Fleetwood Services, LLC v. Ram Capital Funding, LLC et al

Filing 47

ORDER granting 46 Letter Motion to Compel; granting 46 Letter Motion for Extension of Time to Complete Discovery. Parties are granted a 45-day extension of all discovery deadlines. Parties are further directed to appear for a telephonic status conference on May 5, 2021 at 10:00 a.m. Parties are directed to dial [phone] and use access code 2123101. (Signed by Judge Lewis J. Liman on 4/26/2021) (tro)

Case 1:20-cv-05120-LJL Document 46 Filed 04/19/21 Page 1 of 5

Stuart J. Wells | Counsel
7 Times Square, Suite 2900 | New York, NY 10036-6524
Direct 212.631.1255 | Fax [phone]
[e-mail] | whiteandwilliams.com

April 19, 2021
VIA ECF
Hon. Lewis J. Liman
Daniel Patrick Moynihan United States Courthouse
500 Pearl St. Courtroom 15C
New York, New York 10007-1312
RE:

Fleetwood Services, LLC v. Ram Capital Funding, LLC, Tzvi Reich a/k/a Steve Reich,
Richmond Capital Group LLC n/k/a RCG Advances LLC and Robert Giardina,
No. 20-cv-05120 (LJL)_

Dear Judge Liman:
We are the attorneys for Plaintiff Fleetwood Services, LLC (“Fleetwood”). We write to
request (i) a 90-day extension of all discovery deadlines and (ii) to compel Richmond Capital
Group LLC’s (“Richmond”) production of documents by a date certain because Richmond has
failed to timely produce documents and responses to document demands and Defendant Robert
Giardina (“Giardina, and together with Richmond, the “Richmond Defendants”) has asserted a
blanket Act of Production privilege to Fleetwood’s demands. Absent production of documents
from Richmond, Fleetwood cannot conduct meaningful depositions. This the first request for an
extension of discovery by any party. Notwithstanding their failure to produce any documents,
the Richmond Defendants refused to consent to the extension request.1 The current fact
discovery deadline is May 14, 2021, and a proposed amended scheduling order is attached hereto
as Exhibit 1.
STATUS OF DISCOVERY
This breach of contract and RICO action stems from Giardina’s use of Richmond to
orchestrate a fraudulent scheme to collect upon an unlawful debt by disguising criminally
usurious loans as the purchase of future receivables and improperly withdrawing funds from
Fleetwood’s bank accounts. Based upon similar conduct, the New York Attorney General (the
“NY AG”) and the Federal Trade Commission have asserted deceptive practice claims against
As this Court may recall, Fleetwood has settled its claims against Ram Capital Funding LLC (“Ram
LLC”) and Steven Reich (“Reich” and collectively with Ram LLC, the “Ram Defendants”). Richmond
has asserted an indemnity claim against Ram LLC. A motion to dismiss the indemnity claim was filed in
January and is pending before the Court.
1

Delaware | Massachusetts | New Jersey | New York | Pennsylvania | Rhode Island
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Hon. Lewis J. Liman
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the Richmond Defendants in subsequently filed actions entitled James v. Richmond Capital
Group, LLC, et. al., Supreme Court of the State of New York, County of New York, Index No.
451328/2020 and Federal Trade Commission v. RCG Advances, LLC, et. al., United States
District Court for the Southern District of New York, Case No. 20-cv-04432. These actions are
still pending.
After various motions to dismiss were fully briefed in this action and Fleetwood and the
Richmond Defendants exchanged initial disclosures, by email dated March 4, 2021, Fleetwood
served Richmond with an initial set of document demands. Shortly thereafter, Fleetwood served
Giardina with document demands and notices of depositions/subpoenas and/or document
subpoenas upon the Richmond Defendants for the following witnesses:
WITNESS

DATE

KNOWLEDGE

Richmond
Rule
30(b)(6) designee

4/21/2021

Topics include factual allegations in Richmond’s
answer; knowledge of witnesses identified in Initial
Disclosures; underwriting, enforcement and collection
of allegedly unlawful debt.

Robert Giardina

4/27/2021

Founder and owner of Richmond; Named defendant
believed to have knowledge of underlying scheme to
collect unlawful debt.

