General Steel Domestic Sales, LLC v. Chumley et al

Filing 325

ORDER denying 266 Plaintiff's Motion for Sanctions Due to Defendants' Witness Tampering. By Magistrate Judge Kristen L. Mix on 7/9/12.(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.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Plaintiff’s Motion for Sanctions Due to
Defendants’ Witness Tampering [Docket No. 266; Filed May 22, 2012] (the “Motion”).
Defendant filed a Verified Response on June 15, 2012 [#292], and Plaintiff filed a Reply
on July 2, 2012 [#312]. The Motion is thus ripe for resolution. For the reasons set forth
below, the Motion is DENIED.
A. Background Information
Plaintiff asserts that Defendants’ counsel tampered with a non-party witness by
contacting the witness after Plaintiff subpoenaed him to testify at trial and by telling the
witness that Defendant would view his trial testimony as a breach of a settlement
agreement previously entered into between Defendant Armstrong Steel and the witness.
Plaintiff further complains about defense counsel’s “threats” to file a motion to quash the
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subpoena. Motion [#266] at 1-4.
Defendants respond by quoting Section 4 of the settlement agreement between
Defendant Armstrong Steel and the non-party witness, indicating their concern about the
non-party witness’ testimony in light of Plaintiff’s motion to amend the final pretrial order to
add the non-party as a trial witness, and explaining defense counsel’s call to the witness’
attorney as “a hypothetical,” in which defense counsel told the witness’ counsel that if the
witness testified in a manner which violated the settlement agreement, Defendants “would
consider [the witness] to be in breach of the Section 4 of the Settlement Agreement.”
Defense counsel and the witness’ counsel disagreed about whether the witness had been
served with a “valid” trial subpoena and, if not, whether he should testify. Response [#292]
at 1-7.
Plaintiff replies that Defendants attempted to improperly “influence [the witness] not
to testify.” Reply [#312] at 1-3.
B. Analysis
Unfortunately, the starting point for this analysis must be the extraordinary
procedural history of this case, which is marked by both the number of contested discovery
motions (sixteen, not including requests for reconsideration; see Docket Nos. 54, 65, 75,
78, 94, 142, 154, 157, 185, 208 and 226) and the acrimony between the parties and their
counsel. The Motion at issue fits the parties’ pattern of failing to exercise appropriate
discretion amid disproportionate contentiousness.
Plaintiff purports to rely on 18 U.S.C. § 1512(b) and certain Colorado Rules of
Professional Conduct for the relief sought in the Motion. For the reasons provided below,
Plaintiff’s reliance on these authorities is misplaced.
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Moreover, Plaintiff requests

unspecified “sanctions” as a result of Defendants’ alleged improper conduct; indeed, the
closest Plaintiff comes to proposing any particular sanction is its citation to a Second Circuit
case, United States v. Dennis, 843 F.2d 652 (2d Cir. 1988), for the proposition that the
“appropriate remedy is disqualification of counsel, . . .not exclusion of evidence.” [#266] at
5. As a result, the Court is left with the impression that Plaintiff is seeking a quick and
relatively easy way to get rid of the defense lawyers, which is not surprising in light of the
demonstrated all-out war between counsel.
Regardless, Plaintiff’s hopes must be dashed, as the Motion plainly lacks merit.
First, as Defendants note, 18 U.S.C. § 1512(b) is a criminal statute authorizing imposition
of a fine and/or prison sentence for intimidating, threatening or corruptly persuading a
person with the intent to prevent his testimony or to cause him to be absent from a legal
proceeding. There is no private cause of action under the statute. Clements v. Miller, No.
104CV02455REBBNB, 2005 WL 2085497, at *4 (D. Colo. Aug. 29, 2005); see also Gipson
v. Callahan, 18 F. Supp. 662, 668 (W.D. Tex. 1997). Second, the Colorado Rules of
Professional Conduct do not “serve as a basis for [civil] liability.” Olsen & Brown v. City of
Englewood, 889 P.2d 673, 676 (Colo. 1995). Third, even if Plaintiff argued that these
authorities should inform the Court’s analysis regarding the imposition of sanctions under
the circumstances (which it does not), the argument would be futile, because the record is
devoid of any evidence that Defendants through their counsel intended to commit a wrong.
Even accepting Plaintiff’s characterization of defense counsel’s alleged remarks to the nonparty witness or his attorney as “threats,” it is not unlawful to threaten to do what one has
a legal right to do. Here, at worst, Defendants threatened to sue the non-party witness for
breach of contract if he testified in violation of the terms of a Settlement Agreement by
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which he is apparently lawfully bound. I decline to infer any improper motive when the
evidence may be construed as showing a proper motive. Simply stated, such a
communication does not violate applicable rules of professional conduct or statutes and is
not a ground for imposition of sanctions. Accordingly,
IT IS HEREBY ORDERED that the Motion [#266] is DENIED.
Dated: July 6, 2012

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