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UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF FLORIDA

WEST PALM BEACH DIVISION

CASE NO.: 9:16-80353-cv-MARRA

SILVER CREEK FARMS, LLC,

an Oklahoma limited liability company,

Plaintiff,

v.

MAGGIE FULLINGTON,

Defendant.

________________________________________/

PLAINTIFF’S RENEWED MOTION FOR SANCTIONS

WITH INCORPORATED MEMORANDUM OF LAW

Pursuant to ¶¶ 4 and 5 of the June 7, 2017 Order of the Court [DE 53, 57] and Rules 34

and 37, Plaintiff, Silver Creek Farms, LLC, (“Silver Creek”), by and through undersigned

counsel, hereby respectfully submits this Renewed Motion for the imposition of certain sanctions

against the Defendant. In support of this Motion and the requested sanctions, Plaintiff states the

following:

Recent Developments

Defendant Fullington is stonewalling Plaintiff’s discovery efforts again. At the Order to

Show Cause Hearing on June 16, 2017, where Ms. Fullington finally appeared, one of the open

issues was the discovery non-compliance of Ms. Fullington. Not only were documents due from

Ms. Fullington to Plaintiff on June 8, 2017, pursuant to the duly-served Subpoena Duces Tecum,

[DE 34-1] but Ms. Fullington also had due on June 5, 2017 responses to Plaintiff’s Second

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Requests for Production and Second Set of Interrogatories, both served upon Ms. Fullington’s

prior counsel on May 4, 2017. Exhibits A and B hereto.

Ms. Fullington’s prior counsel, Lisa Boswell, had in fact written to Plaintiff’s counsel on

June 5, 2017, promising to obtain her client’s signature and offering an unsigned version of the

interrogatory answers in the meanwhile. Exhibit C. When asked about the document responses,

the next response was immediately an email from Ms. Boswell stating that she was renewing her

Motion to Withdraw as counsel for Ms. Fullington.

Today, June 19, 2017, present counsel for Ms. Fullington has indicated that he “may not

be entering a permanent Appearance” subsequent to his temporary Appearance [DE 65].

Therefore, Plaintiff will again, for the third time, be faced with the conundrum of Ms.

Fullington’s dilatory, vexing tactics delaying this case. In addition to the open Subpoena for

Deposition of Defendant Fullington, which was to take place June 8, 2017, there are also the

issues of the Defendant’s continued non-compliance with the document demand under that

Subpoena Duces Tecum and the Answers to Interrogatories and written and documentary

Responses to Plaintiff’s Second Requests for Production to Defendant.

Local Rule 7.1 Certification

At the close of the hearing last Friday, June 16, 2017, the Court requested counsel work

together to fashion an agreed form of Order to propose to the Court. Counsel have worked

together in person for an hour at the courthouse after the hearing and then by phone and via

email and have agreed to all of the attached proposed form of Order except for ¶ 7 thereof.

Exhibit D.

Defendant’s counsel takes the position that the open discovery was not before the Court

on June 16, 2017. This position is incorrect and completely inapposite to the Order to Show

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Cause [DE 63] served on Ms. Fullington, wherein the Court aggregated all of the outstanding

Motions of Plaintiff into the Hearing on the Order to Show Cause. Further, and as this court is

aware from Plaintiff’s prior Motion to Compel Deposition and prior Motion for Sanctions, as

well as from the Court’s prior three hearings on May 24, 2017, June 7, 2017 and June 19, 2017

regarding Ms. Fullington’s discovery abuse, the issue of Ms. Fullington’s wholesale discovery

avoidance was most certainly before the Court on June 16, 2017.

The Court has ordered Ms. Fullington, her temporary counsel and within counsel to

appear telephonically at a status conference on June 21, 2017 at 11 am, wherein the Court will be

setting all appropriate deadlines for all open issues.

Past Procedural History

For the convenience of the Court, the prior procedural history is set forth again below.

The Court is aware from the May 24, 2017 hearing [DE 45] on Plaintiff’s Motion to

Compel the deposition of Defendant [DE 34], Plaintiff has been attempting to take the deposition

of Defendant Fullington for over 6 months. Within days of Fullington’s first deposition date,

Fullington’s first counsel requested and received [DE 27 and 28] permission to withdraw as

counsel. The deposition of Fullington was then rescheduled to June 8, 2017 at 9:30 am with the

consent of Fullington’s second counsel, who also accepted service on May 4, 2017 of a

Subpoena Duces Tecum for the appearance of Defendant and production of documents. [See DE

34-1 hereto].

