Transamerica Life Insurance Company v. Caramadre et al
Filing
140
RESPONSE in Opposition re (111 in 1:09-cv-00549-S-DLM, 139 in 1:09-cv-00472-S-DLM, 137 in 1:09-cv-00471-S-DLM, 124 in 1:09-cv-00502-S-DLM, 136 in 1:09-cv-00470-S-DLM, 165 in 1:09-cv-00473-S-DLM, 104 in 1:09-cv-00564-S-DLM) MOTION for Reconsideration re (121 in 1:09-cv-00471-S-DLM, 124 in 1:09-cv-00472-S-DLM, 149 in 1:09-cv-00473-S-DLM, 122 in 1:09-cv-00470-S-DLM, 110 in 1:09-cv-00502-S-DLM, 90 in 1:09-cv-00564-S-DLM, 97 in 1:09-cv-00549-S-DLM) Order on Motion to Compe WITH SUPPORTING MEMO filed by All Plaintiffs. (Attachments: #1 Exhibit A - Discovery Order, #2 Exhibit B - Email, #3 Exhibit C - Motion to Compel)Associated Cases: 1:09-cv-00470-S-DLM et al.(Daly, Michael)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
____________________________________
)
WESTERN RESERVE LIFE ASSURANCE )
CO. OF OHIO,
)
Plaintiff,
)
)
vs.
)
)
C.A. No. 09-470-S
JOSEPH CARAMADRE, RAYMOUR
)
RADHAKRISHNAN, ESTATE PLANNING )
RESOURCES, INC., HARRISON CONDIT, )
and FORTUNE FINANCIAL SERVICES,
)
INC.,
)
Defendants;
)
____________________________________ )
)
TRANSAMERICA LIFE INSURANCE
)
COMPANY,
)
Plaintiff,
)
)
vs.
)
)
C.A. No. 09-471-S
JOSEPH CARAMADRE, RAYMOUR
)
RADHAKRISHNAN, ESTATE PLANNING )
RESOURCES, INC., ESTELLA
)
RODRIGUES, EDWARD MAGGIACOMO, )
JR., LIFEMARK SECURITIES CORP., and )
PATRICK GARVEY,
)
Defendants;
)
____________________________________ )
)
WESTERN RESERVE LIFE ASSURANCE )
CO. OF OHIO,
)
Plaintiff,
)
)
vs.
)
C.A. No. 09-472-S
)
JOSEPH CARAMADRE, RAYMOUR
)
RADHAKRISHNAN, ESTATE PLANNING )
RESOURCES, INC., ADM ASSOCIATES, )
LLC, EDWARD HANRAHAN, THE
)
LEADERS GROUP, INC., and CHARLES )
BUCKMAN,
)
Defendants;
)
{W3030344.1}
1
____________________________________
)
WESTERN RESERVE LIFE ASSURANCE )
CO. OF OHIO,
)
Plaintiff,
)
)
vs.
)
)
JOSEPH CARAMADRE, RAYMOUR
)
RADHAKRISHNAN, ESTATE PLANNING )
RESOURCES, INC., DK LLC, EDWARD
)
HANRAHAN, THE LEADERS GROUP,
)
INC., and JASON VEVEIROS,
)
Defendants;
)
)
)
WESTERN RESERVE LIFE ASSURANCE )
CO. OF OHIO,
)
Plaintiff,
)
)
vs.
)
)
JOSEPH CARAMADRE, RAYMOUR
)
RADHAKRISHNAN, ESTATE PLANNING )
RESOURCES, INC., NATCO PRODUCTS )
CORP., EDWARD HANRAHAN, and THE )
LEADERS GROUP, INC.,
)
Defendants;
)
)
)
TRANSAMERICA LIFE INSURANCE
)
COMPANY,
)
Plaintiff,
)
)
vs.
)
)
LIFEMARK SECURITIES CORP., JOSEPH )
CARAMADRE, RAYMOUR
)
RADHAKRISHNAN, ESTATE PLANNING )
RESOURCES, INC. and EDWARD
)
MAGGIACOMO, JR.,
)
Defendants; and
)
)
C.A. No. 09-473-S
C.A. No. 09-502-S
C.A. No. 09-549-S
{W3030344.1}
2
____________________________________
WESTERN RESERVE LIFE ASSURANCE )
CO. OF OHIO,
)
Plaintiff,
)
)
vs.
