Salba Corp., N.A. et al v. X Factor Holdings, LLC et al

Filing 139

ORDER VACATING TRIAL DATE: The jury trial set to begin on 9/29/2014, is VACATED and CONTINUED without date. Counsel for the plaintiffs shall arrange, initiate, coordinate a conference call to the court's administrative assistant on 9/29/2014 at 9:30 a.m. to reschedule (a) a new combined Pretrial Conference and Trial Preparation Conference and (b) a new trial. By Judge Robert E. Blackburn on 9/18/2014.(alowe)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 12-cv-01306-REB-KLM
SALBA CORP., N.A., a Canadian corporation,
SALBA SMART NATURALS PRODUCTS, a Colorado limited liabilty company,
WILLIAM A. RALSTON, and
RICHARD L. RALSTON,
Plaintiffs,
v.
X FACTOR HOLDINGS, LLC, an inactive Florida limited liability company, and
ANCIENT NATURALS, LLC, a Florida limited liability company,
MITCHELL A. PROPSTER, a resident of the State of Florida,
CORE NATURALS, LLC, a Florida limited liability company, and
NATURAL GUIDANCE, LLC, a Florida limited liability company,
Defendants and Counter-Claimants.

ORDER VACATING TRIAL DATE
Blackburn, J.
This matter is before the court sua sponte. Currently, this case is set to
commence trial by jury on September 29, 2014. Recently, the plaintiffs alleged that one
or more of the defendants have destroyed or otherwise made inaccessible certain
evidence relevant to this case. Based on this alleged spoliation, the plaintiffs seek the
imposition of sanctions, including dismissal of some of the counterclaims of the
defendants. Given the calendars of the parties and the magistrate judge assigned to
this case, the magistrate judge is not able to hear and resolve this discovery dispute
before trial is scheduled to begin. Given these circumstances, I conclude that the trial
date must be vacated and a new trail date must be set.

The United States Court of Appeals for the Tenth Circuit has outlined four
primary factors that should be considered to determine if a continuance is necessary.
See, e.g., Morrison Knudsen Corp. v. Fireman's Fund Ins. Co.,175 F.3d 1221, 1230
(10th Cir. 1999) (citing U.S. v. West, 828 F.2d 1468, 1469 (10th Cir. 1987) (listing
factors)). The key relevant factors are
(1) the diligence of the party requesting the continuance; (2) the likelihood
that the continuance, if granted, would accomplish the purpose underlying
the party’s expressed need for the continuance; (3) the inconvenience to
the opposing party, its witnesses, and the court resulting from the
continuance; [and] (4) the need asserted for the continuance and the harm
that [movant] might suffer as result of the district court’s denial of the
continuance.
United States v. Rivera, 900 F.2d 1462, 1475 (10th Cir. 1990) (quoting United States
v. West, 828 F.2d 1468, 1470 (10th Cir. 1987)). On balance, these factors weigh in
favor of a continuance.
THEREFORE, IT IS ORDERED as follows:
1. That the jury trial set to begin on September 29, 2014, is VACATED and
CONTINUED without date;
2. That counsel for the plaintiffs shall arrange, initiate, and coordinate a
conference call to the court’s administrative assistant, Susan Schmitz, at (303) 3352350 on September 29, 2014, at 9:30 a.m., to reschedule (a) a new combined Final
Pretrial Conference and Trial Preparation Conference and (b) a new trial;
3. That the Second Trial Preparation Conference Order [#96] entered March
18, 2014, is AMENDED and SUPPLEMENTED accordingly; and

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4. That otherwise, the Second Trial Preparation Conference Order [#96]
entered March 18, 2014, SHALL REMAIN in full force and effect.
Dated September 18, 2014, at Denver, Colorado.
BY THE COURT:

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