DR. STEPHEN RAMB, ADMINISTRATOR OF WERNER WICKER'S ESTATE, and WICKER, LLC, Plaintiffs, v. PRABHU PARAMATMA, et al., Defendants Civil Action No. 2:19-CV-21-RWS United States District Court, N.D. Georgia, Gainesville Division Filed March 31, 2021 Counsel Bret Adam Beldt, Gregory F. Harley, Burr & Forman, LLP, Atlanta, GA, Joseph Alexander Little, IV, Pro Hac Vice, Burr & Forman LLP, Nashville, TN, Jennifer M. Busby, Burr & Forman LLP, Birmingham, AL, for Plaintiff Dr. Stephen Ramb. Bruce Howard Morris, Finestone Morris & White, Harry W. MacDougald, Jeremy M. Moeser, Caldwell, Carlson, Elliott & DeLoach, LLP, Lauren Jill Miller, Caldwell Propst & DeLoach, LLP, Atlanta, GA, for Defendant Louis Beria. Harry W. MacDougald, Jeremy M. Moeser, Caldwell, Carlson, Elliott & DeLoach, LLP, Lauren Jill Miller, Caldwell Propst & DeLoach, LLP, Atlanta, GA, for Defendants LSC 1 Management Corp., Loti Investment and Management Group, LLC. Justin Gunter, William J. Holley, II, Parker, Hudson, Rainer & Dobbs, LLP, Atlanta, GA, for Defendant Wicker, LLC. Margaret A. Fernandez, The Fernandez Law Firm, Alpharetta, GA, for Defendants Timothy House, TJH, Inc. Louis Beria, Talladega, AL, Pro Se. LSC 1 Management Corp., Atlanta, GA, Pro Se. Loti Investment and Management Group, LLC, Gainesville, GA, Pro Se. Story, Richard W., United States District Judge ORDER *1 This matter is before the Court on various discovery-related matters, including Defendant Prabhu Paramatma's Motion to Compel Discovery from Plaintiff Werner Wicker [Doc. 298] and Motion to Bifurcate [Doc. 328], Defendants' Timothy House and TJH, Inc.'s (“House Defendants”) Motion for Reconsideration on Order of Production of House Defendant Tax Returns and Alternative Motion for Protective Order [Doc. 318], and Plaintiff Wicker, LLC's Motion to Strike the House Defendants' So-Called Reply [Doc. 330]. Following the passing of Werner Wicker in July 2020, the case was stayed in its entirety October 1, 2020 pending substitution of the proper party-plaintiff for Mr. Wicker's Estate. [Doc. 346]. The Court simultaneously ordered that the parties would be provided an additional five (5) months to complete discovery following substitution for the Wicker Estate. On March 10, 2021, Plaintiffs moved for the substitution of Dr. Stephen Ramb for the Wicker Estate. [Doc. 356]. On March 11, 2021, the Court approved and ordered the substitution of Dr. Ramb for the Wicker Estate, vacated the stay, and authorized the parties to resume all phases of discovery. [Doc. 357].[1] The Court held a Status Conference on March 24, 2021 via videoconference. The parties were provided an opportunity to be heard on the propriety of the Court deciding pending motions on the existing record or whether supplemental briefing was required. After reviewing the record and considering the submissions of the parties, the Court enters the following Order. Paramatma's Motion to Bifurcate [Doc. 328][2] On August 25, 2020, following the death of Mr. Wicker, Paramatma filed a Motion to Bifurcate seeking bifurcation of discovery and separate trials for (1) the claims relating to the ownership of Wicker LLC and (2) the remaining claims in this case. [Doc. 328].[3] Wicker, LLC opposes the motion. [Doc. 333].[4] Because substitution for the Wicker Estate had not occurred at the time, counsel for Plaintiffs (including Werner Wicker) argued that the motion was both premature and procedurally improper. Paramatma filed his reply on September 25, 2020. [Doc. 339]. *2 Wicker, LLC was joined as an indispensable party on March 11, 2020, at the same time the Court granted Plaintiff's Motion to Amend the Complaint. [Doc. 231]. The Second Amended Complaint (“SAC”) [Doc. 238], the operative pleading, was meant to include all related claims of both Mr. Wicker and Wicker, LLC.[5] The basis for Paramatma's Motion to Bifurcate is that the decision as to the ownership of Wicker, LLC is a threshold question that will determine whether Wicker, LLC is authorized to pursue its claims in this case. Paramatma's position is that, if he is the sole member of Wicker, LLC, the claims alleged in the SAC against Defendants (Paramatma included) are not authorized and that counsel presently representing Wicker, LLC are also not authorized to proceed and have a conflict of interest. Paramatma contends that bifurcation of this issue will avoid “the absurd situation” where Defendants are required to defend themselves against claims by Wicker, LLC that Paramatma has not authorized. Paramatma proposes a stay of all other issues in the case in favor of fully litigating (discovery and trial) the Wicker, LLC ownership claims. He suggests that bifurcation will promote judicial economy, conserve resources, and avoid prejudice to Defendants. In opposing bifurcation, Plaintiffs point to the history of the case. Plaintiffs contend that ownership of Wicker, LLC has already been decided, at least as a preliminary matter, by this Court in its October 8, 2019 Preliminary Injunction Order [Doc. 146] and that Paramatma's appeal of the Preliminary Injunction to the Eleventh Circuit deprived the district court of jurisdiction over these issues.