Home Design Services, Inc. v. Collard Properties, LLC, et al.,

Filing 141

ORDER granting in part and denying in part 114 Plaintiff's Motion to Compel for Contempt and for Sanctions; denying 117 Plaintiff's Motion to Extend Discovery & Dispositive Motion Deadlines; granting 122 Motion to Withdraw as Couns el; denying 134 Rasmussen Defendants' Amended Motion to Reschedule Date of Hearing and Extend Deadline to Respond to Plaintiff's Motion to Compel for Contempt and Sanctions; denying 81 Motion for Summary Judgment; granting 137 Wyatt's Unopposed Motion to Extend Summary Judgement Deadline. Attorney William Blair Stanton; Katherine Karamalegos Kust and Jon F. Sands terminated, by Magistrate Judge Boyd N. Boland on 05/17/2012.(wjcsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Boyd N. Boland
Civil Action No. 11-cv-00011-MSK-BNB
HOME DESIGN SERVICES, INC.,
Plaintiff,
v.
COLLARD PROPERTIES, LLC,
RASMUSSEN CONSTRUCTION SERVICES, LLC, and
KENDALL JAY RASMUSSEN a/k/a JAY RASMUSSEN,
Defendant.
______________________________________________________________________________
ORDER
______________________________________________________________________________
This matter arises on the following:
(1)

Plaintiff’s Motion to Compel for Contempt and for Sanctions [Doc. # 114,

filed 4/23/2012] (the “Motion to Compel”);
(2)

Plaintiff’s Motion to Extend Discovery & Dispositive Motion Deadlines [Doc.

# 117, filed 4/26/2012] (“Plaintiff’s Motion to Extend”);
(3)

The Motion to Withdraw as Counsel [Doc. # 122, filed 5/3/2012] (the “Motion

to Withdraw”);
(4)

Rasmussen Defendants’ Amended Motion to Reschedule Date of Hearing

and Extend Deadline to Respond to Plaintiff’s Motion to Compel for Contempt and
Sanctions [Doc. # 134, filed 5/14/2012] (the “Motion to Reschedule”); and
(5)

Wyatt’s Unopposed Motion to Extend Summary Judgement Deadline [Doc. #

137, filed 5/15/ 2012] (the “Wyatt’s Motion to Extend”).

I held a hearing on the motions this morning and made rulings on the record, which are
incorporated here.
1. The Motion to Compel
Responses to the plaintiff’s written discovery requests were served on approximately
May 15, 2012, after the filing of the Motion to Compel. Although the plaintiff complains that
the belated responses are inadequate, they are not before me and I cannot determine whether
further relief is necessary.
Rule 37(a)(5)(A), Fed. R. Civ. P., provides:
If the Motion is Granted (or Disclosure or Discovery Is Provided
After Filing). If the motion is granted--or if the disclosure or
requested discovery is provided after the motion was filed--the
court must, after giving an opportunity to be heard, require the
party or deponent whose conduct necessitated the motion, the party
or attorney advising that conduct, or both to pay the movant’s
reasonable expenses incurred in making the motion, including
attorney’s fees. But the court must not order this payment if:
(i) the movant filed the motion before attempting in good faith to
obtain the disclosure or discovery without court action;
(ii) the opposing party’s nondisclosure, response, or objection was
substantially justified; or
(iii) other circumstances make an award of expenses unjust.
The plaintiff attempted in good faith to obtain the discovery without court action; the
Rasmussen defendants’ failure to timely make discovery was not substantially justified; and
nothing before me suggests that an award of fees and expenses would be unjust. The Motion to
Compel expressly seeks an award of the plaintiff’s attorney’s fees and reasonable expenses,
Motion to Compel [Doc. # 114] at p. 6, and the Rasmussen defendants were afforded an
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opportunity to respond to that request. Consequently, I grant the Motion to Compel insofar as it
seeks an award of the plaintiff’s expenses and attorney’s fees in bringing it. The sanction is
awarded against the Rasmussen defendants jointly and severally, but not against their counsel.
The plaintiff shall file a fee petition, in full compliance with the requirements of
D.C.COLO.LCivR 54.3, on or before May 28, 2012.
The Motion to Compel is denied without prejudice insofar as it seeks further responses to
the interrogatories because the belated responses are not before me and I cannot judge their
adequacy. The Motion to Compel also is denied as premature insofar as it seeks an order
concerning the depositions of the Rasmussen defendants because no notices of deposition ever
were served. The Motion to Compel also is denied insofar as it seeks relief concerning the
Rasmussen defendants’ responses to the requests for production, all responsive documents in
their possession, custody, and control having been produced.
2. Plaintiff’s Motion to Extend
The plaintiff seeks an order extending the discovery cut-off and the dispositive motion
deadline in view of the Rasmussen defendants’ failure to make discovery and failure generally to
participate in the litigation. Below, I grant the Motion to Withdraw by counsel for the
Rasmussen defendants. I anticipate that without that counsel, the Rasmussen defendants will
abandon their defense of this action and the case will be resolved through the imposition of
sanctions.
Plaintiff’s Motion to Extend is denied without prejudice. If the Rasmussen defendants
abandon their defense, as I anticipate, the Motion to Extend will prove unnecessary. On the
other hand, if the Rasmussen defendants participate in the action going forward, I will consider

