Mashburn v. Terrill (In re Terrill)

• Docket Number: 21-12557-SAH,Adv. Pro. 22-01055-SAH
• Decision Date: 31 August 2023
• Parties: In re: JOHN M. TERRILL, Debtor. v. JOHN M. TERRILL and SYNERGY SPV, LLC, Defendants. JOHN D. MASHBURN, Plaintiff,
• Court: U.S. Bankruptcy Court — Western District of Oklahoma

1

In re: JOHN M. TERRILL, Debtor.

JOHN D. MASHBURN, Plaintiff,
v.
JOHN M. TERRILL and SYNERGY SPV, LLC, Defendants.

No. 21-12557-SAH

Adv. Pro. No. 22-01055-SAH

United States Bankruptcy Court, W.D. Oklahoma

August 31, 2023

Chapter 7

ORDER DENYING MOTION TO EXTEND RESPONSE DEADLINE TO TRUSTEE'S MOTION FOR SANCTIONS [DOC. 46]

Sarah A. Hall United States Bankruptcy Judge

The Motion to Extend Response Deadline to Trustee's Motion for Sanctions [Doc. 46] (the "Motion"), filed by defendants John M. Terrill and Synergy SPV, LLC ("Synergy") is before the Court. For the reasons set forth below, the Motion is denied, and SPV is ordered, among other things, to provide written responses to Trustee's Interrogatories and Requests for

2

Production of Documents (collectively, the "Discovery Requests") and produce all responsive documentation by 12:00 p.m. on Friday, September 8, or a default judgment will be entered against SPV in this adversary proceeding without further notice or hearing.

1. The Motion requests a 14 day extension of time to file a response to the Trustee's Motion for Sanctions for Failure to Comply with the Court's Order Granting the Trustee's Motion to Compel Defendant Synergy SPV to Respond to Plaintiff's Interrogatories and Requests for Production of Documents and Brief in Support Thereof and Notice of Opportunity for Hearing [Doc. 43] (the "Default Judgment Motion"), filed on August 16, 2023, by plaintiff John Mashburn, chapter 7 trustee in Case No. 21-12557 ("Trustee"). The Court views the Motion as just another dilatory tactic employed by Synergy and its counsel in this adversary proceeding in an effort to thwart Trustee's prosecution thereof.

2. In the Default Judgment Motion, Trustee requests entry of a default judgment against Synergy as a sanction for its failure to comply with the Order Granting Plaintiff's Motion to Compel Defendant Synergy SPV to Respond to Plaintiff's Interrogatories and Request for Production of Documents [Doc. 41] (the "Compel Order"), entered on August 4, 2023.

3. The Compel Order specifically:

a. Granted Trustee's motion to compel Synergy to respond to Trustee's interrogatories and requests for production of documents; and

b. Ordered Synergy to provide complete discovery responses and document production to Trustee no later than 3:00 p.m. on August 11, 2023

Compel Order [Doc. 41].

3

4. Per Synergy's representations made in the Motion, as well as the representations in the Default Judgment Motion, Synergy did not comply with the Compel Order by failing to provide written responses to the Discovery Requests and produce the documents responsive to Trustee's requests for production of documents by August 11, 2023, at 3:00 p.m., the extended deadline set by the Court for Synergy's compliance.

5. Consequently, Trustee was forced to file the Default Judgment Motion on August 16, 2023, which still did not prompt Synergy to satisfy its now long overdue discovery obligations.

6. The Motion, filed in response to the Default Judgment Motion, shocks the conscience of the Court. It continues the pattern of Synergy's, and its counsel's, utter failure to comply with the well established deadlines set by the discovery rules contained in the Federal Rules of Civil Procedure (applicable pursuant to the Federal Rules of Bankruptcy Procedure) or timely seek an extension of such deadlines.

7. Moreover, Synergy and its counsel continue to refuse to participate in good faith in discovery, a pattern well documented by the following time line of discovery in this adversary proceeding.

March 17, 2023	Trustee served the Discovery Requests by first class mail (Exhibit 1 to Compel Motion) and personally deposited in mail by Trustee and postage of $1.08 paid; the Discovery Requests were never returned, and Trustee received no notice of non-delivery thereof.
April19, 2023	Synergy's written responses to the Discovery Requests were due.
April 24, 2023	Trustee emailed counsel for Synergy advising of the past due responses to the Discovery Requests and requesting immediate

4

answers to the Interrogatories and Requests for Production of Documents (the Requests for Admissions were deemed admitted at this point pursuant to Rule 36(a)(3), Fed.R.Civ.P. (applicable pursuant to Rule 7036, Fed.R.Bankr.P.). Counsel for Synergy replied she never received the Discovery Requests and stated if Trustee would email, she would get with Beau Phillips that week and give him an estimate of how quickly they can respond. Counsel for Synergy also gave a litany of other excuses including her building's history of poor mail sorting and delivery and two busy defendants as clients. (At the hearing on the Compel Motion (defined below), Synergy presented no evidence substantiating its claim its counsel never received the Discovery Requests by mail or its other proffered excuses for the delay and noncompliance.)
April 26, 2023	Trustee emailed the Discovery Requests to Synergy's counsel per her request.
May 17, 2023	Trustee again emailed counsel for Synergy as he had still not received responses to the Discovery Requests or the responsive documentation. Counsel for Synergy responded she had not completed the responses and requested a WordPerfect file of the Discovery Request to speed things up considerably.
May 18, 2023	Trustee emails counsel for Synergy a WordPerfect file of the Discovery Requests.
May 30, 2023	Trustee called counsel for Synergy who advised she would produce a large volume of information and documents that day and would call by noon on May 31 to advise what was left and when it could be provided. Trustee advised he needed complete responses within 3 days or he would file a motion...