[6] [Doc. 325; Doc. 333 at 10 n.7]. Next, Plaintiffs reiterate that the Court has already decided to include Wicker, LLC's claims in this action and emphasize that, when joinder was pursued by SAKS, SAKS advanced a judicial efficiency argument. Finally, Plaintiffs argue that the Wicker, LLC ownership issue is not a threshold issue as suggested in Paramatma's motion and that bifurcation can serve no legitimate purpose here. See WRIGHT & MILLER, 9A FED. PRAC. & PROC. CIV. § 2389 (“Separate trial may be ordered of threshold issues, such as jurisdiction or venue, although these matters may not be separated if they are related closely to the merits of the action.”) (emphasis added) (citations omitted). According to Plaintiffs, bifurcation would produce the exact opposite result – create inefficiencies, waste resources, and cause prejudice. *3 Evaluation of the Motion to Bifurcate requires a certain amount of context. While the passing of Mr. Wicker necessarily changes this already contentious litigation, the Wicker, LLC ownership dispute is not new to the case. The Preliminary Injunction imposed in October 2019 resulted in Werner Wicker obtaining sole management authority of Wicker, LLC and was premised, of course, on the record as it existed at that time and on the Court's findings, inter alia, that the June 13, 2019 Operating Agreement (one of several) – making Mr. Wicker the only member of Wicker, LLC, with the sole right to manage the company -- appeared to be valid and enforceable and was likely the governing operating agreement. [Doc. 146 at 9-10 (“It appears that the 2019 Operating Agreement is a legally enforceable Operating Agreement, if the Court is willing to overlook the ‘sole member’ provision.”)]. Even so, the Court also noted that Mr. Wicker may not have followed the formal expulsion procedures outlined within the 2017 Operating Agreement, in which case, Paramatma could still be a member of the LLC. The Court found that Paramatma remained a member of Wicker, LLC, “at least until the formal expulsion procedures of the 2017 Operating Agreement occur.” [Doc. 146 at 10].[7] The Court nonetheless enjoined Paramatma from interfering with the operation of Wicker, LLC and terminated the receivership of Wicker, LLC (over Paramatma's objection) to allow Wicker, LLC's claims to proceed. [Doc. 146 at 10-11]. In March 2020, Wicker, LLC became a party to this case. [Docs. 231, 238]. Wicker, LLC asserts sixteen (16) claims in the SAC, and several Wicker, LLC claims are also brought by the Wicker Estate. [SAC, passim; See Doc. 339 at 7-8 n.5 (listing claims)]. It is undisputed that the claims alleged within the SAC by the Wicker Estate and Wicker, LLC overlap and that discovery, including witness testimony and documentary evidence, of the Wicker, LLC ownership issue and Defendants' alleged fraud on Mr. Wicker, will be relevant to the claims of both Plaintiffs. By way of example, Plaintiffs point to the facts that may prove Paramatma's alleged fraud, breach of fiduciary duties, and other wrongful conduct making him liable to Mr. Wicker and Wicker, LLC, are the same facts that potentially prove Paramatma was validly expelled from Wicker, LLC.[8] Rule 42(b) of the Federal Rules of Civil Procedure reads: For convenience, to avoid prejudice, or to expedite and economize, the court may order a separate trial of one or more separate issues, claims, crossclaims, counterclaims, or third-party claims.... FED. R. CIV. P. 42(b). The court's decision to separate or bifurcate is a discretionary one. See Griffin v. City of OPA-LOCKA, 261 F.3d 1295, 1301 (11th Cir. 2001) (finding no abuse of discretion where district court did not order separate trials and concluded that bifurcation would not significantly increase judicial efficiency” and that bifurcation would “result in the Court essentially trying the same case twice”); and see Kimberly-Clark Corp. v. James River Corp. of Virginia, 131 F.R.D. 607, 608 (N.D. Ga. 1989) (listing relevant factors). Suffice it to say, the factual issues presented by the allegations in the SAC, including the ownership of Wicker, LLC, are all related and intertwined such that Wicker, LLC was joined as an indispensable party. And the gravamen of the Wicker Estate's claims against Paramatma and the other RICO Defendants is that Mr. Wicker's signature was forged when Wicker, LLC was created – forgery is alleged with respect to the original Wicker, LLC Operating Agreement purporting to assign a 50% membership to Paramatma (the basis for his Emergency Motion), and the 2017 Amended Operating Agreement, purporting to name Beria, through his entity LSC 1, manager of Wicker, LLC.