Michelle Gregg

4/29/201

Representative of Richmond involved in underlying
transaction who is also believed to have personal
knowledge of Richmond’s policies, procedures and
operations.

Joe DeSilva

4/30/2021

Believed to be an underwriter with Richmond and have
knowledge concerning Richmond’s underwriting,
collection and enforcement policies and procedures.

5/4/2021

Owner and founder of Ram LLC who is believed to
have knowledge concerning the relationship between
Ram LLC and Richmond that is relevant to establishing
Fleetwood’s claims that Richmond is the true party in
interest under the subject agreement

Ram LLC
Tzvi Reich2

2

and

While the Ram Defendants have raised objections to these requests, counsel for Fleetwood and the Ram
Defendants have met and conferred and we believe those differences have been resolved.

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Hon. Lewis J. Liman
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By letter dated April 5, 2021 (Ex. 2 hereto), the day that Richmond’s document demand
responses were due, counsel for Richmond requested a two-week extension to begin a “rolling”
production of documents, but when asked when the production would be completed, Richmond’s
counsel failed and refused to commit to a date (Ex. 3 hereto), thereby prejudicing Fleetwood’s
ability to prepare for the noticed depositions and complete discovery by the fact discovery cutoff
or May 14, 2021. As of the filing of this letter on April 19, 2021, Richmond still has not
produced any documents.
Additionally, the April 5 letter advised that Giardina would not be producing any
responses or documents based upon the Act of Production privilege and would be asserting the
Fifth Amendment at his deposition, making Richmond’s discovery responses even more critical.
Counsel also advised that they would not be available for deposition during the week of April 27,
2021 because he would be appearing before Your Honor for a “weeklong” trial in another matter.
In addition to the above discovery, Fleetwood has subpoenaed and received documents
from Empire State Bank, N.A and Actum Processing, Inc.
In the meantime, Richmond waited until April 12, 2021 to serve document demands and
interrogatories upon Fleetwood and to notice a Rule 30(b)(6) deposition of Fleetwood for May
14, 2021. Fleetwood’s responses to the discovery demands are due May 12, 2021. Giardina has
not served any discovery upon Fleetwood.
PROPOSED DISCOVERY
Fleetwood requests an extension of the discovery deadline in order to obtain documents
from the Richmond Defendants and conduct meaningful deposition discovery.
Among other things, Fleetwood’s document demands (the “Fleetwood Document
Demands”) (Ex. 4 hereto) seek the production of: (i) all documents relating to the underlying
Fleetwood Transaction, including material relating to how Richmond underwrote the transaction,
established the usurious payment terms and adopted the form of agreement that Fleetwood
alleges was used by Giardina to conceal his unlawful debt scheme; (ii) documents showing that
Richmond improperly withdrew and effectively stole more than $35,000 from Fleetwood’s bank
account; (iii) documents showing how Richmond treats and enforces its agreements; and (iv)
documents that would shed light into Richmond’s affirmative defenses and counterclaims,
including the relevancy of more than 50 third-party witnesses that Richmond’s initial disclosures
identified as “potentially” having knowledge about Richmond’s operations. The Richmond
Defendants have not raised any objections to Fleetwood’s Document Demands.
Without these documents and the additional documents sought by the Document
Demands, Fleetwood cannot effectively conduct the party-depositions set forth above.
Fleetwood requires the documents in order to properly prepare for and examine the party
witnesses and to challenge the scope of Giardina’s privilege assertions. Accordingly, as set forth
in the accompanying proposed scheduling order, Fleetwood requests that the Court set May 14,

