Taylor Moving, LLC v. Voigt et al

Filing 109

ORDER. ORDERED that the Defendants' Motion For Reconsideration And Objection To Ruling of Magistrate Judge 84 is OVERRULED. ORDERED that the Defendants' Motion For Reconsideration And Objection to Ruling Of Magistrate Judge 99 is OVERRULED. ORDERED that the Defendants shall pay in full the $3,582.24 award to Taylor Moving, LLC, on or before Tuesday, May 28, 2013 by Judge Wiley Y. Daniel on 05/15/13.(jjhsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior Judge Wiley Y. Daniel
Civil Action No. 11-cv-01540-WYD-BNB
TAYLOR MOVING, LLC, a Colorado limited liability company,
Plaintiff,
v.
MICHAEL VOIGT, an individual;
OPM ENTERPRISES, INC., d/b/a Pride Worldwide Moving & Storage, d/b/a Boulder
Valley Transfer, a Colorado corporation;
TAYLOR MOVING, INC., a Colorado corporation;
TAYLOR MOVING AND STORAGE, INC., a Colorado corporation; and,
BOULDER VALLEY TRANSFER, INC., a Colorado corporation,
Defendants.
______________________________________________________________________
ORDER
______________________________________________________________________
THIS MATTER is before the Court on Michael Voigt, OPM Enterprises, Inc.,
Taylor Moving, Inc., Taylor Moving and Storage, Inc., and Boulder Valley Transfer,
Inc.’s (collectively “the Defendants”): (1) Motion For Reconsideration And Objection To
Ruling Of Magistrate Judge [ECF No. 84]; and, (2) Motion For Reconsideration And
Objection To Ruling Of Magistrate Judge [ECF No. 99]. While the motions are styled in
part as “Motions for Reconsideration,” the substance of each motion is an objection to a
ruling by Magistrate Judge Boland. As such, I will treat each motion as an objection to a
Magistrate Judge’s ruling. For the reasons stated below, the Defendants’ objections are
OVERRULED.

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BACKGROUND
On September 17, 2012, Magistrate Judge Boland issued an order [ECF No. 71]
granting plaintiff, Taylor Moving, LLC’s (“Taylor Moving”), Application For Fees And
Cost Incurred Regarding Its Motion To Compel Production Of Documents Pursuant To
Fed. R. Civ. P. 37 [ECF No. 55]. Magistrate Judge Boland awarded Taylor Moving
$3,582.24 in reasonable expenses and attorney fees. The Defendants, jointly and
severally liable for the award, were ordered to pay the amount in full on or before
October 5, 2012. ECF No. 71, p. 4. On October 5, 2012, the Defendants filed a Motion
For Extension Of Time To Pay Attorney Fees And Costs In Connection With Plaintiff’s
Motion To Compel [ECF No. 76]. In their motion, the Defendants requested a 45 day
extension to pay the $3,582.24 award, citing a current inability to pay as justification for
the extension. At the October 17, 2012, Status Conference and Motions Hearing,
Magistrate Judge Boland denied the Defendants’ motion and ordered that payment “be
made on or before October 19, 2012.” ECF No. 80, p. 2. On October 22, 2012, the
Defendants filed a Motion For Reconsideration And Objection To Ruling Of Magistrate
Judge [ECF No. 84], arguing that Magistrate Judge Boland’s denial of their motion is
clearly erroneous and arbitrary and capricious.
On November 2, 2012, the Defendants filed a Motion To Reopen Discovery For
Subpoenas [ECF No. 90], requesting that the Court reopen discovery in order for the
Defendants to serve subpoenas on the United States Department of Transportation
(“USDOT”) and Avis Budget Group (“Avis”). On February 4, 2013, Magistrate Judge
Boland denied the motion. ECF No. 98. On February 14, 2013, the Defendants filed a
Motion For Reconsideration And Objection to Ruling Of Magistrate Judge [ECF No. 99],

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arguing that Magistrate Judge Boland’s denial of their Motion To Reopen Discovery For
Subpoenas [ECF No. 90] is clearly erroneous.
ANALYSIS
A. Legal Standard for an Objection to a Magistrate Judge’s Order
District courts review Magistrate Judges’ Orders regarding non-dispositive
motions under a “clearly erroneous or contrary to law” standard. 28 U.S.C. §
636(b)(1)(A); Rule 72(a) of the FEDERAL RULES of CIVIL PROCEDURE. Under this
standard of review, a Magistrate Judge’s finding should not be rejected merely because
the Court would have decided the matter differently. See Anderson v. City of Bessemer,
470 U.S. 564, 573 (1985). A district court must affirm a Magistrate Judge’s decision
unless ‘“on the entire evidence[, the district court] is left with the definite and firm
conviction that a mistake has been committed.’” Ocelot Oil Corp. v. Sparrow Indus., 847
F.2d 1458, 1464 (10th Cir. 1988) (quoting United States v. U. S. Gypsum Co., 333 U.S.
364, 395 (1948)).
1. Defendants’ Motion For Reconsideration And Objection To Ruling Of
Magistrate Judge [ECF No. 84]
The Defendants argue that Magistrate Judge Boland’s denial of their Motion For
Extension Of Time To Pay Attorney Fees And Costs In Connection With Plaintiff’s
Motion To Compel [ECF No. 76] is clearly erroneous and arbitrary and capricious. In
their motion, the Defendants requested a 45 day extension to pay Taylor Moving the
$3,582.24 award. Magistrate Judge Boland denied the motion stating that the
Defendants failed to present any evidence of their alleged current inability to pay the
award. The Defendants argue that Magistrate Judge Boland’s denial of their motion is
clearly erroneous and arbitrary and capricious because: (1) Magistrate Judge Boland
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ruled on the motion during the October 17, 2012, Status Conference and Motions
Hearing without prior notice to the parties; and, (2) the Defendants were not on notice
that Magistrate Judge Boland wanted an affidavit filed in support of their motion.
Magistrate Judge Boland did take up the Defendants’ motion during the October
17, 2012, Status Conference and Motions Hearing without prior notice to the parties.
However, that alone does not render his ruling clearly erroneous or contrary to law. The
motion was non-dispositive, filed almost two weeks prior to the Status Conference and
Motions Hearing, and the Defendants should have been on notice that the Court may
inquire as to the pending motion and request oral argument even though the Court did
not give prior notice of such action.
In denying the Defendants’ motion, Magistrate Judge Boland commented that the
Defendants failed to present any evidence, including an affidavit, demonstrating their
current inability to pay the $3,582.24 award. The Defendants argue that had they
known Magistrate Judge Boland would take up the motion during the Status Conference
and Motions Hearing, they would have presented affidavits and supporting evidence
showing their current inability to pay. However, Defendants’ counsel did not state such
at the Status Conference and Motions Hearing. When Magistrate Judge Boland
inquired about the motion, Defendants’ counsel stated that had he known Magistrate
Judge Boland would take up the motion that day, he would have brought email
correspondences between himself and opposing counsel stating that opposing counsel
objected to an extension to pay the $3,582.24 award. Defendants’ counsel did not
mention that he would have brought affidavits and other evidence of the Defendants’
inability to pay the award. Defendants’ counsel was also unable to answer whether the

