Preview
FILED
5/6/2024 9:46 AM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Brandon Keys DEPUTY
CAUSE NO. DC-22-14628
LARRY BRAMLET IN THE DISTRICT COURT
Plaintiff
Vv.
HI-LAND RESOURCES GROUP, LLC;
KELLY BUSTER; FIREDREAM
RESOURCES, LLC; MARK WARNER;
MDM ENERGY, INC.; MICHAEL RAFAEL;
ENERGY STRUCTURING, INC.; DAVTRA
HOLDINGS, LP 44th JUDICIAL DISTRICT
Defendants
Vv.
ROBERT LUNA
3° Party Defendant DALLAS COUNTY, TEXAS
PLAINTIFF’S MOTION FOR RULE 215 RELIEF
Plaintiff Larry Bramlet (“Plaintiff”), for his Motion for Rule 215 Relief (this “Motion”)
against Defendant Mark Warner, Defendant FireDream Resources, LLC, and Defendant
MDM Energy, Inc., respectfully shows the Court as follows:
SUMMARY
Plaintiff filed this lawsuit in response to an oil and gas investment which went awry
due to the misconduct of all defendants, including Defendant Mark Warner (“Warner”),
Defendant FireDream Resources, LLC (“FireDream”), and Defendant MDM Energy, Inc.
(‘MDM Energy,” together with Warner and FireDream, “Defendants”). Through his
Plaintiff's Third Amended Petition (“Third Amended Petition”), the live pleading in this
matter, Plaintiff brings claims against Defendants for: (1) violations of the Texas Securities
Act; (2) common law fraud; (3) fraud in the inducement; and (4) breach of fiduciary duty.
As identified throughout the Third Amended Petition, Plaintiff seeks to hold Defendants
liable through a theory of Secondary Liability. In particular, Plaintiff brings various
PLANTIFF’S MOTION FOR RULE 215 RELIEF Page 1
allegations regarding Defendants’ aiding and abetting of Defendant Kelly Buster
(‘Buster’) and/or Defendant Hi-Land Resources Group, LLC (“Hi-Land”) in their actions
which give rise to Plaintiffs various causes of action.
As set forth at length below, Defendants and their counsel have repeatedly
delayed, resisted and abused the discovery process by consistently violating this Court’s
orders compelling them to produce certain key documents, by failing to adequately
respond to Plaintiffs discovery requests, and by failing to appear for duly noticed
depositions. While Plaintiff is confident in his allegations premised upon Defendants’
Secondary Liability, Defendants’ repeated non-compliance with the discovery process
has rendered it impossible for Plaintiff to ascertain precisely how involved Defendants
were in the Lindley Wells Scheme (as defined in the Third Amended Petition), and he has
been improperly prevented from fully developing the legal and factual merits of his case
against Defendants.
As such, in light of Defendants’ violation of this Court’s Orders, unexcused delays,
and other repeated non-compliance with the discovery process, Plaintiff requests that
Defendants’ pleadings be stricken and a default judgment on liability be entered against
Defendants pursuant to Rule 215.2(b)(5) of the Texas Rules of Civil Procedure.
Alternatively, Plaintiff requests yet another Order by which Defendants are held in
contempt for their failure to comply with previous Orders compelling discovery and,
pursuant to the same Order, Plaintiff requests sanctions in the amount of the attorneys’
fees he has been forced to incur as the result of Defendants’ non-compliance with the
discovery process throughout the last year.
PLANTIFF’S MOTION FOR RULE 215 RELIEF Page 2
BACKGROUND FACTS
A Plaintiff's Discovery Requests
d Defendants have consistently resisted, delayed and avoided compliance
with Plaintiffs various discovery requests, and have repeatedly failed to comply with this
Court’s orders compelling discovery, including recent non-appearances at properly
noticed depositions that were ordered by the Court. Under the current discovery
deadlines, fact discovery closed on April 8, 2024, thus Plaintiff requests that the Court,
amongst other forms of requested relief, reset the trial date and all pretrial deadlines in
this matter.
2 Defendants’ abuses of the discovery process stem as far back as
February of 2023, when Plaintiff propounded Warner and FireDream with the following
requests for production:
| Plaintiffs First Requests for Production of Documents and One
Identification Interrogatory to Defendant, FireDream Resources,
LLC, served on February 3, 2023; and
I Plaintiffs First Requests for Production of Documents and One
Identification Interrogatory to Defendant, Mark Warner, served on
February 7, 2023.
3 In response, FireDream and Warner produced a set of documents on
March 9, 2023, and additional documents on March 23, 2023. However, FireDream and
Warner also asserted several unmeritorious objections and refused to produce several
responsive documents. In particular, FireDream and Warner failed and refused, and
continue to fail and refuse, to produce all documents and communications related to the
two investment schemes at issue within this lawsuit, as well as all documents and
communications related to the investors in the two investment schemes at issue in this
lawsuit.
PLANTIFF’S MOTION FOR RULE 215 RELIEF Page 3
4 Without the requested discovery, Plaintiff has been unable to adequately
develop the merits of his claims against Warner and FireDream. Without the requested
information and materials, Plaintiff is unable to ascertain precisely how involved Warner
and FireDream were with the Lindley Wells Scheme and, in turn, whether either Warner
or FireDream may properly be held primarily liable for the defrauding of Plaintiff.
B. Plaintiff's Motions to Compel and Motion for Contempt
5 On May 22, 2023, in response to FireDream and Warner's unmeritorious
objections to his discovery requests, Plaintiff filed his Motion to Compel Discovery and for
Attorney’s Fees Against Defendants Mark Warner and FireDream Resources, LLC (the
“5/22/23 Motion”),' by which he sought an order compelling responses to his First
Requests for Production propounded on Warner and FireDream. On June 29, 2023, this
Court signed its Order Granting Plaintiff's Motion to Compel Discovery and for Attorney’s
Fees (the “6/29/23 Order”).? Both Warner and FireDream have failed and refused to
comply with the 6/29/23 Order. See Exhibit A, Minter Declaration, {| 2.
6 On November 22, 2023, in response to Warner and FireDream’s collective
and continued violation of the 6/29/23 Order, Plaintiff filed his Motion for Contempt and
Request for Attorney's Fees (the “41/29/23 Motion”).3 Soon thereafter, on
January 29, 2024, Plaintiff filed his Motion to Compel Discovery, Motion for Continuance
of Trial, and Motion to Compel Service of Documents (the “1/29/24 Motion”, together with
the 11/29/23 Motion, the “Discovery Motions”).4
1 Plaintiff requests the Court take judicial notice of the 5/22/23 Motion.
2 Plaintiff requests the Court take judicial notice of the 6/29/23 Order.
3 Plaintiff requests the Court take judicial notice of the 11/29/23 Motion.
4 Plaintiff requests the Court take judicial notice of the 1/29/24 Motion.
PLANTIFF’S MOTION FOR RULE 215 RELIEF Page 4
7 On February 2, 2024, this Court granted the Discovery Motions, and entered
an Order granting the 11/29/23 Motion, as well as an Order granting the 1/29/24 Motion
(together, the “2/2/24 Orders”).5 Defendant has failed to comply with the 2/2/24 Orders.
8 Pursuant to the 2/2/24 Orders, among other things: (1) Warner was required
to appear for his oral deposition no later than April 15, 2024; (2) FireDream was required
to appear at its oral deposition through a designated corporate representative no later
than April 15, 2024; (3) MDM Energy was required to appear at its oral deposition no later
than April 15, 2024; (4) no later than February 16, 2024, Warner was required to produce
a variety of communications and documents relating to the investments forming the basis
of this suit; and (5) no later than February 16, 2024, FireDream was required to produce
a variety of communications and documents relating to the investments forming the basis
of this suit. See 2/2/24 Orders.
9 Additionally, FireDream, Warner, and their counsel were sanctioned in the
amount of $500.00, the sum of which was jointly and severally payable on or before
February 9, 2024, to Plaintiff pursuant to Rule 215. /d. To date, no documents have been
received from either FireDream or Warner, and neither FireDream, Warner, nor their
counsel have paid the sanctions owed to Plaintiff. See Exhibit A, Minter Declaration, {| 2.
Cc. The Attempted Depositions
10. On or about February 27, 2024, in accordance with the 2/2/24 Orders,
Plaintiff issued and served its First Amended Notices of Deposition to Warner, FireDream,
and MDM Energy (the “Notices of Deposition”). See Exhibit B, Kinser Declaration, | 2. In
accordance with the Notices of Deposition, the deposition of Warner in his individual
5 Plaintiff requests the Court take judicial notice of the 2/2/24 Orders.
PLANTIFF’S MOTION FOR RULE 215 RELIEF Page 5
capacity was to take place on March 26, 2024, the deposition of FireDream’s corporate
representative was to take place on March 27, 2024, and the deposition of MDM Energy’s
corporate representative was to take place on March 28, 2024. Id.