[9] Resolving the Wicker, LLC ownership matter will necessarily implicate the claims and defenses underlying the rest of the case. *4 It is not lost on the Court that this case commenced in 2019. In addition, as relayed to the parties during the Status Conference, the Court rarely permits bifurcation of discovery because bifurcation inevitably generates disputes regarding scope and because it is seldom accomplished efficiently. The Court is not convinced that the issues can be separated as a practical matter. Moreover, to grant the Motion to Bifurcate would significantly delay disposition of the Wicker Estate's claims. Further, Paramatma fails to demonstrate how what he proposes can be accomplished efficiently. For these reasons, the Motion to Bifurcate is due to be denied. However, the Court will deny the motion without prejudice. With respect to bifurcation of discovery, in the event Paramatma wishes to renew his motion and identify specifically (and concretely) how the Wicker, LLC ownership dispute and discovery related to that aspect of the case can successfully be carved out of discovery that will also inform the other issues in the case, the Court will consider it. In addition, in denying the motion without prejudice, the Court does not rule out the possibility of separate trials. Whether bifurcation of these issues at trial may serve the relevant interests and purposes of FED. R. CIV. P. 42(b) remains to be seen. Defendant Paramatma's Motion to Bifurcate [Doc. 328] is DENIED without prejudice. Paramatma's Motion to Compel Discovery [Doc. 298] On January 8, 2020, Paramatma served a Request for Production of Documents and Interrogatories on Mr. Wicker. Believing Mr. Wicker's responses were inadequate, counsel for Paramatma sent a good faith letter to Mr. Wicker's counsel requesting that the discovery deficiencies be cured. After counsel engaged in several discovery conferences, the differences could not be resolved. Paramatma brings the present motion seeking to compel now the Wicker Estate to supplement his responses.[10] In the Motion to Compel, Paramatma raises seven issues which the Court will address, in turn. (1) Wicker's “Paramatma” Files - Mr. Wicker maintained a number of binders labeled “Paramatma” that apparently contained documentation regarding matters for which Mr. Wicker sought blessings from Paramatma. Plaintiffs have refused to produce the binders except those that relate to U.S. investments by Mr. Wicker. Paramatma asserts that everything in the binders is potentially relevant because it may reflect services that Paramatma performed for Wicker, including those unrelated to U.S. investments. The Court finds that Paramatma is entitled to production of the binders. (2) Photographs of Paramatma and Wicker – Paramatma has asked for all photographs of Paramatma and Wicker. Plaintiffs seek to limit the request to photographs evidencing a homosexual relationship and state that they have no such photographs. However, Paramatma's request is not limited to photographs evidencing a homosexual relationship. Paramatma is entitled to production of photographs depicting him and Mr. Wicker together, regardless of the circumstances. (3) Wicker's Travels with Paramatma and Wicker's Payment of Paramatma's Travel Expenses – Plaintiffs object to this request as overly broad because Paramatma has asked for all documents related to travel and expenses. While such a request would arguably be too broad, Paramatma is entitled to documents evidencing travel taken by Wicker and Paramatma together, as well as Wicker's payment of travel expenses for Paramatma. While all documents of every kind and nature need not be produced, actual travel documents and documents reflecting the payment of travel expenses for travel by Wicker and Paramatma together and travel by Paramatma paid for by Wicker must be produced. *5 (4) Wicker's Phone Records – Paramatma seeks Wicker's phone records from January 1, 2013 through December 31, 2018. Plaintiffs challenge the request