United States District Court, D. South Carolina, Greenville Division
Allen D. Stephenson, Plaintiff,
Mark McCoy and Carolina Arms Group, LLC, Defendants.
OPINION AND ORDER
C. Coggins, Jr. United States District Judge
matter is before the Court on a Motion to Compel filed by
Plaintiff on November 13, 2017. ECF No. 28. On January 29,
2018, Defendants filed their Response in Opposition to
Plaintiff's Motion to Compel. ECF No. 45. The following
day, Plaintiff filed a Reply. ECF No. 46.
lawsuit involves claims of fraud, breach of contract, breach
of fiduciary duty, breach of contract accompanied by
fraudulent acts, conversion, violation of securities acts,
and unjust enrichment. ECF No. 1. The Complaint alleges that
Plaintiff provided Defendant McCoy with $132, 500 based upon
Defendant McCoy's promise to build 54 handguns
incorporating Plaintiff's unique sighting mechanism. ECF
No. 1 at 3. The Complaint further alleges that Plaintiff sent
Defendant McCoy an additional $175, 000 to purchase one half
of Defendant Carolina Arms Group, LLC, for the development
and production of a polymer handgun. ECF No. 1 at 4.
Plaintiff contends that Defendants have failed to satisfy
August 23, 2017, Plaintiff served discovery on Defendants.
ECF No. 28 at 1. Plaintiff alleges that Defendants have not
fully responded to many of his discovery requests,
particularly in regards to requests seeking information and
documents about how Defendants used Plaintiff's funds.
Thereafter, Plaintiff filed a Motion to Compel on November
13, 2017. ECF No. 28.
is not supposed to be a shell game, where the hidden ball is
moved round and round and only revealed after so many false
guesses are made and so much money is squandered.”
Lee v. Max Int'l, LLC, 638 F.3d 1318, 1322 (10th
Cir. 2011). When a party feels at liberty to disobey
discovery requests, “weeks or months (as in this case)
pass without progress in the litigation.” Id.
at 1321. Here, the Court has been asked to address a number
of deficient discovery responses to rather straightforward
discovery requests. As an initial matter, Defendants claim
that Plaintiff's motion is premature because it does not
contain a meet and confer certification. ECF No. 45 at 3.
After reviewing the filings, the Court finds that
Plaintiff's motion was properly filed. See ECF
No. 28 at 2 (“Accordingly, prior to filing this Motion,
the Undersigned has attempted to resolve the issues raised
herein to no avail.”). Defendants also argue that
Plaintiff should not be awarded attorneys' fees and costs
for any discovery violations. Plaintiff's filings are
clear that he is not seeking sanctions of any kind and,
instead, is seeking only a court order requiring Defendants
to identify and produce responsive information. Each of
Plaintiff's claims will be addressed in turn.
Interrogatory 5 states: “Identify by institution name,
address, account holder name, and account number each account
into which Defendants, or anyone acting for them, deposited
or had funds wired with respect to: a. the $132, 500 received
from Plaintiff; and b. the $175, 000 received from
Plaintiff.” ECF Nos. 28-1 at 4-5; 28-3 at 4-5.
Defendants responded that the $132, 500 was deposited into
Defendant Carolina Arms Group, LLC's business checking
account at the Bank of the Ozarks and that the $175, 000 was
deposited in a separate money market account at the Bank of
the Ozarks. ECF Nos. 28-1 at 5; 28-3 at 5. Defendants now
contend that this information is fully responsive to
Plaintiff's interrogatory as Plaintiff has much of the
requested information already and is able to subpoena the
bank records. However, even if this assertion is true,
Defendants have an obligation to fully respond to
Plaintiff's request. Therefore, the Court directs
Defendants to respond to Plaintiff's Interrogatory 5
within ten (10) days of this Order.
Interrogatory 6 states: “Identify each transaction in
which Defendants, or anyone acting on their behalf,
transferred or disbursed any part of the $132, 500 or the
$175, 000 received from Plaintiff, including the name
address, and account number of any account to which any part
of the funds were transferred or, if transferred or disbursed
by check, identify each check and cancelled check.” ECF
Nos. 28-1 at 5; 28-3 at 5. Defendants generally responded
that the funds were used to develop and design the handguns.
Id. Despite clearly indicating that Defendants
incurred costs and expenses related to this development and
design, Defendants provide no meaningful information to
Plaintiff about how the money was spent or to
whom it was paid. Defendants' responses are plainly
deficient, and the Court directs Defendants to fully respond
to Plaintiff's Interrogatory 6 within ten (10) days of
Interrogatory 7 states: “If Defendants contend they
spent any money to fulfill the order for guns placed by
Plaintiff/1911, LLC, either as reflected in Invoice 179 dated
February 9, 2017, or any changes you contend were agreed to
with respect to that order, specify: a. Each expenditure; b.
the amount of the expenditure; c. the person(s) or entities
to whom the expenditure was made; d. the identity of all
documents, including purchase orders, invoices, and cancelled
checks, that reflect the expenditure. ECF Nos. 28-1 at 5-6;
28-3 at 6. While Defendants contend that they spent more than
$132, 500 to fulfill Plaintiff's order, they provide no
information about the actual expenditures. See ECF
Nos. 28-1 at 6; 28-3 at 6. Plaintiff is entitled to this
information, and the Court directs Defendants to fully
respond to Plaintiff's Interrogatory 7 within ten (10)
days of this Order.