)
)
JOSEPH CARAMADRE, RAYMOUR
)
RADHAKRISHNAN, ESTATE PLANNING )
RESOURCES, INC., HARRISON CONDIT, )
and FORTUNE FINANCIAL SERVICES,
)
INC.,
)
Defendants.
)
)
C.A. No. 09-564-S
PLAINTIFFS’ OBJECTION TO ESTATE PLANNING RESOURCES INC.’S
MOTION FOR RECONSIDERATION
Plaintiffs Western Reserve Life Assurance Co. of Ohio and Transamerica Life Insurance
Company (together “Plaintiffs”) object to motions for reconsideration filed by defendant Estate
Planning Resources, Inc. [Dkt. 136 in C.A. No. 09-470]
Plaintiffs file herewith a supporting memorandum of law.
Respectfully submitted on this 10th day of April, 2012.
/s/ Brooks R. Magratten
Brooks R. Magratten, Esq., No. 3585
David E. Barry, Esq., pro hac vice admitted
Michael J. Daly, Esq. No. 6729
PIERCE ATWOOD LLP
Attorneys for Plaintiffs
10 Weybosset St., Suite 400
Providence, RI 02903
(401) 588-5113 [Tel.]
(401) 588-5166 [Fax]
bmagratten@pierceatwood.com
dbarry@pierceatwood.com
mdaly@pierceatwood.com
{W3030344.1}
3
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
____________________________________
)
WESTERN RESERVE LIFE ASSURANCE )
CO. OF OHIO,
)
Plaintiff,
)
)
vs.
)
)
C.A. No. 09-470-S
JOSEPH CARAMADRE, RAYMOUR
)
RADHAKRISHNAN, ESTATE PLANNING )
RESOURCES, INC., HARRISON CONDIT, )
and FORTUNE FINANCIAL SERVICES,
)
INC.,
)
Defendants;
)
____________________________________ )
)
TRANSAMERICA LIFE INSURANCE
)
COMPANY,
)
Plaintiff,
)
)
vs.
)
)
C.A. No. 09-471-S
JOSEPH CARAMADRE, RAYMOUR
)
RADHAKRISHNAN, ESTATE PLANNING )
RESOURCES, INC., ESTELLA
)
RODRIGUES, EDWARD MAGGIACOMO, )
JR., LIFEMARK SECURITIES CORP., and )
PATRICK GARVEY,
)
Defendants;
)
____________________________________ )
)
WESTERN RESERVE LIFE ASSURANCE )
CO. OF OHIO,
)
Plaintiff,
)
)
vs.
)
C.A. No. 09-472-S
)
JOSEPH CARAMADRE, RAYMOUR
)
RADHAKRISHNAN, ESTATE PLANNING )
RESOURCES, INC., ADM ASSOCIATES, )
LLC, EDWARD HANRAHAN, THE
)
LEADERS GROUP, INC., and CHARLES )
BUCKMAN,
)
Defendants;
)
{W3030344.1}
1
____________________________________
)
WESTERN RESERVE LIFE ASSURANCE )
CO. OF OHIO,
)
Plaintiff,
)
)
vs.
)
)
JOSEPH CARAMADRE, RAYMOUR
)
RADHAKRISHNAN, ESTATE PLANNING )
RESOURCES, INC., DK LLC, EDWARD
)
HANRAHAN, THE LEADERS GROUP,
)
INC., and JASON VEVEIROS,
)
Defendants;
)
)
)
WESTERN RESERVE LIFE ASSURANCE )
CO. OF OHIO,
)
Plaintiff,
)
)
vs.
)
)
JOSEPH CARAMADRE, RAYMOUR
)
RADHAKRISHNAN, ESTATE PLANNING )
RESOURCES, INC., NATCO PRODUCTS )
CORP., EDWARD HANRAHAN, and THE )
LEADERS GROUP, INC.,
)
Defendants;
)
)
)
TRANSAMERICA LIFE INSURANCE
)
COMPANY,
)
Plaintiff,
)
)
vs.
