Davis v. The Dojo, LLC

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 17-cv-00685-NYW-KAS
HAROLD DAVIS,
Plaintiff,
v.
THE DOJO, LLC,
Defendant, and
SILAS BEANER,
Judgment Debtor.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KATHRYN A. STARNELLA
This matter is before the Court on Plaintiff’s Motion to Compel Judgment Debtor
Silas Beaner to Respond to Discovery Requests [#44] (the “Motion”). Judgment
Debtor Silas Beaner (“Mr. Beaner”), who proceeds in this matter pro se,1 filed a “Motion
in Opposition_To Compel Judgment Debtor Silas Beaner to Respond to Discovery
Requests_” [sic] [#53] (the “Response Motion”), which the Court construes as a
Response in opposition to the Motion [#44], and Plaintiff filed a Reply [#56]. Finally, Mr.
Beaner filed an improper Surreply [#57] without leave of court.2 Both the Motion [#44] and
the Response Motion [#53] have been referred to the undersigned. See Memoranda [#47,
#54].
1 The Court must liberally construe a pro se litigant’s filings. See Haines v. Kerner, 404 U.S. 519,
520-21 (1972). In doing so, the Court should neither be the pro se litigant's advocate nor “supply
additional factual allegations to round out a plaintiff's complaint or construct a legal theory on a
plaintiff's behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1175 (10th Cir. 1997) (citing Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)). In addition, a pro se litigant must follow the same
procedural rules that govern other litigants. Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994).
2 Even though Mr. Beaner neither sought nor received the Court’s leave to file his Surreply [#57],
the Court has reviewed it. It does not affect the Court’s analysis or conclusions.
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A. 	Background
This matter arose from Defendant The Dojo, LLC’s unauthorized copying and
distribution of a photograph copyrighted by Plaintiff. See Motion [#44] at 2. On June 15,
2018, the Court entered default judgment in favor of Plaintiff and against Defendant,
ordering payment of $36,000 in actual damages and $620 in costs, along with post-
judgment interest. See Default Judgment [#27] at 1-2.
On December 12, 2023, the Court issued a Writ of Garnishment in the amount of
$29,423.53. See Writ of Garnishment [#30] at 1. On January 11, 2024, Plaintiff and Mr.
Beaner (on behalf of Defendant, as its officer and sole owner) entered a Stipulated
Judgment [#38]. Mr. Beaner agreed to pay the total of $29,423.53 in the form of monthly
payments of $1,000 until the balance was paid off. Stipulated Judgment [#38] at 2 (signed
by Mr. Beaner and Plaintiff’s counsel, Kerry Culpepper).
Plaintiff asserts that Mr. Beaner has made no payments after the first one, violating
the agreement and causing Plaintiff to resume post-judgment discovery. Motion [#44] at
3. Plaintiff served Mr. Beaner’s bank, Capital One, with discovery requests on June 18,
2024. Aff. of Culpepper [#44-1], ¶ 9. Capital One provided bank statements showing that
Mr. Beaner had regular income, so on July 8, 2024, Plaintiff served Mr. Beaner with
discovery requests including “a request for (i) Identification information (address and
name) of all Mr. Beaner’s current employers and his position and monthly salary; and (ii)
All bank accounts used by Mr. Beaner since Jan. 1, 2024.” Aff. of Culpepper [#44-1], ¶¶
9-10. Mr. Beaner initially told Plaintiff’s counsel he would cooperate but to date he has
not responded or objected to the discovery requests. Id., ¶¶ 11-16. Plaintiff asks the Court
to compel Mr. Beaner to respond so that Plaintiff can apply for a writ of garnishment as
to Mr. Beaner’s employer. Motion [#44] at 5.
In his Response Motion [#53], filed on September 3, 2024, Mr. Beaner asserts that
the requested information and documents “have no relevance with the lawsuit in question”
because “[t]he defendant is an LLC and there is no reason to ask for information about
any sort of current employment unless it directly relates to the defendant in the lawsuit.”
Response Motion [#53] at 1. He adds that he had a security breach in which he lost
thousands of dollars, he also owes child support, and he believes there would be a
“conflict of interest with child support” if he gives information about his employer. Id. at 2.
He asks the Court to arrange a payment plan that avoids garnishment. Id.
B. 	Legal Standard
“The rules governing discovery in postjudgment execution proceedings are quite
permissive.” Republic of Argentina v. NML Cap., Ltd., 573 U.S. 134, 138 (2014). Pursuant
to Fed. R. Civ. P. 69(a)(2), to assist in executing a money judgment, “the judgment
creditor or a successor in interest whose interest appears of record may obtain discovery
from any person—including the judgment debtor—as provided in these rules or by the
procedure of the state where the court is located.” This Court is located in Colorado, so it
may look to the Colorado Rules of Civil Procedure.
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The general rule in the federal system is that, subject to the court’s discretion,
parties may obtain discovery regarding “any nonprivileged matter that is relevant to any
party’s claim or defense.” Republic of Argentina, 573 U.S. at 139 (quoting Fed. R. Civ. P.
