April 08, 2013

John Doe v. Star Clippers, Ltd., et al

Motion to Compel

During the discovery process, the parties are permitted to ask written questions of one another (interrogatories) and request documents in the possession of the other party (request for production). In this motion to compel, our experienced maritime attorneys ask the Court to compel the the production of certain documents that the Defendants have objected to producing. Vigrous advocacy during the discovery ensures that our client’s receive fair compensation for their injuries.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO.: 12-CV-23768-KING/McALILEY
JOHN DOE,
Plaintiff,

STAR CLIPPERS, LTD. CORP.,
STAR CLIPPERS GSA, INC., d/b/a
STAR CLIPPERS AMERICAS and
LUXEMBOURG SHIPPING SERVICES, S.A.,
d/b/a STAR CLIPPERS,
Defendants.
_____________________________/

PLAINTIFF’S MOTION TO COMPEL BETTER ANSWERS TO PLAINTIFF’S JURISDICTIONAL REQUEST FOR PRODUCTION AS TO EACH DEFENDANT[1]

Plaintiff, JOHN DOE, by and through his undersigned counsel, hereby files this Motion to Compel Better Answers to Plaintiff’s Jurisdictional Discovery, and as good cause therefore relies on the following:

Plaintiff propounded jurisdictional discovery to all Defendants on January 9, 2013. the Defendants were given an extension of time to provide responses and did so on February 27, 2013. Thereafter the parties agreed to a one week extension of time to file a motion to compel to facilitate a Rule 7.1 conference. This request was granted by the Court. [D.E. 29]. The parties held a rule 7.1 conference on April 5^th and were able to limit the issues to the interrogatories contained below:

Request for Production No. 8:

Any and all contracts and/or agreements between any named Defendant in this matter and any entity located in Luxembourg, in effect during the past 5 years.

Response:

Defendants object to this request on the basis that it is overbroad, burdensome and insufficiently limited in scope of time frame and subject matter inquiry to the extent it seeks “all contracts and/or agreements” between any named defendant and any entity located in Luxembourg and to the extent it seeks responsive documentation for a 5 year period. The request is irrelevant and not reasonably calculated to lead to the discovery of admissible evidence.

ARGUMENT:

Plaintiff and Counsel for Defendant have discussed and limited this request and are hopeful that Defendant will be able to moot any necessity to compel the above information by providing responsive documents prior to the filing of a response to this motion to compel. The parties have agreed to limit this request in value and nature such that Defendant represents there should be only one other responsive contract. In an abundance of caution however, Plaintiff should be provided a response to this request as it is relevant to determining the interrelationship between the Defendants and whether or not the Florida based defendants are truly independent or their separate status is purely a legal fiction. Plaintiff should be provided this response in advance of any jurisdictional deposition that will take place in this case and obviously in advance of the filing of a response to the Defendants’ Motion to Dismiss. Lastly, the Defendants’ objection fails in that it is boilerplate in nature and thus does not comply with local rule 26.1.

Request for Production No. 10:

Any and all contracts and/or agreements between any named Defendant in this matter and any entity located in the State of Florida, in effect during the past 5 years.

Response:

Defendants object to the extent this request seeks confidential and proprietary documentation. Furthermore, Star Clippers GSA, Inc. stipulates it is a Florida Corporation. As such, to the extent this request seeks all contracts entered into between Star Clippers GSA, Inc. and any entity located in the State of Florida, Star Clippers GSA, Inc. objects as the request is unnecessary, irrelevant and not reasonably calculated to lead to the discovery of admissible evidence. Notwithstanding and without waiving said objections, none as to Luxembourg Shipping Services, S.A. With respect to Star Clippers, Ltd., Corp., please see attached Independent Agency Agreement and Asset Purchase Agreement between Star Clippers GSA, Inc. and Star Clippers, Ltd., Corp. Defendants’ discovery and investigation are ongoing.

ARGUMENT:

The Florida registered Defendants object on the basis that they are not challenging Jurisdiction. However, these Defendants have moved to dismiss Plaintiff’s complaint on the basis that they are not his employer and in fact have a very well defined role in the star clippers enterprise. The Florida registered Defendant’s claim that these well defined roles keep them separate and apart from Luxembourg Shipping Services, S.A.. Plaintiff is entitled to test the veracity of that claim. One such way is by finding out with whom these Defendants are contracting and for what reasons. Understanding that the Plaintiff’s request could include any contract no matter how small, Plaintiff proposed to limit this request by both time and value of the goods and/or services contracted for, but these proposals were rejected by the Defendant.

Request for Production No. 13:

Any and all profit reports regarding Defendant’s United States operations in the past 5 years.