)
)
LIFEMARK SECURITIES CORP., JOSEPH )
CARAMADRE, RAYMOUR
)
RADHAKRISHNAN, ESTATE PLANNING )
RESOURCES, INC. and EDWARD
)
MAGGIACOMO, JR.,
)
Defendants; and
)
)
C.A. No. 09-473-S
C.A. No. 09-502-S
C.A. No. 09-549-S
{W3030344.1}
2
____________________________________
WESTERN RESERVE LIFE ASSURANCE )
CO. OF OHIO,
)
Plaintiff,
)
)
vs.
)
)
JOSEPH CARAMADRE, RAYMOUR
)
RADHAKRISHNAN, ESTATE PLANNING )
RESOURCES, INC., HARRISON CONDIT, )
and FORTUNE FINANCIAL SERVICES,
)
INC.,
)
Defendants.
)
)
C.A. No. 09-564-S
MEMORANDUM IN SUPPORT OF PLAINTIFFS’ OBJECTION TO ESTATE
PLANNING RESOURCES INC.’S MOTION FOR RECONSIDERATION
Plaintiffs Western Reserve Life Assurance Co. of Ohio (“WRL”) and Transamerica Life
Insurance Company (“Transamerica”) (together “Plaintiffs”) object to Defendant Estate Planning
Resources, Inc.’s (“EPR”) motion asking this Court to reconsider its order directing EPR to
respond to Plaintiffs’ interrogatories by November 22, 2011.1 See Order entered November 1,
2011, attached hereto as Exhibit A (“Discovery Order”).
BACKGROUND
EPR’s motion is an epilogue to a discovery dispute that Magistrate Judge Martin settled
long ago. In granting Plaintiffs’ motion to compel EPR to answer interrogatories, Magistrate
Judge Martin focused on EPR’s representation to the Court on January 7, 2011, that “there’s
nothing … that prevents the plaintiffs or any of the other parties from propounding
interrogatories to” EPR. Id. at p.7. EPR’s counsel made that representation to the Court while
arguing why EPR should be allowed to propound interrogatories to Plaintiffs, even when this
1
The Discovery Order does not provide a specific compliance deadline. Pursuant to LR Cv
37(b), however, a response was due within 21 days of the issuance of the order.
{W3030344.1}
3
Court’s Initial Case Management Order2 (“ICMO”) prevented its President, Joseph Caramadre,
from doing so.
Eight months after telling the Court that Plaintiffs were free to propound interrogatories
to EPR, EPR “decline[d] to respond” to each and every one of Plaintiffs’ interrogatories because,
it contended, the ICMO shielded EPR from responding. See Interrogatory Answers of EPR
appended to Exhibit A to Memorandum of Law in Support of Defendant [EPR’s] Motion for
Reconsideration (“EPR Mem.”). Plaintiffs promptly moved to compel. See Exhibit C.
Magistrate Judge Martin saw through EPR’s gamesmanship and observed that “EPR’s reversal
of position on this issue diminishes its credibility.” Discovery Order at p.7. Accordingly, on
November 1, 2011, Magistrate Judge Martin ordered EPR to respond fully.
In ordering EPR to respond, Magistrate Judge Martin was sensitive to the (unasserted)
Fifth Amendment rights of Caramadre and Radhakrishnan, whom EPR’s counsel said were the
only individuals who could provide substantive information for EPR to respond to the
interrogatories. Accordingly, he directed EPR to designate any other person to serve as an agent
to answer the interrogatories. Id. at p. 10. He also carefully accounted for the fact that the agent
may want to obtain certain information from Caramadre or Radhakrishnan, who may refuse to
cooperate. In that case,
The agent shall, in the response to such interrogatory, (1) explain
why the information can only be obtained from a Target Defendant
and from no other source (e.g., company records or persons other
than a Target Defendant) and (2) state verbatim the response which
the agent received from the Target Defendant who declined to
provide the information requested. To insure accuracy with
respect to the latter requirement, any Target Defendant who
declines to provide information to EPR’s agent shall furnish the
agent with a written statement stating the basis for the refusal.
