United States District Court, D. New Mexico
December 19, 2016
WENDELL SWEET and STEVEN SWEET, Plaintiffs,
AUDUBON FINANCIAL BUREAU, LLC; DOMENICO D'ANGELO; ADAM MARCH; DANIEL VALENTINE; and MIGUEL GUZMAN, Defendants.
ORDER GRANTING PLAINTIFFS' MOTION TO
William P. Lynch, United States Magistrate Judge.
Wendell and Steven Sweet filed a motion to compel “full
and complete supplemental responses” to certain
discovery requests from Defendant Daniel Valentine. (Doc.
107.) Valentine filed a response in opposition to the motion
(Doc. 114), and Plaintiffs filed a reply (Doc. 117).
Plaintiffs propounded interrogatories and requests for
production to Valentine on September 6, 2016. (Docs. 100,
108.) They argue that Valentine's responses to
Interrogatories 2-8 and Requests for Production 1-5 are
insufficient and evasive. After this motion was filed,
Valentine provided supplemental responses on December 6,
2016. (Docs. 115, 116.) In reply, Plaintiffs' contend
that supplemental responses remain deficient as to
Interrogatories 2-7 and Requests for Production 1, 2, 4, and
5. Having reviewed the briefing and the relevant law, and
being otherwise fully informed on these matters, I grant the
motion to compel.
Rule of Civil Procedure 33, governing interrogatories to
parties, provides that “interrogatories must be
answered (A) by the party to whom they are directed . . .
.” Fed.R.Civ.P. 33(b)(1). Additionally, “[e]ach
interrogatory must, to the extent it is not objected to, be
answered separately and fully in writing under oath.”
Fed.R.Civ.P. 33(b)(3). A party objecting to an interrogatory
must specify its grounds for the objection. Fed.R.Civ.P.
33(b)(4); e.g., Doe v. Nat'l Hemophilia
Found., 194 F.R.D. 516, 520 (D. Md. 2000). Any objection
not raised or not raised with specificity is waived.
Miller v. Pruneda, 236 F.R.D. 277, 281 (N.D. W.Va.
2004). An incomplete or evasive answer is not considered an
answer, but rather a failure to answer. Villareal v. El
Chile, Inc., 266 F.R.D. 207, 212 (N.D. Ill. 2010)
(citing Fed.R.Civ.P. 37(a)(4)).
to Federal Rule of Civil Procedure 34, a party must either
produce documents responsive to a request for production
(“RFP”) or “state with specificity the
grounds for objecting to the request, including the
reasons” and “state whether any responsive
materials are being withheld on the basis of that
objection.” Fed.R.Civ.P. 34(b)(2). As with
interrogatories, general objections to a request for
production are insufficient and will be overruled. See
Convertino v. U.S. Dep't of Justice, 565 F.Supp.2d
10, 12-13 (D.D.C. 2008).
initial matter, it appears that Valentine did not sign or
verify his responses. Failure to verify an answer to an
interrogatory renders that answer incomplete.
Villareal, 266 F.R.D. at 212. Rule 33 is clear that
interrogatories must be answered and signed by the party to
whom they are directed. See Cabales v. United
States, 51 F.R.D. 498, 499 (S.D.N.Y. 1970). On this
basis, Valentine's answers to the Interrogatories are
incomplete. Valentine has fourteen days from the date of
entry of this Order to provide complete answers, including
No. 2: Interrogatory No. 2 asked Valentine to provide
information about his employment history for the last ten
For the last ten years, for every company for which you have
provided services, worked at, owned, or were an officer,
director, employee or independent contractor (including
a. identify (i.e., state the full name, all known
addresses and telephone numbers) the company;
b. state your role, title and provide a description of the
duties you were assigned or the services you provided;
c. state the dates of your association with the company;
d. state how you were compensated for your services;
e. identify your immediate supervisor; and
f. describe in detail the reason you stopped working for or
providing services to the company.
(Doc. 117 Ex. 1 at 2.) Plaintiffs contend that
Valentine's original and supplemental answers were
incomplete and evasive. Valentine unilaterally limited the
request to the last five years and provided incomplete
information for two entities with which he was associated,
and objected that the Interrogatory was “overbroad and
unduly burdensome” and not reasonably calculated to
lead to admissible evidence. (Id. at 3.) In response
to the motion, Valentine contends that Plaintiffs are on a
fishing expedition and that Interrogatory No. 2 was
“over broad and unduly burdensome, ” but that he
provided information on relevant business.
provided no authority for limiting his response to five years
or for providing incomplete information. Additionally, this
case was filed in 2013 and has been delayed for three years.
