Asarco LLC v. Loren M. Cohen

THE HONORABLE JOHN C. COUGHENOUR UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE ASARCO LLC, CASE NO. C24-6060-JCC Plaintiff, ORDER v. LOREN M. COHEN, Defendant.

This matter comes before the Court on Plaintiff’s motion to compel (Dkt. No. 27) and Defendant’s motion for summary judgment (Dkt. No. 29). Having thoroughly considered the briefing and record, and finding oral argument unnecessary, the Court GRANTS in part and DENIES in part the motion to compel (Dkt. No. 27) and DENIES the motion for summary judgment (Dkt. No. 29) for the reasons described herein.

The Court described the general background of this case in a prior order, (see Dkt. No 25 at 1–2), and will not repeat that information here. As it relates to the instant motions, at issue is the solvency (or lack thereof) of third parties Point Ruston LLC and Point Ruston Phase III, LLC (and how the financial status of those entities impacts Defendant’s conditional guaranty, i.e., whether the relevant condition is excused or waived). (See generally Dkt. Nos. 27, 29.) Each of the motions are addressed below.

1 Plaintiff’s Motion to Compel (Dkt. No. 27) 2 In general, parties are entitled to discover non-privileged information (1) relevant to any party’s claims or defenses and (2) proportional to the needs of the case. Fed. R. Civ. P. 26(b)(1).

4 Relevant information need not be admissible but must be reasonably calculated to lead to the discovery of admissible evidence. Id.; see Surfvivor Media, Inc. v. Survivor Prods., 406 F.3d 6 625, 635 (9th Cir. 2005). If requested discovery is withheld inappropriately or goes unanswered, the injured party may move to compel. See Fed. R. Civ. P. 37(a)(1). In addition, absent undue burden or cost, or claims of privilege or protection, a person served with a subpoena duces tecum must produce that information. Fed. R. Civ. P. 45(e). If the recipient fails to do so, or to timely object, the party serving the subpoena may seek an order to compel the recipient to produce the documents or to furnish for inspection the files containing the documents. Fed. R. Civ. P. 45(d)(2)(B)(i). And a person who fails to comply with a court order to produce documents may be held in contempt. Fed. R. Civ. P. 45(f); Pennwalt Corp. v. Durand-Wayland, Inc., 708 F.2d 14 492, 495 (9th Cir. 1983).

15 Here, Plaintiff asks for an order compelling the production of documents responsive to a subpoena duces tecum it issued to Point Ruston Phase III, LLC (Dkt. No. 28-1) along with a notice for deposition testimony regarding the same (Dkt. No. 28-3). (See Dkt. No. 27-1.) The Court retains broad discretion in determining whether to grant such a motion. Phillips ex rel.

19 Estates of Byrd v. Gen. Motors Corp., 307 F.3d 1206, 1211 (9th Cir. 2002).

20 In May 2025, Plaintiff served Phase III’s registered agent with the subpoena. (See Dkt.

21 No. 28-1 at 6.) At the time, Point Ruston LLC was Phase III’s sole member and Defendant its sole manager. (See Dkt. Nos. 28-5 at 2–3, 28-6 at 2.) So Defendant’s attorney Jack Krona, Jr. accepted service of the deposition subpoena and said that he would “look into dates and get back to [Plaintiff]” regarding the same. (See Dkt. No. 28-4 at 2.) Then in July 2025, before Phase III produced any documents and before Defendant set a date certain for his testimony, Mr. Krona changed course, stating he could not act as an intermediary between Plaintiff and Phase III. (See Dkt. No. 28-5 at 2.) Rather, said Mr. Krona, Plaintiff would need to deal with Point Ruston LLC’s court-appointed receiver. (Id.) This was because Point Ruston LLC’s estate, including its interest in Phase III, was controlled by the receiver rather than its manager. (Id.) 3 The parties went back and forth on the issue, with Plaintiff suggesting that, because Defendant remained Point Ruston Phase III, LLC’s manager, he was obliged to comply with both subpoenas. (See Dkt. No. 28-6 at 2.) In response, on September 15, 2025, Defendant notified the receiver that, effective immediately, he was resigning as Phase III’s manager. (See Dkt. No. 31-1 at 2.)1 Shortly thereafter, on September 17, 2025, Plaintiff issued discovery requests to Defendant for similar information as that contained in the subpoena deuces tecum.

9 (See Dkt. No. 30 at 2.)

10 Following briefing on the motion to compel, the Court asked for a supplemental report on the state of Defendant’s production. According to that report, while production remained, it appeared Defendant would produce responsive documents in his possession, but that he largely did not possess such information. (See generally Dkt. No. 37.) Thus, Plaintiff now seeks an order which it may present to Point Ruston’s receiver commanding it to respond to the previously issued subpoena and to submit to a deposition regarding the same, within a date certain. The Court sees good cause and will do so below.

