General Steel Domestic Sales, LLC v. Chumley et al

Filing 159

MINUTE ORDER. The 156 Motion for Reconsideration is denied. The 157 Motion to Stay is denied as moot. By Magistrate Judge Kristen L. Mix on 3/15/12.(mnfsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 10-cv-01398-PAB-KLM
GENERAL STEEL DOMESTIC SALES, LLC, d/b/a GENERAL STEEL CORPORATION,
a Colorado limited liability company,
Plaintiff,
v.
ETHAN DANIEL CHUMLEY, individually, and
ATLANTIC BUILDING SYSTEMS, LLC, a Delaware corporation, d/b/a ARMSTRONG
STEEL CORPORATION,
Defendants.
_____________________________________________________________________
MINUTE ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Defendants’ Motion for Reconsideration of
Orders Granting Plaintiff’s Oral Motion to Re-Open Discovery [Docket No. 156; Filed
March 14, 2012] (the “Motion to Reconsider”) and Defendants’ Motion to Stay Orders
Granting Plaintiff’s Oral Motion to Re-Open Discovery [Docket No. 157; Filed March
14, 2012] (the “Motion to Stay”). Defendants ask the Court to stay Plaintiff’s deposition of
Defendant Armstrong Steel Corporation’s former employee David Nardozzi and to
reconsider and deny Plaintiff’s oral Motion to Re-Open Discovery (the “Oral Motion”), which
the Court granted by Minute Orders dated March 9, 2012. [#153, #154].1
A motion for reconsideration:
is an extreme remedy to be granted in rare circumstances. It is well
established in the Tenth Circuit that grounds for a motion to reconsider are
limited to the following: (1) an intervening change in the controlling law; (2)
new evidence previously unavailable; and (3) the need to correct clear error
or prevent manifest injustice. Therefore, a motion to reconsider is
appropriate [only] where the court had misapprehended the facts, a party’s
position, or the controlling law.

1

The Court may rule on a motion at any time. D.C.COLO.LCivR 7.1C.

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Cont’l Materials Corp. v. Affiliated FM Ins. Co., No. 10-cv-02900-JLK-KLM, 2012 WL
764466, at *1 (D. Colo. Mar. 8, 2012) (internal quotes and citations omitted).
Defendants contend that reconsideration of the order permitting Mr. Nardozzi’s
deposition is appropriate because of “new evidence” relating to Plaintiff’s ability to obtain
an affidavit from Mr. Nardozzi [#156-4, Ex. D] and the fact that allowing Plaintiff to depose
Mr. Nardozzi “will not lead to the discovery of additional relevant evidence.” Motion to
Reconsider [#156] at 6. Defendants urge the Court to “assess Mr. Nardozzi’s credibility
and honesty to determine whether he has anything important to offer regarding this case
or whether Plaintiff and Mr. Nardozzi simply desire to take Defendants on a time-consuming
and expensive detour.” Id.
Defendants’ assertions lack merit. First, although Plaintiff has apparently been able
to obtain testimony from Mr. Nardozzi by affidavit since the Court ordered that Plaintiff
could take his deposition, the existence of the affidavit does not affect the Court’s
determination that limited re-opening of discovery to allow the taking of his deposition is
appropriate pursuant to Smith v. United States, 834 F.2d 166, 169 (10th Cir. 1987). As
explained in detail during the hearing on the oral Motion, four of the six factors to be used
in determining whether to reopen discovery for this limited purpose favor allowing the
deposition: 1) Defendant would not be substantially prejudiced by the four-hour deposition
permitted to be taken by Plaintiff at its cost; 2) Plaintiff was diligent in attempting to obtain
discovery within the guidelines established by the Court; 3) the need for Mr. Nardozzi’s
deposition was not foreseeable; and 4) Mr. Nardozzi’s deposition is likely to lead to the
discovery of admissible evidence. See id.
Second, despite Defendants’ contention that Mr. Nardozzi lacks credibility and his
testimony regarding alleged spoliation of evidence is vague and/or false, the Court is not
inclined to judge Mr. Nardozzi’s credibility on the basis of his affidavit or on the self-serving
affidavit of Mr. Heitbrink [#156-3, Ex. C] and alleged inaccuracies in Mr. Nardozzi’s “Linked
In” website page [#156-5, Ex. E]. Mr. Nardozzi’s credibility will best be assessed by the
parties through his presentation of sworn testimony at a deposition. Assessment of his
credibility by the Court on the basis of writings is ill-advised. See generally HightowerHenne v. Gelman, No. 11-cv-01114-KMT-BNB, 2012 WL 95208, at *1 (D. Colo. Jan. 12,
2012) (noting that the best opportunity to assess the credibility of witnesses occurs during
live testimony); United States v. Neal, No. 11-cr-00163-WJM, 2011 WL 4829664, at *1 (D.
Colo. Oct. 12, 2011) (same).
Thus, Defendant has failed to establish that there has been a change in controlling
law, new evidence or a need to correct clear error or to prevent manifest injustice. Cont’l
Materials Corp., 2012 WL 764466, at *1. Accordingly,
IT IS HEREBY ORDERED that the Motion to Reconsider [#156] is DENIED.
IT IS FURTHER ORDERED that the Motion to Stay [#157] is DENIED as moot.
Dated: March 15, 2012
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