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Defendants had made monetary disbursements to other persons within 30 days of the
hearing. Further, the Defendants’ motion does little, if anything, to explain why they
cannot currently pay the award: “[t]he Defendants do not have the money as of this
date and need an extension of time to raise the money.” ECF No. 76, p. 2, ¶ 4.
Magistrate Judge Boland was not required to direct the Defendants to file an
affidavit detailing their financial circumstances and current inability to pay the $3,582.24
award, and I find that his decision to take up the Defendants’ motion without prior notice
to the parties was not clearly erroneous or contrary to law. Therefore, the Defendants’
objection is OVERRULED.
2. Defendants’ Motion For Reconsideration And Objection To Ruling Of
Magistrate Judge [ECF No. 99]
The Defendants argue that Magistrate Judge Boland’s denial of their Motion To
Reopen Discovery For Subpoenas [ECF No. 90] is clearly erroneous. In their motion,
the Defendants sought leave of the Court to reopen discovery in order to subpoena
records from the USDOT and Avis. After reviewing the factors announced in Smith v.
United States, 834 F.2d 166, 169 (10th Cir. 1987), regarding whether to extend or
reopen discovery, Magistrate Judge Boland denied the Defendants’ motion.
“Whether to extend or reopen discovery is committed to the sound discretion of
the trial court and its decision will not be overturned on appeal absent abuse of that
discretion.” Smith, 834 F.2d at 170. In Smith, the United States Court of Appeals for the
Tenth Circuit listed factors that a court must review when determining whether to reopen
discovery:
1) whether trial is imminent, 2) whether the request is
opposed, 3) whether the non-moving party would be
prejudiced, 4) whether the moving party was diligent in
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obtaining discovery within the guidelines established by the
court, 5) the foreseeability of the need for additional
discovery in light of the time allowed for discovery by the
district court, and 6) the likelihood that the discovery will lead
to relevant evidence.
Id. Magistrate Judge Boland stated that the factors in Smith weighed heavily against
reopening discovery. I agree.
At the time Magistrate Judge Boland issued his order on the Defendants’ motion,
trial was six months away. Magistrate Judge Boland correctly stated that Taylor Moving
would be prejudiced if the Defendants received additional discovery because Taylor
Moving would have no opportunity to conduct discovery as it relates to the new
information and evidence obtained by the Defendants. Magistrate Judge Boland further
commented that the requested “discovery is directed to the issues of plaintiff’s
reputation in the business community and its damages – matters that have been in the
case since its inception in June 2011.” Id. Magistrate Judge Boland stated that the
Defendants had six months to serve subpoenas on the USDOT and Avis and failed to
do so, “evidencing a total lack of diligence in their discovery efforts.” Id. Magistrate
Judge also stated that he found “disingenuous the defendants’ assertion that the need
for additional discovery was not known until ‘after discovery ha[d] closed’ and that it was
‘not anticipated until the preparation of the exhibit lists before the Pretrial Conference.’”
ECF No. 98, p. 3, ¶ 2. I add that denial of the Defendants’ motion does not preclude
trial testimony from the USDOT and Avis, it only precludes the Defendants’ receipt of
alleged documentary evidence from the USDOT and Avis sought by a subpoena. Thus,
the Defendants may still elicit testimony at trial from the USDOT and Avis, within the
scope of the FEDERAL RULES of EVIDENCE, that bears on any relevant issue.

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I find that Magistrate Judge Boland’s denial of the Defendants’ motion was not
clearly erroneous or contrary to law. Therefore, the Defendants’ objection is
OVERRULED.
CONCLUSION
After careful consideration of the matters before this Court, it is
ORDERED that the Defendants’ Motion For Reconsideration And Objection To
Ruling of Magistrate Judge [ECF No. 84] is OVERRULED. It is
FURTHER ORDERED that the Defendants’ Motion For Reconsideration And
Objection to Ruling Of Magistrate Judge [ECF No. 99] is OVERRULED. It is
FURTHER ORDERED that the Defendants shall pay in full the $3,582.24 award
to Taylor Moving, LLC, on or before Tuesday, May 28, 2013.
Dated: May 15, 2013.

BY THE COURT:
/s/ Wiley Y. Daniel
Wiley Y. Daniel
Senior U. S. District Judge

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