United States District Court, D. Utah, Central Division
ELLIS-HALL CONSULTANTS, LLC; a Utah limited liability company; and ANTHONY HALL, an individual, Plaintiffs,
GEORGE B. HOFFMAN IV, an individual; PARSONS KINGHORN HARRIS NKA COHNE KINGHORN, P.C., a Utah professional corporation; MATTHEW M. BOLEY, an individual; KIMBERLY 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. In re RENEWABLE ENERGY DEVELOPMENT CORPORATION, Debtor, ELIZABETH R. LOVERIDGE, Chapter 7 Trustee, Plaintiff,
TONY HALL; ELLIS-HALL CONSULTANTS, LLC; SUMMIT WIND POWER, LLC, SSP, A Trust Scott Rasmussen - Trustee, and DOES I-X, Defendants. SUMMIT WIND POWER, LLC Counterclaimants,
GEORGE HOFMANN, Chapter 7 Trustee, Counterclaim Defendant. SUMMIT WIND POWER, LLC, and KIMBERLY CERUTI, an individual, Third-Party Plaintiffs,
PARSONS KINGHORN HARRIS, a professional corporation; GEORGE B. HOFMANN; MATTHEW BOLEY; KIMBERLY L. HANSEN; VICTOR P. COPELAND; LISA R. PETERSEN; and MELYSSA DAVIDSON, individuals Third-Party Defendants.
ORDER DENYING PLAINTIFFS' MOTION TO STRIKE
DEFENDANTS' ANSWER AND ENTER DEFAULT
BENSON UNITED STATES DISTRICT JUDGE.
matter is before the Court on Plaintiffs' Motion to
Strike and Enter Default. (Dkt. No. 446.) Specifically,
Plaintiffs ask this Court strike Defendants' and
Third-Party Defendants' Answer and enter default against
them, pursuant to Federal Rule of Civil Procedure 37, as a
sanction for Defendants' willful, persistent, and
substantial discovery abuses. (Id. at 8 & 22.)
29, 2019, the Court, accompanied by Magistrate Judge Pead,
heard argument on this and several other motions. Seven of the
motions were “non-dispositive” and referred to
Magistrate Judge Pead pursuant to 28 U.S.C. § (b)(1)(A).
At the conclusion of the July 29, 2019 hearing, Magistrate
Judge Pead ruled from the bench on the motions before him.
Judge Pead's ruling was memorialized in a written Order
the following day. (Dkt. No. 463, July 30, 2019 Ruling &
Order.) However, the Court agreed to defer ruling on
Plaintiffs' Motion to Strike and Enter Default because
the time for Plaintiffs to submit a reply brief had not yet
expired and thus briefing was incomplete.
Motion to Strike and Enter Default is now ripe for decision.
As stated above, the Court heard argument on the motion on
July 29, 2019. The Court concludes that an additional hearing
would not significantly aid in its determination of the
motion and elects to decide the motion on the basis of the
written memoranda. DUCivR 7-1(f).
Stipulated Amendment to the Second Amended Scheduling Order
in this case requires that fact discovery be completed by May
17, 2019. Subsequent to May 17, 2019, however, Defendants
supplemented their disclosures with approximately 275 pages
on May 28, 2019, and three additional pages on May 29 and May
30. (Dkt. No. 461 at 4.) Plaintiffs claim that this conduct
violated the case management order and was an abuse of the
discovery process because Defendants (1) failed to disclose
important documents in the first instance, and (2) failed to
supplement discovery responses until after the close of fact
discovery. (Dkt. No. 446 at 8.) Plaintiffs claim that these
discovery abuses resulted in “substantial
prejudice” to Plaintiffs and that the appropriate
sanction for such conduct is to strike Defendants' answer
and enter default against them. (Id.)
Court disagrees. As an initial matter, Federal Rule of Civil
Procedure 26(e) requires supplementation of discovery when a
party “learns that in some material respect the
disclosure or response is incomplete or incorrect, and if
corrective information has not otherwise been made known to
the other parties during the discovery process or in writing;
or . . . as ordered by the court.” (Id.) The
Stipulated Amendment to the Second Amended Scheduling Order
in this case provides that the final date for supplementation
under Rule 26(e) is “30 days before
trial.” (Dkt. No. 374, ¶ 2.m.) Defendants
have explained that it was not until after they had received
the Michael Pfau documents from Plaintiffs, on May 22, 2019,
that Defendants realized they were in possession of some
documents that had not already been produced. (Dkt. No. 461
at 3.) Although the individual defendants had provided the
documents to defense counsel, “they had been
inadvertently omitted from prior productions.”
(Id. at 3.) Knowing that the prior disclosures were
incomplete, Defendants provided Plaintiffs with the
previously omitted documents in accord with Rule 26(e) and
the Stipulated Amendment to the Second Amended Scheduling
the Court is not convinced that the recently produced
documents are as significant, critical, or relevant as
Plaintiffs maintain. For instance, it appears that many of
the documents are not new and many do not contain substantive
information. (Dkt. No. 461, ¶¶ 11-13.) Further,
Plaintiffs' memorandum in support identified as
“significant” only two specific emails, both
involving conversations with Mr. Hoffman. (Dkt. No. 446 at
12.) However, Defendants assert that one of these two
significant emails actually supports Defendants'
position. (Dkt. No. 461, ¶ 15.)
even if, as Plaintiffs claim, the documents produced on May
28 were critical, significant, and relevant, Defendants point
out that Plaintiffs could have asked questions about the
documents at Parson Kinghorn Harris' 30(b)(6) deposition,
which the parties had agreed would be taken on May 30,
2019. However, rather than proceeding with the
deposition, on the day before it was scheduled to occur,
Plaintiffs cancelled it. (Dkt. No. 420-14.)
Court also finds it significant that even though Plaintiffs
unilaterally cancelled the May 30, 2019 deposition, the
Defendants nonetheless tried to mitigate any issues relating
to the documents. Specifically, at a “Meet and
Confer” between the parties, held on July 9, 2019,
Defendants explicitly offered to produce Mr. Hoffman for a
supplemental deposition if Plaintiffs wanted to ask questions
about the new documents. (Dkt. No. 461 at 14 & July 29,
2019 Hearing Transcript at 30.) For reasons that are not
entirely clear to the Court, Plaintiffs declined the offer.
(Id. at 32 (explaining that Plaintiffs did not
“take advantage of the opportunity to make additional
inquiries” because Plaintiffs' counsel
“thought it was a false opportunity”).)
Defendants were not the only party to provide supplemental
discovery after the May 17, 2019 fact discovery deadline.
Plaintiffs also provided supplemental disclosures, including
Plaintiffs' Fourth Supplemental Initial Disclosures,
served on July 3, 2019, which included a report dating back
to January 16, 2014. (Dkt. No. 461 at 7.)
even assuming arguendo that Defendants'
disclosures were untimely, there is nothing in the record to
suggest that Defendants acted willfully or in bad faith.
Moreover, Plaintiffs' claims of prejudice resulting from
the late disclosures are belied by the fact that Plaintiffs
rejected Defendants' offer, in July of 2019, to make Mr.
Hoffman available in a supplemental deposition to answer any
questions raised by the new documents.
foregoing reasons, Plaintiffs' Motion to Strike Answer
and Enter ...