11. Notably, Defendants, either individually or collectively, filed no objections to
the time and place of the depositions, nor any motions to quash the depositions. In fact,
FireDream Resources and MDM Energy each designated Warner as their respective
corporate representatives.® However, on March 26, 2024, Warner failed to appear for his
deposition. See /d., J 2. Likewise, on March 27, 2024, and March 28, 2024, Warner failed
to appear for the other two depositions in which he was designated to appear as the
corporate representative for both FireDream and MDM Energy. /d. Over those three days,
multiple attempts to contact Defendants’ joint counsel were made, yet all attempts at
contact went unanswered. /d. Three Certificates of Non-Appearance were duly issued by
the court reporter for each deposition session, each of which are currently on file with this
Court.’
12. Without the occurrence of these depositions, Plaintiff has been unable to
fully develop and test his legal theories and factual bases for his lawsuit. While Plaintiff is
confident that, at a minimum, Defendants are secondarily liable for their aiding and
abetting of Buster and/or Hi-Land in their defrauding of Plaintiff, Plaintiff has been unable
to question Defendants on the precise degree of their knowledge and involvement in the
Lindley Wells Scheme.
6 Plaintiff requests the Court take judicial notice of Defendant FireDream Resources, LLC and Defendant
MDM Energy, Inc.’s designations of Defendant as their corporate representatives for the properly noticed
depositions, each of which was filed with the Court on March 22, 2024.
7 Plaintiff requests the Court take judicial notice of the three Certificates of Non-Appearance filed in this
matter on April 1, 2024, April 5, 2024, and April 9, 2024, respectively.
PLANTIFF’S MOTION FOR RULE 215 RELIEF Page 6
13. Simply, Plaintiff suspects that Defendants may have been involved in the
Lindley Wells Scheme to such a degree as to support allegations of primary liability
against Defendants. However, because of Defendants’ non-compliance and failure to
appear for their depositions, Plaintiff has been unable to test these theories and
suspicions. Id.
D Defendants’ Motions for Summary Judgment
14. Warner filed his Defendant Mark Warner’s Traditional Motion for Summary
Judgment (the “Warner MSJ”)® on February 20, 2024. Over a month later, on
March 25, 2024, FireDream filed its Defendants’ FireDream Resources, LLCs Traditional
Motion for Summary Judgment (the “FireDream MSJ”).2 One day later, on
March 26, 2024, MDM Energy filed its Defendants’ MDM Energy Incs [sic] Traditional
Motion for Summary Judgment (the “MDM Energy MSuv”, together with the Warner MSJ
and the FireDream MSJ, “Defendants’ MSJs”).1°
15. Defendants’ MSJs are governed by the same factual and legal arguments
and are each premised upon the same _ fundamental misunderstandings and
mischaracterizations of both the Third Amended Petition and Texas law. Given the
similarities between each of Defendants’ MSs, Plaintiff is unsure why Defendants, who
all share the Mosser Law Firm as their counsel, failed to file a joint motion for summary
judgment, and suspects that such a failure is solely an extension of Defendants’ efforts
to drive up Plaintiff's legal expenses by forcing him to respond to three separate motions.
16. Regardless, on March 15, 2024, Warner filed a Notice of Hearing (the
“Notice of Hearing”) by which he set the Warner MSJ for oral hearing on April 16, 2024,
8 Plaintiff requests the Court take judicial notice of the Warner MSJ.
° Plaintiff requests the Court take judicial notice of the FireDream MSJ.
10 Plaintiff requests the Court take judicial notice of the MDM Energy MSJ.
PLANTIFF’S MOTION FOR RULE 215 RELIEF Page 7
at 9:00 A.M. in this Court.’ Soon thereafter, in accordance with the Texas Rules of Civil
Procedure, Plaintiff filed his Plaintiff's Response to Defendant Mark Warner’s Traditional
Motion for Summary Judgment (Plaintiff's “MSJ Response’).’2 Through his MSJ
Response, Plaintiff objected to a wide variety of evidence contained within the Warner
MSJ and requested the following relief:
| That Plaintiffs Motion to Strike and Reset or Continuance of the
Hearing be granted;
I That Plaintiff's objections to Warner's summary judgment evidence
be sustained;
iii. That the Warner MSJ be denied; and
IV. For any such other and further relief to which Plaintiff may be
entitled.
17. At or around 2:34 P.M. on April 15, 2024, the day before the Warner MSJ
was set for hearing, counsel for Defendants called this Court and cancelled the setting at
which the Warner MSJ was to be heard. See Exhibit B, Kinser Declaration, | 3; Exhibit C,
Whyte Declaration, | 2. Roughly an hour after Defendants’ counsel had already cancelled
the hearing on the Warner MSJ, at or around 3:38 P.M. on April 15, 2024, Warner filed
his Motion to Strike Plaintiffs Response to Defendants Traditional Motion for Summary
Judgment (the “Motion to Strike”).'2 Warner's Motion to Strike is baseless and irrelevant
to any matters either discussed herein or in the Warner MSJ.
18. Incredibly, although somewhat unsurprisingly in light of the Mosser Law
Firm’s repeated disregard for the Texas Rules of Civil Procedure and this Court’s orders,
counsel for Defendants chose not to notify Plaintiff of the cancellation of the
11 Plaintiff requests the Court take judicial notice of the Notice of Hearing.
12 Plaintiff requests the Court take judicial notice of Plaintiff's MSJ Response.
13 Plaintiff requests the Court take judicial notice of the Motion to Strike.
PLANTIFF’S MOTION FOR RULE 215 RELIEF Page 8
April 16, 2024, setting at which the Warner MSJ was to be heard. As such, in accordance
with the Notice of Hearing, Plaintiffs counsel extensively prepared for and appeared at
the April 16, 2024, hearing on the Warner MSJ. As the direct result of Defendants’ setting
and silently cancelling the hearing on the Warner MSJ, and much like the other hearings
and motions necessitated by Defendants’ non-compliance with the discovery process
over the last year, Plaintiff has unjustly been forced to incur attorneys’ fees for the
preparation and appearance necessary to properly overcome the Warner MSJ and the
Motion to Strike.
19. Over the last year, Defendants have repeatedly abused, resisted, and
attempted to delay the discovery process through their consistent noncompliance and
defiance of this Court’s discovery orders. Indeed, as set forth at length throughout
Plaintiffs MSJ Response, Defendants have sought to take advantage of their own
wrongdoing by filing their various MSJs without proceeding through the normal discovery
process.
20. While Plaintiff is confident that Defendants’ MSJs, arguments, and legal
defenses all independently and plainly fail on their collective faces, it is readily apparent
that Defendants’ non-compliance with the discovery process has had two primary effects:
(1) Plaintiff has been unable to adequately develop the legal and factual merits of his case
against Defendants for the last year; and (2) Plaintiff has incurred a significant amount of
legal fees which are directly traceable to Defendants’ non-compliance with and abuses of
the discovery process over the last year.
21. As such, Plaintiff now requests:
| That Defendants’ pleadings be stricken;
PLANTIFF’S MOTION FOR RULE 215 RELIEF Page 9
ii. That a default judgment be entered against Defendants pursuant to
Rule 215.2(b)(5) of the Texas Rules of Civil Procedure;
iii. Additionally and, if necessary, in the alternative, that the Court issue
another Order by which Defendants are held in contempt for their
failure to comply with previous Orders compelling discovery and,
pursuant to the same Order, Plaintiff requests sanctions in the
amount of the attorneys’ fees he has been forced to incur as the
result of Defendants’ non-compliance with the discovery process
throughout the last year, payable within ten (10) days of the time
such Order is signed;
IV. Additionally, and further in the alternative, that Defendants be
required to appear at the office of Plaintiffs counsel for depositions
on the mornings of May 21, 22, and 23, 2024, at 9:30 A.M;
Additionally, and further in the alternative, that Defendants produce
all documents as previously required by this Court's Orders, with an
express finding that any confidentiality or privilege is waived as a
result of Defendants’ abuses of the discovery process; and
vi That a hearing be set on or soon after the eleventh day of the
execution of any Order granting the above-requested relief to ensure
Defendants’ compliance with such an Order.
ARGUMENTS AND AUTHORITIES
22. Defendants’ conduct is deserving of the imposition of severe sanctions
pursuant to Rule 215 of the Texas Rules of Civil Procedure. As set forth at length
throughout this Motion, Defendants have engaged in an alarmingly lengthy pattern of
PLANTIFF’S MOTION FOR RULE 215 RELIEF Page 10
discovery abuse by which they have: (1) ignored and inadequately responded to
discovery requests; (2) blatantly violated this Court's Orders; (3) failed to appear for
properly noticed depositions; and (4) cancelled the hearing on the Warner MSJ set for
April 16, 2024, without alerting Plaintiff in accordance with relevant procedural rules.
Simply, Defendants’ year-long efforts abuses of the discovery process give rise to a
presumption that their claims or defenses lack merit, and death penalty sanctions are
proper. In addition, and alternatively, Plaintiff seeks attorneys’ fees and other relief as set
forth herein stemming from the various hearings, motions, and depositions which he has
been forced to incur over the last year from Defendants’ abuses of the discovery process.
A Death Penalty Sanction.
