SPV-LS, LLC v. Transamerica Life Insurance Company

Filing 347

REPORT AND RECOMMENDATION that default judgment be entered against Nachman Bergman and ORDER that each affidavit attested to by Nachman Bergman shall be stricken from the record in this litigation and may not be used by any party for any purpose. It is FURTHER ORDERED that Nachman Bergman is prohibited from testifying for or against any claim or defense in this litigation for any party. Signed by US Magistrate Judge Veronica L. Duffy on 8/16/2016. (CG)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
SPV-LS, LLC,

4:14-CV-04092-LLP
Plaintiff,

vs.
TRANSAMERICA LIFE INSURANCE
COMPANY,
Defendant and
Third-Party Plaintiff,
vs.
NACHMAN BERGMAN, as Trustee of
The N Bergman Insurance Trust dated
December 18, 2006; MALKA
SILBERMAN, as Successor Trustee of
The N Bergman Insurance Trust dated
December 18, 2006; LIFE TRADING
TRUST, dated August 8, 2007; T-LEG,
LLC, a/k/a TLEG LLC; FINANCIAL
LIFE SERVICES, LLC; SPV II LLC; and
THE REPRESENTATIVE OF THE
ESTATE OF NANCY BERGMAN,

FURTHER
ORDER AND
REPORT AND RECOMMENDATION
ON PLAINTIFF’S AND THIRD-PARTY
DEFENDANTS’ MOTION TO COMPEL
AND FOR SANCTIONS AGAINST
THIRD-PARTY DEFENDANT
NACHMAN BERGMAN
DOCKET NO. 278

Third-Party
Defendants.

This diversity matter is pending before the court on the complaint of
plaintiff SPV-LS, LLC. See Docket No. 1. Plaintiff and third-party defendants
Life Trading Trust, Financial Services, LLC, and SPV II LLC (collectively the
Krasnerman Entitites), filed a motion to compel third-party defendant

Nachman Bergman to produce documents and for sanctions. See Docket No.
278. No party filed any pleading in opposition to this motion. See DSD LR
7.1B.
On June 30, 2016, this court entered an order resolving this motion with
alternative sanctions. See Docket No. 311. The court ordered Nachman
Bergman to (1) immediately contact counsel for the Krasnerman Entities and
make arrangements for his deposition to be taken, at his expense, within the
next six weeks; and (2) serve the Krasnerman Entities with proper responses to
the discovery requests that had been propounded on Mr. Bergman by those
parties within two weeks in advance of the date set for his deposition. Id.
In the alternative, the court notified Nachman Bergman that if he failed
to take the above steps, the court would take the following actions: (1) enter a
default judgment against him, (2) strike his affidavits from the record, and
(3) prohibit him from offering testimony in support of or in opposition to any
claim or defense in this matter. Id.
Counsel for the Krasnerman Entities has notified this court that
Nachman Bergman did not respond to this court’s June 30, 2016 order. See
Docket Nos. 345 & 346. Accordingly, it is hereby
RECOMMENDED that default judgment be entered against Nachman
Bergman. It is further
ORDERED that each affidavit attested to by Nachman Bergman shall be
stricken from the record in this litigation and may not be used by any party for
any purpose. It is further
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ORDERED that Nachman Bergman is prohibited from testifying for or
against any claim or defense in this litigation for any party.
NOTICE OF RIGHT TO APPEAL
Pursuant to 28 U.S.C. ' 636(b)(1)(A), any party may seek reconsideration
of this recommendation and order before the district court. Reconsideration of
the recommendation for entry of default judgment shall be on a de novo basis.
Reconsideration of the order striking affidavits and ordering that Nachman
Bergman not testify in this matter shall be upon a showing that the order is
clearly erroneous or contrary to law. The parties have fourteen (14) days after
service of this order to file written objections pursuant to 28 U.S.C.
' 636(b)(1)(A) and (B), unless an extension of time for good cause is obtained.
See FED. R. CIV. P. 72(a) and (b); 28 U.S.C. ' 636(b)(1)(A) and (B). Failure to file
timely objections will result in the waiver of the right to appeal questions of
fact. Id. Objections must be timely and specific in order to require review by
the district court. Thompson v. Nix, 897 F.2d 356 (8th Cir. 1990); Nash v.
Black, 781 F.2d 665 (8th Cir. 1986).
DATED August 16, 2016.
BY THE COURT:

VERONICA L. DUFFY
United States Magistrate Judge

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