I agree with the Plaintiffs that ten years is a reasonable
time period under the circumstances. Further, Valentine
failed to explain how this Interrogatory is “unduly
burdensome.” Finally, Valentine cited no authority for
unilaterally limiting the Interrogatory. This case involves
claims of deception and corporate cloaking. Under the
circumstances, I agree with the Plaintiffs' that
Valentine's response to Interrogatory No. 2 was
insufficient. Within fourteen days from the date of entry of
this Order, Valentine will provide a full response to
Interrogatory No. 2. Valentine is reminded that he is
required to verify his response to this Interrogatory and to
certify under oath that the response is complete.
No. 3: Interrogatory No. 3 stated:
Concerning your association with Audubon Financial Bureau,
a. describe all activities you have performed for or on
behalf of AFB and the dates for which you performed these
b. state whether you have ever been involved in a decision to
hire or fire any AFB employee and if so:
i. identify the employee;
ii. state the dates of employment for this employee;
iii. describe your role;
iv. identify all other persons involved in a decision to hire
or fire this employee.
c. describe any compensation, direct or indirect, you
received from AFB and the dates this compensation was
d. if your association with AFB ended at some point, describe
in detail the reason it ended.
(Id. at 3.) Plaintiffs argue that Valentine's
original and supplemental responses to subpart c of this
Interrogatory are insufficient, evasive, and internally
inconsistent with his other responses. Valentine objected to
this subpart as “vague and ambiguous” because it
failed to define the term “compensation.”
(Id. at 4.) This objection is absurd. Compensation
is a common and colloquial term. Valentine clearly understood
the meaning of the term, at least in part, to include health
benefits and a weekly draw. (Id.) Accordingly,
Valentine's objections on this point are overruled and he
is directed to provide a complete response to Interrogatory
No. 3(c) within fourteen days from the date of entry of this
Order and to verify that response.
No. 4: Interrogatory No. 4 asked Valentine:
Separately for Ryan Paxton, Randy Zaffaran, Nick Doxey, Adam
March, Domenico D'Angelo, Miguel Guzman, and Kyan Julius:
a. state all residential addresses and personal phone numbers
of which you are aware[;]
b. describe how you know this person, when you first met
them, the history of your relationship with them and your
current relationship; and
c. state the approximate date of your last contact or
communication with the person and describe the circumstances
and/or content of the same.
(Id. at 4.) Valentine did not object to this
Interrogatory and has thus waived any potential objections.
Miller, 236 F.R.D. at 281. I agree with Plaintiffs
that his response was insufficient. Indeed, Valentine did not
even mention each individual named in the Interrogatory.
Within fourteen days from the date of entry of this Order,
Valentine will provide a complete, verified response to this
No. 5: Interrogatory No. 5 asked Valentine:
For every office which you kept (including any shared office)
at any time in the last ten years;
a. state the full street address for the office;
b. describe the business activities you performed at this
c. state the name of each company that performed business
activities at this same office at the same time you did and
i. State your role, title and provide a description of the
duties you were assigned or the services you provided;
ii. State the dates of you[r] association with this company;
iii. State how you were compensated for your services;
iv. Identify your immediate supervisor; and
v. [D]escribe in detail the reason you stopped working for or
providing services to the company.
(Doc. 117 Ex. 1 at 5.) Valentine objected that the
Interrogatory is vague and ambiguous by failing to define
“every office which you kept, ” overly broad,
burdensome, harassing, and not reasonably calculated to lead
to admissible evidence. (Id.) In response to the
motion, Valentine argues that this Interrogatory is
duplicative of Interrogatory No. 2. (Doc. 114 at 5.) I
disagree. Valentine could easily have provided services to a
company where he never had an office. The Interrogatories are
related, but not duplicative. Valentine's objection that
the phrase “every office which you kept” is vague
or ambiguous is overruled. While the phrasing is perhaps
unconventional, the meaning is clear. Valentine is directed
to use his common sense to fully respond to this
Interrogatory and will provide a complete, verified response
within fourteen days from the date of entry of this Order.
No. 6: Interrogatory No. 6 asked Valentine
If you have ever received a check made out to you on an AFB
bank account or a transfer to your account from an AFB bank
a. state the date and amount of the check or transfer;
b. identify the person who signed the check or authorized the
c. state the reason you received the check or transfer.