23. Rule 215 of the Texas Rules of Civil Procedure provides a litany of remedies
for when a party fails to comply with proper discovery requests or to obey an order to
provide or permit discovery. See Tex. R. Civ. P. 215.2(b)(1)-(8). In relevant part, Rule 215
permits “an order striking out pleadings or parts thereof, or... rendering a judgment by
default against the disobedient party.” /d., 215.2(b)(5). Commonly referred to as “death
penalty sanctions,” Rule 215.2(b)(5) allows an offending party’s pleadings to be stricken
and, in turn, a default judgment entered against it where the sanctioned party is abusing
the discovery process by unreasonably or frivolously resisting discovery, whether for
purposes of delay or otherwise. See Tex. R. Civ. P. 215.3.
24. Discovery sanctions serve three primary functions: “(1) to secure the
parties’ compliance with the discovery rules; (2) to deter other litigants from violating the
discovery rules; and (3) to punish parties who violate the discovery rules.” /magine Auto.
Group v. Boardwalk Motor Cars, Ltd., 430 S.W.3d 620, 633 (Tex. App.—Dallas 2014, pet.
denied) (citing Response Time, Inc. v. Sterling Commerce (N. Am.), Inc., 95 S.W.3d 656,
PLANTIFF’S MOTION FOR RULE 215 RELIEF Page 11
659-60 (Tex. App.—Dallas 2002, no pet.)). While a trial judge possesses great discretion
regarding its choice of sanctions, the sanctions imposed must be just. /d.; Tex. R. Civ. P.
215.2.
25. The fairness of imposed sanctions is guided by two main inquiries:
(1) whether the sanctions bear a direct relationship to the offensive conduct and are
directed against the abuse and towards the remedying of the prejudice caused to the
innocent party by the sanctioned party; and (2) whether the sanction is excessive.
Imagine Auto Group, 430 S.W.3d at 633 (citing Spohn Hosp. v. Mayer, 104 S.W.3d 878,
882 (Tex. 2003); TransAmerican Nat. Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex.
1991)).
26. Additionally, death penalty sanctions are somewhat limited by due process
concerns and are conditioned upon a slightly more in-depth analysis of the offending
party’s conduct. /d. In particular: (1) a trial court must consider less severe sanctions
before imposing death penalty sanctions; and (2) the offensive conduct must justify a
presumption that the offending party's claims or defenses lack merit before the trial court
may impose death penalty sanctions. Imagine Auto Group, 430 S.W.3d at 633 (citing
Response Time, 95 S.W.3d at 660).
| Lesser Sanctions
27. While lesser sanctions must be considered, it is imperative to note that not
every sanction available under Rule 215 needs to actually be imposed prior to the
imposition of death penalty sanctions. Imagine Auto Group, 430 S.W.3d at 634. To the
contrary, a trial court need only “analyze the available sanctions and offer a reasoned
explanation as to the appropriateness of the sanction imposed.” /d. (internal citations
omitted).
PLANTIFF’S MOTION FOR RULE 215 RELIEF Page 12
28. An evaluation of this matter’s docket reveals that this Court has already
considered and applied lesser sanctions, none of which have been effective. Indeed, this
Court has already ruled favorably for Plaintiff on two separate motions to compel
discovery responses, and has also previously imposed monetary sanctions upon Warner,
FireDream, and their counsel via its Order Granting Plaintiff's Motion for Contempt and
Request for Attorney’s Fees. See 6/29/23 Order; 2/2/24 Orders. Moreover, Defendants
blatantly violated this Court’s Orders by refusing to provide the requested documents and
appear for depositions. Defendants’ lack of excuse or meritorious basis for such actions
is a clear indication that nothing less than death penalty sanctions will bring about any
compliance from Defendants with respect to the Texas Rules of Civil Procedures and this
Court’s Orders.
29. Despite being held in contempt of court and facing direct orders to:
(1) produce adequate responses to Plaintiff's requested discovery; (2) appear for
depositions; and (3) pay monetary sanctions; Defendants have consistently failed and
refused, and continue to fail and refuse, to comply with this Court's Orders and the general
rules guiding the discovery process.
ii. Presumption that Defendants’ Claims or Defenses Lack Merit
30. Defendants’ conduct throughout their year-long efforts to abuse the
discovery process gives rise to a presumption that their claims or defenses lack merit.
Indeed, Defendants have engaged in a variety of unethical behavior in efforts to
circumnavigate the discovery process. Such behavior includes, but is not limited to:
| Identifying Warner as the corporate representative for MDM Energy
and FireDream, yet failing to appear at any of the three depositions
scheduled for the week of March, 26, 2024;
ii. Failing to pay monetary sanctions levied via the 2/2/24 Orders;
PLANTIFF’S MOTION FOR RULE 215 RELIEF Page 13
iii. Filing Defendants’ MSJs without properly engaging in the discovery
process; and
IV. Setting the Warner MSJ for hearing, then failing to notify Plaintiff of
the hearing’s cancellation.
31. Defendants’ conduct ventures beyond a mere resistance of the discovery
process and demonstrates a clear willingness to go to any lengths to avoid providing
Plaintiff with his requested discovery. As mentioned above, Plaintiff is of the belief that
his requested discovery would support additional bases for liability against Defendants.
Defendants’ conduct confirms such suspicions, rendering death penalty sanctions
pursuant to Rule 215 appropriate.
B. Attorneys’ Fees and Costs
32. Additionally, and, if necessary, in the alternative, Plaintiff seeks recovery of
his attorneys’ fees pursuant to Rule 215.2(b)(8) of the Texas Rules of Civil Procedure.
Rule 215.2(b)(8) provides that, “[i]n lieu of any of the foregoing orders or in addition
thereto, the court shall require the party failing to obey the order or the attorney advising
him, or both, to pay...the reasonable expenses, including attorney fees, caused by the
failure” to comply with the discovery process, unless such non-compliance is
“substantially justified.” See Tex. R. Civ. P. 215.2(b)(8).
33. As outlined above, Defendants’ misconduct and abuses of the discovery
process have forced Plaintiff to incur costs and expenses related to the following events:
(1) Plaintiff's Motions to Compel and Motion for Contempt; (2) Plaintiffs attempted
depositions of Defendants; (3) Plaintiff's preparation for and appearance at the Warner
MSJ hearing on April 16, 2024; and (4) the costs associated with the bringing of this
Motion.
PLANTIFF’S MOTION FOR RULE 215 RELIEF Page 14
1 Plaintiff's Motions to Compel and Motion for Contempt
34. Between March 30, 2023, and February 8, 2024, Plaintiff incurred not less
than $36,853.50 in attorneys’ fees related to Plaintiffs motions to compel and motion for
contempt. Because Plaintiffs’ evidence relating to attorneys’ fees exceeds the Court’s
page limitation, at the hearing on this Motion, evidence will be produced which will
demonstrated that the total work performed on this subject matter includes, but is not
limited to: time spent discussing the factual bases for Plaintiff's claims, reviewing and
analyzing client documents, reviewing and analyzing Defendants’ produced documents,
the drafting and filing of various motions, and the time spent appearing at various
hearings.
ii. Plaintiff's Attempted Depositions
35. Between February 6, 2024, and April 5, 2024, Plaintiff incurred not less than
$43,580.00 in attorneys’ fees related to Plaintiffs’ attempts to take three depositions, one
for each of Defendants. Because Plaintiffs’ evidence relating to attorneys’ fees exceeds
the Court's page limitation, at the hearing on this Motion, evidence will be produced which
will demonstrated that the total work performed on this subject matter includes, but is not
limited to: time spent discussing the factual bases for Plaintiffs claims, reviewing and
analyzing client documents, reviewing and analyzing Defendants’ 7,996 pages of
produced documents, preparing for three separate depositions, and appearing at the duly
noticed depositions.
ili. The Warner MSJ
36. Between February 20, 2024, and April 16, 2024, Plaintiff incurred not less
than $19,670.00 in attorneys’ fees related to the Warner MSJ. Because Plaintiffs’
evidence relating to attorneys’ fees exceeds the Court's page limitation, at the hearing on
PLANTIFF’S MOTION FOR RULE 215 RELIEF Page 15
this Motion, evidence will be produced which will demonstrated that the total work
performed on this subject matter includes, but is not limited to: time spent discussing
Plaintiffs claims, reviewing and analyzing client documents, reviewing and analyzing
Defendants’ produced documents, conducting extensive legal research regarding
Warner's allegations within the Warner MSJ, drafting and filing a response to the Warner
MSJ, and appearing at the hearing on the Warner MSJ.
iv. This Motion
37. Between February 11, 2024, and April 30, 2024, Plaintiff incurred not less
than $13,467.50 in attorneys’ fees related to this Motion. Because Plaintiffs’ evidence
relating to attorneys’ fees exceeds the Court's page limitation, at the hearing on this
Motion, evidence will be produced which will demonstrated that the total work performed
on this subject matter includes, but is not limited to: discussing the factual bases for
Plaintiffs claims, reviewing and analyzing client documents, reviewing and analyzing
Defendants’ produced documents, conducting extensive legal research regarding the
legal standard under Rule 215, drafting and filing this Motion.
