United States v. Shearer et al

Filing 151

ORDER signed by District Judge Daniel J. Calabretta on 09/05/23 DENYING with prejudice 139 Opposition/Motion for Reconsideration; parties are to file a Joint Status Report within 30 days. (Benson, A.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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UNITED STATES OF AMERICA,

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No. 2:12-cv-02334-DJC-DB

Plaintiff,
v.

ORDER

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L. RICHARD SHEARER, et al.,

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Defendants.

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The present action was initiated On September 11, 2012, following the

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disposition of a criminal matter which determined that Defendant L. Richard Shearer

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had engaged in a scheme to conceal income from the Internal Revenue Service

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through a series of sham trusts. (First Am. Compl. (“FAC”) (ECF No. 4) ¶ 1; see United

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States v. Bullock, No. 2:00-cr-00345-KJM-4 (E. D. Cal.).) The purpose of the action is to

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assess the federal tax liability of Defendants L. Richard Shearer and Diane Shearer, to

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adjudicate the legal status of alleged trusts used by the Shearers, and to foreclose tax

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liens against certain properties. (FAC ¶ 1.)

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Discovery in this case began in March 2013, (ECF No. 19), and has continued in

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some capacity until May 16, 2023. Defendant Stanley Swenson, Trustee for the

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Berryvale Trust, filed a Motion to Compel Written Discovery on November 14, 2022.

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(ECF No. 133.) Magistrate Judge Deborah Barnes denied the Motion, finding that
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Defendant’s written requests were untimely. (ECF No. 138.) Defendant Swenson

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thereafter filed Objections to the Magistrate Judge’s Order (ECF No. 139), which the

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Court construed as the instant Motion for Reconsideration of the Order (ECF No. 143).

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Defendant Swenson argues that because of the multiple discovery extensions which

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have been granted in this case, Defendant’s written discovery requests sent on July

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15, 2021 were timely, and that the Magistrate Judge’s order was therefore clearly

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erroneous. (See ECF No. 139.)

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As the Magistrate Judge had correctly determined, fact discovery for this case

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closed on February 1, 2016 as stated in the Second Amended Scheduling Order (ECF

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No. 64). (See ECF No. 138.) On January 2, 2020, the Parties filed a Joint Status Report

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requesting that the Court reopen fact discovery for the purpose of taking depositions.

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(ECF No. 105.) The Court granted this request and ordered that fact discovery be

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reopened “for the limited purpose of taking the depositions listed in the request” with

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a deadline of June 15, 2020. (ECF No. 107.) Thereafter, the Court granted multiple

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extensions of this deadline, with the final deadline being May 16, 2023. (See ECF Nos.

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110, 113, 115, 117, 122, 135.) In each of the Parties’ requests for an extension of time,

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the Parties stated that discovery had been reopened for the purpose of taking

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depositions, and requested additional time because COVID-19 and the counsels’

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various health issues had rendered the Parties unable to take the depositions. (See

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ECF Nos. 109, 112, 114, 116, 118, 121, 131.) Although some of the requests state

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auxiliary, non-discovery reasons for extending time, such as allowing time for the

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Defendants to obtain records from federal entities or for settlement purposes, at no

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point did the Court state that it reopened discovery for any other purpose than taking

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those depositions originally listed in the Parties’ January 2, 2020 Joint Status Report.

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Accordingly, Defendant’s written discovery requests fell outside the discovery period

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for such requests. The Magistrate Judge did not commit error in ruling as such and

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denying the Motion to Compel.

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For the above reasons, IT IS HEREBY ORDERED that Defendant Swenson’s

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Opposition/Motion for Reconsideration (ECF No. 139) is DENIED with prejudice.

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Now that discovery has closed and all outstanding discovery disputes have been

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resolved, the Court ORDERS the Parties to file a Joint Status Report within 30 days of

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the entry of this order.

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IT IS SO ORDERED.

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Dated:

September 5, 2023
Hon. Daniel J. Calabretta
UNITED STATES DISTRICT JUDGE

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DJC2 — 12-cv-02334.MFR_of_MTC

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