Musket Corporation v. Star Fuel of Oklahoma LLC et al
Filing
164
ORDER denying 104 plaintiff's motion to compel and in light of the Court's denial of plaintiff's motion to compel, the Court finds that 135 Star Fuel's motion for protective order is now moot (as more fully set out in order). Signed by Honorable Vicki Miles-LaGrange on 6/20/2012. (ks)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
MUSKET CORPORATION,
Plaintiff,
vs.
STAR FUEL OF OKLAHOMA, LLC,
LINCOLN O. CLIFTON,
DAVID A. SELPH, and
MARK LUITWIELER,
Defendants.
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Case No. CIV-11-444-M
ORDER
Before the Court is plaintiff’s Motion to Compel, filed March 8, 2012. On April 5, 2012,
defendant Star Fuel of Oklahoma, LLC (“Star Fuel”) filed its response, and on April 20, 2012,
plaintiff filed its reply. Also before the Court is Star Fuel’s Motion for Protective Order, filed April
5, 2012. On April 26, 2012, plaintiff filed its response, and on May 3, 2012, Star Fuel filed its reply.
Based upon the parties’ submissions, the Court makes its determination.
Plaintiff contends that Star Fuel has refused to produce documents relating to the revenues
and profits it earned as a result of the conduct giving rise to plaintiff’s claims. Plaintiff further
contends that these documents are critical to the preparation of plaintiff’s case and to the calculation
of plaintiff’s damages. Plaintiff also contends that the few documents that Star Fuel has agreed to
produce are incomplete, inaccurate, and are not sufficient to fully respond to plaintiff’s discovery
requests. Accordingly, plaintiff moves this Court for an order compelling Star Fuel to produce all
documents responsive to plaintiff’s requests that will enable plaintiff to accurately identify Star
Fuel’s revenues and profits. In response, Star Fuel moves this Court for a protective order limiting
or prohibiting plaintiff’s allegedly overly broad, vague, ambiguous, and unduly burdensome
discovery requests as set forth in plaintiff’s Motion to Compel.
In its motion, plaintiff moves the Court to compel Star Fuel to produce the following specific
information and documentation:
a.
An accurate Margin Report identifying Star Fuel’s profit
margins on all sales of gasoline and diesel fuel purchased
from Musket from March 2008 through September 2008,
along with any and all documentation necessary to verify the
accuracy of such report including: (i) pricing quotes, (ii) bills
and invoices from Star Fuel supplier of ethanol, (iii) customer
pricing quotes generated within Star Fuel, (iv) daily dispatch
sheet and daily dispatch logs, and (v) delivery driver packets;
b.
An accurate Margin Report identifying Star Fuel’s profit
margins on all fuel transactions attributable to Luitwieler
from September 2008 through May 2011, including all
purchases and sales of ethanol, along with any documentation
necessary to verify the accuracy of such report including: (i)
pricing quotes, (ii) bills and invoices from Star Fuel supplier
of ethanol, (iii) customer pricing quotes generated within Star
Fuel, (iv) daily dispatch sheet and daily dispatch logs, and (v)
delivery driver packets;
c.
Supporting documents evidencing the basis for Star Fuel’s
allocation of revenues and expenses to the Supply &
Logistics Department as reflected in the S&L Dept. Income
Statements and Commission Reports, along with supporting
documentation such as (i) invoices, (ii) checks, (iii) general
ledger, and (iv) monthly income statements for the Supply
and Logistics Department;
d.
Monthly and annual Income Statements for the period of
September 2008 through May 2011, that are not limited to the
Supply & Logistics Department;
e.
Monthly and annual Profits and Loss Statements for the
period September 2008 through May 2011; and
f.
Documents relating to Luitwieler’s unauthorized trading
activity as a Star Fuel employee.
2
Plaintiff’s Motion to Compel at 5-6.1
A.
Margin Reports2
A nine page Margin Report was previously produced by Star Fuel to plaintiff. This Margin
Report was generated as a report of the performance of Star Fuel’s “last Musket deal” and covers
only those transactions that occurred in the one week period between August 26, 2008 and
September 3, 2008. Plaintiff now moves the Court to compel Star Fuel to produce Margin Reports
from March 1, 2008 to the present. Specifically, plaintiff moves the Court to compel Star Fuel to
prepare these Margin Reports and then produce them to plaintiff. In its response, Star Fuel states
that the requested Margin Reports do not exist. Specifically, Star Fuel states that it created one
Margin Report for one transaction, found it to be inaccurate, and did not create any further such
reports.
Federal Rule of Civil Procedure 34 provides that discovery may be had of documents and
things that are in the “possession, custody, or control” of a party. “A document or thing is not in the
possession, custody, or control of a party if it does not exist. Production cannot be required of a
document no longer in existence nor of one yet to be prepared.” 8B Charles Alan Wright, et al.,
Federal Practice and Procedure § 2210 (3d ed. 2010). “Accordingly, a party cannot be required
to prepare, or cause to be prepared, documents not already in existence solely to satisfy the requests
of an opposing party.” Ascom Hasler Mailing Sys. v. United States Postal Serv., 267 F.R.D. 1, 8
(D.D.C. 2010).
1
Plaintiff never sets forth which of its discovery requests specifically request the information
and documentation that it is seeking through its motion to compel.
2
This section encompasses items a and b set forth above.
3
Having reviewed the parties’ submissions, the Court finds that the Margin Reports that
plaintiff seeks do not exist and that Star Fuel cannot be compelled to prepare such reports.
