Bell v. Citadel Mall Realty, LLC et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Maritza Dominguez Braswell
Civil Action No. 23–cv–00943–SKC–MDB
MARJORIE BELL, as parent and legal guardian of M.A., a minor,
Plaintiff,
v.
CITADEL MALL REALTY LLC,
MASON ASSET MANAGEMENT, INC.,
NAMDAR CAPITAL GROUP, LLC,
NAMDAR REALTY GROUP, LLC,
CITADEL CH LLC,
CITADEL NASSIM LLC, and
IGAL NAMDAR
Defendants.
ORDER
This matter is before the Court on Plaintiff’s Omnibus Motion to Compel Discovery.
([“Motion”], Doc. No. 120.) Defendants have filed a response in opposition to the Motion
([“Response”], Doc. No. 122), to which Plaintiff replied ([“Reply”], Doc. No. 124), and
Defendants were granted leave and did file a sur-reply (Doc. No. 130.) After reviewing the
Motion, briefing, and relevant law, the Court ORDERS that the Motion is GRANTED in
PART and DENIED in PART as set forth herein.
BACKGROUND
This case arises in connection with the May 22, 2022, shooting incident at the Citadel
Mall in Colorado Springs. Plaintiff alleges that on that day, an altercation arose at or near the
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food court. The altercation was allegedly allowed to continue and escalate due to a lack of
adequate security. The altercation continued in the parking lot of the mall, erupted into gunfire
between two groups, and 12-year old bystander, M.A., was caught in the crossfire, shot in the
chest, and became paralyzed from the waist down.
The Court has held multiple conferences with the parties to address substantial
disagreements that have arisen during discovery. Most recently, in an effort to bring the majority
of written discovery disputes to a close, the Court granted Plaintiff leave to file an omnibus
motion to compel, that would comprehensively address all outstanding disputes relating to
Plaintiffs’ written discovery to Defendants.
LEGAL STANDARD
Rule 26(b)(1) of the Federal Rules of Civil Procedure permits discovery regarding any
nonprivileged matter that is relevant to any party’s claim or defense and proportional to the
needs of the case. The party seeking production has the initial burden of showing relevance.
See Chung v. Lamb, 2017 WL 10619941, at *3 (D. Colo. Oct. 24, 2017) (citing Johnson v. Kraft
Foods N. Am., Inc., 236 F.R.D. 535, 539 (D. Kan. 2006)). Relevance is “construed broadly to
encompass any matter that bears on, or that reasonably could lead to other matter that could bear
on, any issue that is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340,
351 (1978); see Rowan v. Sunflower Elec. Power Corp., 2016 WL 3745680, at *2 (D. Kan. July
13, 2016) (applying Oppenheimer after the 2015 amendment); see also Kennicott v. Sandia
Corp., 327 F.R.D. 454, 469 (D.N.M. 2018) (analyzing the 2015 amendment and concluding that
it did not change discovery’s scope but clarified it, and therefore Oppenheimer still applies);
Carbajal v. Warner, 2013 WL 1129429, at *3 (D. Colo. Mar. 18, 2013).
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On a motion to compel, the party seeking discovery bears the initial burden of
establishing relevance, but when the moving party has established relevance, or the discovery
appears relevant on its face, the party resisting discovery bears the burden of supporting its
objections. See generally JL v. Regis Univ., 2022 WL 1443059, at *2 (D. Colo. May 6, 2022);
see also Ehrlich v. Union Pac. R.R. Co., 302 F.R.D. 620, 624 (D. Kan. 2014) (holding the party
resisting discovery bears the burden to show why a discovery request is improper); Martin K.
Eby Const. Co. v. OneBeacon Ins. Co., 2012 WL 1080801, at *3 (D. Kan. Mar. 29, 2012) (“Once
this low burden of relevance is established, the legal burden regarding the defense of a motion to
compel resides with the party opposing the discovery request.”). This burden is not satisfied by
merely asserting “conclusory or boilerplate objections that discovery requests are irrelevant,
immaterial, unduly burdensome, or overly broad.” Sonnino v. Univ. of Kan. Hosp. Auth., 221
F.R.D. 661, 670 (D. Kan. 2004).
