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Silver Creek Farms, LLC v. Fullington

United States District Court, S.D. Florida

March 20, 2018

SILVER CREEK FARMS, LLC, an Oklahoma limited liability company, Plaintiff,



         THIS CAUSE is before the Court upon Plaintiff, Silver Creek Farms' ("Plaintiff), Motion for Sanctions and for Finding of Contempt Against Defendant Maggie Fullington and Incorporated Memorandum of Law [DE 179]. This matter was referred to the undersigned by United States District Judge Kenneth A. Marra. See DE 192. Defendant, Maggie Fullington ("Defendant") has filed a Response to the Motion [DE 185], and Plaintiff filed a Reply [DE 189]. The matter is now ripe for review.


         A. Background

         Plaintiff filed the Complaint in this case on March 8, 2016, alleging five causes of action against Defendant: Count I-Anticipatory Repudiation; Count II-Breach of Contract; Count III-Breach of Settlement Agreement; Count IV-Unjust Enrichment; and Count V-Replevin. See DE 1. The contract between the parties was for the sale of a 2000 Hunter breeding stallion, Apiro, for $100, 000. [DE 1, ¶¶ 7, 13]. A first Amended Complaint was filed on August 31, 2017 [DE 98], and an Amended Answer was filed on September 14, 2017 [DE 102].

         This litigious case has produced numerous, extensive, costly, and time consuming discovery disputes. The Court has held several discovery hearings in this case and has previously awarded sanctions against Defendant. [DE 108]. The Court has ordered Defendant to "fully and timely comply with all of her discovery obligations in this case on a going forward basis or face further sanctions and or cost shifting." [DE 108, pg. 13]. Plaintiff served its First Requests for Production and First Set of Interrogatories to Defendant on July 26, 2016. [DE 179-1, pg. 2]. On May 4, 2017, Plaintiff served Defendant with its Second Request to Produce and Subpoena Duces Tecum. [DE 179-2, 179-3]. Defendant had until June 5, 2017 to fully respond to the Second Request for Production, but did not. As of June 19, 2017, Plaintiffs counsel represented that he still had not received responses to those two discovery requests. [DE 69, p. 2]. On June 22, 2017, the Court entered an order requiring Defendant to respond to Plaintiffs outstanding discovery requests on or before June 30, 2017. [DE 75, p. 1-2]. Defendant Fullington's failure to comply with that Order was the basis for the Court's award of sanctions against Defendant on September 29, 2017. [DE 108]. The discovery deadline has been extended twice, first from May 15, 2017 to July 15, 2017 [DE 33]; and then again to October 20, 2017 [DE 83]. Discovery has now been closed for several months.

         B. The Motion for Sanctions, Response and Reply

         Plaintiff filed its Motion for Sanctions on January 11, 2018 [DE 179], requesting that the Court impose sanctions against Defendant pursuant to Federal Rule of Civil Procedure 37(b) and (c), and Rule 26(e) for allegedly failing to produce three different advertisements in response to Plaintiffs Requests for Production. Plaintiff claims that the advertisements at issue are important because each advertisement directly contradicts Defendant's affirmative defenses that Apiro is genetically deficient and has become "potentially unmanageable and dangerous." [DE 179, pg. 2]. The advertisements at issue include: 1) the listing of Apiro on the webpage of Defendant Fullington's Marabet Farms [Exhibit E]; 2) the listing of Apiro on The Oldenburg Horse Breeder's Society Stallion Directory online [Exhibit F]; and 3) the listing of Apiro on Super Equine Sires, Inc.'s webpage [Exhibit G].