Accordingly, the Court finds that plaintiff’s motion to compel in relation to the production of Margin
Reports for the period beginning March 1, 2008 through the present should be denied. Additionally,
in light of this finding, the Court finds that plaintiff’s motion to compel in relation to the production
of supporting documents regarding the Margin Reports is now moot.3
B.
Supporting Documents for Star Fuel’s Supply & Logistics Department Income Statements
and Luitwieler Compensation Reports4
Plaintiff never identifies a specific discovery request seeking supporting documents for Star
Fuel’s Supply & Logistics Department Income Statements and Luitwieler Compensation Report.
In its response, Star Fuel directs this Court’s attention to the following email request for production:
Email RFP No. 1: [D]ocuments to substantiate the numbers in the
income statements that were produced (e.g., basis for calculating
payroll, legal fees, “professional fees” and “overhead allocation.”
Defendant Star Fuel of Oklahoma, LLC’s Response to Plaintiff’s Motion to Compel and Brief in
Support at 19; February 2, 2012 Letter from Gary S. Chilton, attached as Exhibit 8 to Star Fuel’s
response. Upon review of the parties’ submissions, the Court finds that this email request for
production is the only discovery request before the Court that relates to the supporting documents
requested by plaintiff.
3
The Court would note that Star Fuel has produced to plaintiff all of Star Fuel’s invoices
related to its purchase and sale of plaintiff’s gasoline and that these invoices provide all the
information necessary for plaintiff to calculate the margin of profit.
4
This section encompasses item c set forth above.
4
Star Fuel contends that the email request for production is facially overly broad, vague, and
ambiguous and would create an undue burden and expense on Star Fuel. Having reviewed the
parties’ submissions, the Court concurs with Star Fuel. Specifically, the Court finds that the email
request for production is overly broad, vague, and ambiguous; the request for production does not
describe with the requisite particularity the items sought to be produced. The Court also finds that
plaintiff’s request for production would create an undue burden and expense on Star Fuel. In his
affidavit, Daniel Paul Engle, the controller of Star Fuel Centers, Inc., which provides management
services to Star Fuel, states that the requested supporting documentation is kept in boxes in dead
storage in a warehouse and that with respect to the Cost of Goods sold part of the Income Statements
alone, it would take approximately 938 business days to conduct the records search. See Affidavit
of Daniel Paul Engle, attached as Exhibit 7 to Star Fuel’s response, at ¶¶ 5-6.
Accordingly, the Court finds that plaintiff’s motion to compel in relation to the production
of supporting documents for Star Fuel’s Supply & Logistics Department Income Statements and
Luitwieler Compensation Reports should be denied.
C.
Monthly and Annual Income Statements and Profit and Loss Statements for Star Fuel as a
Whole5
In its motion, plaintiff asserts that it is entitled to discover information regarding the total
revenues and profits recorded by Star Fuel from September 2008 to present, not just those revenues
and profits that were internally allocated to the Supply & Logistics Department, and all monthly and
annual income statements and profit and loss statements for Star Fuel should be produced. Plaintiff,
however, never identifies a specific discovery request seeking these documents, and upon review
5
This section encompasses items d and e set forth above.
5
of the documents attached to plaintiff’s motion, the Court has found no such request. Before a party
may move to compel the production of documents, the party must first seek those documents
through a Rule 34 request for production. See Federal Rule of Civil Procedure 37(a)(3)(B)(iv).
Accordingly, the Court finds that plaintiff’s motion to compel in relation to the production of
monthly and annual income statements and profit and loss statements for Star Fuel as a whole should
be denied.6
D.
Documents Relating to Luitwieler’s Unauthorized Trading Activity While Employed at Star
Fuel7
Plaintiff never identifies a specific discovery request seeking documents relating to
Luitwieler’s unauthorized trading activity while employed at Star Fuel. In its response, Star Fuel
directs this Court’s attention to the following email request for production:
Email RFP No. 6: All documents surrounding Luitwieler’s improper
trades/purchases while at Star Fuel.
Defendant Star Fuel of Oklahoma, LLC’s Response to Plaintiff’s Motion to Compel and Brief in
Support at 23; February 20, 2012 Letter from Gary S. Chilton, attached as Exhibit 10 to Star Fuel’s
response. Upon review of the parties’ submissions, the Court finds that this email request for
production is the only discovery request before the Court that relates to the documents plaintiff is
requesting regarding Luitwieler’s unauthorized trading activity.
Star Fuel contends that the email request for production is overly broad, vague, and
ambiguous.
Having reviewed the parties’ submissions, the Court concurs with Star Fuel.
6
The Court would note that this issue is likely moot since Star Fuel has indicated that it is
producing its monthly profit and loss information for January 2003 through March 2012 as part of
its expert witness disclosures.
7
This section encompasses item f set forth above.
6
Specifically, the Court finds that the email request for production is clearly overly broad, vague, and
ambiguous; the request for production does not describe with the requisite particularity the items
sought to be produced. Accordingly, the Court finds that plaintiff’s motion to compel in relation to
the production of documents relating to Luitwieler’s unauthorized trading activity while employed
at Star Fuel should be denied.
CONCLUSION
For the reasons set forth above, the Court DENIES plaintiff’s Motion to Compel [docket no.
104]. Additionally, in light of the Court’s denial of plaintiff’s Motion to Compel, the Court FINDS
that Star Fuel’s Motion for Protective Order [docket no. 135] is now MOOT.
IT IS SO ORDERED this 20th day of June, 2012.
7
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