Only after the June 8, 2017 deposition of Defendant Fullington was set for that date and

service of the Subpoena Duces Tecum for that deposition accepted by Fullington’s counsel did,

Fullington’s second counsel request permission to withdraw as second counsel [DE 35].

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Having received a courtesy call as to that Motion to Withdraw, Silver Creek had filed

Motion [DE 34], pursuant to Rule 37, requesting the Court enter an Order compelling the

Defendant, Maggie Fullington, (“Fullington”), to appear at her deposition noticed for June 8,

2017 at 9:30 am.

In the interim, Plaintiff filed a Motion for Pre-Judgment Writ of Replevin [DE 44]

because Fullington had already admitted in discovery responses that she generated over $ 70,000

in breeding fees as of the Summer of 2016 (Plaintiff is seeking the updated records to date from

Fullington as part of the outstanding Discovery Requests), and that the purchase price of the

stallion “Apiro” of $ 100,000 remains unpaid by Fullington to Plaintiff, although that purchase

price was to be paid by Fullington out of breeding fees by October 2016. [DE 44, DE 1-1]. That

Motion is still pending.

After hearing on May 26, 2017 [DE 45] the Court ordered Defendant Fullington to

appear for her deposition on June 8, 2017 [DE 46].

Three days prior to the scheduled June 8, 2017 deposition of Fullington, Fullington’s

second attorney then filed a renewed Motion to Withdraw [DE 50], citing the Professional Rules

of Ethics as the basis for her Motion. The Court then immediately set a hearing [DE 51] on that

second Motion to Withdraw and ordered both Defense counsel and Defendant Fullington to

appear at the hearing. At the hearing on June 6, 2017, Defendant Fullington failed to appear.

The Court proceeded with the hearing in Defendant’s absence. After an in camera hearing

without Plaintiff’s counsel present, lasting approximately five minutes, the Court returned to

public hearing and allowed Defendant’s second counsel to withdraw two days before the

Fullington deposition. [DE 53] Fullington was, however, again ordered to produce the

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documents sought under the subpoena duces tecum and to appear at the June 8th

deposition, with

or without counsel. [DE 53, 57]

On June 8, 2017, Defendant Fullington failed to appear for her deposition and failed to

provide the documents subpoenaed. Brief proceedings were held to document Defendant’s

absence from the deposition. [DE 60-1] A call and an email had been received from an

unknown person claiming to be Defendant’s daughter claiming that Ms. Fullington was kicked

by a horse (the same claim was made to the Court to excuse Fullington’s absence from the June

6th

hearing) and stating that Defendant “will reschedule this deposition when she is well enough

to do so.” No details of Fullington’s injuries, diagnosis nor prognosis were provided. [DE 60-2]

Therefore, Defendant Fullington has again evaded her deposition, although under two Orders of

this Court, a subpoena and also has not provided the documents subject to subpoena. During this

same time, Fullington continues custody of the stallion and retains all breeding fees generated by

the stallion.

Prior Contemptuous and Deceptive Conduct of Defendant

Plaintiff had previously noted to the Court and the Court mentioned on the record on June

16, 2917 that Ms. Fullington has been subject to a prior Order to Show Cause. In September

2011, in the matter of Lisa Rahfeldt v. Margaret Fullington, Case No. 2011CC008408, then

pending in the County Court for Palm Beach County, Florida, Judge Johnson noted that Ms.

Fullington “failed to appear at the Show Cause hearing on September 6, 2011.” [emphasis in

original]. [DE 60-3]. A review of the docket for that case reveals that Ms. Fullington was in

fact ordered by that court to appear on that date. [DE 60-4]. As a result, the county court ordered

the tractor which Ms. Fullington apparently did not pay for to be replevined. [DE 60-3].

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Ms. Fullington does not honor settlement agreements. In 2010, Ms. Fullington was sued

by a property owners association in Caloosa Property Owners Association, Inc., v. Margaret

Fullington, et al., Case No. 5012010CA012777 then pending in the Circuit Court for the 15th

Judicial District Palm Beach County, Florida for breaching a settlement agreement. Exhibit F.