as overly broad. In response to the objection, Paramatma offered to allow Plaintiffs to redact irrelevant information. The Court finds that Paramatma is entitled to phone records evidencing phone calls between Wicker and Paramatma. Thus, Plaintiffs must produce those records but may redact any other irrelevant information contained within the records. (5) Wicker's Relationship with Paramatma – Paramatma requests all documents relating to Wicker's relationship with Paramatma since January 1, 2013. Among other objections, Plaintiffs object that the request is overbroad and not proportional to the needs of the case. The Court agrees. The breadth of documents that could be said to relate to the relationship between these parties is potentially overwhelming. Discovery remains open in the case. Paramatma is not precluded from refining this request to a reasonable scope that could be answered by Plaintiffs. However, as presently stated, a response is not required. (7) Wicker's European Business Interests and Property Interests – Paramatma asked Wicker to identify (1) each business that he has had an ownership or management role in since January 1, 2010 and (2) each property that he and/or any entity he owns or controls has had any ownership interest in since January 1, 2010. Paramatma seeks this information to contrast Wicker's handling of European properties with his handling of the U.S. properties with Paramatma. While such information may be discoverable, the Court is not convinced that the request is proportional. Wicker apparently had substantial business interests in Europe and the U.S. Paramatma fails to justify the production of this breadth of documents. As with the preceding request, Paramatma may be able to refine the request to make it proportional. But, as presently stated, a response is not required. Based on the foregoing, Defendant Paramatma's Motion to Compel Discovery from Plaintiff Werner Wicker [Doc. 298] is GRANTED, in part and DENIED, in part. Within 30 days of the entry of this Order, Dr. Ramb shall supplement the discovery responses consistent with the Court's rulings. House Defendants' Motion for Reconsideration [Doc. 318] On July 16, 2020, the Court entered an Order [Doc. 317] requiring non-parties John Carroll and Carroll & Company CPA's, P.C. to produce subpoenaed documents within 14 days of entry of the Order. On July 31, 2020, the House Defendants filed the present Motion asking the Court to reconsider its July 2020 Order requiring the production of their respective tax returns. Pursuant to Local Rule 7(E), motions for reconsideration shall not be filed as a matter of routine practice,” LR7.2(E), ND GA, and should be brought only when “absolutely necessary.” Bryan v. Murphy, 246 F. Supp. 2d 1256, 1258 (N.D. Ga. 2003). “Reconsideration is only ‘absolutely necessary’ where there is: (1) newly discovered evidence; (2) an intervening development or change in controlling law; or (3) a need to correct a clear error of law or fact.” Id.; see also Arthur v. King, 500 F.3d 1335, 1343 (11th Cir. 2007). For the third factor, a clear error consists of a manifest error of law or fact “made despite a clear presentation of the issue by the party seeking reconsideration.” Paper Recycling, Inc. v. Amoco Oil Co., 856 F. Supp. 671, 678 (N.D. Ga. 1993). Defendants base their motion in large part on the passing of Mr. Wicker and contend, because Mr. Wicker was not deposed prior to his death, that Plaintiffs will not be able to meet their burden of proof on claims alleging fraud by the House Defendants. In other words, with no affirmative evidence from the decedent concerning allegations of fraud, the claims necessarily fail. According to Defendants, Plaintiff is unable to demonstrate reliance and, therefore, unable to prove his case-in-chief as to claims brought against the House Defendants, which counsel describes as consisting of fraud and fraudulent misrepresentation. *6 Defendants' Motion to Reconsider is due to be denied. First, the motion was filed after the date for compliance with the order had passed. Second, as discussed herein, the House Defendants argue the merits of the case but fail to offer a valid reason for not requiring that the subpoenaed documents be produced. To the extent Defendants request that production of their tax returns be deemed confidential and subject to a protective order, the House Defendants are directed to meet and confer with Plaintiffs to discuss whether the existing Confidentiality and Protective Order [Doc. 283] will adequately protect Defendants' privacy interests and, if not, to discuss and propose an appropriate protective order. Plaintiffs' Motion to Strike [Doc. 330] In conjunction with briefing of the House Defendants' Motion to Reconsider, the House Defendants filed a reply brief [Doc. 329] that included a section essentially moving for bifurcation of the trial and/or discovery. Plaintiffs filed a Motion to Strike the Reply [Doc. 330] on several grounds. First, Plaintiffs took issue with personal attacks directed toward counsel and Mr. Wicker. Also, they noted that the House Defendants were briefing a motion that they had not filed.