Renewable Resources Coalition, Inc. et al v. Kaplan et al

-1-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
UNITED STATES BANKRUPTCY COURT
CENTRAL DISTRICT OF CALIFORNIA
LOS ANGELES DIVISION
In re:
ROBERT LEONARD KAPLAN,
Debtor.
Case No.: 2:11-bk-60249-RK
Chapter 7
Adv No: 2:12-ap-01415-RK
ORDER AFTER HEARING ON:
(1) PLAINTIFFS’ MOTION FOR
SUMMARY JUDGMENT; (2)
DEFENDANT’S MOTION TO EXTEND
DISCOVERY CUTOFF DATE; AND (3)
PLAINTIFFS’ MOTION FOR PROTECTIVE
ORDER
Date: May 30, 2013
Time: 10:00 AM
Courtroom: 1675
RENEWABLE RESOURCES
COALITION, INC., et al.,
Plaintiffs,
v.
ROBERT LEONARD KAPLAN,
Defendant.
At the hearing on plaintiffs’ motion for summary judgment, defendant’s motion to
extend discovery cutoff date and plaintiffs’ motion for protective order on May 30, 2013,
the court heard the arguments of counsel for the parties on these motions, and after
hearing the arguments and considering the moving and opposing papers, the court
orally ruled that it was adopting its tentative ruling last updated at May 29, 2013 at 7:30
FILED & ENTERED
JUN 12 2013
CLERK U.S. BANKRUPTCY COURT
Central District of California
BY DEPUTY CLERK	gae
Case 2:12-ap-01415-RK Doc 75 Filed 06/12/13 Entered 06/12/13 16:06:26 Desc
Main Document Page 1 of 6

-2-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
p.m. This order sets forth verbatim the court’s tentative ruling now adopted as its final
order (with non-substantive corrections of minor typographical or stylistic errors).
: Pending before the court are: (1) plaintiff’s motion for summary judgment; (2)
defendant’s motion to extend discovery cutoff date; and (3) plaintiff’s motion for
protective order. The court first notes that under the existing scheduling order, the
discovery cutoff date was 4/30/13, the joint pretrial stipulation (order) is due on 6/4/13
and the pretrial conference is scheduled for 6/11/13 at 2:00 p.m. The scheduling order
provided that the discovery cutoff date of 4/30/13 was without prejudice to defendant’s
right to move for an extension of the date for good cause.
With respect to the discovery motions, the court is of the view that defendant
timely noticed the depositions he sought to take as they were noticed for dates before
the discovery cutoff date of 4/30/13, but that the motion to extend the discovery cutoff
date was not timely filed because it was filed after the discovery cutoff date had passed.
In the court’s view, defendant properly noticed the depositions of plaintiffs to be
taken in this judicial district. See 2 Schwarzer, Tashima and Wagstaffe, Rutter Group
Federal Civil Procedure Before Trial, ¶ 11:1457 at 11-191 (2012) (plaintiff generally must
produce witnesses in the district in which plaintiff filed the action unless plaintiff has
shown financial hardship or inability to attend the deposition in that district), citing
Aerocrine AB v. Apieron Inc., 267 F.R.D. 105, 106 (D. Del. 2010); In re Outsidewall Tire
Litigation, 267 F.R.D. 466, 471 (E.D. Va. 2010).
However, the deposition subpoenas served on nonparty, nonresident witnesses
are not effective because such witnesses cannot be compelled to travel out of state
more than 100 miles from their residence, mail service is not effective under Federal
Rule of Civil Procedure (“FRCP”) 45 (personal service is required), the appropriate
witness fees and travel costs (e.g., mileage if applicable) were not tendered at time of
service. Nevertheless, plaintiffs cannot seek a protective order as to these witnesses
since they are not them or representing them, except Robert Gilliam, who is specially
Case 2:12-ap-01415-RK Doc 75 Filed 06/12/13 Entered 06/12/13 16:06:26 Desc
Main Document Page 2 of 6

-3-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
represented by counsel for plaintiffs. The court further notes that defendant’s discovery
motion is not a motion to compel discovery, which would now be untimely. Having said
this, the court sees no need for the deposition witnesses to appear for depositions
unless otherwise ordered by this court specifically.
The court concludes that the grounds for the protective order prohibiting multiple
depositions or limiting depositions to 7 hours under Federal Rule of Bankruptcy
Procedure (“FRBP”) 7030 and FRCP 30 are not applicable because defendant has not
violated such restrictions in this case. Defendant was not a party in the prior arbitration
proceedings or case to confirm the final arbitration award, and this is a different case.
The motion for protective order should be denied, except as to Robert Gillam,
who has standing to seek a protective order through counsel for plaintiffs.
As to defendant’s motion to extend discovery cutoff date, the court is inclined to
conditionally grant the motion to allow limited discovery by defendant to oppose the
summary judgment motion. See FRCP 56(d) and (e). The court will allow defendant to
take depositions of plaintiffs in accordance with FRCP 30 without requiring them to travel
out of state, subject to the 7 hour time and one deposition limitations and subject matter
specifications for organizational deponents, which could be accomplished by counsel for
defendant traveling to Alaska where the plaintiffs are located or by videoconference.
Alternatively, the depositions could be conducted in person in California by express
consent of plaintiffs upon terms acceptable to plaintiffs (including defendant’s payment
of travel expenses for travel to and from their residence for deposition). If defendant
seeks to take the depositions of nonparty, nonresident witnesses, he and his counsel will
have to take such depositions subject to the requirements and restrictions of FRCP 30
and 45 (i.e., their state of residence or the 100-mile "bulge" rule, service of new
subpoenas with simultaneous tender of witness and mileage fees). It seems that
defendant can complete the needed depositions in 45 days. The court will not extend
the discovery cutoff date unless these conditions are met.
Case 2:12-ap-01415-RK Doc 75 Filed 06/12/13 Entered 06/12/13 16:06:26 Desc
Main Document Page 3 of 6

