Franks v. Flint McClung Capital, LLC et al
ORDER. The 65 Plaintiff's Motion to Compel is denied. The 84 Motion to Stay is denied insofar as it seeks to stay the case as a whole and is denied as moot insofar as it seeks a protective order preventing Shawon McClung's deposition on 9/2/2011. The 92 Motion to Strike is denied and Ms. Arndt's request for sanctions contained within in her 94 Response to the Motion to Strike is denied as improper. Arndt's 98 Motion to Compel is denied. Arndt's 107 Omnibus Filing is denied insofar as it is a motion for sanctions, and is stricken insofar as it is a supplemental briefing on other motions. The 70 , 72 , 79 Letters are stricken. By Magistrate Judge Boyd N. Boland on 11/3/11.(mnfsl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Boyd N. Boland
Civil Action No. 11-cv-00407-PAB-BNB
FLINT-MCCLUNG CAPITAL, LLC,
SHAWON MCCLUNG and
BRYANT FLINT d/b/a, and
This matter arises on the following:
Plaintiff’s Motion to Compel Disclosures [Doc. # 65, filed 7/25/2011]
(“Plaintiff’s Motion to Compel”);
Defendant Shawon McClung’s Combined Motion to Stay and for a
Protective Order [Doc. # 84, filed 8/18/2011] (“McClung’s Motion to Stay”);
Plaintiff’s Motion to Strike Defendant Arnd’t [sic] Reply to Response to
Motion to Dismiss 12(f) [Doc. # 92, filed 9/2/2011] (the “Motion to Strike”);
Defendant Arndt’s Motion to Compel Plaintiff James C. Franks to Provide
Documents Requested for Discovery Materials [Doc. # 98, filed 9/19/2011] (“Arndt’s Motion
Defendant Arndt’s Supplemental Information for Motion to Dismiss [etc.],
Supplemental Information for Motion for Sanctions [etc.], and Motion for Sanctions [etc.]
[Doc. # 107, filed 10/14/2011] (“Arndt’s Omnibus Filing”); and
Three letters [Doc. ## 70, 72, and 79] (the “Letters”) filed by the plaintiff’s
Plaintiff’s Motion to Compel [Doc. # 65]
Local rule of practice 7.1A, D.C.COLO.LCivR, provides:
Duty to Confer. The court will not consider any motion, other
than a motion under Fed. R. Civ. P. 12 or 56, unless counsel for the
moving party or a pro se party, before filing the motion, has
conferred or made reasonable, good faith efforts to confer with
opposing counsel or a pro se party to resolve the disputed matter.
The moving party shall state in the motion, or in a certificate
attached to the motion, the specific efforts to comply with this rule.
The Motion to Compel does not contain the required certificate specifying the plaintiff’s
efforts to confer prior to filing his Motion to Compel. Subsequently, the plaintiff filed a
Certificate of Conferal [sic] [Doc. # 68, filed 7/26/2011], which states in its entirety:
Counsel for the Plaintiff certifies that he contacted counsel for the
McClung Defendants four times prior to filing the Plaintiff’s
“Motion to Compel Disclosures” dated July 25, 2011. [DE #: 65].
On the last email Plaintiff’s counsel specified the documents
required for disclosure. Plaintiff’s counsel received no response to
Certificate of Conferal [Doc. # 68] at p. 1. No copies of any correspondence or emails
constituting the alleged attempts to confer are attached, nor are the contents of any oral
Shawon McClung asserts that the plaintiff failed to satisfy the requirements of Rule 7.1A,
Plaintiff’s counsel did not make a good faith effort to explain the
contested issues and attempt to reach any agreement or
compromise to resolve the discovery dispute before or after filing
his Motion. Instead, Plaintiff made broad demands for documents
and ESI for which Plaintiff never served a discovery request.
Plaintiff made no effort before, during or after the Fed. R. Civ. P.
26(f) conference, to discuss (1) a discovery plan for ESI, (2) the
protocols for discovery of ESI, (3) the specific items he wants
produced, (4) whether that information actually exists, or (5) how
that information is relevant or likely to lead to the discovery of
admissible evidence. In essence, Plaintiff made no attempt to
further the discovery process or to avoid burdening the Court with
his Motion through a constructive conversation with Defendant
Response [Doc. # 75] at pp. 1-2.
First, Plaintiff’s Motion to Compel fails to recognize the limited obligation imposed by
Rule 26(a)(1), Fed. R. Civ. P. That rule does not require a party to produce all documents in its
possession, custody, or control related to a matter in dispute. To the contrary, the obligation of
Rule 26(a)(1) is limited to the voluntary disclosure “of all documents, electronically stored
information, and tangible things that the disclosing party has in its possession, custody or control
and may use to support its claims or defenses, unless the use would be solely for
impeachment.” Id. (emphasis added). Consequently, the plaintiff’s assertion that “[o]n the last
email Plaintiff’s counsel specified the documents required for disclosure” confuses the
requirements of Rule 26(a)(1) voluntary disclosures with requests for production of documents
under Rule 34(a)(1), Fed. R. Civ. P.