ANALYSIS
Plaintiff has made numerous relevance arguments, and the Court has sufficient familiarity
with this matter to recognize the relevance of Plaintiff’s requests. Thus, from the Court’s
perspective, its decision on this Motion turns on proportionality. But Defendants’ Response
offers little in the way of proportionality arguments. Instead, Defendants rely heavily on
Plaintiff’s alleged failure to comply with this Court’s informal discovery dispute procedures.
(See Doc. No. 122.) That reliance is misplaced. The Court has implemented informal discovery
dispute procedures to streamline the resolution of routine disagreements and conserve resources
when straightforward communication among counsel, or with the Court, can resolve relatively
simple issues. However, the disputes and disagreements in this case have not been simple. To the
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contrary, they have been protracted and unusually contentious, and it appears due in large part to
Defendants’ resistance to discovery. (See generally Doc. No. 119 at 3-4.)
To be sure, not all responsibility rests with Defendants. Plaintiffs have contributed to the
difficulty of this process with an at-times unreasonably expansive approach to discovery. (Id.)
Still, the principal impediment to efficient resolution appears to be Defendants’ conduct,
particularly that of the Namdar Defendants. Under these circumstances, the informal dispute
procedures have proven ineffective. Recognizing that reality, the Court set its informal
procedures aside in favor of a motion to compel that would address all of Plaintiff’s outstanding
written discovery concerns. (Id. at 16-18.) Accordingly, Defendants’ primary contention, that
Plaintiff failed to adhere to the Court’s informal procedures, does not offer a basis for denying
Plaintiff the relief she seeks.
As to Defendants’ additional arguments, many of them are conclusory, stating for
example that certain requests are “overbroad” without providing support or further argument for
that conclusion. (Doc. No. 122 at 15.) Still, the Court considers the breadth of Plaintiff’s requests
and the requirement that discovery be proportional. After carefully reviewing each of Plaintiff’s
requests, one-by-one, comparing them to the claims and defenses in this case, applying the
relevant legal standards, and considering the parties’ arguments in the briefs and during court
conferences, the Court issues the following orders:
Orders that apply to all Defendants
1. 	Persons with knowledge: Defendants Namdar RG, Citadel MR, Mason AM,
Citadel Nassim, Citadel CH, and Namdar Capital are each ORDERED to
identify by name, current or last known address, and telephone number of all
persons who to their knowledge, information or belief possess any knowledge
concerning the incident alleged in the Complaint. Defendants are ORDERED to
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specify the subject matter(s) about which they know or believe that person to have
knowledge, and the basis for their knowledge or belief.
2. 	Contributory negligence: Defendants Namdar RG, Citadel MR, Mason AM,
Citadel Nassim, Citadel CH, and Namdar Capital are each ORDERED to
provide the basis for their contention that Plaintiff and/or her minor daughter,
M.A., committed an act or omission that caused or contributed to the subject
incident or the harm M.A. suffered.
3. 	Third parties: Defendants Namdar RG, Citadel MR, Mason AM, Citadel
Nassim, Citadel CH, and Namdar Capital are each ORDERED to identify by
name, address, and telephone number of each and every third party they contend
played any part in causing victim M.A.’s injuries and/or damages, and to state
with specificity each act and/or omission by each third party they claim supports
their contentions. Further, Defendants Citadel CH, Citadel Nassim, and
Namdar Capital are each ORDERED to identify by name, address, and
telephone the person(s) affiliated with the Colorado Springs Police Department
they contend committed an act or omission that caused victim M.A.’s injuries
and/or damages, and the specific acts and/or omissions by each person(s)
identified.
4. 	Security services providers: Defendants Namdar RG, Citadel MR, Mason AM,
Citadel Nassim, Citadel CH, and Namdar Capital are ORDERED to combine
efforts and provide one complete list of all entities, employees, and/or
independent contractors who provided security services of any kind, including
armed or unarmed security services, video monitoring services, police or
government liaison services, and/or loss prevention services, for the Citadel Mall
in Colorado Springs from May 22, 2021, through May 22, 2023. For each person
or entity listed, Defendants shall identify the person or entity’s name, position
held or service provided, date of hire and termination, current status, and if no
longer providing services, provide last known phone number and residential
address.