That 2010 suit is significant because in the present action before this Court, Plaintiff alleges in

Plaintiff’s Complaint that there was a settlement between the parties as to the issue of possession

of the stallion Apiro, only to see Ms. Fullington breach that settlement agreement and fail to

return Apiro [DE 1 ¶¶ 25-27, 44-47].

Memorandum of Law

This Court should recognize, as it has done in the past, that given a previously-filed

Motion to Compel Attendance of Deposition, given the two Court Orders requiring Defendant to

appear on June 8, 2017 at her deposition with the subpoenaed documents, and given Defendant’s

utterly contemptuous conduct, severe sanctions are warranted under Rule 37. See United States

of America v. Paul Jean, et al., Case No. 15-80492-CIV-MARRA/MATTHEWMAN (S.D.FL.,

February 26, 2016):

Under Federal Rule of Civil Procedure 37(d)(1)(A)(ii), a Court may award sanctions

when "a party, after being properly served with interrogatories under Rule 33 . . . fails to

serve its answers, objections, or written response." The type of sanctions available

include any of the orders listed in Rule 37(b)(2)(A)(i)-(vi).1 Under Rule 37(b)(2)(A)(iii)

and (vi), the Court may strike a pleading and render a default judgment against the

disobedient party. While the Rule gives the Court broad discretion to fashion appropriate

remedies, the severe sanctions sought by the government require a finding of willful or

bad faith failure to comply with discovery requests as well as a finding that lesser

sanctions are insufficient to deter the complained of conduct. Malautea v. Suzuki Motor

Co., Ltd., 987 F.2d 1536, 1542 (11th Cir. 1993); Rasmussen v. Central Florida Council

Boy Scouts of America, Inc., 412 F.App'x 230, 232 (11th Cir. 2011). Further, striking

pleadings and entering default judgment is not an appropriate discovery sanction in "the

absence of either a motion to compel . . . or an order of the court compelling discovery."

U.S. v. Certain Real Property Located at Route 1, Bryant, Ala., 126 F.3d 1314, 1318

(11th Cir. 1997). As stated above, a motion to compel was granted in this matter.

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While courts have noted that "the severe sanction of dismiss or default judgment is

appropriate only as a last resort," Malautea v. Suzuki Motor Co., Ltd., 987 F.2d 1536,

1542 (11th Cir. 1993) (citing Navarro v. Cohan, 856 F.2d 141, 142 (11th Cir. 1988)),

such sanctions are warranted here where Mr. Jean has willfully failed to respond to

discovery, even though ordered by the Court to do so. Moreover, Mr. Jean clearly

expressed his desire to abandon his defense of this case in his most recent discussion with

the United States. In view of Mr. Jean's willful, intentional and contemptuous conduct, no

lesser sanction would suffice.

Accordingly, the United States' request that the defendant's Answer be stricken and that

default be entered against him by the clerk pursuant to Rule 55(a) of the Federal Rules of

Civil Procedure [DE 22] is granted. The Clerk is directed to strike defendant's Answers at

DE 8 and 9 and enter a Clerk's default against Paul Jean.

The remedies Plaintiff seeks are provided by Federal Rules of Civil Procedure Rule 37,

entitled “Failure to Make Disclosures or to Cooperate in Discovery; Sanctions” provides for the

the requested sanctions and remedies. See Rule 37(a)(1), (a)(5), (b), (c)(1)(A), (d)(1), (d)(3).

A Prejudgment Writ of Replevin is an Appropriate Remedy

While Defendant has agreed to allow an immediate inspection of Apiro, Plaintiff can

show that Plaintiff has a substantial likelihood of success on the merits. Ms. Fullington has

admitted in ¶ 24 of her Answer [DE 10] that “she has not made payments” of the $100,000.00

purchase price. The Complaint [DE 1] states at ¶ 38 that Ms. Fullington was to make payment to

Plaintiff of $ 100,000.00 by October 1, 2016 from breeding fees collected. The Bill of Sale

[DE 1-1] provides, at ¶¶ 3 4 in relevant part, that:

¶ 3 Purchase Price. The total purchase price for the horse which is the subject of this agreement is the sum of ($ 100,000.00) and will be paid in full through breeding fees collected by the seller by no later than October 1, 2016. …. The purchase price also includes possession of frozen semen from Apiro being stored at Equine Reproduction. ¶ 4 Payment of Purchase Price. … If buyer defaults in payment, the Seller has the right to reclaim possession and all payments previously made are non-refundable.