[11] Finally, Plaintiffs note that the reply brief fails to adequately address the merits of the discovery issue before the Court. Without addressing each of the specific concerns raised by Plaintiffs, the Court notes that there is no place in these proceedings for personal attacks on counsel or parties. Counsel for the House Defendants is cautioned to exercise discretion in advocating for her clients. Zealous advocacy is appropriate, but personal attacks will not be tolerated. So that the record remains complete, the Court will not strike the reply from the record. Based on the foregoing, the House Defendants' Motion for Reconsideration on Order of Production of House Defendant Tax Returns [Doc. 318] and Plaintiff Wicker, LLC's Motion to Strike the House Defendants' So-Called Reply [Doc. 330] are DENIED. SO ORDERED this 31st day of March, 2021. Footnotes [1] The discovery deadline is August 12, 2021. [2] In conjunction with their reply brief in support of a different motion [Doc. 318], the House Defendants indicate their support of bifurcation (as proposed by Defendant Paramatma). However, the House Defendants did not file an independent, formal motion to bifurcate accompanied by a separate memorandum of law in support. [Doc. 329]. [3] Paramatma also filed an Emergency Motion to Vacate the Preliminary Injunction Regarding Wicker LLC's Management and for Preliminary Injunction seeking to assert himself as the sole member of Wicker, LLC given Mr. Wicker's death. [Doc. 321 (“Emergency Motion”)]. Paramatma incorporates his Emergency Motion in support of the instant Motion to Bifurcate. [Doc. 328-1 at 2]. [4] Wicker, LLC incorporates its response to Paramatma's Emergency Motion [Doc. 325]. [Doc. 333 at 3 n.4]. [5] At the time, there were two related actions initiated by Wicker, LLC pending in the Superior Court of Cobb County. [See Wicker, LLC v. Saks Management and Associates, LLC, Civil No. 19108051; Wicker, LLC v. LSC1 Management Corp., Louis Beria, Seema Rawla, and Prabhu Paramatma, Civil No. 19108065]. Defendant SAKS Management and Associates, LLC (one of “the Beria Defendants”), had moved for the joinder of Wicker, LLC in this federal litigation. [Doc. 158]. One of SAKS' arguments in support of joinder was that trying Wicker, LLC's claims separately from the other claims in the case was contrary to judicial efficiency. [6] Paramatma appealed the Court's Preliminary Injunction decision to the Eleventh Circuit, and the appeal has not been decided. See Werner Wicker v. Prabhu Parmatma, COA Case No. 19-14501-AA. The Eleventh Circuit case was stayed after Mr. Wicker's death through the earlier of (a) the filing of the motion for substitution of the proper party, or (b) March 29, 2021. Prior to the stay, the briefing was either complete or nearly complete. The docket also reflects that the Wicker Estate intended to file a cross-appeal. [7] The Preliminary Injunction noted competing evidence probative of the business relationship between Mr. Wicker and Paramatma and Paramatma's actual and/or apparent authority to act on Mr. Wicker's behalf; and the likelihood that factual issues in the case will require a jury trial. [Doc. 146 at 7]. [8] Plaintiffs maintain that Paramatma was never a member of the LLC. [9] Additional background information is found in the Court's Preliminary Injunction and subsequent Orders. Adding a new wrinkle to the case, Beria recently pled guilty to wire fraud in connection with one of the several real estate transactions that are the subject of the SAC and alleged fraud. See United States v. Louis Beria, 2:20-cr-53-RWS. The impact of the Beria criminal prosecution on the parties' respective claims and legal positions was posed to counsel during the March 24, 2021 Status Conference. [10] As Dr. Ramb, as Administrator of the Wicker Estate has now been substituted as Plaintiff in Mr. Wicker's place, these discovery obligations are his. [11] As discussed, supra, no independent motion seeking this relief was filed by the House Defendants, and it is not treated as a motion.