2
Filed September 9, 2010 [Doc. 58 in C.A. No. 09-470].
{W3030344.1}
4
Id.
EPR claims that following the entry of the Discovery Order it designated an unidentified
agent to prepare interrogatory answers. Before EPR provided its answers, the U.S. Attorney
issued an indictment against Caramadre and Radhakrishnan. EPR claims that, at that point,
“counsel” advised the agent not to assist in preparing EPR’s interrogatory answers. Counsel for
Caramadre and EPR will not identify the “counsel” who allegedly instructed the agent to not
cooperate. See Exhibit B.
On March 2, 2012, the Court entered an order staying most discovery, but leaving open
the question of whether it would reconsider ordering EPR to answer interrogatories. For the
reasons set forth below, EPR’s motion should be denied.
ARGUMENT
“While the Federal Rules do not provide for a motion to reconsider, a district court has
the inherent power to reconsider its interlocutory orders ....” Fernandez–Vargas v. Pfizer, 522
F.3d 55, 61 n. 2 (1st Cir.2008) (internal quotation marks omitted). However, “motions for
reconsideration are appropriate only in a limited number of circumstances: if the moving party
presents newly discovered evidence, if there has been an intervening change in the law, or if the
movant can demonstrate that the original decision was based on a manifest error of law or was
clearly unjust.” United States v. Allen, 573 F.3d 42, 53 (1st Cir.2009) (citing Marie v. Allied
Home Mortg. Corp., 402 F.3d 1, 7 n. 2 (1st Cir.2005)).
EPR advances three reasons why it believes this Court should reconsider its order
compelling EPR to respond to interrogatories. None of them, however, justifies reconsideration
of Magistrate Judge Martin’s Discovery Order. Id.
{W3030344.1}
5
EPR contends that the indictment of Caramadre and Radhakrishnan is a “new fact that
strengthens the argument that EPR cannot answer the interrogatories.” EPR Mem. at p.10. This
argument rings hollow. First, Magistrate Judge Martin already considered and rejected the
contention that Caramadre and Radhakrishnan are the only potential sources of information
necessary to respond to many of Plaintiffs’ interrogatories. Discovery Order at p.8. And even if
consultation with Caramadre or Radhakrishnan were necessary, the Discovery Order provides
adequate protection to them if they do not want to assist in the preparation of EPR’s responses.
EPR’s contention that its interrogatory answers “would be directly traceable back to the
invocation of Fifth Amendment privilege and likely result in the very same prejudice that the
ICMO was designed to prevent” was the precise argument that Magistrate Judge Martin
considered and rejected in issuing the Discovery Order, which EPR did not appeal. “[M]otions
for reconsideration are not to be used as ‘a vehicle for a party to undo its own procedural
failures….” Allen, 573 F.3d at 53 (quoting Iverson v. City of Boston, 452 F.3d 94, 104 (1st
Cir.2006)). And ultimately – given the protections available to Caramadre and Radhakrishnan
under the Discovery Order - the indictment does not raise any new Fifth Amendment concerns
that were not accounted for when Magistrate Judge Martin issued the Discovery Order.
EPR also suggests that its alleged inability to enlist a willing agent to sign interrogatory
answers constitutes a “new fact” that warrants reconsideration of the Discovery Order. EPR
Mem. at p.10. This argument should be rejected outright. Despite Plaintiffs’ inquiry, EPR will
not even say if its attorneys or Caramadre are the “counsel” who supposedly advised the agent to
withdraw. See Exhibit B. Having refused to clarify this basic fact so the Court can fully
{W3030344.1}
6
consider the source or significance of the “advice,” the affidavit of EPR’s trial attorneys should
be disregarded.3
Moreover, EPR’s claimed financial inability to hire an agent is wholly disingenuous.
