United States District Court, D. Utah
RANDY W. FELLOWS, an individual, Plaintiff,
DAN R. SUNDAHL, an individual; EQUIFUND CAPITAL, INC., a Utah corporation; TERRY M. DERU, an individual; BELSEN GETTY, LLC, a Utah limited liability company; PAUL M. HALLIDAY, JR., an individual; HALLIDAY WATKINS & MANN, P.C., a Utah professional corporation; and DOES I - L; Defendants.
ORDER ADOPTING REPORT AND RECOMMENDATION
N. Parrish United States District Court Judge
the court is Chief Magistrate Judge Warner's Report and
Recommendation re: Motion to Strike and Enter Default against
Defendants Dan R. Sundahl and Equifund Capital, Inc. (ECF No.
56). For the reasons below, the court adopts the Report and
Recommendation in full.
Sundahl, together with his corporation Equifund, has
willfully and repeatedly failed to comply with discovery
requests, ignored court orders, and disregarded deadlines.
His conduct has severely prejudiced Plaintiff Randy Fellows
and interfered with the judicial process. Mr. Sundahl has
provided no credible defense for his conduct, and despite
lesser sanctions from the court, his conduct continues.
Consequently, Chief Magistrate Judge Warner recommends that
the court strike Mr. Sundahl's pleadings and enter
default judgment in favor of Mr. Fellows.
Sundahl and Equifund filed a timely objection (ECF No. 57).
But that objection does not address the court's
characterization of his conduct or the court's legal
analysis. Instead, Mr. Sundahl simply asserts a general
objection that recovery is barred in part by a statute of
support of the objection, Paul M. Halliday, Jr. (co-defendant
and counsel for Mr. Sundahl) avers that Mr. Sundahl signed
two promissory notes: one dated April 7, 2010 and due May 7,
2010, and another dated July 15, 2010 and due July 31, 2010.
Mr. Sundahl asks the court not to allow Mr. Fellows to
recover on the April 7, 2010 promissory note “because
it violates the statute of limitations.” ECF No. 57 at
2. Mr. Sundahl does not cite any statute of limitations, nor
does he present any legal argument in support of his
argument. Still, because Mr. Sundahl filed a specific and
timely objection, the court reviews the relevant portion of
the magistrate judge's disposition de novo.
STATUTE OF LIMITATIONS
relevant statute of limitations is Utah Code Ann. §
78B-2-309, which reads in part: “An action may be
brought within six years . . . upon any contract, obligation,
or liability founded upon an instrument in writing.”
The parties agree that the first promissory note was due May
7, 2010. But this action was not filed until July 2016-more
than six years after the first promissory note was due.
Utah law permits actions for recovery of debt to be brought
“within the applicable statute of limitations from the
date . . . a written acknowledgement of the debt or a promise
to pay is made by the debtor.” Utah Code Ann. §
Fellows' response to the objection, he argues that Mr.
Sundahl repeatedly assured him that Mr. Fellows would receive
full payment and that those assurances should toll the
statute of limitations. That argument is clearly supported by
the allegations of the complaint. See, e.g., ECF No.
2 at ¶¶ 155-158 (alleging that, “[t]hroughout
the rest of 2015, Sundahl . . . contact [sic] Fellows nearly
every month or so asking him to prepare payoff amounts on the
Vernal/Chicken Plant/Dinar Trading/Dinars to Oil Investment
and the Model Home Notes based on the repeated promises that
the investments in the Dinars to Oil Investment were
forthcoming and were sufficient not only to make all payments
. . . but that even more profits would be paid”).
Therefore, because the complaint alleges that Mr. Sundahl
promised to pay Mr. Fellows as recently as 2015, both
promissory notes fall well within Utah's applicable
statute of limitations.
reasons above, and based upon the court's review of the
parties' submissions, the Report and Recommendation, and
the relevant law, the court concludes that the Report and
Recommendation is a correct application of the law.
Therefore, the court orders as follows:
Report and Recommendation is ADOPTED IN
Fellows' motion to strike and enter default against
defendants Mr. ...