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Superior Composite Structures, LLC v. Malcolm Parrish

October 19, 2012


The opinion of the court was delivered by: Karen E. Schreier Chief Judge


Plaintiff, Superior Composite Structures, LLC, brought suit against defendant, Malcolm Parrish, who is proceeding pro se, alleging causes of action for breach of contract, negligent misrepresentation, fraudulent misrepresentation, and deceit. Superior Composite moves to have Parrish sanctioned for his failing to comply with this court's March 14, 2012, order to fully answer the interrogatories and requests for production of documents. Parrish moves for reconsideration of the March 14, 2012, order.


The pertinent facts to this order are as follows: Parrish is the chief executive officer for Abersham Commercial Services, Ltd., which is involved in producing modular housing panels out of high-tech materials made from recycled glass. Superior Composite, through its managers Lee Celske and Rick Ostergaard, expressed interest in selling these houses.

Parrish stated that he, through Abersham, could provide a "turn key" Ambiente Housing Plant, which could produce 500 modular houses a year.

Superior Composite and Parrish entered into a series of written agreements, including an "Agreement in Principal" dated August 12, 2008. Docket 1-1. Superior Composite agreed to purchase an Ambiente Housing Plant from Abersham with a production capacity of 500 houses per year for $9 million, with $500,000 due at the end of year one, $500,000 due at the end of year two, and the remaining $8 million paid in cash in progress payments "defined in the Plant Design Build contract." Docket 1-1 at 1. The August 12, 2008, agreement included phases for building the Ambiente Plant and stated that Abersham would receive a technology licensing fee in the amount of 8 percent of each house's sale price. In return, Superior Composite would receive an exclusive territory within the United States to sell the houses. Superior Composite paid an initial $250,000 deposit to Abersham.

On June 9, 2008, Abersham provided a firm order to buy 100,000 square feet of housing from Superior Composite, reserved the right to purchase another 100,000 square feet of housing, and stated that Abersham wanted to receive the houses at a rate of ten per month. Docket 1-2. Abersham stated that firm dates and costs for these houses would be determined at a later date.

On April 2, 2009, Parrish wrote to Ostergaard and Celske and stated that Superior Composite needed "to increase the deposit by 100k." Docket 1-3. Superior Composite paid an additional $100,000 to Abersham. The contractual relationship eventually disintegrated, and Superior Composite brought this action against Abersham and Parrish on June 14, 2010.

In the early stages of this lawsuit, Abersham and Parrish's first counsel withdrew because "despite repeated attempts by [counsel] to obtain defendants' compliance with Rule 26(a) . . . and despite the undeniable fact that a significant amount of such information exists, defendants have failed to comply with their disclosure obligation." Docket 11 at 1. Abersham was unable to secure substitute counsel, which led the clerk of court to enter a default against it because corporations cannot proceed pro se in court. Dockets 29, 32. After holding a hearing on damages, where no representative of Abersham appeared, the court granted Superior Composite's motion for default judgment against Abersham in the amount of $849,895.98. Docket 57. Only Parrish remains as a defendant in this action.

All prediscovery disclosures required by Rule 26(a) were originally due on February 28, 2011. Docket 33-1 at 1. Superior Composite, however, did not require Parrish to meet this deadline because of the aforementioned attorney problems. After failing to find counsel, Parrish represented to the court on March 21, 2011, that he would be proceeding pro se. Superior Composite then requested an April 20 deadline for the prediscovery disclosures. Parrish emailed Superior Composite two days before the deadline and asked for a seven-day extension, which Superior Composite granted. Then, on April 27, 2011, Parrish emailed Superior Composite and informed them that he was having problems with the court's electronic filing system and that was the reason for not providing the prediscovery disclosures. Superior Composite responded to the email by reminding Parrish that discovery did not need to be filed with the court but instead needed to be given to the agreed upon third-party intermediary. Docket 33-1 at 2. Parrish did not respond, and Superior Composite brought a motion to compel discovery on May 4, 2011. Docket 33. Superior Composite's motion was granted by United States Magistrate Judge John Simko on June 15, 2011, after Parrish failed to respond to the motion. Docket 43 at 4.

Superior Composite served its requests for admissions on Parrish on May 19, 2011. In its requests for admissions, Superior Composite informed Parrish that the requests for admissions would be deemed admitted if he failed to answer. Docket 46-1 at 1. After not receiving a response from Parrish within the allotted time, Superior Composite brought a motion to deem the requests for admissions admitted on June 29, 2011. Docket 45. Parrish finally provided his response to Superior Composite's requests for admissions on September 13, 2011, and asked the court to admit the late documents, which the court did. Dockets 73; 81.

Superior Composite sent Parrish a set of interrogatories and requests for production of documents (RFPs) on December 5, 2011. On December 8, 2011, Parrish's second set of attorneys filed a notice of appearance. Docket 84. Superior Composite sent Parrish's newly acquired attorneys copies of the interrogatories and RFPs on December 27, 2011. Docket 89-1 at 1. On January 6, 2012, counsel for Parrish requested and was given a two-week extension to answer the interrogatories and RFPs, which were originally due on January 9, 2012. Counsel for Parrish requested an additional extension on January 23, 2012. Superior Composite agreed to a January 26 deadline. Superior Composite finally received Parrish's answers to the interrogatories on January 26, and it received Parrish's responses to the RFPs on January 30. Docket 89-1 at 1-2.