Even if the Court believes that EPR’s initial agent was diligently working to provide
interrogatory answers until the indictment was issued, it is important to note that the indictment
was issued only three business days before the answers were due pursuant to the Discovery
Order. Therefore, the yeomen’s work of preparing the response should already be complete and
the cost to finalize the answer should be nominal – likely far less than the cost of preparing and
arguing EPR’s Motion For Reconsideration.
Despite the claim that it has been reduced to a “shell of a corporation” - EPR has found a
way to muster up enough financial resources to engage in lengthy motion practice to obtain
discovery from Plaintiffs, and to avoid responding to Plaintiffs’ discovery. Also, rather than
taking advantage of the current stay to conserve financial resources, EPR is now seeking partial
final judgment in C.A. No. 09-470, which would cause the parties to devote significant financial
resources to an appeal. If EPR truly is a “shell of a company,” it is only because Caramadre has
siphoned off assets that it had when it told the Court that Plaintiffs were free to propound
interrogatories to it. And, ultimately, EPR’s financial status does not excuse it from complying
with discovery.
Next, the fact that the Court has dismissed some counts against EPR does not relieve it
from participating in discovery.4 Several counts remain pending against EPR and the
interrogatories are relevant to them. EPR does not even attempt to argue otherwise.
3
It is ironic that EPR states that its attorneys cannot sign interrogatory answers, but that they can
provide substantive facts to justify why they need not respond to discovery. As discussed in
Plaintiffs’ Motion to Compel, which is attached as Exhibit C and incorporated herein by
reference, EPR has several options for designating an agent to respond to interrogatories.
{W3030344.1}
7
Finally, the fact that the Court entered a partial stay of discovery should not excuse EPR
from responding to interrogatories. Plaintiffs propounded the interrogatories over nine months
ago. Had EPR honored its own representation to the Court that “there’s nothing in this
protective order or in this [ICMO] that prevents the plaintiffs or any of the other parties from
propounding interrogatories to [EPR],” Discovery Order at p.7, it would have provided
substantive answers well before the indictment was issued or the current stay entered. EPR
should not be rewarded for the contradictory and dilatory arguments Magistrate Judge Martin
found incredible.
CONCLUSION
For the reasons set forth herein, the Court should decline to reconsider Magistrate Judge
Martin’s Discovery Order for EPR to respond to Plaintiffs’ interrogatories.
4
The interrogatories in each case seek information that is specific to the annuities in the
respective case. The interrogatories in C.A. No. 09-470, however, include additional
interrogatories that are relevant to all cases, such as the identity of individuals with an interest in
EPR (Interrogatory No. 10) and statements made to law enforcement authorities (Interrogatory
No. 11). In an effort to avoid receiving (and forcing EPR to provide) duplicative information in
all seven cases, Plaintiffs did not repeat these universally applicable interrogatories in every case.
Although all claims against EPR have been dismissed in C.A. No. 09-470, it should not be
excused from providing the information sought in these interrogatories. First, WRL intends to
file a motion to assert claims against EPR in that case for conspiracy and criminal acts. The
Court has already considered such claims against EPR in the context of other cases held that they
have merit. Therefore, it is incorrect for EPR to assume that it is no longer involved in C.A. No.
09-470. Moreover, claims against EPR were pending in C.A. No. 09-470 when the
interrogatories were propounded and EPR ought to have provided its responses.
{W3030344.1}
8
Dated: April 10, 2012
Respectfully submitted,
/s/ Brooks R. Magratten
Brooks R. Magratten, Esq., No. 3585
David E. Barry, Esq., pro hac vice admitted
Michael J. Daly, Esq. No. 6729
PIERCE ATWOOD LLP
Attorneys for Plaintiffs
10 Weybosset St., Suite 400
Providence, RI 02903
(401) 588-5113 [Tel.]
(401) 588-5166 [Fax]
bmagratten@pierceatwood.com
dbarry@pierceatwood.com
mdaly@pierceatwood.com
CERTIFICATE OF SERVICE
I certify that the within document was electronically filed with the clerk of the
court on April 10, 2012, 2012, and that it is available for viewing and downloading from the
Court’s ECF system. Service by electronic means has been effectuated on all counsel of record.
/s/ Michael J. Daly
{W3030344.1}
9
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