V. Total Fees and Costs
38. In sum, between March 30, 2023, and April 30, 2024, Plaintiff has been
forced to incur not less than $113,571.00 in attorneys’ fees, all of which are the direct and
proximate result of Defendants’ repeated abuses of the discovery process. As such, in
addition to the other relief requested herein, Plaintiff requests $113,571.00 in attorneys’
fees pursuant to Rule 215 as sanctions for Defendants’ unjustified and lengthy pattern of
misconduct.
MOTION FOR CONTINUANCE OF TRIAL SETTING AND PRETRIAL DEADLINES
PLANTIFF’S MOTION FOR RULE 215 RELIEF Page 16
39. This Court entered the 2/2/24 Orders which, among other things, ordered
Warner, FireDream, and MDM Energy to produce documents and appear for depositions
before April 15, 2024. As part of the 2/2/24 Orders, trial in this matter was continued from
April 8, 2024, to a date to be determined by this Court. See 2/2/24 Orders. Additionally,
all existing pretrial deadlines were to be continued and calculated in accordance with the
Scheduling Order in this matter from the new trial date. /d. On March 11, 2024, this Court
re-set the trial date in this matter to July 11, 2024.'4
40. However, as set forth at length above, Defendants have completely failed
to comply with the 2/2/24 Orders and have failed to provide any of the discovery Plaintiff
requires in order to adequately prepare for trial. Additionally, even if this Motion were
granted in its entirety and Defendants were deemed liable, Plaintiff needs more time to
complete discovery of the remaining named defendants in this matter, identify experts,
and complete other remaining pretrial tasks.
41. As such, Plaintiff requests that the Court continue the trial of this matter to
a date no earlier than September 9, 2024 and reset all pretrial deadlines accordingly..
PRAYER
WHEREFORE, PREMISES CONSIDERED, Plaintiff Larry Bramlet respectfully
requests this Court grant his Motion and grant Plaintiff the following relief:
I That the answers and all pleadings of Defendant Mark Warner,
Defendant FireDream Resources, LLC, and Defendant MDM
Energy, Inc. be stricken;
‘4 Plaintiff requests the Court take judicial notice of the Notice of Trial Setting issued on March 11, 2024.
PLANTIFF’S MOTION FOR RULE 215 RELIEF Page 17
ii. That a default judgment be entered against Defendant Mark Warner,
Defendant FireDream Resources, LLC, and Defendant MDM
Energy, Inc. pursuant to Rule 215.2(b)(5) of the Texas Rules of Civil
Procedure;
iii. Additionally, and, if necessary, in the alternative, that the Court issue
another Order by which Defendant Mark Warner, Defendant
FireDream Resources, LLC, and Defendant MDM Energy, Inc. are
held in contempt for their failure to comply with previous Orders
compelling discovery and, pursuant to the same Order, Plaintiff
requests sanctions in the amount of the attorneys’ fees he has been
forced to incur as the result of Defendants’ non-compliance with the
discovery process throughout the last year, payable within ten (10)
days of the time such Order is signed;
IV. Additionally, and further in the alternative, that Defendant Mark
Warner, Defendant FireDream Resources, LLC, and Defendant
MDM Energy, Inc. be required to appear at the office of Plaintiffs
counsel for depositions on the mornings of May 21, 22, and 23, 2024,
at 9:30 A.M;
Additionally, and further in the alternative, that within ten (10)
calendar days from the date of this Order Defendants produce all
documents as previously required by this Court's Orders, with an
express finding that any confidentiality or privilege is waived as a
result of Defendants’ abuses of the discovery process;
PLANTIFF’S MOTION FOR RULE 215 RELIEF Page 18
vi That a hearing be set on or soon after the eleventh day of the
execution of any Order granting the above-requested relief to ensure
Defendants’ compliance with such an Order;
vii That the trial of this matter be continued to a date no earlier than
September 9, 2024 and all pretrial deadlines reset accordingly;
viii That Plaintiff be awarded his attorneys; fees and cost; and
IX. That Plaintiff be awarded all other and further relief, at law or in
equity, to which he is justly entitled.
Respectfully submitted,
/s/ Kirte M. Kinser
Kirte M. Kinser
State Bar No. 11489650
kkinser@fbfk.law
Darrell D. Minter
State Bar No. 14189400
dminter( fbfk.law
Luc Whyte
State Bar No. 24135117
Iwhyte@fbfk.law
FERGUSON BRASWELL FRASER KUBASTA PC
2500 Dallas Parkway, Suite 600
Plano, Texas 75093
T: 972-378-9111
F: 972-378-9115
ATTORNEYS FOR PLAINTIFF
PLANTIFF’S MOTION FOR RULE 215 RELIEF Page 19
CERTIFICATE OF CONFERENCE
The undersigned certifies that on Thursday, May 2, 2024, he contacted counsel for
Defendants via email to request a conference but received no response. On Friday,
May 3, 2024, the undersigned again contacted counsel for Defendants via email
requesting a conference on this motion but received no response that day. On Saturday,
May 4, 2024, counsel for Defendants sent an email to the undersigned stating that he had
attempted to contact the undersigned’s co-counsel by telephone, presumably on
Saturday. The undersigned requested that Defendants’ counsel confer with the
undersigned, but Defendants’ counsel refused. The undersigned advised Defendants’
counsel that his refusal to confer with the undersigned would be deemed a refusal to
confer. Defendants’ counsel would not agree to confer with the undersigned. Therefore,
this motion is presented to the Court for resolution.
/s/ Kirte M. Kinser
Kirte M. Kinser
CERTIFICATE OF SERVICE
| certify that a true and correct copy of this document was served on all counsel of
record, via e-service, pursuant to the Texas Rules of Civil Procedure on the 8™ day of
May, 2024.
/s/ Kirte M. Kinser
Kirte M. Kinser
PLANTIFF’S MOTION FOR RULE 215 RELIEF Page 20
EXHIBIT A
CAUSE NO. DC-22-14628
LARRY BRAMLET IN THE DISTRICT COURT
Plaintiff
Vv
HI-LAND RESOURCES GROUP, LLC;
KELLY BUSTER; FIREDREAM
RESOURCES, LLC; MARK WARNER;
MDM ENERGY, INC.; MICHAEL RAFAEL;
ENERGY STRUCTURING, INC.; DAVTRA
HOLDINGS, LP 44th JUDICIAL DISTRICT
Defendants
Vv
ROBERT LUNA
382 Party Defendant DALLAS COUNTY, TEXAS
DECLARATION OF DARRELL D. MINTER
STATE OF TEXAS §
§
COUNTY OF COLLIN §
1 “My name is Darrell D. Minter. | am over twenty-one years old, have never
been convicted of a felony, and am fully competent to make this Declaration. Each of the
facts stated herein is within my personal knowledge, true, and correct.
2 This is my Verification that the facts set forth in Paragraphs 5 and 9 of the
foregoing Plaintiff's Motion for Rule 215 Relief (the “Motion”) are true and correct. Both
Warner’ and FireDream have failed and refused to comply with the 6/29/23 Order.
Additionally, neither Warner, FireDream, nor their counsel have paid the sanctions owed
to Plaintiff, as set out in the 2/2/24 Orders.”
Further Declarant sayeth not.
1 Unless otherwise defined herein, all capitalized terms shall be given the same meaning as in the Motion.
DECLARATION OF DARRELL D. MINTER Page 1
JURAT IN ACCORDANCE WITH TEX. CIV. PRAC. & REM. CODE § 132.001(q).
“My name is Darrell D. Minter and my date of birth is July 31, 1950, and my
business address is 2500 Dallas Parkway, Suite 600, Plano, Texas 75093. |
declare under penalty of perjury that the foregoing is true and correct.”
Y E E
y of May/2024
oo
La
apréll D. Mintef
DECLARATION OF DARRELL D. MINTER Page 2
EXHIBIT B
CAUSE NO. DC-22-14628
LARRY BRAMLET § IN THE DISTRICT COURT
Plaintiff §
§
Vv
§
HI-LAND RESOURCES GROUP, LLC;
KELLY BUSTER; FIREDREAM
RESOURCES, LLC; MARK WARNER;
MDM ENERGY, INC.; MICHAEL RAFAEL;
ENERGY STRUCTURING, INC.; DAVTRA
HOLDINGS, LP 44th JUDICIAL DISTRICT
Defendants
Vv.
ROBERT LUNA
3" Party Defendant § DALLAS COUNTY, TEXAS
DECLARATION OF KIRTE M. KINSER
STATE OF TEXAS §
COUNTY OF COLLIN §
1 “My name is Kirte M. Kinser. | am over twenty-one years old, have never
been convicted of a felony, and am fully competent to make this Declaration. Each of the
facts stated herein is within my personal knowledge, true, and correct.
2 This is my verification that the facts set forth in Paragraphs 10 and 11 of the
foregoing Plaintiff's Motion for Rule 215 Relief (the “Motion”) are within my personal
knowledge and are true and correct. On or about February 27, 2024, Plaintiff! issued and
served the Notices of Deposition upon Warner, FireDream, and MDM Energy through
their counsel of record.
‘ Unless otherwise defined herein, all capitalized terms shall be given the same meaning
as in the Motion.