More to the point, however, I agree that the plaintiff failed meaningfully to comply with
the requirements of D.C.COLO.LCivR 7.1A prior to filing his Motion to Compel. In Hoelzel v.
First Select Corp., 214 F.R.D. 634, 635-36 (D. Colo. 2003), I explained:
Rule 7.1A serves a particularly important function in connection
with discovery disputes because the parties, through negotiations,
frequently are able to narrow the discovery requests in a way
which eliminates the need for judicial intervention. . . .
The language of Rule 7.1A is important. It requires that a moving
party, before filing a motion, confer or make a reasonable effort to
confer; the requirement is not satisfied by a party making a
demand for compliance. To confer means to hold a conference;
compare views; consult together. The rule is not satisfied by one
party sending a single e-mail to another party, and particularly not
where, as here, the e-mail merely indicates an intention to file a
motion to compel and does not suggest any negotiation or
compromise. . . . [T]o satisfy the requirements of Rule 7.1A, the
parties must hold a conference, possibly through the exchange of
correspondence but preferably through person-to-person telephone
calls or fact-to-face meetings, and must compare views and
attempt to reach an agreement, including by compromise if
Id. (internal quotation and citation omitted).
The Plaintiff’s Motion to Compel [Doc. # 65] is DENIED because it improperly confuses
the obligations under Rules 26(a)(1) and 34(a)(1) and because the plaintiff failed meaningfully to
confer prior to filing the motion.
McClung’s Motion to Stay [Doc. # 84]
McClung’s Motion to Stay reports that on August 10, 2011, “the U.S. Attorney served
Defendant McClung with a grand jury subpoena. . . . Due to the grand jury investigation,
Defendant McClung cannot participate in discovery in this case without choosing between
possible self-incrimination and asserting his Fifth Amendment rights.” McClung’s Motion to
Stay [Doc. # 84] at p. 2. In addition, on the same day the grand jury subpoena was served,
“[p]laintiff’s counsel demanded that Defendant McClung agree to a deposition.” Id.
The argument confuses two parties. The grand jury subpoena was served on FlintMcClung Capital LLC, a defendant in this action. The deposition notice commanded the
deposition of Shawon McClung, another defendant in this action. There is no evidence, or even
an assertion, that Shawon McClung is the target of a criminal investigation.
Although the Motion to Stay seeks to stay the action as a whole, the request appears to
have been motivated by the plaintiff’s attempt to depose Shawon McClung. Subsequently,
however, the plaintiff’s lawyer was suspended by the Colorado Supreme Court from the practice
of law, see Order to Show Cause [Doc. # 108, filed 10/18/2011], and the district judge removed
him as counsel of record for the plaintiff. Order [Doc. # 109, filed 10/27/2011]. The plaintiff
currently is proceeding pro se. It is not clear that the plaintiff intends to pursue the case or, if he
does, that he currently intends to depose Shawon McClung. The date for Shawon McClung’s
deposition (September 2, 2011) has elapsed while the Motion to Stay was pending, and did not
occur in view of the automatic stay of disputed discovery pending the determination of a motion
for protection. D.C.COLO.LCivR 30.2A.
Motions to stay proceedings are governed by the five part balancing test set out in String
Cheese Incident, LLC v. Stylus Shows, Inc., 2006 WL 894955 *2 (D. Colo. Mar. 30, 2006):
(1) plaintiff’s interests in proceeding expeditiously with the civil
action and the potential prejudice to plaintiff of a delay; (2) the
burden on the defendants; (3) the convenience to the court; (4) the
interests of persons not parties to the civil action. and (5) the
Weighing these factors, I conclude that a stay of the action is not justified.
The plaintiff alleges that he was defrauded out of more than $100,000. His interest in
proceeding promptly through discovery and to trial is substantial. There is no special burden on
Shawon McClung in defending this action which warrants a stay. The court is not convenienced
by the unnecessary aging of cases which have been stayed, and the public interest is not served
by such delay.
The Motion to Stay [Doc. # 84] is DENIED insofar as it seeks to stay the case as a whole,
and is DENIED AS MOOT insofar as it seeks a protective order preventing Shawon McClung’s
deposition on September 2, 2011.