Ms. Fullington has admitted in this case that as of at least this time last year, she earned at least

$74,000 in breeding fees from Apiro, as evidenced by Discovery produced in 2016. Exhibit E.

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Therefore, a second Order to Show Cause should be issued, calling Defendant Fullington

to Court to explain why a Prejudgment Writ of Replevin should not be entertained at this time by

the Court against Ms. Fullington as part of the sanctions for her continued discovery abuse, given

her admissions and the likelihood of success of Plaintiff on the merits.

When a party has entered into a contract that gives it the right to take possession of

collateral in the event the other party defaults, “t[t]he parties are bound by the contract they

freely entered” and Florida “law does not prohibit a secured creditor from taking possession of

property that he has a contractual right to possess pending the outcome of a suit.” Textron

Financial Corp. v. Unique Marine, Inc., et al., Case No. 08-10082-CIV-Moore/Simonton *6

(October 22, 2008) citing Lease Financial Corp. v. National Commuter Airlines, Inc., 462 So.2d

564, 566 (3d DCA 1985).

Further, as uncontroverted by the Affidavit of Alisa Lask [DE 61] and Ms. Fullington’s

own, sworn admission before the Court on June 16, 2017, Ms. Fullington plans to leave Florida

“in the near future” with all her horses. A Writ of Replevin is appropriate when the subject

matter of the suit may be in danger of removal from the jurisdiction of the Court. Financial

Marine, supra, citing Advantage Car Rental & Sales, Inc. v. Mitsubishi Motor Sales of America,

684 So. 2d 46, 47 (3d DCA 19950 (affirming ex parte prejudgment writ of replevin where

“plaintiff established that it had not received payment from the defendant as required by the lease

agreement and that the property in question, due to its movable and transitory nature, was in

danger of removal from the jurisdiction.”)

From the prior filings of the Court, Plaintiff has established the factual basis for her

statutory entitlement to prejudgment Replevin of Apiro. F.S.§ 78.055. The Courts should

immediately enter an Order for Prejudgment Writ of Replevin, given that the identity of the

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property, Apiro, is not in question, that Ms. Fullington admits that as of one year ago having

obtained at least $ 74,000.00 in breeding fees from Apiro, which she has retained instead of

paying them over to Plaintiff as Fullington was contractually obligated to do, and given that Ms.

Fullington’s continued discovery abuse goes as to discovery as to the actual amount Ms.

Fullington has received from breedings of Apiro.

Requested Remedies

Given the continued contemptuous conduct of Ms. Fullington in this matter, the prejudice

to both the stallion Apiro and to Plaintiff’s case by further delay and continued possession of the

horse by Defendant, pursuant to Rules 26, 34 and 37 and the prior Orders of the Court, Plaintiff

respectfully requests the following immediate relief:

I. Before Wednesday, June 21, 2017:

1. Entry of the Plaintiff’s proposed form of Order attached hereto.

2. Entry and service of an Order to Show Cause to Defendant Fullington holding a

hearing on Wednesday, June 21, 2017 addressing why the Replevin of Apiro and all of his frozen

and fresh semen to Plaintiff should not be entered; and

II. By further Order of the Court, pursuant to Rule 37(b) and (d):

4. Striking of all of Defendant’s Affirmative Defenses and Counterclaims; and

6. Entering Default Judgment against Defendant; and

5. Ordering Defendant make payment of all of Plaintiff’s reasonable attorneys fees

and costs1 attributable to obtaining the possession of Apiro and his frozen and fresh semen,

attributable to obtaining the discovery responses, documents subpoenaed from Defendant,

1 The representative of Plaintiff has incurred substantial cost and inconvenience to have flown in to both

attend the June 8, 2017 deposition of Fullington and the deposition of Silver Creek, that was noticed and

never cancelled.

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attributable to obtaining Fullington’s deposition and for the within motion, as to be established

by affidavit of Plaintiff’s counsel;

WHEREFORE, Plaintiff, Silver Creek Farms, LLC hereby respectfully requests that this

Court grant Plaintiff’s Renewed Motion for Sanctions and also award any such other relief as

this Court deems just and proper.

