United States District Court, D. Utah
ELLIS-HALL CONSULTANTS, LLC, a Utah limited liability company; and ANTHONY HALL, an individual, Plaintiffs,
GEORGE B. HOFFMANN IV, an individual; PARSONS KINGHORN HARRIS NKA COHNE KINGHORN, P.C., a Utah professional corporation; MATTHEW M. BOLEY, an individual; KIMBERLEY L. HANSEN, an individual; GARY E. JUBBER, an individual; and DAVID R. HAGUE, an individual, FABIAN & CLENDENIN NKA FABIAN VANCOTT, P.C., a Utah professional corporation, Defendants.
RULING & ORDER
B. PEAD U.S. MAGISTRATE JUDGE
following matters are before the court pursuant to a 28
U.S.C. §636(b)(1)(A) referral from the District Court.
(ECF No. 171.) Currently pending are Defendants and
Third-Party Defendants George B. Hofmann, Matthew Boley,
Kimberly Hansen and Victor Copeland's (collectively
Defendants) motions seeking to compel non-parties Cedar City
Wind (CCW), Carbon Free Power (CFP), Monticello Wind Farm
Project (MWFP), Monticello Wind Farm 2 (MWF2), Monticello
Wind Farm II (MWFII), Monticello Wind Farm LLC (MWFLLC),
Western Investment Alliance (WIA) and Sage Grouse Energy
Project, LLC's (SGEP) to comply with the subpoenas duces
tecum, and Defendants' motions to compel Plaintiffs
Anthony Hall (Hall) and Ellis-Hall Consultants (EHC) to
respond to written discovery. (ECF No. 222, ECF No. 223.)
the pending motions seeking compliance, the court rules as
Third Party Cedar City Wind.
March 27, 2018, Defendants provided notice to the parties of
their intent to serve a subpoena duces tecum on non-party
CCW. (ECF No. 214-2.) Receiving no objections, Defendants
mailed the subpoena to CCW's Registered Agent on April 3,
2018. (ECF No. 214-3.) CCW's counsel, Michael E. Pfau
(Attorney Pfau), responded indicating that CCW's
“legal existence” was canceled in September 2015
and prior to its cancellation CCW “never sought to
enforce any of the ‘Blue Mountain Wind Asset'
leases or executory contracts described in the
subpoena.” (ECF No. 214-4.)
April 20, 2018, Defendants informed Attorney Pfau that
CCW's responses were inadequate and requested to meet and
confer. (ECF No. 214-5.) A day later, Attorney Pfau emailed
Defendants reaffirming that CCW was cancelled and stating it
“has no records.” (ECF No. 214-7.) Thereafter,
Defendants made additional attempts to meet and confer,
without response. (ECF No. 214-8.)
filed and served their motion to compel against CCW on July
26, 2018. (ECF No. 214.) As of this date, no response to the
motion has been filed. Accordingly, Defendants unopposed
motion to compel is granted. CCW failed to produce materials
responsive to Defendants' April 3, 2018, subpoena duces
tecum or raise a proper objection thereto. As a result, it is
CCW shall produce the documents, records and/or materials
responsive to Defendants' subpoena, or respond
appropriately claiming privilege or protection under Rule 45
of the Federal Rules of Civil Procedure within thirty days of
the date of this Order. The parties are further ordered to
meet and confer to resolve any issues and address any
confusion surrounding the materials sought no later than
September 7, 2018. Failure to comply may be grounds for
Carbon Free Power, Monticello Wind Farm, Monticello Wind Farm
2, Monticello Wind Farm II, Monticello Wind Farm, LLC,
Western Investment Alliance and Sage Grouse Energy Project.
March 27, 2018, Defendants provided notice to the parties in
this case of their intent to serve subpoenas duces tecum on
non-parties CFP, MWF, MWF2, MWFII, MWFLLC, WIA and SGEP. (ECF
No. 215-2, ECF No. 216-2, ECF No. 217-2, ECF No. 218-2, ECF
No. 219-2, ECF No. 220-2, ECF No. 221-2.) Receiving no
objections, on April 3, 2018, Defendants mailed subpoenas to
the non-parties' Registered Agents commanding a response
by April 20, 2018. (ECF No. 215-3, ECF No. 216-3, ECF No.
217-3, ECF No. 218-3, ECF No. 219-3, ECF No. 220-3, ECF No.
221-3.) None of the non-parties responded to the subpoenas.
As a result, Defendants sent letters requesting to meet and
confer. (ECF No. 215-4, ECF No. 216-4, ECF No. 217-4, ECF No.
218-4, ECF No. 219-4, ECF No. 220-4, ECF No. 221-4.) On April
25, 2018, a stay was imposed and therefore a meet and confer
was never held. (ECF No. 180, ECF No. 181.)
expiration of the stay, Defendants scheduled another
telephonic meet and confer for June 27, 2018 at 10:00. (ECF
No. 215-5, ECF No. 216-5, ECF No. 217-5, ECF No. 218-5, ECF
No. 219-5, ECF No. 220-5, ECF No. 221-5.) On that date,
Defendants were waiting on the conference line, but none of
the non-parties appeared. On July 10, 2018, Kimberly Ceruit
(Ms. Ceruti) emailed Defendants indicating that she may be
the individual responsible for responding to the subpoenas.
At Ms. Ceruti's request, all relevant materials were
placed on a disc and made available for her at the front desk
of the law firm Strong & Hanni. (ECF No. 215-5, ECF No.
216-6, ECF No. 217-6, ECF No. 218-6, ECF No. 219-6, ECF No.
220-6, ECF No. 221-6.) Based on non-parties' failure to
any produce materials sought, object, or ...