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Ellis-Hall Consultants, LLC v. Hoffmann

United States District Court, D. Utah

August 31, 2018

ELLIS-HALL CONSULTANTS, LLC, a Utah limited liability company; and ANTHONY HALL, an individual, Plaintiffs,
v.
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.

          DEE BENSON JUDGE

          RULING & ORDER

          DUSTIN B. PEAD U.S. MAGISTRATE JUDGE

         BACKGROUND

         The 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.)

         PENDING MOTIONS

         As to the pending motions seeking compliance, the court rules as follows:

         1. Third Party Cedar City Wind.

         On 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.)

         On 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.)

         Defendants 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 ORDERED that:

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 sanctions.

         2. 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.

         On 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.)

         After 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 ...


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