Blocker Farms of Florida, Inc. v. Bell et al

Filing 35

ORDER denying 26 Motion to reopen Discovery. Signed by Magistrate Judge G. R. Smith on 6/17/2014. (loh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
STATESBORO DIVISION
BLOCKER FARMS OF FLORIDA,
INC.,
Plaintiff,
v.

Case No. CV613-067

KEN O. AND ROBIN R. BELL,
Defendants.

ORDER
Defendants in this trover case 1 move to reopen discovery in quest of
new information. They cite plaintiff’s discovery responses, which raise a
question about the authenticity of key documents in this case. Doc. 26.
Plaintiff opposes, arguing that the defendants failed their duty to confer
and now fail to show good cause to reopen discovery. Doc. 30.

1

“‘Trover is the statutory right to recover the possession of any form of personal
property which has been wrongfully taken[.]’” Smith v. R.F. Brodegaard & Co. , 77
Ga. App. 661, 49 S.E.2d 500, 504 (Ga. Ct. App. 1948) (citation omitted); see O.C.G.A.
§§ 44–12–150 et seq .” Mesa Air Group, Inc. v. Delta Air Lines, Inc. , 2008 WL 5225811
at *1 (D.Ariz. Dec. 15, 2008); see also Lamb v. Salvage Disposal Co. of Georgia , 244
Ga. App. 193 (2000).

A. BACKGROUND2
William H. Blocker, Jr. died intestate on August 21, 2010, but Cale
Blocker, his sole heir-at-law, was not appointed Temporary
Administrator until December 5, 2011, nor made permanent until June
27, 2012. Doc. 1 at 6-7; doc. 14 at 2. William, however, had defaulted on
farm-secured debt, so his farm was sold to Lynn S. Wyatt via nonjudicial
foreclosure, before Cale could act to recover the personal property (farm
equipment, etc.) left on William’s farm. Doc. 20 at 3 ¶ 6.
Although Wyatt foreclosure-purchased the farm with those
personal property items on it, she was unsure of her legal ownership of
them. So when she sold the land out of foreclosure to defendants Ken
and Robin Bell on November 15, 2011, 3 those parties used a sales
contract for “real and personal property” but with an escrow agreement
“whereby funds were held back from the purchase price paid to Wyatt in
the event that she could not establish marketable title in the personal
property that she could then transfer to the Bells.” Doc. 14 at 3; see also

2

For the purposes of this Order only, the Court is accepting as true factual assertions
made in filings such as the Complaint, the parties’ Status Report, and their summary
judgment papers.
3

Cale says he lacked authority to transfer the personal property until June 27, 2012.
Doc. 20 at 5 ¶ 20.
2

doc. 20 at 3 ¶ 8.
Blocker Farms alleges that when William Blocker was alive, he
owned that personal property through his LLC, and that it was
specifically excluded from the foreclosure sale of his farm. Doc. 1 at 2 ¶
5. Hence, Wyatt never had any legal authority to sell it to the Bells, who
are charged with that knowledge. In fact, says plaintiff, the Bells admit
they are relying only upon a hearsay verbal statement from Wyatt’s
attorney that the personal property had been abandoned. Doc. 20 at 4-5.
Cale Blocker, acting as Administrator on June 18, 2013, transferred
the personal property from his father’s estate to Blocker Farms of
Florida, Inc. Doc. 1 at 2-3. Thus, many months after the Wyatt-Bell sale,
Blocker Farms demanded the personal property back from the Bells, who
refused to return it. Id. at 2 ¶ 7. Blocker Farms then brought this action
and now moves for partial summary judgment. It wants the property
plus damages (including $125,000 in escrow), arguing that Wyatt never
owned the personal property, nor had any authority to transfer it to the
Bells. Doc. 20 at 5-6.

B. DISCOVERY DISPUTE
Through written interrogatories the Bells sought to learn the
91

precise identity of every item on which Blocker Farms bases its property
ownership and damages claims. Doc. 26 at 1. They also requested
supporting documentation.

Id.

They say that Blocker Farms had

produced Bills of Sale between Cale and Blocker, but Cale deposed that
he could not remember by what method Blocker Farms paid William’s
LLC and estate for the personal property at issue. Id. at 1-2. So counsel
agreed to leave Cale’s deposition open pending further document
production on the June 18, 2013 Bills of Sale. Id. at 2. The Bells thus
sent a further document request to nail the issue down.