         Plaintiff claims that Defendant was requested to produce any and all advertisements and promotions of Apiro on three separate occasions: in Plaintiffs First Request to Produce, Plaintiffs Second Request to Produce and in its Subpoena Duces Tecum. [DE 179, pgs. 5-7]. Plaintiff argues that the advertisements at issue are very relevant to the case because they "blatantly contradict the affirmative defenses and counterclaims" which Defendant Fullington has raised. [DE 179, pg. 8]. Defendant has claimed that Apiro produced progeny with Wobbler's Syndrome, however, Marabet Farms' webpage states: "Apiro's offspring are already having success in the hunter and jumper rings. He is producing talented, amateur friendly horses." Id., See Exhibit E. Plaintiff also claims that Defendant's profile of Apiro on The Oldenburg Horse Breeders' Society [Exhibit F] contradicts Defendant's claims because the profile states that "Apiro is consistently stamping his offspring with his type and quiet mind as well as improving the gaits." Id. The profile lists many of Apiro's successful progeny. [DE 179, pg. 9]. Plaintiff asserts that Defendant's advertisement of Apiro on Superior Equine Sires, Inc.'s website [Exhibit G] also contradicts Fullington's claims and Affirmative Defenses. The advertisement claims that Apiro has a quiet nature, is quiet to ride, and has successful offspring. [DE 179, pg. 10]. Plaintiff argues that Defendant Fullington should be sanctioned for failing to produce these advertisements in response to its multiple discovery requests and in light of the Court's prior discovery orders.

         Finally, Plaintiff acknowledges that it did not attempt to confer with Defendant pursuant to Local Rule 7.1(a)(3), but alleges that good cause and justice excuse it from conferral on the instant Motion. Plaintiff argues that it should be excused from conferring with Defendant because 1) the discovery deadline expired two months prior to the filing of this Motion; 2) Defendant ignored two Court orders to fully supply all discovery responses; 3) Defendant never produced any of the three advertisements despite three separate requests for such material; and 4) the trial date is set to commence March 5, 2018. [1]

         Defendant filed her Response on January 22, 2018. [DE 185]. Defendant argues that she has resolved all outstanding discovery issues with Plaintiff, and she claims that she explained to Plaintiff during her October 17, 2017 deposition that she "advertised mostly on Facebook" and that the contents of any print and advertising had already been produced. [DE 185, pg. 2]. Defendant argues that she has no control whatsoever over the webpages generated by The Oldenburg Horse Breeders (www.oldenbur ghorse .net) or by Superior Equine Sires, Inc. ( Id. Further, Defendant argues that Exhibit E was not a "recently discovered" advertisement, because Defendant had previously disclosed the address to the Marabet Farm webpage to Plaintiff on several different occasions. Id. Defendant claims that the parties indeed discussed the website during her own deposition. Id., citing DE 185-2.

         Defendant next argues that the Oldenburg Horse Breeders webpage is not an advertisement, but rather information posted about Apiro online. Id. Defendant further states that the information on the Breeders' webpage was in fact created by Plaintiff Silver Creek Farms. Id. Finally, Defendant argues that Exhibit G was posted on a webpage created and hosted by a third party, so the post and the webpage are not within Defendant Fullington's possession, custody, or control. Id. Superior Equine Sires, Inc. had permission from Defendant to list Defendant's other stallions without charge, and Defendant claims she was unaware that they also listed Apiro online. [DEI 85, pg. 4].

         Defendant argues that Local Rule 7.1(a)(3) requires the movant's counsel to make a reasonable effort to confer with all parties in a good faith effort to resolve the issues raised in the motion. [DE 185, pg. 4]. Defendant asks that the Court dismiss the Motion because Plaintiff failed to comply with Rule 7.1(a)(3) and did not confer with Defendant before filing the Motion. [DE 185, pg. 5]. Defendant maintains that the instant Motion did not satisfy any of the enumerated exceptions to compliance with Local Rule 7.1(a)(3), and therefore, the Motion should be dismissed for failure to confer. [DE 185, pg. 8].

         Plaintiff filed its Reply on January 29, 2018. [DE 189]. In reply, Plaintiff rejects Defendant Fullington's argument that she already disclosed Exhibit E by providing the webpage for Marabet Farms to Plaintiff. [DE 189, pg. 2]. Instead, Plaintiff argues that it does not have the obligation to search Defendant's Marabet Farms website for Apiro's posting, but instead that Defendant Fullington has the burden to produce it. [DE 189, pg. 2]. Plaintiff also asserts that Defendant obviously did not perform a diligent search for advertisements of Apiro, especially considering Exhibit F is easily located on Google, and in light of the Court's many discovery orders. [DE 189, pg. 3]. Plaintiff maintains that the undisclosed advertisements are extremely relevant because they contradict Defendant ...

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