26(b)(1)). Additionally, under Colorado law, at any time after entry of a final money
judgment, a judgment creditor may serve written interrogatories upon a judgment debtor
“in accordance with [Colo. R. Civ. P.] 45,” which governs subpoenas. Colo. R. Civ. P.
69(d)(1).
As relevant here, Colo. R. Civ. P. 45(c)(2)(C) states that any objections to a
subpoena “must be submitted before the earlier of the time specified for compliance or
14 days after the subpoena is served.” The court must quash or modify a subpoena that:
fails to allow a reasonable time to comply; requires a non-party’s attendance at an
inconvenient location for a deposition; requires disclosure of “privileged or other protected
matter”; or “subjects a person to undue burden.” Colo. R. Civ. P. 45(c)(3)(A). Otherwise,
the court may quash or modify a subpoena to protect the recipient of a subpoena if it
would require disclosure of a trade secret or confidential research, development, or
commercial information or of an unretained expert’s opinion. Colo. R. Civ. P. 45(c)(3)(B).
C. 	Analysis
At 	the outset, the 	Court 	rejects 	Mr. Beaner’s 	objection that the 	requested
information is irrelevant and exceeds the scope of permissible postjudgment discovery
because he was not a party to the underlying litigation. See Response Motion [#53] at 1.
Throughout his Response Motion [#53], Mr. Beaner admits that he is a “judgment debtor”
and Colo. R. Civ. P. 69(d)(1) specifically contemplates serving written interrogatories on
judgment debtors following entry of a final money judgment. Mr. Beaner is the appropriate
recipient of Plaintiff’s postjudgment discovery requests.
Additionally, Mr. Beaner has not shown or argued that he raised timely objections
to Plaintiff’s July 8, 2024 subpoena, so he has waived them. See Colo. R. Civ. P.
45(c)(2)(C); Miller v. State Farm Mut. Auto Ins. Co., No. 18-cv-02230-NYW, 2019 WL
13200057, at *2 (D. Colo. June 3, 2019) (“Ordinarily, the failure to lodge a timely objection
under . . . Rule 45(d)(2)(B) will constitute a waiver of any objection to production[.]”)
(citations omitted). Even on the merits of Mr. Beaner’s belated Response Motion [#53],
the Court finds no circumstance that requires it to quash or modify the subpoena. The
subpoena did not impose an unreasonably short compliance period, did not request any
information that is privileged or otherwise protected, and Mr. Beaner would not be
subjected to undue burden if he is required to share employment information.3 Cf. Colo.
R. Civ. P. 45(c)(3)(A).
3 Mr. Beaner suggests that it would impose an undue burden to collect the currently required
payments in light of his child support obligations, but he does not convincingly argue that providing
employment information itself would impose any undue burden on him—rather, he fears potential
consequences of providing that information. Response Motion [#53] at 2. However, those
concerns are premature and irrelevant to the matter at hand. As Plaintiff notes in Reply [#56],
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Nor does the requested employment information include trade secrets, confidential
research, development, or commercial information, or unretained expert opinions. Cf.
Colo. R. Civ. P. 45(c)(3)(B). On its face, Mr. Beaner’s employment information is relevant
to Plaintiff’s efforts to collect the payments contemplated by the parties’ Stipulated
Judgment [#38] and does not exceed the bounds of Fed. R. Civ. P. 26(b)(1). Cf. Republic
of Argentina, 573 U.S. at 138-39. Accordingly, the Court declines to modify or quash the
subpoena and orders Mr. Beaner to promptly comply.
Finally, the Court declines Mr. Beaner’s invitation “to arrange a payment plan with
the judgement [sic] debtor (Silas Beaner) so that [Mr. Beaner] and the plaintiff have a
neutral payment arrangement made through the court system[.]” Response Motion [#53]
at 2. Mr. Beaner has not explained why the Court’s involvement is necessary and has not
shown that the current Stipulated Judgment [#38]—which Mr. Beaner signed and agreed
to—is unconscionable or must be altered.
D. 	Conclusion
Based on the foregoing,
IT IS HEREBY ORDERED that the Motion [#44] is GRANTED. Judgment Debtor
Silas Beaner is ordered to respond to Plaintiff’s discovery request on or before March 27,
2025. Mr. Beaner is advised that his failure to comply with this Order may result in the
Court recommending that he be held in contempt.4
IT IS FURTHER ORDERED that Mr. Beaner’s Response Motion [#53] is DENIED.
Dated: March 12, 2025
after he seeks writs of garnishment against Mr. Beaner’s employer, “[a]t that time, Mr. Beaner can
assert his exemption.” Reply [#56] at 2.
4 Plaintiff made a passing request for attorney fees and costs in its Motion [#44], but he cited no
authority for his request and his Proposed Order [#44-2] omitted any mention of attorney fees or
costs. See Motion [#44] at 2; but see Proposed Order [#44-2] at 1-2. Thus, the Court declines to
consider Plaintiff’s undeveloped and equivocal request for fees and costs.
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