DECLARATION OF KIRTE M. KINSER Page 1
3 On April 16, 2024, |, along with my associate, Luc Whyte, attended the
setting for the hearing on the Warner MSJ. Upon being informed that the hearing on the
Warner MSJ was no longer on the Court's docket, we went to the Clerk’s office to
determine why the hearing had been cancelled. In response to our inquiry, we were
informed that the Mosser Law Firm had called and cancelled the hearing on the Warner
MSJ on April 15, 2024. . We were not informed of the hearing’s cancellation by the Mosser
Law Firm.”
Further Declarant sayeth not.
JURAT IN ACCORDANCE WITH TEX. CIV. PRAC. & REM. CODE § 1332.001(d).
“My name is Kirte M. Kinser and my date of birth is
Preview
FILED 5/6/2024 9:46 AM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Brandon Keys DEPUTY CAUSE NO. DC-22-14628 LARRY BRAMLET IN THE DISTRICT COURT Plaintiff Vv. HI-LAND RESOURCES GROUP, LLC; KELLY BUSTER; FIREDREAM RESOURCES, LLC; MARK WARNER; MDM ENERGY, INC.; MICHAEL RAFAEL; ENERGY STRUCTURING, INC.; DAVTRA HOLDINGS, LP 44th JUDICIAL DISTRICT Defendants Vv. ROBERT LUNA 3° Party Defendant DALLAS COUNTY, TEXAS PLAINTIFF’S MOTION FOR RULE 215 RELIEF Plaintiff Larry Bramlet (“Plaintiff”), for his Motion for Rule 215 Relief (this “Motion”) against Defendant Mark Warner, Defendant FireDream Resources, LLC, and Defendant MDM Energy, Inc., respectfully shows the Court as follows: SUMMARY Plaintiff filed this lawsuit in response to an oil and gas investment which went awry due to the misconduct of all defendants, including Defendant Mark Warner (“Warner”), Defendant FireDream Resources, LLC (“FireDream”), and Defendant MDM Energy, Inc. (‘MDM Energy,” together with Warner and FireDream, “Defendants”). Through his Plaintiff's Third Amended Petition (“Third Amended Petition”), the live pleading in this matter, Plaintiff brings claims against Defendants for: (1) violations of the Texas Securities Act; (2) common law fraud; (3) fraud in the inducement; and (4) breach of fiduciary duty. As identified throughout the Third Amended Petition, Plaintiff seeks to hold Defendants liable through a theory of Secondary Liability. In particular, Plaintiff brings various PLANTIFF’S MOTION FOR RULE 215 RELIEF Page 1 allegations regarding Defendants’ aiding and abetting of Defendant Kelly Buster (‘Buster’) and/or Defendant Hi-Land Resources Group, LLC (“Hi-Land”) in their actions which give rise to Plaintiffs various causes of action. As set forth at length below, Defendants and their counsel have repeatedly delayed, resisted and abused the discovery process by consistently violating this Court’s orders compelling them to produce certain key documents, by failing to adequately respond to Plaintiffs discovery requests, and by failing to appear for duly noticed depositions. While Plaintiff is confident in his allegations premised upon Defendants’ Secondary Liability, Defendants’ repeated non-compliance with the discovery process has rendered it impossible for Plaintiff to ascertain precisely how involved Defendants were in the Lindley Wells Scheme (as defined in the Third Amended Petition), and he has been improperly prevented from fully developing the legal and factual merits of his case against Defendants. As such, in light of Defendants’ violation of this Court’s Orders, unexcused delays, and other repeated non-compliance with the discovery process, Plaintiff requests that Defendants’ pleadings be stricken and a default judgment on liability be entered against Defendants pursuant to Rule 215.2(b)(5) of the Texas Rules of Civil Procedure. Alternatively, Plaintiff requests yet another Order by which Defendants are held in contempt for their failure to comply with previous Orders compelling discovery and, pursuant to the same Order, Plaintiff requests sanctions in the amount of the attorneys’ fees he has been forced to incur as the result of Defendants’ non-compliance with the discovery process throughout the last year. PLANTIFF’S MOTION FOR RULE 215 RELIEF Page 2 BACKGROUND FACTS A Plaintiff's Discovery Requests d Defendants have consistently resisted, delayed and avoided compliance with Plaintiffs various discovery requests, and have repeatedly failed to comply with this Court’s orders compelling discovery, including recent non-appearances at properly noticed depositions that were ordered by the Court. Under the current discovery deadlines, fact discovery closed on April 8, 2024, thus Plaintiff requests that the Court, amongst other forms of requested relief, reset the trial date and all pretrial deadlines in this matter. 2 Defendants’ abuses of the discovery process stem as far back as February of 2023, when Plaintiff propounded Warner and FireDream with the following requests for production: | Plaintiffs First Requests for Production of Documents and One Identification Interrogatory to Defendant, FireDream Resources, LLC, served on February 3, 2023; and I Plaintiffs First Requests for Production of Documents and One Identification Interrogatory to Defendant, Mark Warner, served on February 7, 2023. 3 In response, FireDream and Warner produced a set of documents on March 9, 2023, and additional documents on March 23, 2023. However, FireDream and Warner also asserted several unmeritorious objections and refused to produce several responsive documents. In particular, FireDream and Warner failed and refused, and continue to fail and refuse, to produce all documents and communications related to the two investment schemes at issue within this lawsuit, as well as all documents and communications related to the investors in the two investment schemes at issue in this lawsuit. PLANTIFF’S MOTION FOR RULE 215 RELIEF Page 3 4 Without the requested discovery, Plaintiff has been unable to adequately develop the merits of his claims against Warner and FireDream. Without the requested information and materials, Plaintiff is unable to ascertain precisely how involved Warner and FireDream were with the Lindley Wells Scheme and, in turn, whether either Warner or FireDream may properly be held primarily liable for the defrauding of Plaintiff. B. Plaintiff's Motions to Compel and Motion for Contempt 5 On May 22, 2023, in response to FireDream and Warner's unmeritorious objections to his discovery requests, Plaintiff filed his Motion to Compel Discovery and for Attorney’s Fees Against Defendants Mark Warner and FireDream Resources, LLC (the “5/22/23 Motion”),' by which he sought an order compelling responses to his First Requests for Production propounded on Warner and FireDream. On June 29, 2023, this Court signed its Order Granting Plaintiff's Motion to Compel Discovery and for Attorney’s Fees (the “6/29/23 Order”).? Both Warner and FireDream have failed and refused to comply with the 6/29/23 Order. See Exhibit A, Minter Declaration, {| 2. 6 On November 22, 2023, in response to Warner and FireDream’s collective and continued violation of the 6/29/23 Order, Plaintiff filed his Motion for Contempt and Request for Attorney's Fees (the “41/29/23 Motion”).3 Soon thereafter, on January 29, 2024, Plaintiff filed his Motion to Compel Discovery, Motion for Continuance of Trial, and Motion to Compel Service of Documents (the “1/29/24 Motion”, together with the 11/29/23 Motion, the “Discovery Motions”).4 1 Plaintiff requests the Court take judicial notice of the 5/22/23 Motion. 2 Plaintiff requests the Court take judicial notice of the 6/29/23 Order. 3 Plaintiff requests the Court take judicial notice of the 11/29/23 Motion. 4 Plaintiff requests the Court take judicial notice of the 1/29/24 Motion. PLANTIFF’S MOTION FOR RULE 215 RELIEF Page 4 7 On February 2, 2024, this Court granted the Discovery Motions, and entered an Order granting the 11/29/23 Motion, as well as an Order granting the 1/29/24 Motion (together, the “2/2/24 Orders”).5 Defendant has failed to comply with the 2/2/24 Orders. 8 Pursuant to the 2/2/24 Orders, among other things: (1) Warner was required to appear for his oral deposition no later than April 15, 2024; (2) FireDream was required to appear at its oral deposition through a designated corporate representative no later than April 15, 2024; (3) MDM Energy was required to appear at its oral deposition no later than April 15, 2024; (4) no later than February 16, 2024, Warner was required to produce a variety of communications and documents relating to the investments forming the basis of this suit; and (5) no later than February 16, 2024, FireDream was required to produce a variety of communications and documents relating to the investments forming the basis of this suit. See 2/2/24 Orders. 9 Additionally, FireDream, Warner, and their counsel were sanctioned in the amount of $500.00, the sum of which was jointly and severally payable on or before February 9, 2024, to Plaintiff pursuant to Rule 215. /d. To date, no documents have been received from either FireDream or Warner, and neither FireDream, Warner, nor their counsel have paid the sanctions owed to Plaintiff. See Exhibit A, Minter Declaration, {| 2. Cc. The Attempted Depositions 10. On or about February 27, 2024, in accordance with the 2/2/24 Orders, Plaintiff issued and served its First Amended Notices of Deposition to Warner, FireDream, and MDM Energy (the “Notices of Deposition”). See Exhibit B, Kinser Declaration, | 2. In accordance with the Notices of Deposition, the deposition of Warner in his individual 5 Plaintiff requests the Court take judicial notice of the 2/2/24 Orders. PLANTIFF’S MOTION FOR RULE 215 RELIEF Page 5 capacity was to take place on March 26, 2024, the deposition of FireDream’s corporate representative was to take place on March 27, 2024, and the deposition of MDM Energy’s corporate representative was to take place on March 28, 2024. Id. 11. Notably, Defendants, either individually or collectively, filed no objections to the time and place of the depositions, nor any motions to quash the depositions. In fact, FireDream Resources and MDM Energy each designated Warner as their respective corporate representatives.