5. 	Security methods, list: Defendants Namdar RG, Citadel MR, Mason AM,
Citadel Nassim, Citadel CH, and Namdar Capital are ORDERED to combine
efforts and provide one complete list that describes with particularity all
security services, security functions, security methods, and/or security equipment
initiated, discontinued, altered, modified, or implemented at the Citadel Mall
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between May 22, 2018, through May 22, 2023, and for each such service,
function, method, or equipment state when such service was initiated and the
date(s) of any modifications or discontinuations.
6. 	Security incident, list: Defendants Namdar RG, Citadel MR, Mason AM,
Citadel Nassim, Citadel CH, and Namdar Capital are ORDERED to combine
efforts and provide one complete list that identifies every incident of alleged or
suspected criminal activity of any kind that occurred on the Citadel Mall property
between May 22, 2018, through May 22, 2023. For each incident identified, state:
the date of each such incident; the date each Defendant received notice of same;
how each Defendant received notice of same; the nature of each such incident; the
name of all victims involved in the incident; whether the incident was investigated
by any law enforcement agency, and if so, the name of such agency. The list must
include crimes reported by Citadel Mall employees and/or tenants.
7. 	Security incident, production: Defendants Namdar RG, Citadel MR, Mason
AM, Citadel Nassim, Citadel CH, and Namdar Capital are each ORDERED
to PRODUCE all documents and communications in their possession custody or
control that concern any alleged or suspected criminal activity at The Citadel Mall
from May 22, 2018, through May 20, 2023. This includes all written
communications or documents exchanged with law enforcement entities
concerning any alleged or suspected criminal activity of any nature or security
issues pertaining to the Subject Property.
8. 	Security complaints/criticisms/requests, production: Defendants Namdar RG,
Citadel MR, Mason AM, Citadel Nassim, Citadel CH, and Namdar Capital
are each ORDERED to PRODUCE all documents or correspondence, including
electronic communications, in their possession, custody, or control, that evidence,
relate to, or set forth any complaint or criticism concerning criminal activity or
security concerns at the Citadel Mall, or that convey a request for additional
security the Citadel Mall. The date range shall be May 22, 2018, through May 22,
2022.
9. 	Operations, production: Defendants Namdar RG, Citadel MR, Mason AM,
Citadel Nassim, Citadel CH, and Namdar Capital are each ORDERED to
PRODUCE all contracts, agreements, and other documents in their possession,
custody, or control that establish a contractual relationship between or among any
Defendants in this litigation, or between Defendant(s) and any third party, and
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which govern the operation of the Citadel Mall and/or the provision of security
services at The Citadel Mall from May 22, 2021, through May 22, 2022.
10. Investigative reports, production: Defendants Namdar RG, Citadel MR, Mason
AM, Citadel Nassim, Citadel CH, and Namdar Capital are each ORDERED
to PRODUCE all investigative reports in their possession, custody, or control,
prepared by any individual, government agency, security vendor, or firm regarding
any alleged or suspected criminal activity at the Citadel Mall from May 22, 2018,
through May 22, 2023. This includes but is not limited to any CPTED reports, law
enforcement reports or memorandums, insurance assessments, security audit
reports, reports from United States Military assessments, or any other source.
Orders that apply to some, but not all Defendants
11. Decision-makers. Defendants Namdar RG, Mason AM, Defendant Citadel
Nassim are ORDERED to combine efforts and provide one complete list of all
individuals with decision-making responsibility or significant authority over the
finances, operations, and management of the Citadel Mall from May 2018
through present. The complete list shall identify all job titles and describe the
decision-making responsibility or authority. If the responsibility and/or authority
has changed over time, the list shall so indicate when and how.
12. Budget, production. Defendants Citadel Nassim, Citadel CH, Namdar RG, and
Citadel MR are each ORDERED to PRODUCE documents that reflect the
annual operating budget for the Citadel Mall, as well as the portion of the budget
dedicated to security services for the Citadel Mall, from May 22, 2018, through
May 22, 2022.
13. Policies, procedures, training, production. Defendants Namdar RG and Mason
AM, are each ORDERED to PRODUCE all policies, procedures, and/or training
materials in effect May 22, 2021, through May 22, 2023, concerning safety,
security, crime prevention, crime deterrence, community crime watch, courtesy
officers, loss prevention, vandalism prevention, premises liability, employee
safety, use of force, use of safety or security services, key control, alarm systems,
CCTV operations, trespassers, suspicious persons, deescalation, patrol officers,
and/or any other policies, procedures, and/or training materials related to the
detection, deterrence, and response to criminal activity at the Citadel Mall.