-4-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
As to plaintiffs’ summary judgment motion, given the large monetary claims of
plaintiffs (over $4 million) and the parties' dispute regarding privity and applicability of
preclusion doctrines to this case, see Taylor v. Sturgill, 553 U.S. 880, 884, 892-896
(2008), the court concludes that it should exercise its reasonable discretion under FRCP
56(d) and (e) to allow defendant to take discovery to defend the summary judgment
motion, notwithstanding plaintiffs’ arguments under Local Bankruptcy Rule (“LBR”) 7056-
1(c)(4) that plaintiff has not identified specific facts or issues for discovery. Thus, the
court would defer ruling on the summary judgment motion until defendant has been
allowed to take further limited discovery as discussed herein and further argument after
the close of extended discovery.
The court may extend the deadline to file the joint pretrial stipulation (order) and
continue the pretrial conference if the court conditionally grants defendant’s motion to
extend the discovery cutoff date. Otherwise, the court expects full compliance of the
parties with the requirements of LBR 7016-1 to prepare for and participate in the
scheduled pretrial conference on 6/11/13 because the parties are required to complete
these tasks, notwithstanding the pending motions, and may impose sanctions for
noncompliance by the culpable parties.
###
Date: June 12, 2013
Case 2:12-ap-01415-RK Doc 75 Filed 06/12/13 Entered 06/12/13 16:06:26 Desc
Main Document Page 4 of 6

This form is mandatory. It has been approved for use by the United States Bankruptcy Court for the Central District of California.
June 2012 F 9021-1.1.NOTICE.ENTERED.ORDER
NOTICE OF ENTERED ORDER AND SERVICE LIST
Notice is given by the court that a judgment or order entitled (specify): ORDER AFTER HEARING ON:
(1) PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT; (2) DEFENDANT’S MOTION TO EXTEND
DISCOVERY CUTOFF DATE; AND (3) PLAINTIFFS’ MOTION FOR PROTECTIVE ORDER
was entered on the date indicated as “Entered” on the first page of this judgment or order and will be
served in the manner stated below:
1. SERVED BY THE COURT VIA NOTICE OF ELECTRONIC FILING (NEF) - Pursuant to controlling
General Orders and LBRs, the foregoing document was served on the following persons by the court via
NEF and hyperlink to the judgment or order. As of (date) June 12, 2013, the following persons are
currently on the Electronic Mail Notice List for this bankruptcy case or adversary proceeding to receive
NEF transmission at the email addresses stated below.
Counsel for Defendant Kaplan:
Leslie A Cohen leslie@lesliecohenlaw.com, jaime@lesliecohenlaw.com;Brian@lesliecohenlaw.com
Counsel for Plaintiffs:
D Edward Hays ehays@marshackhays.com, ecfmarshackhays@gmail.com
Richard A Marshack rmarshack@marshackhays.com,
lbergini@marshackhays.com;ecfmarshackhays@gmail.com
Martina A Slocomb mslocomb@marshackhays.com, ecfmarshackhays@gmail.com
United States Trustee (LA): ustpregion16.la.ecf@usdoj.gov
Chapter 7 Trustee:
Edward M Wolkowitz (TR) emwtrustee@lnbrb.com, ewolkowitz@ecf.epiqsystems.com
Service information continued on attached page
2. SERVED BY THE COURT VIA UNITED STATES MAIL: A copy of this notice and a true copy of this
judgment or order was sent by United States mail, first class, postage prepaid, to the following persons
and/or entities at the addresses indicated below:
Counsel for Plaintiffs
Stephen W Cusick
Nielsen, Haley & Abbott LLP
44 Montgomery St Ste 750
San Francisco, CA 94104
Plaintiffs
Renewable Resources Coalition, Inc.
Arthur Hackney
Hackney & Hackney Inc
c/o Nielsen, Haley & Abbott LLP
44 Montgomery Street Suite 750
San Francisco, CA 94104
Defendant
Robert Leonard Kaplan, Defendant
933 Ocean Blvd. #1
Santa Monica, CA 90403
Service information continued on attached page
Case 2:12-ap-01415-RK Doc 75 Filed 06/12/13 Entered 06/12/13 16:06:26 Desc
Main Document Page 5 of 6

This form is mandatory. It has been approved for use by the United States Bankruptcy Court for the Central District of California.
June 2012 F 9021-1.1.NOTICE.ENTERED.ORDER
3. TO BE SERVED BY THE LODGING PARTY: Within 72 hours after receipt of a copy of this judgment
or order which bears an “Entered” stamp, the party lodging the judgment or order will serve a complete
copy bearing an “Entered” stamp by United States mail, overnight mail, facsimile transmission or email
and file a proof of service of the entered order on the following persons and/or entities at the addresses,
facsimile transmission numbers, and/or email addresses stated below:
Service information continued on attached page
Case 2:12-ap-01415-RK Doc 75 Filed 06/12/13 Entered 06/12/13 16:06:26 Desc
Main Document Page 6 of 6