Response:

None as to Luxembourg Shipping Services, S.A. As to Star Clippers GSA, Inc. and Star Clippers, Ltd., Corp., Defendants object to this request on the basis that it is overbroad, burdensome and insufficiently limited in scope of time frame to the extent it seeks responsive information for a 5 year period. The request for “profit reports” is also vague and confusing. Star Clippers GSA, Inc. has stipulated that its base of operations is located in Florida. This request is therefore unnecessary, harassing, irrelevant and not reasonably calculated to lead to the discovery of admissible evidence.

ARGUMENT:

Plaintiff submits that this information is relevant to the jurisdictional inquiry as the sources of Defendant’s revenues will aid this Court in determining whether or not the Defendants are operating a business venture in Florida. This information is also relevant to Plaintiff’s jurisdictional analysis as Plaintiff is entitled to “follow the money” to determine 1) who funds the Defendant’s U.S. based operations; 2) who profits from the Defendant’s U.S. based operations; and 3) whether or not there is a co-mingling of funds between the Defendants that justifies piercing the corporate veil. Lastly, the Defendants’ objection fails in that it is boilerplate in nature and thus does not comply with local rule 26.1.

Request for Production No. 16:

Defendant’s and Defendant’s subsidiaries’ and/or agents’ Articles of Incorporation and shareholder records.

Response

None as to Luxembourg Shipping Services, S.A. and Star Clippers, Ltd., Corp. As to Star Clippers GSA, Inc., Defendant objects to this request on the basis that it is overbroad, burdensome and insufficiently limited in scope of subject matter inquiry. Star Clippers GSA, Inc. has stipulated that its base of operations is located in Florida. This request is therefore unnecessary, irrelevant and not reasonably calculated to lead to the discovery of admissible evidence.

Punitive damages are not pled in Plaintiff’s Complaint. As such, Plaintiff is not entitled to financial worth information. The request is further irrelevant and calls for the production of documents not reasonable calculated to lead to the discovery of admissible evidence.

ARGUMENT:

Plaintiff and Counsel for Defendant have discussed this request and are hopeful that Defendant will be able to moot any necessity to compel the above documentation by providing same prior to the filing of a response to this motion to compel. In an abundance of caution however, Plaintiff is entitled to this documentation as the articles of incorporation could yield information regarding the interrelationship of the non-resident Defendant and Florida registered Defendants. Information regarding the ownership of the Florida based residence, their date of incorporation, their primary shareholder, etc. will aid this Court in determining if whether or not the Defendants who are registered to do business in Florida are truly doing business in Florida or are a legal fiction meant to shield the non-resident Defendant from liability in Florida. Alternatively, this information will help determine whether or not there is a meaningful distinction between the Defendants that justifies the legal distinction for purposes of jurisdiction.

Request for Production No. 17:

Corporate resolutions, signature cards, and monthly statements pertaining to Defendant’s and/or its United States Agents’ and/or subsidiaries’, Florida bank accounts.

Response

None as to Luxembourg Shipping Services, S.A. As to Star Clippers GSA, Inc. and Star Clippers, Ltd., Corp., Defendants object to this request on the basis that it is overbroad, burdensome and insufficiently limited in scope of time frame to the extent it seeks responsive information for an unlimited time period. Star Clippers GSA, Inc. has stipulated that its base of operations is located in Florida. This request is therefore unnecessary, irrelevant and not reasonably calculated to lead to the discovery of admissible evidence.

ARGUMENT:

Request for Production No. 20:

Any and all records regarding the purchasing and financing of the subject vessel.

Response

Defendants object to this request on the basis that it is overbroad, burdensome, insufficiently limited in scope of subject matter inquiry, irrelevant and not reasonably calculated to lead to the discovery of admissible evidence. Specifically, all records regarding the purchasing and financing of the subject vessel are irrelevant and not reasonably calculated to lead to the discovery of admissible evidence.

ARGUMENT:

This information is crucial for Plaintiff’s jurisdictional analysis as Plaintiff is entitled to “follow the money” to determine 1) who funds the Defendant’s U.S. based operations; 2) who profits from the Defendant’s U.S. based operations; and 3) whether or not there is a co-mingling of funds between the Defendants that justifies piercing the corporate veil. In order to learn this information Plaintiff should be provided the above requested information. The Defendants have made representations regarding their well defined roles in the Star Clippers hierarchy and Plaintiff should be allowed to test the veracity of those representations by looking into the documents supporting same. The documents will further aid in revealing whether or not the Florida based entities are legal fictions aimed at shielding the non-resident Defendant from liability in U.S. Courts. Lastly, the Defendants’ objection fails in that it is boilerplate in nature and thus does not comply with local rule 26.1.

Request for Production No. 21:

Board of Directors’ minutes, pertaining to the purchase, financing, ownership and operation of the subject vessel.