Id. Blocker

Farms responded with a series of documents. “All of the documents
included in [its] response were notarized by Shelly Watts.” Id.
The Bells, however, point to Watts’ June 25 , 2013 “Certificate of
Appointment of Notary Public,” doc. 26-4 at 1, thus showing she could
not have validly notarized the Blocker Farms documentation on June 18 ,
2013. Doc. 26 at 2-3. So, the Bells want to reopen discovery on
authenticity and other issues. Id. at 3. They propose a list of discovery
items to that end. Id. at 4; see also doc. 34.
Opposing, Blocker Farms insists that it has been fully compliant
with all discovery requests. Doc. 30 at 1-4. It admits that the records it
4

produced were re-constructions. But it explains that the originals were
lost in 2013, after the unexpected departure of counsel’s secretary and
other office problems. Blocker Farms’ counsel recovered them from a
computer, re-executed them, and had them notarized by Watts on April
28, 2014 -- while she was a valid notary. Doc. 30-1 at 4-7. He admits that
he does not have original copies, id. at 6, and Cale Blocker himself was
also unable to find any originals.

Id. at 5. In other words, plaintiff

cannot provide the requested originals of the documents. Blocker Farms
insists, however, that its opposition brief and affidavit now close any
discovery gap, so there is no cause to reopen discovery. Id. at 5.

C. CONCLUSION
The Court DENIES the defendants’ reopen motion. Doc. 26.
Discovery closed in this case on March 31, 2014. Doc. 16. Both sides
moved for summary judgment on April 30, 2014, the last day of the civil
motions filing deadline. Docs. 19 & 20; see S.D. Ga. LR 7.4 (“all motions
in a civil action . . . shall be served upon the opposing party not later
than thirty (30) days after the close of discovery”). The Bells waited
until May 15, two weeks after the motions deadline and after they filed
their summary judgment motion, to seek what they’ve called
5

“emergency” relief. They by definition move to amend the Scheduling
Order, which requires a showing of “good cause and with the judge’s
consent.” Fed. R. Civ. P. 16(b)(4). That means they must show
diligence. Sosa v. Airprint Sys ., 133 F.3d 1417, 1418 (11th Cir. 1998).
Absent allegations of sanctionable conduct regarding the
documents, the Bells have not shown that here. For that matter, they
may invoke Fed. R. Civ. P. 56(d), 4 if not attack the documents’
authenticity or other deficiencies through their summary judgment
briefs. 5 Finally, they failed in their duty to confer before consuming this
Court’s resources. 6
4

“If a nonmovant shows by affidavit or declaration that, for specified reasons, it
cannot present facts essential to justify its opposition, the court may: (1) defer
considering the motion or deny it; (2) allow time to obtain affidavits or declarations
or to take discovery; or (3) issue any other appropriate order.” Fed. R. Civ. P. 56(d);
see also Shuler v. Ingram & Associates , 441 F. App’x 712, 716 (11th Cir. 2011) (“‘the
party opposing the motion for summary judgment bears the burden of calling to the
district court's attention any outstanding discovery.”) (quotes and cite omitted).
5

The Court has an unlimited reply brief policy. Podger v. Gulfstream Aerospace
Corp. , 212 F.R.D. 609, 609 (S.D. Ga. 2003)); see also S.D. GA. LR 7.6 (authorizing
reply briefs but imposing notice requirements and time limits).
6

Under Local Rule 26.4 and Fed. R. Civ. P. 37(a)(2), parties seeking a protective
order or to compel discovery must certify that a good faith effort has been made to
resolve the dispute before coming to court. Their duty to confer must also be
meaningful. Hernandez v. Hendrix Produce, Inc ., 297 F.R.D. 538, 540 (S.D.Ga. 2014).
More than a “we met and talked” certification is needed, though every case is
different. See DirecTV, LLC v. Shirah , 2013 WL 5962870 at * 2 n. 3 (S.D. Ga. Nov. 6,
2013) (collecting cases); Jackson v. Deen , 2012 WL 7198434 at * 1 (S.D. Ga. Dec. 3,
2012) (“[n]either face-to-face nor telephone contact is necessarily essential to the
‘good faith’ certification requirement in every case. Sometimes letters, emails, or
6

SO ORDERED, this 17th day of June, 2014.

UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

faxes will suffice. But under the circumstances here, the Court is persuaded that
more is required than a mere back and forth salvo of papers.”).
7