® However, on March 26, 2024, Warner failed to appear for his deposition. See /d., J 2. Likewise, on March 27, 2024, and March 28, 2024, Warner failed to appear for the other two depositions in which he was designated to appear as the corporate representative for both FireDream and MDM Energy. /d. Over those three days, multiple attempts to contact Defendants’ joint counsel were made, yet all attempts at contact went unanswered. /d. Three Certificates of Non-Appearance were duly issued by the court reporter for each deposition session, each of which are currently on file with this Court.’ 12. Without the occurrence of these depositions, Plaintiff has been unable to fully develop and test his legal theories and factual bases for his lawsuit. While Plaintiff is confident that, at a minimum, Defendants are secondarily liable for their aiding and abetting of Buster and/or Hi-Land in their defrauding of Plaintiff, Plaintiff has been unable to question Defendants on the precise degree of their knowledge and involvement in the Lindley Wells Scheme. 6 Plaintiff requests the Court take judicial notice of Defendant FireDream Resources, LLC and Defendant MDM Energy, Inc.’s designations of Defendant as their corporate representatives for the properly noticed depositions, each of which was filed with the Court on March 22, 2024. 7 Plaintiff requests the Court take judicial notice of the three Certificates of Non-Appearance filed in this matter on April 1, 2024, April 5, 2024, and April 9, 2024, respectively. PLANTIFF’S MOTION FOR RULE 215 RELIEF Page 6 13. Simply, Plaintiff suspects that Defendants may have been involved in the Lindley Wells Scheme to such a degree as to support allegations of primary liability against Defendants. However, because of Defendants’ non-compliance and failure to appear for their depositions, Plaintiff has been unable to test these theories and suspicions. Id. D Defendants’ Motions for Summary Judgment 14. Warner filed his Defendant Mark Warner’s Traditional Motion for Summary Judgment (the “Warner MSJ”)® on February 20, 2024. Over a month later, on March 25, 2024, FireDream filed its Defendants’ FireDream Resources, LLCs Traditional Motion for Summary Judgment (the “FireDream MSJ”).2 One day later, on March 26, 2024, MDM Energy filed its Defendants’ MDM Energy Incs [sic] Traditional Motion for Summary Judgment (the “MDM Energy MSuv”, together with the Warner MSJ and the FireDream MSJ, “Defendants’ MSJs”).1° 15. Defendants’ MSJs are governed by the same factual and legal arguments and are each premised upon the same _ fundamental misunderstandings and mischaracterizations of both the Third Amended Petition and Texas law. Given the similarities between each of Defendants’ MSs, Plaintiff is unsure why Defendants, who all share the Mosser Law Firm as their counsel, failed to file a joint motion for summary judgment, and suspects that such a failure is solely an extension of Defendants’ efforts to drive up Plaintiff's legal expenses by forcing him to respond to three separate motions. 16. Regardless, on March 15, 2024, Warner filed a Notice of Hearing (the “Notice of Hearing”) by which he set the Warner MSJ for oral hearing on April 16, 2024, 8 Plaintiff requests the Court take judicial notice of the Warner MSJ. ° Plaintiff requests the Court take judicial notice of the FireDream MSJ. 10 Plaintiff requests the Court take judicial notice of the MDM Energy MSJ. PLANTIFF’S MOTION FOR RULE 215 RELIEF Page 7 at 9:00 A.M. in this Court.’ Soon thereafter, in accordance with the Texas Rules of Civil Procedure, Plaintiff filed his Plaintiff's Response to Defendant Mark Warner’s Traditional Motion for Summary Judgment (Plaintiff's “MSJ Response’).’2 Through his MSJ Response, Plaintiff objected to a wide variety of evidence contained within the Warner MSJ and requested the following relief: | That Plaintiffs Motion to Strike and Reset or Continuance of the Hearing be granted; I That Plaintiff's objections to Warner's summary judgment evidence be sustained; iii. That the Warner MSJ be denied; and IV. For any such other and further relief to which Plaintiff may be entitled. 17. At or around 2:34 P.M. on April 15, 2024, the day before the Warner MSJ was set for hearing, counsel for Defendants called this Court and cancelled the setting at which the Warner MSJ was to be heard. See Exhibit B, Kinser Declaration, | 3; Exhibit C, Whyte Declaration, | 2. Roughly an hour after Defendants’ counsel had already cancelled the hearing on the Warner MSJ, at or around 3:38 P.M. on April 15, 2024, Warner filed his Motion to Strike Plaintiffs Response to Defendants Traditional Motion for Summary Judgment (the “Motion to Strike”).'2 Warner's Motion to Strike is baseless and irrelevant to any matters either discussed herein or in the Warner MSJ. 18. Incredibly, although somewhat unsurprisingly in light of the Mosser Law Firm’s repeated disregard for the Texas Rules of Civil Procedure and this Court’s orders, counsel for Defendants chose not to notify Plaintiff of the cancellation of the 11 Plaintiff requests the Court take judicial notice of the Notice of Hearing. 12 Plaintiff requests the Court take judicial notice of Plaintiff's MSJ Response. 13 Plaintiff requests the Court take judicial notice of the Motion to Strike. PLANTIFF’S MOTION FOR RULE 215 RELIEF Page 8 April 16, 2024, setting at which the Warner MSJ was to be heard. As such, in accordance with the Notice of Hearing, Plaintiffs counsel extensively prepared for and appeared at the April 16, 2024, hearing on the Warner MSJ. As the direct result of Defendants’ setting and silently cancelling the hearing on the Warner MSJ, and much like the other hearings and motions necessitated by Defendants’ non-compliance with the discovery process over the last year, Plaintiff has unjustly been forced to incur attorneys’ fees for the preparation and appearance necessary to properly overcome the Warner MSJ and the Motion to Strike. 19. Over the last year, Defendants have repeatedly abused, resisted, and attempted to delay the discovery process through their consistent noncompliance and defiance of this Court’s discovery orders. Indeed, as set forth at length throughout Plaintiffs MSJ Response, Defendants have sought to take advantage of their own wrongdoing by filing their various MSJs without proceeding through the normal discovery process. 20. While Plaintiff is confident that Defendants’ MSJs, arguments, and legal defenses all independently and plainly fail on their collective faces, it is readily apparent that Defendants’ non-compliance with the discovery process has had two primary effects: (1) Plaintiff has been unable to adequately develop the legal and factual merits of his case against Defendants for the last year; and (2) Plaintiff has incurred a significant amount of legal fees which are directly traceable to Defendants’ non-compliance with and abuses of the discovery process over the last year. 21. As such, Plaintiff now requests: | That Defendants’ pleadings be stricken; PLANTIFF’S MOTION FOR RULE 215 RELIEF Page 9 ii. That a default judgment be entered against Defendants pursuant to Rule 215.2(b)(5) of the Texas Rules of Civil Procedure; iii. Additionally and, if necessary, in the alternative, that the Court issue another Order by which Defendants are held in contempt for their failure to comply with previous Orders compelling discovery and, pursuant to the same Order, Plaintiff requests sanctions in the amount of the attorneys’ fees he has been forced to incur as the result of Defendants’ non-compliance with the discovery process throughout the last year, payable within ten (10) days of the time such Order is signed; IV. Additionally, and further in the alternative, that Defendants be required to appear at the office of Plaintiffs counsel for depositions on the mornings of May 21, 22, and 23, 2024, at 9:30 A.M; Additionally, and further in the alternative, that Defendants produce all documents as previously required by this Court's Orders, with an express finding that any confidentiality or privilege is waived as a result of Defendants’ abuses of the discovery process; and vi That a hearing be set on or soon after the eleventh day of the execution of any Order granting the above-requested relief to ensure Defendants’ compliance with such an Order. ARGUMENTS AND AUTHORITIES 22. Defendants’ conduct is deserving of the imposition of severe sanctions pursuant to Rule 215 of the Texas Rules of Civil Procedure. As set forth at length throughout this Motion, Defendants have engaged in an alarmingly lengthy pattern of PLANTIFF’S MOTION FOR RULE 215 RELIEF Page 10 discovery abuse by which they have: (1) ignored and inadequately responded to discovery requests; (2) blatantly violated this Court's Orders; (3) failed to appear for properly noticed depositions; and (4) cancelled the hearing on the Warner MSJ set for April 16, 2024, without alerting Plaintiff in accordance with relevant procedural rules. Simply, Defendants’ year-long efforts abuses of the discovery process give rise to a presumption that their claims or defenses lack merit, and death penalty sanctions are proper. In addition, and alternatively, Plaintiff seeks attorneys’ fees and other relief as set forth herein stemming from the various hearings, motions, and depositions which he has been forced to incur over the last year from Defendants’ abuses of the discovery process. A Death Penalty Sanction. 