United States District Court, D. South Dakota, Southern Division
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF
AND THIRD-PARTY DEFENDANTS’ MOTION TO COMPEL DOCKET NO.
VERONICA L. DUFFY UNITED STATES MAGISTRATE JUDGE
matter is before the court on the complaint of plaintiff
SPV-LS, LLC pursuant to the court’s diversity
jurisdiction, 28 U.S.C. § 1332. See Docket No.
1. Plaintiff and third-party defendants Life Trading Trust,
Financial Life Services LLC (“FLS”), and SPV II
LLC, collectively the Krasnerman Entities, have filed a joint
motion seeking to compel certain discovery responses from
third-party defendant Malka Silberman, trustee of the N.
Bergman Insurance Trust Dated December 18, 2006. See
Docket No. 196. The district court, the Honorable Lawrence L.
Piersol, referred the motion to this magistrate judge for a
decision pursuant to 28 U.S.C. § 636(b)(1)(A).
See Docket No. 216.
filed this complaint on June 13, 2014. See Docket
No. 1. Although third-party defendant Malka Silberman was
properly served with the summons and complaint, she did not
timely answer and a default was entered against her on
September 22, 2014. See Docket No. 37. The
Krasnerman Entities then moved for entry of a default
judgment. That prompted Ms. Silberman to make her appearance
herein and she successfully moved to set aside the default
and to defeat the motion for default judgment.
parties having finally appeared, the district court then
ordered all the parties to hold a scheduling conference
within 30 days from September 21, 2015. See Docket
Nos. 95 & 96. Before the 30 days expired, Ms.
Silberman’s counsel moved to withdraw and was allowed
to do so. One month later, new counsel filed a notice of
appearance on behalf of Ms. Silberman. On or before December
4, 2015, the parties held their planning meeting to discuss
scheduling and discovery issues. See Docket No. 152.
At that meeting, the parties agreed that all initial
voluntary disclosures required by Federal Rule of Civil
Procedure 26(a)(1) would be exchanged by February 1, 2016.
See id. at p. 2, ¶ 2. The Krasnerman Entities,
in their motion and the reply on their motion, represent that
Ms. Silberman has never made her initial disclosures as
required by Rule 26(a)(1).
January 29, 2016, the Krasnerman Entities served Ms.
Silberman with their first sets of interrogatories and
requests for the production of documents. See Docket
Nos. 198-1 and 198-2. On the same date, the Krasnerman
Entities issued a notice of deposition for Ms. Silberman,
designating March 2, 2016, at 9:30 a.m. as the date and time
for taking Ms. Silberman’s deposition.
their motion and reply brief, the Krasnerman Entitites
represent that Ms. Silberman has never provided them with
signed, answered interrogatories. They further represent that
Ms. Silberman, while interposing only one objection to one
request for documents, nevertheless has failed to provide any
documents in response to their discovery request for
documents. Unsigned “drafts” of responses to
these discovery requests were given to the Krasnerman
Entities on February 29, 2016.
after issuing Ms. Silberman’s deposition notice, the
Krasnerman Entities sought to change the date and time for
the deposition. They allege that Ms. Silberman’s
attorneys have failed and refused to give the Krasnerman
Entities a new date and time on which she will agree to have
her deposition taken. Also, in anticipation of taking the
depositions of certain New York attorneys who allegedly
represented the trust, the Krasnerman Entities sent Ms.
Silberman’s attorney release forms for Mark Frankel, M.
David Graubard, Michael Kanzer, and Mark Nussbaum. Each of
these releases, if they had been signed, would have
authorized the named person (all attorneys) to release to the
Krasnerman Entities’ New York law firm “copies of
any and all records relating to the N Bergman Insurance Trust
dated December 18, 2006, or the Former Trustee for the N
Bergman Insurance Trust, Mr. Nachman Bergman.”
See Docket No. 198-4.
thumbnail sketch of the facts of this action, recited only to
provide context for discussion of the discovery disputes, is
as follows. Nancy Bergman, a school teacher of modest means,
obtained a $10 million life insurance policy on herself from
defendant Transamerica Life Insurance Company and placed that
policy into the N. Bergman Insurance Trust dated December 18,
2006.Nancy’s grandson, third party
defendant Nachman Bergman, was the beneficiary and trustee of
the trust. Allegedly, Malka Silberman took over as trustee of
the trust in 2008, though that is a disputed fact.
Transamerica claims it was never notified of the change in
the identity of the trustee until after Nancy’s death
2009, Nachman sold the insurance policy from the trust to
FLS. After the sale, FLS discovered that the premiums on
Nancy’s life insurance policy had not been paid. It
also discovered that Nachman’s representations that
Nancy was on death’s doorstep were inaccurate. Nachman,
for his part, denies that he ever entered into these
transactions with FLS, suggesting an imposter posing as
Nachman dealt with FLS. He claims someone forged his
signature to the pertinent documents.
brought suit against the trust in federal district court for
the Eastern District of New York. Default was entered against
the trust because it never answered. Thereafter, an auction
of Nancy’s life insurance policy was held in 2012. FLS
bought the policy at the auction for $1.19 million. FLS then
transferred the policy to the plaintiff herein, SPV-LS, LLC.
April 6, 2014, Nancy died. Thereafter, both SPV-LS, LLC and
Malka Silberman on behalf of the trust, submitted claims to
Transamerica for the policy proceeds. SPV-LS, LLC brought
this suit against Transamerica in this court, alleging a
claim of breach of contract. Transamerica interpleaded the
policy proceeds and sued Nachman, Ms. Silberman,
Nancy’s estate, and other third-party defendants,
alleging that Transamerica was unable to determine which of
the claimants was legitimately entitled to the proceeds of
series of lawyers in New York have allegedly represented the
trust, though Ms. Silberman now claims she never hired these
New York lawyers. In this litigation, a succession of lawyers
have made appearances on behalf of Ms. Silberman. First
attorneys Pamela Reiter and Ronald Parsons appeared. They
withdrew after one month. Then after a month’s lapse,
Matthew Dorothy appeared. Mr. Dorothy withdrew less than five
months later. Andrew Citron of New York purported to
represent Ms. Silberman and communicated with counsel for
other parties in that capacity (see Docket No. 198),
but Mr. Citron never formally entered a notice of appearance
in this case. On April 8, 2016, Aaron Twersky of New York
City and James Moore, as local counsel, noticed their
appearance on behalf of Ms. Silberman. This was two months
after the parties had agreed to exchange initial Rule 26
disclosures and one month after the Krasnerman Entities filed
the motion to compel currently under consideration.
Meet and Confer
a party may make a motion to compel another party to make
discovery or disclosure, the movant must certify that they
have in good faith conferred or attempted to confer with the
opposing party from whom the discovery or disclosure is
sought in an attempt to resolve the disagreement without
court intervention. See Fed.R.Civ.P. 37(a)(1); DSD
LR 37.1. Lawyers for the Krasnerman Entities assert that they
have attempted to meet and confer with Ms. Silberman’s
lawyers in an effort to resolve the outstanding discovery
requests, however, they have been thwarted in their attempt
to do so by the frequently changing cast of persons
purporting to represent Ms. Silberman.
Mr. Dorothy was contacted, he stated the attorney handling
discovery matters was Mr. Citron. When Mr. Citron was
contacted, he indicated Mr. Dorothy was handling the
discovery responses. Then Mr. Twersky entered the picture and
purported to be representing Ms. Silberman in early March,
2016, but he did not file a notice of appearance until April
8, 2016. Mr. Citron ...