, and RFP No. 2. As previously discussed with reference to those
discovery requests, Valentine’s responses were insufficient. Valentine will fully respond to this
RFP within fourteen days from the date of entry of this Order.
RFP No. 5: RFP No. 5 asked Valentine to “[p]roduce signature cards for each bank
account on which [he was] authorized to sign checks or transfer money in the last ten years.” (Id.
at 10.) Valentine objected to this RFP on the basis that it is vague and ambiguous because “it
requests documents related to all account[s] on which he was an authorized signor without
clarification,” is overly broad and burdensome, harassing, and not calculated to lead to
admissible evidence. (Id.) Again, these objections are overruled. Valentine is a businessman and
knows what signature cards are and what it means to be an authorized signor. I agree with
Plaintiffs that this request is reasonably calculated to lead to relevant information under the
circumstances. Valentine will provide a complete response within fourteen days from the date of
entry of this Order.

CONCLUSION

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Plaintiffs’ motion to compel is granted. Valentine will provide complete discovery
response within fourteen days from the date of entry of this Order. Valentine is reminded that
objections not initially raised are waived, that he must verify his Interrogatory responses, and
that failure to fully comply with this Order may result in sanctions.
It is so ordered.

______________________________
William P. Lynch
United States Magistrate Judge

A true copy of this order was served
on the date of entry--via mail or electronic
means--to counsel of record and any pro se
party as they are shown on the Court’s docket.

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