After reviewing Parrish's responses to the interrogatories and RFPs, Superior Composite sent a letter to Parrish's counsel on February 7, 2012, indicating that the responses were deficient and asking for complete answers. Docket 89-1 at 2. Parrish's counsel responded two days later and indicated that they would respond within a "reasonable amount of time." Id. With no word from Parrish or his attorneys, Superior Composite filed a motion to compel full answers to its interrogatories and RFPs on February 14, 2012. Docket 89. On March 14, 2012, after Parrish failed to respond to the motion, the court entered an order to compel requiring Parrish to fully answer the interrogatories and RFPs by April 13, 2012. Docket 91.

On March 16, 2012, Parrish's attorneys withdrew, with permission from the court, because Parrish was unable to pay them. Dockets 92-95. Parrish then entered a response to the court's March 14 order on April 13, 2012, which included additional answers to the interrogatories, but no additional responses to the RFPs. Docket 101. After reviewing Parrish's additional answers, Superior Composite filed its current motion on April 24, 2012, asking the court to sanction Parrish for failing to comply with the March 14 order. Parrish thereafter filed his motion for reconsideration on May 8, 2012.


To impose sanctions under Federal Rule of Civil Procedure 37, "there must be an order compelling discovery, a willful violation of that order, and prejudice to the other party." Chrysler Corp. v. Carey, 186 F.3d 1016, 1019 (8th Cir. 1999). The court's March 14 order compelled Parrish to fully respond to Superior Composite's interrogatories and RFPs.

Parrish moves this court to reconsider its March 14 order. Parrish relies on Rule 60(b)(1) in support of his motion. See Anderson v. Raymond Corp., 340 F.3d 520, 525 (8th Cir. 2003) (identifying that the Eighth Circuit has determined that motions for reconsideration are "nothing more than Rule 60(b) motions when directed at non-final orders"). Under Rule 60(b)(1), "the court may relieve a party . . . from a final judgment, order, or proceeding" when the party demonstrates "mistake, inadvertence, surprise, or excusable neglect." Fed. R. Civ. P. 60(b)(1).

Parrish argues that he made a mistake by overlooking Superior Composite's motion to compel, which led to the court's March 14 order by default. Docket 113 at 3. The court is not convinced that Parrish's non-response to Superior Composite's motion was a genuine mistake when viewed alongside his other actions before the court during this litigation. Nonetheless, the court will assess his objections and responses to the several interrogatories that Superior Composite has identified as being deficient in its motion for sanctions to see if the March 14 order would have been different had Parrish responded to Superior Composite's motion.

Before analyzing the individual interrogatories, a few standard principles of discovery require recitation. The scope of discovery is governed by Rule 26, and Rule 26 is extremely broad. See 8 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2007 at 119-120 (3d ed. 2010) (hereinafter "Wright & Miller"). The reason for broad discovery is that "[m]utual knowledge of all the relevant facts gathered by both parties is essential to proper litigation. To that end, either party may compel the other to disgorge whatever facts he has in his possession." Hickman v. Taylor, 329 U.S. 495, 507-08 (1947).

Rule 26 allows discovery of any matter relevant to the claim or defense of any party. Wright & Miller, § 2007 at 119. Information is discoverable if it is "reasonably calculated to lead to the discovery of admissible evidence." Fed. R. Civ. P. 26(b)(1). "Once the requesting party has made a threshold showing of relevance, the burden shifts to the party resisting discovery to show specific facts demonstrating that the discovery is not relevant, or how it is overly broad, burdensome, or oppressive." Signature Development, LLC v. Mid-Continent Cas. Co., No. Civ. 11-5019-JLV, 2012 WL 4321322, at *7 (D.S.D. Sept. 18, 2012). "The articulation of mere conclusory objections . . . is insufficient to carry the resisting party's burden," and, instead, the party must make a "specific showing of reasons why the relevant discovery should not be had." Id.

Keeping these principles in mind, the court will now analyze the interrogatories in question.

Interrogatories 11 & 27*fn1

Interrogatory 11 asks Parrish to identify "any and all facts that support [his] denial of the allegations set forth in the Complaint," including the assertions made in previous affidavits, responses, and the answer. Docket 101 at 11.

Parrish's objection argues that the interrogatory is "vague, ambiguous and unintelligible in that it requires facts that support facts." Id. Parrish drafted and filed the documents that contain his denials of the allegations set forth in the complaint. Interrogatory 11 merely asks Parrish to explain the facts, and the source of those facts, underlying the denials.

Further, many of Parrish's assertions made in the documents referenced in the interrogatory are conclusions or disputed facts that Superior Composite believes require additional facts. Parrish implicitly argues through his objection that facts cannot support other facts when he claims that the interrogatory is "unintelligible in that it requires facts that support facts." This argument is neither persuasive nor intelligible. Thus, Parrish's objections to Interrogatory 11 lack merit.

Parrish answers Interrogatory 11 by referencing the very facts that he was asked to support. Docket 101 at 12. Such a circular response is not an adequate answer.

Interrogatory 27 asks Parrish to identify "any and all facts that support your claims made in your pleadings" including his claims that:

(a) He can provide a "turn key" Ambiente Housing Plant which has the capability of producing 500 modular houses per year as well as sell the licensing rights to certain technology and provide any exclusive sales and production territory.

(b) He has the ability to perform his obligations in the "Agreement in Principal."

(c) He can provide layouts, design and equipment for a physical plant and a facility to manufacture the recycled glass modular panels.

(d) He would have purchased 100 (or more) homes from Superior Composite Structures once the plant was operational.

(e) Superior Composite Structures was unable to pay for the "turn key" Ambiente Housing Plant.

(f) He provided additional video information, wall samples, and other information to Superior Composite Structures in an effort to ...

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