Local Rule 7.1 Certification

The Court is respectfully referred to page 2 herein for this Certification.

Respectfully submitted,

Avery S. Chapman

Avery S. Chapman, Esq.

FL Bar No. 517321

CHAPMAN LAW GROUP, PLC

12008 South Shore Blvd., Suite 107

Wellington, FL 33414

Tel. 561.753.5996

Fax 561.753.9966

asc@chapmanlawgroup.net

djt@chapmanlawgroup.net

teh@chapmanlawgroup.net

Certificate of Service

I HEREBY CERTIFY that on the date appearing on the first page of this document, I

electronically filed the foregoing with the document with the Clerk of the Court using the

CM/ECF filing system, which will then serve all counsel of record or pro se parties on the

attached Service List in the manner specified, either via transmission of Notices of Electronic

Filing generated by the CM/ECF system or in some other authorized manner for those counsel or

parties who are not authorized to receive electronically Notices of Electronic Filing.

Avery S. Chapman

Avery S. Chapman, Esq.

Richard Lubliner, Esq. rlubliner@greenstein-law.com

Copy mailed to:

Defendant Fullington at 13215 Running Water Road, West Palm Beach, Florida 33418.

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EXHIBIT D

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UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF FLORIDA

WEST PALM BEACH DIVISION

CASE NO.: 9:16-80353-cv-MARRA

SILVER CREEK FARMS, LLC,

an Oklahoma limited liability company,

Plaintiff,

v.

MAGGIE FULLINGTON,

Defendant.

________________________________________/

ORDER

THIS CAUSE having come before the Court upon Plaintiff, Silver Creek Farms, LLC’s

(“Plaintiff”) Motion for Hearing for Entry of Pre-Judgment Writ of Replevin [DE 44], Emergency

Motion for Inspection of the Stallion Apiro [DE 56], Motion for Sanctions [DE 60], and Affidavit

of Alisa Lask [DE 61]; the parties having had an opportunity to be heard and having come to an

agreement as to the terms of this Order; and the Court being otherwise fully advised of the

premises;

It is hereby ORDERED AND ADJUDGED as follows as to Defendant Fullington and

any and all others acting on her behalf:

1. The stallion “Apiro” shall remain in Palm Beach County, Florida until further order of this

Court; and

2. Apiro shall be provided care and maintenance consistent with the standards in the equine

industry for the proper care and maintenance of a stallion in Palm Beach County, Florida;

and

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3. Apiro, nor any interest therein, may not be sold, transferred, in whole or in part, or

otherwise encumbered; and

4. Apiro shall not be offered for breeding or collection, nor shall the semen currently

collected, whether fresh or frozen, be sold, transferred, in whole or in part, or otherwise

encumbered; and

5. Plaintiff and/or her designated representatives and a licensed veterinarian of her choosing

may inspect Apiro at his present location of Marabet Farms, located at, 13215 Running

Water Road, West Palm Beach, Florida 33418, upon two business days’ notice to

Defendant, at a mutually convenient time. Said inspection to include a veterinary

inspection of Apiro that is consistent with customary and standard veterinary practices to

determine the health and condition of a stallion; and

6. On or before June 21, 2017, present counsel for Defendant shall inform the Court whether

counsel shall be entering a permanent appearance for Defendant; and

7. On or before June 28, 2017, Defendant shall respond to Plaintiff’s Second Set of

Interrogatories and Plaintiff’s Request to Produce propounded upon Defendant on May 4,

2017 and Defendant shall produce the responsive documents requested in the Subpoena

Duces Tecum propounded on May 4, 2017; and

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IT IS FURTHER ORDERED AND ADJUDGED that:

8. Defendant Fullington, her counsel and Plaintiff’s counsel shall appear for telephonic

hearing at 11:30 am on June 21, 2017, at which time the Court shall set the deposition date

of Defendant Fullington, set response dates to Plaintiff’s outstanding motions [DE 34, 44]

and shall set such further scheduling deadlines as are necessary.

DONE AND ORDERED in Chambers at West Palm Beach, Palm Beach County, Florida,

this ____ day of June, 2017.

___________________________________ WILLIAM MATTHEWMAN UNITED STATES MAGISTRATE JUDGE

Copies furnished to: All Counsel of Record

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