Response

None as to Star Clippers, Ltd. Corp. and Luxembourg Shipping Services, S.A. As to Star Clippers GSA, Inc., Defendant objects to this request on the basis that it is overbroad, burdensome and insufficiently limited in scope of time frame to the extent it seeks responsive information for an unlimited time period. Star Clippers GSA, Inc. has stipulated that is base of operations is located in Florida. This request is therefore unnecessary, irrelevant and not reasonably calculated to lead to the discovery of admissible evidence.

ARGUMENT:

See Argument to request for production 20.

Request for Production No. 31:

Deed(s) for property owned by Defendant and/or its United States Agents and/or subsidiaries including, but not limited to, property located in the United States.

Response

None as to Luxembourg Shipping Services, S.A. As to Star Clippers GSA, Inc., Star Clippers GSA, Inc. has stipulated that is base of operations is located in Florida. This request is therefore unnecessary, irrelevant and not reasonably calculated to lead to the discovery of admissible evidence. Moreover, Star Clippers GSA, Inc. leases its current office space. With respect to Star Clippers, Ltd., Corp., Defendant’s discovery and investigation are ongoing.

ARGUMENT:

See Argument to request for production 20.

Request for Production No. 32:

Deed(s) for property owned by Defendant and/or its United States Agents and/or subsidiaries including, but not limited to, property located in Luxembourg.

Response

Defendants object to this request on the basis that it is overbroad, burdensome and insufficiently limited in scope of time frame to the extent it seeks responsive information for an unlimited time period and to the extent its seeks all deeds for all property owned by Defendants anywhere in the world. Notwithstanding and without waiving said objections, Luxembourg Shipping Services, S.A. owns no property in the United States. Star Clippers GSA, Inc. owns no property in the United States or Luxembourg. Star Clippers, Ltd., Corp. owns no property in Luxembourg. Star Clippers, Ltd., Corp.’s investigation and discovery regarding any property owned in the United States is ongoing.

ARGUMENT:

See Argument to request for production 20.

Request for Production No. 33:

Leases for property leased by Defendant and/or its United States Agents and/or subsidiaries, located in the United States.

Response

None as to Luxembourg Shipping Services, S.A. As to Star Clippers GSA, Inc., GSA has stipulated that is base of operations is located in Florida. This request is therefore unnecessary, irrelevant and not reasonably calculated to lead to the discovery of admissible evidence. Star Clippers, Ltd., Corp.’s investigation and discovery regarding any property leased in the United States is ongoing.

ARGUMENT:

See Argument to request for production 20.

Request for Production No. 43:

Any and all documents reflecting transfer of funds, in an amount greater than $5,000.00 between any of the Defendants in the past 5 years.

Response

Defendants object to this request on the basis that it is overbroad, burdensome and insufficiently limited in scope of time frame to the extent it seeks responsive information for a 5 year time period. The request is further overbroad and irrelevant to the jurisdictional analysis at issue within Defendants’ Motion to Dismiss and the underlying claim.

ARGUMENT:

See argument to request for production 20.

Request for Production No. 45:

Any and all of Defendant’s and/or its subsidiaries’ tax returns reporting income to the Internal Revenue Service and/or any other state and/or local tax authority in the United States, in the past 5 years.

Response

Defendants object to this request on the basis that it is overbroad, burdensome and insufficiently limited in scope of time frame to the extent it seeks responsive information for a 5 year period. Punitive damages are not pled in Plaintiff’s Complaint. As such, Plaintiff is not entitled to financial worth information. The request is further irrelevant and calls for the production of documents not reasonable calculated to lead to the discovery of admissible evidence.

ARGUMENT:

See argument to request for production 20.

Request for Production No. 46:

Any and all premium finance agreements with any entity located in the United States entered into by Defendant and/or its subsidiaries, within the past 10 years.

Response

Defendants object to this request on the basis that it is overbroad, burdensome and insufficiently limited in scope of time frame to the extent it seeks responsive information for a 10 year time period. The request is further overbroad and irrelevant to the jurisdictional analysis at issue within Defendants’ Motion to Dismiss and the underlying claim.

ARGUMENT:

See argument to request for production 20.

In accord with Local Rule 7.1, Plaintiff contacted counsel for Defendants and all of Defendant’s objections were discussed. Plaintiff and Defendant were able through cooperation to limit the issues for the Court to the requests for production herein.

WHEREFORE, Plaintiff respectfully requests this Honorable Court compel the Defendants to provide better and/or more complete answers to the interrogatories above.

Respectfully submitted,
LIPCON, MARGULIES,
ALSINA & WINKLEMAN, P.A.
Attorneys for Plaintiff
Suite 1776, One Biscayne Tower
Miami, Florida 33131
Telephone: (305) 373-3016
Fax: (305) 373-6204
By: s/ Eric C. Morales
ERIC CHARLES MORALES
FLORIDA BAR NO. 91875

[1] All Defendants provided one response to Plaintiff’s Request for Production.

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