General Steel Domestic Sales, LLC v. Chumley et al

Filing 567

ORDER; 531 Counterclaim Defendant General Steels Motion to Strike Armstrongs Untimely Ninth Supplemental Rule 26(a)(1) Disclosures is GRANTED. 539 Plaintiffs Motion to Reopen Discovery for Deposition, Document Production and Computer Imaging a nd Request for Expedited Briefing and Ruling is DENIED. 544 Defendants Ethan Chumleys and Armstrong Steels Motion to Strike Plaintiffs Untimely Third and Fourth Supplemental Disclosures is GRANTED. The motions hearing scheduled for September 24, 2015 at 1:30 p.m. is VACATED, by Magistrate Judge Kathleen M. Tafoya on 9/11/15.(morti, )

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 “Counterclaim Defendant General Steel’s Motion to
Strike Armstrong’s Untimely Ninth Supplemental Rule 26(a)(1) Disclosures” [Doc. No. 531] filed
May 19, 2015; Plaintiff’s “Motion to Reopen Discovery for Deposition, Document Production and
Computer Imaging and Request for Expedited Briefing and Ruling” [Doc. No. 539] filed July 8,
2015; and, “Defendants Ethan Chumley’s and Armstrong Steel’s Motion to Strike Plaintiff’s
Untimely Third and Fourth Supplemental Disclosures” [Doc. No. 544] filed August 5, 2015.
Each side of this case seeks to once again prolong the discovery period in what can only be
described as a never-ending saga of litigation. Plaintiff General Steel seeks to re-open discovery

to allow additional evidence to bolster its contentions that Armstrong Steel has disparaged General
Steel by creating and maintaining a phony consumer complaint site entitled
www.steelbuildingcomplaints.com and by mailing false and disparaging letters from the
non-existent Consumer Advocacy Alliance to General Steel customers. Apparently, no sooner
than employees of either of these two warring entities leave the employ of one company, they burn
a path to the doorway of the other, zealously seeking to add fuel to the competitive fires. General
Steel now seeks to add a number of the latest Armstrong Steel refugees to its witness list.
Armstrong Steel opposes General Steel’s motion [Doc. No. 542] and files its own motion [Doc.
No. 544] seeking to block the addition of these witnesses through striking General Steel’s Third
and Fourth Supplemental Rule 26(a)(1) Disclosures.
Additionally, General Steel also, well over a year past the close of fact discovery, requests
that computers belonging to Mr. Chumley be seized, scanned and produced to
Plaintiff/Counterclaim Defendant General Steel, apparently in an effort to find evidence
supporting its claim that Mr. Chumley was responsible for the creation and mailing of the
Consumer Advocacy Alliance letters.
Not to be outdone, Armstrong Steel has filed its own addition to the ongoing stockpile of
accusatory discovery by submitting its Ninth Supplemental Rule 26(A)(1) Disclosures, alleging
that they have found a previously undiscovered website, www.consumeraffairs.com, upon which
General Steel is advertising itself as a “manufacturer” of steel buildings, an allegation which
Armstrong Steel has made in its counterclaims against General Steel with respect to several
different web advertisements. General Steel seeks to prohibit any evidence in this case
concerning these new allegations and therefore has filed its motion to strike Armstrong Steel’s

Ninth Supplemental Disclosures. [Doc. No. 531.]
This case was filed on March 25, 2013. Pursuant to the January 13, 2014 Amended
Scheduling Order [Doc. No. 157], July 14, 2014 was the deadline to complete fact discovery on all
issues, including the counterclaims. This Court issued orders extending discovery deadlines for
specific, limited purposes including concluding a defined set of depositions and document
productions. (See [Doc. No. 306], Minutes July 30, 2014; [Doc. No. 358], Minutes August 26,
2014; [Doc. No. 478], Minutes, January 14, 2015.) Discovery for all purposes closed in early
February of 2015. Cross motions for summary judgment were timely filed on February 13, 2015
and were fully briefed by March 26, 2015. [Doc. Nos. 486 and 509.] The motions are currently
pending before District Judge Marcia S. Krieger.
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 v.
United States, 834 F.2d 166, 169 (10th Cir. 1987). The Tenth Circuit has identified several
relevant factors courts should consider when faced with requests to reopen discovery, including:
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 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.
Although trial has not been set in this case, given the age of the dispositive motions, a
decision is likely to be rendered shortly and a trial date set thereafter. Although both parties wish
to inject new witnesses, evidence and/or issues into the case, each opposes the other’s request.

The infusion of new witnesses, evidence or issues at this point will require even more discovery.
All the parties will be prejudiced by the extra material and the need for even more time to develop
or undercut any newly allowed information. The court’s docket will be disrupted. Further, for
all except for the newly discovered website,1 the parties could have obtained the discovery within
the appropriate period allotted. The former employees admittedly have different motivations than
they may have had when they were employed by Armstrong Steel, but the factual information they
can provide - assuming truthful testimony - has not changed.
Neither the fact of new advertisements by General Steel that it is a manufacturer of steel
buildings nor the cumulative testimony of now-disgruntled former Armstrong Steel employees
adds meaningfully to the issues before the court in this case. Further, although testimony has
been inconsistent about Mr. Chumley’s use of specific computers, the fact that electronic devices
have been used by these companies and their principals to conduct “advertising” agendas has
never been in doubt. The time to have made a case for the production of hard drives has long
expired. In short, discovery is over and the court sees no good cause on either side to re-open it at
this late date.
It is ORDERED
1.

“Counterclaim Defendant General Steel’s Motion to Strike Armstrong’s Untimely

Ninth Supplemental Rule 26(a)(1) Disclosures” [Doc. No. 531] is GRANTED;
2.

Plaintiff’s “Motion to Reopen Discovery for Deposition, Document Production and

Computer Imaging and Request for Expedited Briefing and Ruling” [Doc. No. 539] is DENIED;

1

The advertisement is not alleged to have been active prior to April 2015 and, therefore, is not part
of the claims in this case, nor could it have been “discovered” prior to its inception which occurred
long after the discovery period had ended.

3.

“Defendants Ethan Chumley’s and Armstrong Steel’s Motion to Strike Plaintiff’s

Untimely Third and Fourth Supplemental Disclosures” [Doc. No. 544] is GRANTED; and
4.

The motions hearing scheduled for September 24, 2015 at 1:30 p.m. is

VACATED.
Dated this 11th day of September, 2015.