Agile Sky Alliance Fund LP v. RBS Citizens, N.A.

847 F. Supp. 2d 1288, 2012 WL 360801, 2012 U.S. Dist. LEXIS 13017
CourtDistrict Court, D. Colorado
DecidedFebruary 3, 2012
DocketCivil Action No. 09-cv-2786-RBJ-BNB
StatusPublished

This text of 847 F. Supp. 2d 1288 (Agile Sky Alliance Fund LP v. RBS Citizens, N.A.) is published on Counsel Stack Legal Research, covering District Court, D. Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Agile Sky Alliance Fund LP v. RBS Citizens, N.A., 847 F. Supp. 2d 1288, 2012 WL 360801, 2012 U.S. Dist. LEXIS 13017 (D. Colo. 2012).

Opinion

ORDER

R. BROOKE JACKSON, District Judge.

This matter is before the Court on (1) plaintiffs’ objection to Magistrate Judge Boland’s September 2, 2011 and September 12, 2011 Orders [# 247], and (2) defendant RBS’s motion for leave to filed a renewed motion for summary judgment and tendered “renewed motion” [##275, 276]. The Court also will address the parties’ exhibit and witness lists.

Facts

The facts were set forth by Judge Martinez in his order denying motions to dismiss and for summary judgment [# 215] and need only be briefly summarized again. RBS Citizens, N.A., d/b/a Charter One Bank and Swiss Financial Services are alleged to have been lenders, administrators or advisors of Lancelot Investors Fund L.P. and Lancelot Investors Fund II, L.P. The Lancelot Funds were hedge funds that provided financing to entities owned or controlled by Thomas J. Petters. Those entities purportedly purchased and resold consumer electronics to large discount retailers. The gist of this case is that Petters was operating a Ponzi scheme, that Lancelot was complicit and eventually went bankrupt as a result of the scheme, and that plaintiffs invested or reinvested in Lancelot based representations, assurances, and inducements by the defendants that turned out to be false. In the Second Amended Complaint plaintiffs assert claims of (1) negligent misrepresentation; (2) negligence; and (3) violation of Colorado securities laws.

Procedural History

As relates to the pending motions, RBS filed a “Motion for Sanctions Against Plaintiffs for Failure to Comply with Court Order” on August 12, 2011 [# 227]. RBS sought sanctions for plaintiffs’ failure to comply with a November 4, 2010 order requiring the production of documents showing buy-sell information, due diligence files for all Asset Based Lending hedge funds, and quarterly statements. Following a hearing, Magistrate Judge Boland granted the motion to the extent that RBS was permitted to (1) serve no more than five additional interrogatories; (2) serve no more than five additional requests for production; (3) serve no more than five additional requests for admissions, and (4) reopen the deposition of Neal Greenberg for [1290]*1290not more than three additional hours. The motion was denied in all other respects. [# 240],

Following a final pretrial conference on August 26, 2011 Magistrate Judge Boland refused to enter the parties’ proposed final pretrial orders. Judge Boland ordered the parties to submit a single, revised pretrial order on, or before, December 1, 2011 [# 246]. They did so [# 270], and Judge Boland entered the order as tendered. [# 274],

Nevertheless, plaintiffs object to both of Magistrate Judge Boland’s orders and requests that the Court vacate them.

On December 12, 2011 RBS filed a motion for leave to file a renewed motion for summary judgment [#275] and simultaneously filed its renewed motion [#276]. Plaintiffs have filed a response [#282], and RBS has filed a reply [# 285].

Standard

This Court may modify or set aside any part of a magistrate judge’s nondispositive order that is clearly erroneous or contrary to law. Fed.R.Civ.P. 72(a). Whether to permit a renewed summary judgment motion, particularly after the deadline for dis-positive motions has passed, is a matter of discretion.

Conclusions

A. Objections to the Magistrate Judge’s Orders [#247].

The issues discussed in RBS’s motion and in the hearing held by Magistrate Judge Boland were (1) whether the affidavit of Neal Greenberg, plaintiffs’ professional manager, was inconsistent with pri- or discovery, and (2) whether plaintiffs had disclosed all documents that they were required to disclose. RBS sought to discover any evidence that it had given advice to plaintiffs prior to plaintiffs’ investments. RBS contends that no such evidence was produced. However, statements made by Neal Greenberg in an affidavit pointed to documents of investments after the relevant period that had not been previously disclosed. RBS first sought to exclude the affidavit as inconsistent with prior discovery under Fed.R.Civ.P. 57. That motion was denied by Judge Martinez [#215]. Because plaintiffs did not disclose the document referenced by Mr. Greenberg during the discovery period, RBS then filed a Motion for Sanctions against plaintiffs for failure to comply with the court order. At the conclusion of a hearing on the motion, Judge Boland granted and denied it in part, as indicated above. He found that the Greenberg affidavit appeared to be inconsistent with previous discovery responses, thereby constituting good cause to allow additional discovery notwithstanding the expiration of the close of discovery. Transcript, September 2, 2011 [# 255], at 49-50.

Plaintiffs object on the bases that (1) Judge Boland granted sanctions without violation of an order in violation of Fed. R.Civ.P. 37(b)(2)(A); (2) the sanctions purport to overrule rulings made by the District Court; and (3) the order fails to acknowledge the unjustifiable delay of trial.

1. Violation of Fed.R.Civ.P. 37(b)(2)(A)

Agile maintains that because it did not violate any discovery rules, sanctions are inappropriate and impermissible. Judge Boland did not make a finding of a discovery violation in either of his Orders. Rather, he re-opened discovery for a limited purpose. That is well within the discretion of a magistrate judge. See Ocelot Oil Corp. v. Sparrow Industries, 847 F.2d 1458 (10th Cir.1988).

2. Overruling rulings made by the District Court

RBS previously sought to have Neal Greenberg’s affidavit stricken as inconsis[1291]*1291tent under Fed.R.Civ.P. 56. This issue, as well as RBS’s Motion for Summary Judgment, were argued before Judge Martinez on April 25, 2011. Judge Martinez denied RBS’s motion to strike the affidavit [#214] and also denied the Motion for Summary Judgment [# 215]. In ruling on the Motion for Summary Judgment Judge Martinez appears to have relied, at least in part, on the Greenberg affidavit in determining that plaintiffs had “come forward with some evidence that after considerable deliberation it decided to retain its investments in Lancelot ... as a direct result of the alleged misrepresentations made by Defendants.” Order at 20.

According to plaintiffs, if the affidavit was inconsistent with previous discovery responses then it must be stricken under Rule 56. During the hearing on April 25, 2011, Judge Martinez declined to strike Neal Greenberg’s affidavit. Plaintiffs’ argument now is that because Judge Martinez did not strike the affidavit, it must be consistent with previous discovery responses. Therefore, Judge Boland’s finding that the affidavit is inconsistent or “at least appears to be inconsistent” equates to an overruling of a finding of the District Court.

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Related

Ocelot Oil Corporation v. Sparrow Industries
847 F.2d 1458 (Tenth Circuit, 1988)

Cite This Page — Counsel Stack

Bluebook (online)
847 F. Supp. 2d 1288, 2012 WL 360801, 2012 U.S. Dist. LEXIS 13017, Counsel Stack Legal Research, https://law.counselstack.com/opinion/agile-sky-alliance-fund-lp-v-rbs-citizens-na-cod-2012.