(Doc. 117 Ex. 1 at 6.) Valentine did not object to this
Interrogatory and thus waived any potential objections.
Miller, 236 F.R.D. at 281. Valentine did, however,
respond that he is “unable to access payroll
records” from AFB. (Doc. 117 Ex. 1 at 6.) That may be
the case, but is irrelevant. Valentine certainly has his own
records for any checks or transfers made to him from AFB
accounts. Valentine is directed to fully respond to this
Interrogatory within fourteen days from the date of entry of
this Order, and is reminded that he must verify his response.
Interrogatory No. 7: Interrogatory No. 7 asked
State the bank and account number for every account on which
you were authorized to sign checks or transfer money in the
last ten years and for each account:
a. state the name of the owner of the account;
b. state the date the account was opened and identify the
person that opened the account;
c. describe how the account is used and by whom; [and]
d. state whether the account is still active and, if not,
state the date it was closed and the reason it was closed.
(Id. at 7.) Valentine objected that this
Interrogatory is vague and ambiguous to the extent that it
did not define “every account on which you were
authorized to sign checks, ” that it is overly broad,
burdensome, and harassing. (Id.) Valentine's
objection based on vagueness and ambiguity is overruled.
Valentine is a businessman and is presumed to know what it
means to having signing authority on an account. A stipulated
protective order has been entered in this case, alleviating
any concerns about personal banking information. (Doc. 113.)
Given the nature and circumstances of this case, I agree with
the Plaintiffs that this Interrogatory is reasonably
calculated to lead to relevant information. Valentine's
objections are overruled without prejudice. He will provide a
complete, verified response to this Interrogatory within
fourteen days from the date of entry of this Order.
No. 1: RFP No. 1 asked Valentine “[f]or every
company for which in the last ten years [he has] provided
services, worked at, owned, or [was] an officer, director,
employee or independent contractor (including
self-employment), [to] produce the documents that define or
govern the role [he] played with this company.” (Doc.
117 Ex. 1 at 8.) Valentine objected to this RFP on the basis
that it is overly broad, burdensome, and harassing, and
stated that he is not in possession of responsive documents.
(Id.) I find this position difficult to believe
given that Valentine remains an owner of DMP. As previously
discussed, I find that this RFP is reasonably calculated
under the circumstances and thus overrule Valentine's
objections. Valentine will fully respond to this RFP within
fourteen days from the date of entry of this Order.
RFP No. 2: RFP No. 2 asked Valentine Concerning AFB:
a. produce all documents concerning activities you performed
for or on behalf of AFB;
b. produce all documents concerning your involvement in a
decision to hire or fire any AFB employee;
c. produce all documents concerning any compensation, direct
or indirect[, ] you received from AFB; and
d. produce all documents concerning the end of your
association with AFB.
(Id. at 8-9.) Valentine responded with reference to
his Interrogatory responses, which I have already found were
insufficient. Any potential objection to this RFP is
overruled on that basis and Valentine is directed to fully
respond within fourteen days from the date of entry of this
No. 4: RFP No. 4 asked Valentine to “[p]roduce all
documents concerning each check made out to [him] on an AFB
bank account and each transfer to [his] account from an AFB
bank account.” (Id. at 10.) Valentine
responded with reference to his responses to Interrogatories
Nos. 6 and 7, and RFP No. 2. As previously discussed with
reference to those discovery requests, Valentine's
responses were insufficient. Valentine will fully respond to
this RFP within fourteen days from the date of entry of this
No. 5: RFP No. 5 asked Valentine to “[p]roduce
signature cards for each bank account on which [he was]
authorized to sign checks or transfer money in the last ten
years.” (Id. at 10.) Valentine objected to
this RFP on the basis that it is vague and ambiguous because
“it requests documents related to all account[s] on
which he was an authorized signor without clarification,
” is overly broad and burdensome, harassing, and not
calculated to lead to admissible evidence. (Id.)
Again, these objections are overruled. Valentine is a
businessman and knows what signature cards are and what it
means to be an authorized signor. I agree with Plaintiffs
that this request is reasonably calculated to lead to
relevant information under the circumstances. Valentine will
provide a complete response within fourteen days from the
date of entry of this Order.
motion to compel is granted. Valentine will provide complete
discovery response within fourteen days from the date of
entry of this Order. Valentine is reminded that objections
not initially raised are waived, that he must verify his
Interrogatory responses, and that failure to fully comply
with this Order may result in sanctions.