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Golden v. Mentor Capital, Inc.

United States District Court, D. Utah, Central Division

September 5, 2017

GENA GOLDEN, et al., Plaintiffs,
MENTOR CAPITAL, INC. et al., Defendants.

          Jill Parrish, District Judge.


          Brooke C. Wells, United States Magistrate Judge.

         Before the court are two motions to compel filed by Defendant and Third-Party Plaintiff Mentor Capital. Mentor seeks “complete discovery responses from each of Plaintiffs Susan Golden and Gena Golden”[1] Mentor also moves the court for “complete discovery responses from Third-Party Defendant Richard Golden.”[2] The court addresses each of these motions in turn as set forth below.


         In May 2016 Mentor Capital filed a Third-Party Complaint against Richard Golden and Scott Van Rixel.[3] Mentor seeks contribution, indemnification and indemnity for claims brought “against Mentor as the purported seller of securities.”[4] In the Complaint Mentor claims it is “unsure of the true mechanics by which Plaintiffs received the stock about which they complain, but Plaintiffs have pled that Third-Party Defendant Richard Golden was instrumental in their receiving their stock.”[5] Mr. Golden wrote the checks by which Plaintiffs bought their stock and Mr. Van Rixel “negotiated those checks.”[6]

         On April 4, 2017, Mentor served Mr. Golden its First Set of Requests for Admission, First Set of Interrogatories and First Set of Requests for Production. On this same date Mentor also served on each of the Plaintiffs Susan Golden and Gena Golden, its Second Set of Interrogatories and its First Set of Requests for Admission. In May 2017 following review of the responses from each of the parties Mentor sent a meet and confer letter outlining alleged deficiencies within the responses. These alleged deficiencies included inter alia failures to verify responses, improper boiler-plate general objections, inadequate specificity in the responses, failures to produce responsive documents and incomplete responses. In response Counsel for Mr. Golden and Plaintiffs replied that the responses were sufficient and no amendments or supplements would be forthcoming.[7] These motions followed. Mentor also seeks its fees and costs in bringing the motions.


         Relevant to both motions are Federal Rules 26 and 36. Fed.R.Civ.P. 26(b)(1) provides that:

“Parties may obtain discovery regarding any nonprivleged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the important of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.”[8]

Fed. R. Civ. P. 36(a)(4) provides:

“If a matter is not admitted, the answer must specifically deny it or state in detail why the answering party cannot truthfully admit or deny it. A denial must fairly respond to the substance of the matter; and when good faith requires that a party qualify an answer or deny only a part of a matter, the answer must specify the part admitted and qualify or deny the rest.”[9]

         I. The court will order Gena and Susan Golden to provide the requested discovery

         Mentor argues it is entitled to complete discovery responses because Plaintiffs initiated this matter and Mentor is “entitled to know exactly how it is alleged to have engaged in fraud and conspiracy and what specifically it is alleged to have misrepresented.”[10] In response, Plaintiffs argue that Mentor already knows how their shares were purchased and further supplementing the discovery is unnecessary. This knowledge came from the depositions of Plaintiffs and Plaintiffs point to their “Reply Memorandum in support of their Motion for Leave to Amend their Complaint” that provides “how they came to possess Mentor stock.”[11] Plaintiffs then summarize how they came into possession of their stock and also point to an email from “Chester Billingsley to Tod DiTommaso dated August 6, 2014.”[12]

         The court finds Plaintiffs arguments unpersuasive. Under the Federal Rules Mentor may use all the discovery tools that are available and is not confined to only depositions. Mentor should not be required to hunt through memoranda looking for discovery responses, nor is it appropriate for a party to answer discovery requests in an opposition memorandum to a motion to compel. Requiring a party to search through a party's filings for discovery responses is akin to asking someone to find the proverbial needle in a haystack and undermines the basic purpose of the Federal Civil Rules to “secure the just, speedy and inexpensive determination of every action and proceeding.”[13] The court has reviewed the propounded discovery as set forth in the memoranda and finds it falls ...

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