17 Turning to the discovery sought directly from Defendant: First, on the issue of his deposition, based on a recent motion (Dkt. No. 36), it appears the parties are at odds regarding the location of that testimony. The Court will address that issue in due time, once Defendant’s motion (Dkt. No. 36) notes. Although, fair warning, as a general matter, the Court believes that an in-person deposition is likely warranted here. Defendant would need to evince compelling circumstances to demonstrate otherwise here. Second, on the issue of the discovery Plaintiff 1 Of note, Defendant remains the manager of record according to Washington’s Secretary of State. (See Wash. Sec. of State Corp. search, last accessed on October 20, 2025, available at https://perma.cc/M33B-JHVM). Fundamentally, for purposes of the instant suit, it would seem Defendant welcomed his Phase III managerial role when it suited him, (see, e.g., Dkt. No. 22 at 6–10), but then attempted to cast it aside when it did not, (see, e.g., Dkt. Nos. 28-5 at 2, 31-1 at 22). The Court will not countenance such gamesmanship as this litigation proceeds.

1 recently propounded to Defendant, (see Dkt. No. 30 at 2), to the extent Defendant fails to produce responsive documents, and Plaintiff has evidence (rather than speculation) that these documents are within Defendant’s possession, Plaintiff may move for sanctions.

4 Thus, Plaintiff’s motion to compel (Dkt. No. 27) is GRANTED in part and DENIED in part, as discussed above.

6 Defendant’s Motion for Summary Judgment (Dkt. No. 29) 7 “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). When considering such motions, the Court must view the facts and justifiable inferences to be drawn therefrom in the light most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Accordingly, summary judgment is appropriate against a party who “fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.”

14 Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). Conversely, if that showing is made, the opposing party “must come forward with ‘specific facts showing that there is a genuine issue for trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed. R. Civ. P. 56(e)).

18 In moving for summary judgment, Defendant argues that Plaintiff’s alleged failure to exercise reasonable diligence in its collection efforts “results in the complete discharge of the conditional guaranty as a matter of law based on the undisputed facts.” (Dkt. No. 29 at 5.) The Court discussed this guaranty in its prior order. (See Dkt. No. 25 at 3–5.) It noted that the reasonableness of Plaintiff’s collection efforts was driven, in part, by Phase III and Point Ruston’s solvency. (Id.); see Kesner v. Inland Empire Land Co., 272 P. 29, 31 (Wash. 1928) (insolvency may absolve creditor from making demand)). And that the parties pointed to countervailing evidence on the issue. (Id.) The same is true here. (Compare Dkt. No. 29 at 5–6, with Dkt. 33 at 3–4.) Thus, this remains a genuine issue of fact. Nor is this the only genuine issue of fact here. Plaintiff suggests that Defendant willfully hindered Plaintiff’s collection efforts.

1 (See Dkt. No. 33 at 5–6) (citing Dkt. No. 17-1 at 3–4; 18-1 at 48–51, 79–82). If so, this might also excuse Plaintiff’s performance. See, e.g., Refrigeration Engr. Co. v. McKay, 486 P.2d 304, 309 (Wash. Ct. App. 1971); Cavell v. Hughes, 629 P.2d 927, 929 (Wash. Ct. App. 1981).

4 Thus, Defendant’s motion for summary judgment (Dkt. No. 29) is DENIED 5 Accordingly, the Court ORDERS as follows: 6 1. Point Ruston Phase III, LLC is required to respond to the subpoena duces tecum 7 and deposition subpoena served on it by Plaintiff Asarco.

8 2. Asarco will serve this Order on Point Ruston Phase III, LLC’s registered agent in 9 Washington. Additionally, based on defendant Cohen’s representation that he has 10 withdrawn as Point Ruston Phase III, LLC’s manager, and without any 11 information regarding its successor manager, Asarco will serve a courtesy copy of 12 this Order on the attorney for Point Ruston Phase III, LLC’s sole member Point 13 Ruston LLC’s receiver. Asarco should submit proof of service to the Court.

14 3. Point Ruston Phase III, LLC shall produce all documents responsive to Plaintiff 15 Asarco’s subpoena duces tecum within 20 days of service of this Order.

16 4. Within 7 days of service of this Order, Point Ruston Phase III, LLC shall provide 17 Plaintiff Asarco with available dates within the following 30 days for its 18 deposition.

19 5. Any failure to comply with this Order may result in a finding of contempt against 20 Point Ruston Phase III, LLC pursuant to Federal Rule of Civil Procedure 45(g).

22 // // // // // // 1 DATED 23rd day of October 2025.

A John C. Coughenour 5 UNITED STATES DISTRICT JUDGE