ML-CFC 2007-6 Puerto Rico, LLC v. BPP Retail Properties, LLC

Filing 844

MEMORANDUM AND ORDER: For the reasons set forth in this Memorandum and Order, The Court ADOPTS the Report and Recommendation, as amended at 816 . ML-CFC's Motion for Contempt at 651 is GRANTED IN PART and DENIED IN PART. BPP is ORDERED to produce the contract in controversy to Plaintiff on or before August 1, 2022. If BPP fails to comply, it will pay a $500 fine per day which will increase to $1,000 for each day after < b>August 15, 2022, that BPP remains noncompliant. This amount will be deposited in the Clerk's Registry. BPP's Motion to Compel at 730 is DENIED . Signed by Judge Raul M. Arias-Marxuach on 7/22/2022. (mrr)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
ML-CFC 2007-6 PUERTO RICO PROPERTIES,
LLC.
Plaintiffs
v.
BPP RETAIL PROPERTIES, LLC
Defendant and Third-Party Plaintiff
CIVIL NO. 17-1199(RAM)

v.
JONES LANG LA SALLE AMERICAS, INC.;
JLL PUERTO RICO REALTY GP, INC.;
LNR PARTNERS, LLC; C-III ASSET
MANAGEMENT, LLC; GREYSTONE SPECIAL
SERVICING CORP; AND CWCAPITAL ASSET
MANAGEMENT, LLC
Third-Party Defendants

MEMORANDUM AND ORDER
RAÚL M. ARIAS-MARXUACH, United States District Judge
Before the Court is the Magistrate Judge’s June 28, 2022,
Report and Recommendation (“R&R”) regarding various discovery
disputes raised in two pending motions. (Docket No. 816). For the
following reasons, the Court ADOPTS the R&R, as amended.
I.

BACKGROUND

The first motion is Plaintiff ML-CFC 2007-6’s (“Plaintiff” or
“ML-CFC”) motion to hold Defendant BPP Retail Properties, LLC
(“Defendant” or “BPP”) in contempt for violating the Court’s order
to produce three types of documents (the “Motion for Contempt”).

Civil No. 17-1199(RAM)

2

(Docket No. 651). ML-CFC argues BPP has failed to produce the
following three documents, despite this Court’s orders: (1) BPP’s
contract

with

its

public

adjuster;

(2)

BPP’s

internal

communications with its public adjuster regarding its claims after
Hurricanes Irma and Maria; and (3) BPP’s financial reports for the
years 2018, 2019, and 2020 and audited financial statements for
2015, 2016, 2018, and 2019. Id.
The second motion is BPP’s motion seeking an order compelling
Plaintiff

and

all

Third-Party

Defendants

to

produce

three

categories of documents (the “Motion to Compel”).1 (Docket No.
730). Specifically, BPP seeks to compel production of the following
documents: (1) Documents related to the 2018 attempted sale of
Replacement Promissory Note A; (2) the identity of the controlling
certificate holders of the CMBS Trust from June 2018 to the present
and related documents and communications; and (3) loan request
transfer forms. Id.
After presiding over an evidentiary hearing, the Magistrate
Judge issued a thorough and well-analyzed R&R. (Docket No. 816).
With regards to ML-CFC’s Motion for Contempt, the R&R recommends
that BPP be ordered to produce the contract with its public
adjuster,

given

that,

protected

from

disclosure

1

upon

in-camera
under

the

inspection,
attorney

it

is

not

work-product

The Third-Party Defendants are: LNR Partners, LLC (“LNR”), C-III Asset
Management, LLC (“C-III), CWCapital Asset Management, LLC (“CWCapital”), and
Greystone Servicing Company, LLC (“Greystone”).

Civil No. 17-1199(RAM)

3

doctrine. Id. at 14. Additionally, the R&R does not recommend a
finding of contempt against BPP for failing to produce: (1)
communications

with

its

public

adjustor;

and

(2)

financial

reports. The R&R reached this conclusion in light of affidavits
submitted by company representatives certifying under penalty of
perjury that BPP does not possess said documents. Id. at 17-20.
Lastly, the R&R recommends that BPP’s Motion to Compel be denied
in its entirely for being untimely and due to BPP’s failure to
evince good cause, diligence, or excusable neglect. Id. at 21-35.
ML-CFC and BPP filed separate timely partial objections to
the R&R. (Docket Nos. 832 and 833). ML-CFC’s only objection was
that although the Magistrate recommended that BPP produce the
contract with its public adjuster, the R&R should have instead
recommended that BPP be held in contempt for its failure to produce
the contract per this Court’s previous orders. (Docket No. 832 ¶¶
4-5). On their part, BPP maintains that the Magistrate exceeded
the scope of his delegated authority by recommending the production
of the contract rather than determining the propriety of contempt.
(Docket No. 833 ¶¶ 4-5). Additionally, BPP objected to the R&R’s
recommendation to deny the Motion to Compel. Id. ¶¶ 25-91.
II.

DISCUSSION

The Court may refer non-dispositive motions to a Magistrate
Judge for an R&R. See 28 U.S.C. § 636(b)(1)A); Fed. R. Civ. P.
72(b)(2). Within fourteen days of receiving a copy of the R & R,

Civil No. 17-1199(RAM)

4

“a party may serve and file specific written objections to the
proposed findings and recommendations.” Id. Upon filing of a timely
objection, a party is entitled to a de novo determination of “those
portions

of

the

recommendations

to

report
which

or

specified

specific

proposed

objection

is

findings
made.”

or

Total

Petroleum Puerto Rico Corp. v. Fonseca-Marrero, 2018 WL 6131777,
at *1 (D.P.R. 2018) (quotation omitted); see also Ponsa-Rabell v.
Santander Securities, LLC, 2020 WL 4219685, at *1 (D.P.R. 2022).
When performing this review, the Court may “accept, reject, or
modify, in whole or in part, the findings or recommendations made
by the magistrate judge.” 28 U.S.C. § 636(a)(b)(1).
“Where, as here, a [Magistrate] has produced a first-rate
work

product,

a

reviewing

tribunal

should

hesitate

to

wax

longiloquent simply to hear its own words resonate.” Chen v.
I.N.S., 87 F.3d 5, 7 (1st Cir. 1996) (quoting In re San Juan Dupont
Plaza Hotel Fire Litig., 989 F.2d 36, 38 (1st Cir. 1993)). Upon
completing an independent examination of the record, the R&R, and
the parties’ objections thereto, the court ADOPTS AND MODIFIES the
Magistrate Judge’s findings and recommendations at Docket No. 816
to clarify the contempt issue.
III. CONCLUSION
In accordance with the above, ML-CFC’s Motion for Contempt at
Docket No. 651 is GRANTED IN PART and DENIED IN PART. BPP is
ORDERED to produce the contract in controversy to Plaintiff on or

Civil No. 17-1199(RAM)

5

before August 1, 2022. If BPP fails to comply, it will pay a
$500.00 fine per day which will increase to $1,000.00 for each day
after August 15, 2022, that BPP remains noncompliant. This amount
will be deposited in the Clerk’s Registry. BPP’s Motion to Compel
at Docket No. 730 is DENIED.
IT IS SO ORDERED.
In San Juan Puerto Rico, this 22nd day of July 2022.
S/ RAÚL M. ARIAS-MARXUACH___
United States District Judge