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extending deadlines as may be necessary.
3. Motion to Withdraw
Good cause having been shown, the Motion to Withdraw is granted. Jon F. Sands,
William B. Stanton, Katherine K. Kust, and the law firm of Sweetbaum Sands Anderson PC are
allowed to withdraw and are relieved of any continuing responsibility in the case.
Kendall Jay Rasmussen, an individual, may proceed pro se. I caution Mr. Rasmussen
that he personally is responsible for complying with all court orders and time limitations
established by any applicable rules. See D.C.COLO.LCivR 83.3D. In addition, pursuant to
D.C.COLO.LCivR 10.1M, Mr. Rasmussen has to and including May 28, 2012, within which to
file and serve a notice of his current mailing address, email address, and telephone number.
Failure to comply with this requirement may result in the imposition of sanctions, including the
entry of a default judgment.
Rasmussen Construction Services, LLC, is a legal entity and, absent prompt appearance
of substitute counsel, its pleadings, motions, and other papers may be stricken and default
judgment or other sanctions may be imposed against it. See D.C.COLO.LCivR 83.3D.
Rasmussen Construction Services, LLC, may have to and including May 28, 2012, within which
to cause substitute counsel to enter its appearance.
4. Motion to Reschedule
The Rasmussen defendants seek an order rescheduling the hearing on the Motion to
Compel and extending the deadline by which they may respond to the Motion to Compel. A
response has been received, Response [Doc. # 135], and the hearing has occurred, at which
counsel for the Rasmussen defendants appeared and participated. Accordingly, the Motion to

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Reschedule is denied as moot.
5. Wyatt’s Motion to Extend
Defendant Kaydee Wyatt seeks an extension of the summary judgment deadline to allow
supplementation of her pending Motion for Summary Judgment [Doc. # 81] with deposition
testimony recently obtained. Rather than allow supplementation, I will deny the Motion for
Summary Judgment [Doc. # 81] without prejudice and with leave to refile it, with all supporting
evidence, on or before June 18, 2012. Wyatt’s Motion to Extend is granted to that extent.
IT IS ORDERED:
(1)

The Motion to Compel [Doc. # 114] is GRANTED IN PART and DENIED IN

PART as specified above;
(2)

Plaintiff’s Motion to Extend [Doc. # 117] is DENIED without prejudice;

(3)

The Motion to Withdraw [Doc. # 122] is GRANTED as specified above;

(4)

The Motion to Reschedule [Doc. # 134] is DENIED as moot;

(5)

Wyatt’s Motion for Summary Judgment [Doc. # 81] is DENIED without

prejudice and may be renewed on or before June 18, 2012;
(6)

Wyatt’s Motion to Extend [Doc. # 137] is GRANTED. Ms. Wyatt may have to

and including June 18, 2012, to file a renewed motion for summary judgment; and
(7)

The Clerk of the Court is directed to serve a copy of this order on Rasmussen

Construction Services, LLC, and Kendall Jay Rasmussen at [e-mail], which is
their last known address and the only contact information available.

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Dated May 17, 2012.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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