General Steel Domestic Sales, LLC v. Chumley et al

Filing 209

ORDER denying 203 Defendants/Counterclaimant's Motion to Amend the Scheduling Order, by Magistrate Judge Kathleen M. Tafoya on 5/30/14.(sgrim)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Kathleen M. Tafoya
Civil Action No. 13BcvB00769BMSKBKMT

GENERAL STEEL DOMESTIC SALES, LLC, d/b/a GENERAL STEEL CORPORATION, a
Colorado limited liability company,
Plaintiff,
v.
ETHAN DANIEL CHUMLEY, individually,
ATLANTIC BUILDING SYSTEMS, LLC, a Delaware corporation, doing business as
ARMSTRONG STEEL CORPORATION,
PRQ INTERNET KOMMANDITBOLAG (LIMITED PARTNERSHIP) doing business as PRQ
INET KB, and
GOTTFRID SWARTHOLM, individually,
Defendants.

ORDER

This matter is before the court on “Defendants/Counterclaimant’s (sic) Motion to Amend
the Scheduling Order” [Doc. No. 203] filed May 14, 2014. “General Steel’s Response in
Opposition to Armstrong’s Motion to Amend the Scheduling Order” [Doc. No. 205] was filed on
May 16, 2014.
Defendants seek additional time for discovery and request that the court extend the
discovery deadline for a period of approximately three months. Further, Defendants seek a
concomitant extension of the deadlines for expert disclosures within the newly expanded
discovery period. As grounds, the Defendants claim that they have pending objections to the

court’s January 13, 2014 discovery order pending before the District Court and that, if they prevail,
they will need to provide the information to an expert to calculate disgorgement damages.
Defendants argue that they cannot disclose any report from a damages expert without this
information. (Mot. ¶ 4.) Further, Defendants allege there are other discovery disputes – none of
which have been brought to the attention of the court through motion at the time of the filing of the
motion – and that they elected, starting in March, 2014, to engage in settlement negotiations and
did not hire an expert as long as there was the “possibility of settlement of the case.” (Id. at ¶ 6.)
The filing of the instant motion itself does not stay any discovery obligation of the filing
party. See D.C.COLO.LCivR 6.1(F). Further, Defendants’ objections to this Court’s discovery
order regarding Plaintiffs’ financial information [Doc. No. 173], likewise do not stay any deadline
nor provide the parties with relief from their discovery obligations. See D.C.COLO.LCivR
30.2(B). Should the Defendants prevail on their objections to the District Court, additional time
for an expert to review the new information the Defendants might receive as a result would likely
be granted.
Additionally, the financial information sought by Defendants and denied by this court
relates, if at all, only to the remedy of disgorgement and as such would not affect dispositive
motions practice.1 Defendants have presumably complied with their Fed. R. Civ. P. 11
obligations, have received substantial discovery in this case and the preceding case before Judge
Brimmer and have adequate evidence to support their allegations and to mount their defense
without the financial information of General Steel.

1

This court has found that as the record stands, the Defendants have not met even a threshold
showing that they would be entitled to the extraordinary remedy of disgorgement. (Transcript
January 13, 2014 at 32 [Doc. No. 178].)

The court notes that Defendants’ motion was filed at 4:54 p.m. on the day the Defendants’
affirmative expert disclosures were due, May 14, 2014. Given the reasons set forth in the Motion
to request an extension of the expert disclosure deadlines, the delay in filing the motion is
inexcusable. The court has no choice but to draw the inference that the Motion was purposefully
filed six minutes before the close of business on the day expert disclosures were due in order to
gain the tactical advantage of having Plaintiffs make their expert disclosures without knowing that
the Defendants would not be disclosing theirs. (See Resp. at ¶ 2.) This is precisely what
happened.
Plaintiffs have presented credible evidence that they are suffering ongoing harm by the
Defendants’ continued activity and that any extension of time will cause them further ongoing
prejudice. (Resp. at ¶ 5.; Exs. 1 and 2.)
For all these reasons, this court finds there are no grounds to support an extension of any of
the time deadlines in the Scheduling Order, including disclosure of affirmative experts which
deadline was May 14, 2014.
It is ORDERED
“Defendants/Counterclaimant’s Motion to Amend the Scheduling Order” [Doc. No. 203]
is DENIED.
Dated this 30th day of May, 2014.