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Hon. Lewis J. Liman
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2021 as the date by which the Richmond Defendants must produce written responses, without
objections, to the Document Demands and all responsive documents and extend fact discovery
until August 16, 2021. In this manner, Fleetwood can reschedule and prepare for the noticed
depositions of Richmond’s corporate witness, Giardina, Gregg, DeSilva and Reich (if such
deposition remains necessary).
Fleetwood also seeks the latitude, without further Court order, to depose up to five (5)
additional depositions based upon the documents to be produced by Richmond and the testimony
of the above-referenced witnesses. As discussed above, the Fleetwood Document Demands seek
information concerning the files of the 50 third-party persons/entities identified by Richmond in
its Initial Disclosures as potentially having relevant knowledge. Fleetwood believes that the
requested documents and Rule 30(b)(6) testimony will explain the knowledge of these potential
witnesses and identify those witnesses that truly need to be deposed, thereby streamlining the
discovery process. At this time, Fleetwood seeks permission to depose up to five additional
witnesses that it deems necessary in light of the documents and testimony without further leave
of the Court.
Fleetwood has no objection to extending the fact discovery deadline to include its
responses to Richmond’s document demands and to produce a Rule 30(b)(6) witnesses after
Richmond has had an opportunity to review any responsive documents produced by Fleetwood.
LEGAL ARGUMENT
Pursuant to Fed. R. Civ. P. 16(b)(4), a case management plan and scheduling order may
be modified and extended upon a showing of “good cause.” See Fed. R. Civ. P. 16 (b)(4). In
considering whether “good cause” exists, a court should consider the due diligence of the
moving party in seeking discovery, the proposed discovery, any prejudice from denying the
extension and whether granting the extension will contribute to the “speedy, just and inexpensive
determination of the matter.” Furry Puppet Studio Inc. v. Fall Out Boy, 2020 U.S. Dist. LEXIS
155557 at *5 (S.D.N.Y. Feb. 24, 2020) (J. Liman). Each of these factors weigh heavily in favor
of granting the requested extension.
First, Fleetwood has been diligent in conducting discovery, but Giardina has failed and
refused to produce any documents and Richmond has failed to produce the requested documents
in a timely fashion and have refused to identify when they will produce all of the requested
documents. See Elliot Assocs., L.P. v. Republic of Peru, 1997 U.S. Dist. LEXIS 11185
(S.D.N.Y. Aug. 1, 1997) (after the close of discovery, granting extension because of defendant’s
delays in producing documents). Richmond’s failure to timely produce the requested documents
is, frankly, surprising. For several years, Richmond has been the subject of an investigation by
the NY AG and has been compelled to produce documents to the NY AG which are likely very
similar to the documents sought by Fleetwood. Accordingly, Richmond should have these
documents readily available for production, but it has not produced them and it refuses to
provide a date certain for their complete production. Its delay can only be viewed as a tactic to
frustrate Fleetwood’s timely and legitimate discovery requests.

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Second, denying the extension will severely prejudice Fleetwood. Giardina has refused
to produce any documents based upon the Act of Production privilege and intends to assert the
Fifth Amendment privilege at his deposition. Accordingly, Richmond is the only source of
documents. Absent the responsive documents, Fleetwood cannot prepare for and conduct
meaningful depositions to establish its case or narrow the scope of its questioning so that it can
properly and fully challenge Giardina’s assertion of the Act of Production and the Fifth
Amendment privileges.
Third, granting the extension will not prejudice the Richmond Defendants. Richmond
has just recently served its own discovery and it has already asked Fleetwood for a “courtesy”
extension of time to produce documents. Giardina has not even answered the Amended
Complaint, let alone served any discovery. Instead, he moved to dismiss the action and that
motion is still pending.
Finally, granting the extension is the most efficient manner to proceed. Richmond
purportedly needs the additional time in order to produce documents and Richmond’s counsel
advises that it is not available for depositions on April 27, 2021 and for sometime thereafter
because counsel’s office is “currently scheduled to be before the Honorable Liman on the
previously suggested date, for a weeklong trial.” See Ex. 2 hereto. Richmond has not suggested
any new dates for the depositions that had been proposed for that week. Granting the extension
will allow the parties the opportunity to reschedule the previously noticed depositions so that
they do conflict with other matters pending before this Court.
CONCLUSION
Fleetwood respectfully requests that good cause exists for a 90-day extension of all
discovery deadlines in this matter. This is Fleetwood’s first request for an extension. Fleetwood
should not be prejudiced by Richmond’s failure to produce documents and Giardina’s sweeping
assertions of constitutional privilege to shield him from discovery. Accordingly, it is
respectfully requested that the Court grant Fleetwood’s request to (i) compel Richmond’s
complete production of documents by May 14, 2021 and (ii) extend all discovery deadlines by 90
days.
Respectfully submitted,
WHITE AND WILLIAMS LLP

Stuart J. Wells
cc: ALL COUNSEL OF RECORD (VIA ECF)

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