23. Rule 215 of the Texas Rules of Civil Procedure provides a litany of remedies for when a party fails to comply with proper discovery requests or to obey an order to provide or permit discovery. See Tex. R. Civ. P. 215.2(b)(1)-(8). In relevant part, Rule 215 permits “an order striking out pleadings or parts thereof, or... rendering a judgment by default against the disobedient party.” /d., 215.2(b)(5). Commonly referred to as “death penalty sanctions,” Rule 215.2(b)(5) allows an offending party’s pleadings to be stricken and, in turn, a default judgment entered against it where the sanctioned party is abusing the discovery process by unreasonably or frivolously resisting discovery, whether for purposes of delay or otherwise. See Tex. R. Civ. P. 215.3. 24. Discovery sanctions serve three primary functions: “(1) to secure the parties’ compliance with the discovery rules; (2) to deter other litigants from violating the discovery rules; and (3) to punish parties who violate the discovery rules.” /magine Auto. Group v. Boardwalk Motor Cars, Ltd., 430 S.W.3d 620, 633 (Tex. App.—Dallas 2014, pet. denied) (citing Response Time, Inc. v. Sterling Commerce (N. Am.), Inc., 95 S.W.3d 656, PLANTIFF’S MOTION FOR RULE 215 RELIEF Page 11 659-60 (Tex. App.—Dallas 2002, no pet.)). While a trial judge possesses great discretion regarding its choice of sanctions, the sanctions imposed must be just. /d.; Tex. R. Civ. P. 215.2. 25. The fairness of imposed sanctions is guided by two main inquiries: (1) whether the sanctions bear a direct relationship to the offensive conduct and are directed against the abuse and towards the remedying of the prejudice caused to the innocent party by the sanctioned party; and (2) whether the sanction is excessive. Imagine Auto Group, 430 S.W.3d at 633 (citing Spohn Hosp. v. Mayer, 104 S.W.3d 878, 882 (Tex. 2003); TransAmerican Nat. Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex. 1991)). 26. Additionally, death penalty sanctions are somewhat limited by due process concerns and are conditioned upon a slightly more in-depth analysis of the offending party’s conduct. /d. In particular: (1) a trial court must consider less severe sanctions before imposing death penalty sanctions; and (2) the offensive conduct must justify a presumption that the offending party's claims or defenses lack merit before the trial court may impose death penalty sanctions. Imagine Auto Group, 430 S.W.3d at 633 (citing Response Time, 95 S.W.3d at 660). | Lesser Sanctions 27. While lesser sanctions must be considered, it is imperative to note that not every sanction available under Rule 215 needs to actually be imposed prior to the imposition of death penalty sanctions. Imagine Auto Group, 430 S.W.3d at 634. To the contrary, a trial court need only “analyze the available sanctions and offer a reasoned explanation as to the appropriateness of the sanction imposed.” /d. (internal citations omitted). PLANTIFF’S MOTION FOR RULE 215 RELIEF Page 12 28. An evaluation of this matter’s docket reveals that this Court has already considered and applied lesser sanctions, none of which have been effective. Indeed, this Court has already ruled favorably for Plaintiff on two separate motions to compel discovery responses, and has also previously imposed monetary sanctions upon Warner, FireDream, and their counsel via its Order Granting Plaintiff's Motion for Contempt and Request for Attorney’s Fees. See 6/29/23 Order; 2/2/24 Orders. Moreover, Defendants blatantly violated this Court’s Orders by refusing to provide the requested documents and appear for depositions. Defendants’ lack of excuse or meritorious basis for such actions is a clear indication that nothing less than death penalty sanctions will bring about any compliance from Defendants with respect to the Texas Rules of Civil Procedures and this Court’s Orders. 29. Despite being held in contempt of court and facing direct orders to: (1) produce adequate responses to Plaintiff's requested discovery; (2) appear for depositions; and (3) pay monetary sanctions; Defendants have consistently failed and refused, and continue to fail and refuse, to comply with this Court's Orders and the general rules guiding the discovery process. ii. Presumption that Defendants’ Claims or Defenses Lack Merit 30. Defendants’ conduct throughout their year-long efforts to abuse the discovery process gives rise to a presumption that their claims or defenses lack merit. Indeed, Defendants have engaged in a variety of unethical behavior in efforts to circumnavigate the discovery process. Such behavior includes, but is not limited to: | Identifying Warner as the corporate representative for MDM Energy and FireDream, yet failing to appear at any of the three depositions scheduled for the week of March, 26, 2024; ii. Failing to pay monetary sanctions levied via the 2/2/24 Orders; PLANTIFF’S MOTION FOR RULE 215 RELIEF Page 13 iii. Filing Defendants’ MSJs without properly engaging in the discovery process; and IV. Setting the Warner MSJ for hearing, then failing to notify Plaintiff of the hearing’s cancellation. 31. Defendants’ conduct ventures beyond a mere resistance of the discovery process and demonstrates a clear willingness to go to any lengths to avoid providing Plaintiff with his requested discovery. As mentioned above, Plaintiff is of the belief that his requested discovery would support additional bases for liability against Defendants. Defendants’ conduct confirms such suspicions, rendering death penalty sanctions pursuant to Rule 215 appropriate. B. Attorneys’ Fees and Costs 32. Additionally, and, if necessary, in the alternative, Plaintiff seeks recovery of his attorneys’ fees pursuant to Rule 215.2(b)(8) of the Texas Rules of Civil Procedure. Rule 215.2(b)(8) provides that, “[i]n lieu of any of the foregoing orders or in addition thereto, the court shall require the party failing to obey the order or the attorney advising him, or both, to pay...the reasonable expenses, including attorney fees, caused by the failure” to comply with the discovery process, unless such non-compliance is “substantially justified.” See Tex. R. Civ. P. 215.2(b)(8). 33. As outlined above, Defendants’ misconduct and abuses of the discovery process have forced Plaintiff to incur costs and expenses related to the following events: (1) Plaintiff's Motions to Compel and Motion for Contempt; (2) Plaintiffs attempted depositions of Defendants; (3) Plaintiff's preparation for and appearance at the Warner MSJ hearing on April 16, 2024; and (4) the costs associated with the bringing of this Motion. PLANTIFF’S MOTION FOR RULE 215 RELIEF Page 14 1 Plaintiff's Motions to Compel and Motion for Contempt 34. Between March 30, 2023, and February 8, 2024, Plaintiff incurred not less than $36,853.50 in attorneys’ fees related to Plaintiffs motions to compel and motion for contempt. Because Plaintiffs’ evidence relating to attorneys’ fees exceeds the Court’s page limitation, at the hearing on this Motion, evidence will be produced which will demonstrated that the total work performed on this subject matter includes, but is not limited to: time spent discussing the factual bases for Plaintiff's claims, reviewing and analyzing client documents, reviewing and analyzing Defendants’ produced documents, the drafting and filing of various motions, and the time spent appearing at various hearings. ii. Plaintiff's Attempted Depositions 35. Between February 6, 2024, and April 5, 2024, Plaintiff incurred not less than $43,580.00 in attorneys’ fees related to Plaintiffs’ attempts to take three depositions, one for each of Defendants. Because Plaintiffs’ evidence relating to attorneys’ fees exceeds the Court's page limitation, at the hearing on this Motion, evidence will be produced which will demonstrated that the total work performed on this subject matter includes, but is not limited to: time spent discussing the factual bases for Plaintiffs claims, reviewing and analyzing client documents, reviewing and analyzing Defendants’ 7,996 pages of produced documents, preparing for three separate depositions, and appearing at the duly noticed depositions. ili. The Warner MSJ 36. Between February 20, 2024, and April 16, 2024, Plaintiff incurred not less than $19,670.00 in attorneys’ fees related to the Warner MSJ. Because Plaintiffs’ evidence relating to attorneys’ fees exceeds the Court's page limitation, at the hearing on PLANTIFF’S MOTION FOR RULE 215 RELIEF Page 15 this Motion, evidence will be produced which will demonstrated that the total work performed on this subject matter includes, but is not limited to: time spent discussing Plaintiffs claims, reviewing and analyzing client documents, reviewing and analyzing Defendants’ produced documents, conducting extensive legal research regarding Warner's allegations within the Warner MSJ, drafting and filing a response to the Warner MSJ, and appearing at the hearing on the Warner MSJ. iv. This Motion 37. Between February 11, 2024, and April 30, 2024, Plaintiff incurred not less than $13,467.50 in attorneys’ fees related to this Motion. Because Plaintiffs’ evidence relating to attorneys’ fees exceeds the Court's page limitation, at the hearing on this Motion, evidence