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14. Ownership Interest, production. Defendants Mason AM and Citadel MR are
ORDERED to PRODUCE governance documents and articles of incorporation
that reflect the ownership interests and/or corporate structure of each from May
22, 2021, through present. If governance documents and articles of incorporation
do not reflect the ownership interests and/or corporate structure, Defendants shall
produce alternative documents reflecting the same.
Orders that apply to Defendant Namdar RG
15. Defendant Namdar RG is ORDERED to identify by name and state of
incorporation all business entities owned by, managed by, or created at the
direction of Defendant Namdar RG or its members/managers/owners, or in which
Defendant Namdar RG holds any interest, in any way related to the ownership or
operation of shopping malls and/or retail shopping centers in the United States.
16. Defendant Namdar RG is ORDERED to describe with particularity all licensure
required to work as a security guard the Citadel Mall from May 22, 2018, through
present, and if any requirement has changed Defendant Namdar RG is ORDERED
to identify by year and month when such policy or requirement changed.
17. Defendant Namdar RG is ORDERED to PRODUCE profit and loss statements,
monthly income reports, and tax returns, for the last five years.
18. Defendant Namdar RG is ORDERED to describe with particularity all rules,
policies, procedures, guidelines, and training materials and/or coursework
applicable to security guards for the Citadel Mall from May 22, 2021, through May
22, 2023.
Orders that apply to Defendant Namdar Capital
19. Defendant Namdar Capital is ORDERED to identify all of its employees and/or
independent contractors from May 22, 2021, through present, and for each such
individual please state their name, position(s) held, date(s) such positions were
held, their current employment/contract status with Defendant Namdar Capital,
and if a former employee/contractor their last known phone number and
residential address.
20. Defendant Namdar Capital is ORDERED to describe the financial debt
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instruments used to raise capital or secure financing for the purchase of the
Citadel Mall, and to describe how profit or economic gain derived from the
business activity at Citadel Mall flows through Namdar Realty Group, LLC,
NAMCO Ltd., and/or any other entity to the holders of the financial debt
instruments.
21. Defendant Namdar Capital is ORDERED to describe in detail the manner in
which Citadel Mall has been capitalized from the time of purchase by Defendants or
their related entities to the present, including but not be limited to, the following:
(a) the identity of all persons or entities that have contributed capital to Citadel
Mall; (b) the dates and amounts of all capital contributions; (c) whether such
contributions were in the form of debt or equity, and the terms of any such
instruments; and (d) any changes in the capitalization structure over time,
including the reasons for such changes.
22. Defendant Namdar Capital is ORDERED to PRODUCE all written agreements
between Defendant Namdar Capital and any other party to this litigation, which
reflects the purchase, ownership, or financing of the Citadel Mall.
Orders that apply to Defendant Mason AM
23. Defendant Mason AM is ORDERED to describe with particularity how
Defendant Mason AM derives economic gain from operations or services at the
Citadel Mall, including but not limited to the identity of the entity that
compensates Defendant Mason AM, the identification of any written agreements
for Defendant Mason AM for services at Citadel Mall, and to explain how any
“commissions” are calculated.
All Defendants shall have until February 27, 2026, to supplement their discovery
responses in a manner that complies with the requirements of this Order. No later than March
3, 2026, each Defendant1 shall file an affidavit with the Court, executed under penalty of
perjury, certifying compliance with this Order. The affidavit shall identify the numbered
1 Corporate Defendants shall select a corporate representative who shall describe her or his
corporate position and knowledge of the matters set forth in the affidavit.
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paragraph above that corresponds to their obligations, and shall state, immediately following
each paragraph reference, that production and/or supplementation responsive to that directive
is complete. If Defendants’ prior production or supplementation already satisfied the
requirements of this Order, Defendants are not required to make an additional production or
supplementation that is, in effect, duplicative. However, they must identify the prior production
or supplementation that satisfies this Order. If any portion of this Court’s Order has not been
fully satisfied at the time, the affidavit shall provide a detailed explanation of the outstanding
items, demonstrate good cause for failure to comply with this Order, and provide a specific
date by which full compliance will be achieved.
SO ORDERED this 3 rd day of February, 2026.
BY THE COURT:
___________________________
Maritza Dominguez Braswell
United States Magistrate Judge
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