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Celtig, LLC v. Patey
United States District Court, D. Utah
September 19, 2019
CELTIG, LLC, a Tennessee limited liability company; Plaintiff,
AARON A. PATEY, an individual; EVERGREEN STRATEGIES, LLC, a Nevada limited liability company; PSD INTERNATIONAL, LLC, a Utah limited liability company; and RELAY ADVANCED MATERIALS, INC., a Delaware Corporation; Defendants. EVERGREEN STRATEGIES, LLC, a Nevada limited liability company; and RELAY ADVANCED MATERIALS, INC., a Delaware Corporation; Counterclaimants,
CELTIG, LLC, a Tennessee limited liability company; Counterclaim-Defendant. EVERGREEN STRATEGIES, LLC, a Nevada limited liability company; and RELAY ADVANCED MATERIALS, INC., a Delaware Corporation; Counterclaim and Third-Party Plaintiffs,
BRENT BENJAMIN WOODSON; PHILLIP COX; MICHAEL GUNDERSON; DAVID NIELSON; IMPEL SALES, LLC, a Utah Limited Liability Company; and UTAH LAKE LEGACY COALITION LLC, a Utah limited liability company; Third-Party Defendants.
ORDER ADOPTING REPORT AND RECOMMENDATION
N. PARRISH UNITED STATES DISTRICT COURT JUDGE.
Celtig, LLC, brought this lawsuit against Defendants Aaron
Patey, Evergreen Strategies, LLC, PSD International, LLC, and
Relay Advanced Materials, Inc. (collectively
“Defendants”) seeking damages and declaratory
relief for alleged breach of contract. ECF No. 17. Defendants
filed counterclaims against Plaintiff and third-party claims
against two sets of Third-Party Defendants: Utah Lake Legacy
Coalition, LLC, Brent Benjamin Woodson, and David Nielson
(collectively “ULLC Third-Party Defendants”), and
Impel Sales, LLC, Phillip Cox, and Michael Gunderson
(collectively “Impel Third-Party Defendants”).
ECF No. 22. The court referred this matter to Magistrate
Judge Evelyn J. Furse pursuant to 28 U.S.C. §
636(b)(1)(A). ECF No. 9. After a series of discovery
disputes, including Defendants failing to appear at properly
noticed depositions in November 2018 and January 2019,
Plaintiffs filed a “motion for entry of default
judgment against all defendants and counterclaimants”
(the “motion”) on February 14, 2019. ECF No. 141.
Defendants filed a response in opposition to the motion on
February 28, 2019, and Plaintiffs replied on March 14, 2019.
ECF Nos. 149, 162. During this time, both ULLC Third-Party
Defendants and Impel Third-Party Defendants also filed
motions for entry of default judgment against Defendants, and
Judge Furse issued two Reports and Recommendations granting
the motions by striking all of Defendants’ third-party
claims. ECF Nos. 185, 186. This court adopted the Reports and
Recommendations in full on September 9, 2019. ECF. No. 190.
reviewing the parties’ briefing and holding oral
argument on June 25, 2019, Judge Furse issued a Report and
Recommendation advising this court to grant in part and deny
in part the Plaintiff’s motion for default judgment.
ECF No. 183. The report recommends imposing sanctions on
Defendants by “striking Evergreen and Relay’s
counterclaims against Celtig, prohibiting the Patey
Defendants from putting Mr. Patey and Mr. Davidson on the
stand, and barring the Patey Defendants from presenting any
evidence they have not yet produced in discovery.”
Id. at 2. The report also specified that, pursuant
to Fed.R.Civ.P. 72(b)(2), the parties were to file any
objections with the court within fourteen (14) days of
service. Id. at 20. The time to object expired on
September 3, 2019, and the court has received no objections.
Defendants’ failure to object waived any argument that
the Report and Recommendation was in error. See United
States v. One Parcel of Real Prop., 73 F.3d 1057, 1060
(10th Cir. 1996). But the court notes that it need not apply
this waiver rule as a procedural bar if “the interests
of justice so dictate.” Id. (quoting Moore
v. United States, 950 F.2d 656, 659 (10th Cir. 1991)).
reviewed the Report and Recommendation and its conclusion
that the Plaintiff’s motion should be granted in part
and denied in part, the court concludes that the Report and
Recommendation is not clearly erroneous and finds that the
interests of justice do not warrant deviation from the waiver
rule. Accordingly, the court ORDERS as follows:
1. The court ADOPTS IN FULL the Report and Recommendation
regarding the Plaintiff’s motion for default judgment
(ECF No. 183).
2. The court grants the motion by “striking Evergreen
and Relay’s counterclaims against Celtig, prohibiting
the Patey Defendants from putting Mr. Patey and Mr. Davidson
on the stand, and barring the Patey Defendants from
presenting any evidence ...