will be produced which will demonstrated that the total work performed on this subject matter includes, but is not limited to: discussing the factual bases for Plaintiffs claims, reviewing and analyzing client documents, reviewing and analyzing Defendants’ produced documents, conducting extensive legal research regarding the legal standard under Rule 215, drafting and filing this Motion. V. Total Fees and Costs 38. In sum, between March 30, 2023, and April 30, 2024, Plaintiff has been forced to incur not less than $113,571.00 in attorneys’ fees, all of which are the direct and proximate result of Defendants’ repeated abuses of the discovery process. As such, in addition to the other relief requested herein, Plaintiff requests $113,571.00 in attorneys’ fees pursuant to Rule 215 as sanctions for Defendants’ unjustified and lengthy pattern of misconduct. MOTION FOR CONTINUANCE OF TRIAL SETTING AND PRETRIAL DEADLINES PLANTIFF’S MOTION FOR RULE 215 RELIEF Page 16 39. This Court entered the 2/2/24 Orders which, among other things, ordered Warner, FireDream, and MDM Energy to produce documents and appear for depositions before April 15, 2024. As part of the 2/2/24 Orders, trial in this matter was continued from April 8, 2024, to a date to be determined by this Court. See 2/2/24 Orders. Additionally, all existing pretrial deadlines were to be continued and calculated in accordance with the Scheduling Order in this matter from the new trial date. /d. On March 11, 2024, this Court re-set the trial date in this matter to July 11, 2024.'4 40. However, as set forth at length above, Defendants have completely failed to comply with the 2/2/24 Orders and have failed to provide any of the discovery Plaintiff requires in order to adequately prepare for trial. Additionally, even if this Motion were granted in its entirety and Defendants were deemed liable, Plaintiff needs more time to complete discovery of the remaining named defendants in this matter, identify experts, and complete other remaining pretrial tasks. 41. As such, Plaintiff requests that the Court continue the trial of this matter to a date no earlier than September 9, 2024 and reset all pretrial deadlines accordingly.. PRAYER WHEREFORE, PREMISES CONSIDERED, Plaintiff Larry Bramlet respectfully requests this Court grant his Motion and grant Plaintiff the following relief: I That the answers and all pleadings of Defendant Mark Warner, Defendant FireDream Resources, LLC, and Defendant MDM Energy, Inc. be stricken; ‘4 Plaintiff requests the Court take judicial notice of the Notice of Trial Setting issued on March 11, 2024. PLANTIFF’S MOTION FOR RULE 215 RELIEF Page 17 ii. That a default judgment be entered against Defendant Mark Warner, Defendant FireDream Resources, LLC, and Defendant MDM Energy, Inc. pursuant to Rule 215.2(b)(5) of the Texas Rules of Civil Procedure; iii. Additionally, and, if necessary, in the alternative, that the Court issue another Order by which Defendant Mark Warner, Defendant FireDream Resources, LLC, and Defendant MDM Energy, Inc. are held in contempt for their failure to comply with previous Orders compelling discovery and, pursuant to the same Order, Plaintiff requests sanctions in the amount of the attorneys’ fees he has been forced to incur as the result of Defendants’ non-compliance with the discovery process throughout the last year, payable within ten (10) days of the time such Order is signed; IV. Additionally, and further in the alternative, that Defendant Mark Warner, Defendant FireDream Resources, LLC, and Defendant MDM Energy, Inc. be required to appear at the office of Plaintiffs counsel for depositions on the mornings of May 21, 22, and 23, 2024, at 9:30 A.M; Additionally, and further in the alternative, that within ten (10) calendar days from the date of this Order Defendants produce all documents as previously required by this Court's Orders, with an express finding that any confidentiality or privilege is waived as a result of Defendants’ abuses of the discovery process; PLANTIFF’S MOTION FOR RULE 215 RELIEF Page 18 vi That a hearing be set on or soon after the eleventh day of the execution of any Order granting the above-requested relief to ensure Defendants’ compliance with such an Order; vii That the trial of this matter be continued to a date no earlier than September 9, 2024 and all pretrial deadlines reset accordingly; viii That Plaintiff be awarded his attorneys; fees and cost; and IX. That Plaintiff be awarded all other and further relief, at law or in equity, to which he is justly entitled. Respectfully submitted, /s/ Kirte M. Kinser Kirte M. Kinser State Bar No. 11489650 kkinser@fbfk.law Darrell D. Minter State Bar No. 14189400 dminter( fbfk.law Luc Whyte State Bar No. 24135117 Iwhyte@fbfk.law FERGUSON BRASWELL FRASER KUBASTA PC 2500 Dallas Parkway, Suite 600 Plano, Texas 75093 T: 972-378-9111 F: 972-378-9115 ATTORNEYS FOR PLAINTIFF PLANTIFF’S MOTION FOR RULE 215 RELIEF Page 19 CERTIFICATE OF CONFERENCE The undersigned certifies that on Thursday, May 2, 2024, he contacted counsel for Defendants via email to request a conference but received no response. On Friday, May 3, 2024, the undersigned again contacted counsel for Defendants via email requesting a conference on this motion but received no response that day. On Saturday, May 4, 2024, counsel for Defendants sent an email to the undersigned stating that he had attempted to contact the undersigned’s co-counsel by telephone, presumably on Saturday. The undersigned requested that Defendants’ counsel confer with the undersigned, but Defendants’ counsel refused. The undersigned advised Defendants’ counsel that his refusal to confer with the undersigned would be deemed a refusal to confer. Defendants’ counsel would not agree to confer with the undersigned. Therefore, this motion is presented to the Court for resolution. /s/ Kirte M. Kinser Kirte M. Kinser CERTIFICATE OF SERVICE | certify that a true and correct copy of this document was served on all counsel of record, via e-service, pursuant to the Texas Rules of Civil Procedure on the 8™ day of May, 2024. /s/ Kirte M. Kinser Kirte M. Kinser PLANTIFF’S MOTION FOR RULE 215 RELIEF Page 20 EXHIBIT A CAUSE NO. DC-22-14628 LARRY BRAMLET IN THE DISTRICT COURT Plaintiff Vv HI-LAND RESOURCES GROUP, LLC; KELLY BUSTER; FIREDREAM RESOURCES, LLC; MARK WARNER; MDM ENERGY, INC.; MICHAEL RAFAEL; ENERGY STRUCTURING, INC.; DAVTRA HOLDINGS, LP 44th JUDICIAL DISTRICT Defendants Vv ROBERT LUNA 382 Party Defendant DALLAS COUNTY, TEXAS DECLARATION OF DARRELL D. MINTER STATE OF TEXAS § § COUNTY OF COLLIN § 1 “My name is Darrell D. Minter. | am over twenty-one years old, have never been convicted of a felony, and am fully competent to make this Declaration. Each of the facts stated herein is within my personal knowledge, true, and correct. 2 This is my Verification that the facts set forth in Paragraphs 5 and 9 of the foregoing Plaintiff's Motion for Rule 215 Relief (the “Motion”) are true and correct. Both Warner’ and FireDream have failed and refused to comply with the 6/29/23 Order. Additionally, neither Warner, FireDream, nor their counsel have paid the sanctions owed to Plaintiff, as set out in the 2/2/24 Orders.” Further Declarant sayeth not. 1 Unless otherwise defined herein, all capitalized terms shall be given the same meaning as in the Motion. DECLARATION OF DARRELL D. MINTER Page 1 JURAT IN ACCORDANCE WITH TEX. CIV. PRAC. & REM. CODE § 132.001(q). “My name is Darrell D. Minter and my date of birth is July 31, 1950, and my business address is 2500 Dallas Parkway, Suite 600, Plano, Texas 75093. | declare under penalty of perjury that the foregoing is true and correct.” Y E E y of May/2024 oo La apréll D. Mintef DECLARATION OF DARRELL D. MINTER Page 2 EXHIBIT B CAUSE NO. DC-22-14628 LARRY BRAMLET § IN THE DISTRICT COURT Plaintiff § § Vv § HI-LAND RESOURCES GROUP, LLC; KELLY BUSTER; FIREDREAM RESOURCES, LLC; MARK WARNER; MDM ENERGY, INC.; MICHAEL RAFAEL; ENERGY STRUCTURING, INC.; DAVTRA HOLDINGS, LP 44th JUDICIAL DISTRICT Defendants Vv. ROBERT LUNA 3" Party Defendant § DALLAS COUNTY, TEXAS DECLARATION OF KIRTE M. KINSER STATE OF TEXAS § COUNTY OF COLLIN § 1 “My name is Kirte M. Kinser. | am over twenty-one years old, have never been convicted of a felony, and am fully competent to make this Declaration. Each of the facts stated herein is within my personal knowledge, true, and correct. 2 This is my verification that the facts set forth in Paragraphs 10 and 11 of the foregoing Plaintiff's Motion for Rule 215 Relief (the “Motion”) are within my personal knowledge and are true and correct. On or about February 27, 2024, Plaintiff! issued and served the Notices of Deposition upon Warner, FireDream, and MDM Energy through their counsel of record. ‘ Unless otherwise defined herein, all capitalized terms shall be given the same meaning as in the Motion. DECLARATION OF KIRTE M. KINSER Page 1 3 On April 16, 2024, |, along with my associate, Luc Whyte, attended the setting for the hearing on the Warner MSJ. Upon being informed that the hearing on the Warner MSJ was no longer on the Court's docket, we went to the Clerk’s office to determine why the hearing had been cancelled. In response to our inquiry, we were informed that the Mosser Law Firm had called and cancelled the hearing on the Warner MSJ on April 15, 2024. . We were not informed of the hearing’s cancellation by the Mosser Law Firm.” Further Declarant sayeth not. JURAT IN ACCORDANCE WITH TEX. CIV. PRAC. & REM. CODE § 1332.001(d). “My name is Kirte M. Kinser and my date of birth is