Motion to Strike [Doc. # 92]
The Motion to Strike seeks an order striking Heidi Arndt’s reply in support of her motion
to dismiss. Ms. Arndt is proceeding pro se. I have reviewed the reply, and it may be of
assistance in resolving the motion to dismiss. Consequently, the Motion to Strike [Doc. # 92] is
Ms. Arndt’s response to the Motion to Strike [Doc. # 94] purports also to be a motion for
sanctions. Local rule of practice 7.1C, D.C.COLO.LCivR, provides that “[a] motion shall not be
included in a response or reply to the original motion. A motion shall be made in a separate
paper.” Consequently, Ms. Arndt’s request for sanctions in her response to the Motion to Strike
is improper and is DENIED.
Arndt’s Motion to Compel [Doc. # 98]
Ms. Arndt states in her Motion to Compel that she has “sent two separate discovery
materials requests to the Plaintiff”; responses to those requests “were 4-5 days late”; and “[n]one
of these responses included the documents requested.” Arndt’s Motion to Compel [Doc. # 98] at
p. 1. The discovery requests and responses are neither quoted in the Motion to Compel nor
attached to it as exhibits.1
Local rule of practice 37.1, D.C.COLO.LCivR, requires:
The plaintiff quoted one of Ms. Arndt’s interrogatories in his response. Response [Doc.
# 105] at p. 4.
A motion under Fed. R. Civ. P. 26 or 37 directed to an
interrogatory, request, or response under Fed. R. Civ. P. 33 or 34
shall either set forth in the text of the motion the specific
interrogatory, request, or response to which the motion is directed,
or an exhibit that contains the interrogatory, request, or response
shall be attached.
It is impossible to meaningfully consider or rule on a motion to compel without this information.
Arndt’s Motion to Compel [Doc. # 98] is DENIED for failure to comply with the
requirements of D.C.COLO.LCivR 37.1.
Arndt’s Omnibus Filing [Doc. # 107]
Arndt’s Omnibus Filing is 166 pages long. It purports to be “supplemental information”
in support of Arndt’s motion to dismiss, “supplemental information” in support of the improper
motion for sanctions included within Ms. Arndt’s response to the Motion to Strike [Doc. # 94],
and a second motion for sanctions. It includes 25 pages of additional briefing, voluminous
emails, responses to written discovery, and copies of Rule 26(a)(1) disclosures.
Arndt’s Omnibus Filing is improper for many reasons. It is, in part, a second reply in
support of Arndt’s motion to dismiss. The Federal Rules of Civil Procedure do not contemplate
endless briefing on motions, and I have not allowed the “supplemental information.” It also is,
in part, a reply in support of an improperly presented motion for sanctions, which I have denied
on procedural grounds. It is further, in part, a motion included within a response or reply, which
is prohibited by D.C.COLO.LCivR 7.1C. It also includes voluminous exhibits, contrary to the
admonition in D.C.COLO.LCivR 56.1 that “[v]oluminous exhibits are discouraged. Parties shall
limit exhibits to essential portions of documents.”
Arndt’s Omnibus Filing [Doc. # 107], to the extent it is a motion for sanctions, is
DENIED because it violates D.C.COLO.LCivR 7.1C, and is STRICKEN insofar as it is
supplemental briefing on other motions.
The Letters [Doc. ## 70, 72, and 79]
The plaintiff’s former counsel filed three Letters which address discovery issues. Rule
7(b)(1), Fed. R. Civ. P., requires that “[a] request for a court order must be made by motion.”
Rule 7(b)(2), Fed. R. Civ. P., provides that “[t]he rules governing captions and other matters of
form of pleadings apply to motions and other papers.” Local rule of practice 10.1,
D.C.COLO.LCivR, specifies the format of papers submitted for filing. The Letters are
inconsistent with the requirements of Fed. R. Civ. P. 7(b) and fail to conform to the format
required by D.C.COLO.LCivR 10.1, and are STRICKEN.
IT IS ORDERED:
The Plaintiff’s Motion to Compel [Doc. # 65] is DENIED;
The Motion to Stay [Doc. # 84] is DENIED insofar as it seeks to stay the case as a
whole, and is DENIED AS MOOT insofar as it seeks a protective order preventing Shawon
McClung’s deposition on September 2, 2011;
The Motion to Strike [Doc. # 92] is DENIED and Ms. Arndt’s request for
sanctions contained within in her Response to the Motion to Strike [Doc. # 94] is DENIED as
Arndt’s Motion to Compel [Doc. # 98] is DENIED;
Arndt’s Omnibus Filing [Doc. # 107], is DENIED insofar as it is a motion for
sanctions, and is STRICKEN insofar as it is supplemental briefing on other motions;
The Letters [Doc. ## 70, 72, and 79] are STRICKEN; and
The litigants and their counsel are cautioned that continued failures to comply
with the Federal Rules of Civil Procedure and the local rules of practice of this court may result
in the imposition of sanctions, including dismissal of the case or entry of default.
Dated November 3, 2011.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge
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