ANTON REALTY, LLC v. GUARDIAN BROKERS LTD., INC.

Filing 150

ORDER granting in part and denying in part Plaintiffs' 145 Motion to Reopen Discovery (see Order). Signed by Magistrate Judge Tim A. Baker on 6/11/2015. (SWM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
ANTON REALTY, LLC,
ANDY MOHR TRUCK CENTER, INC.,
Plaintiffs,
vs.
GUARDIAN BROKERS LTD., INC.,
NATIONAL BANK OF COMMERCE, NA,
Defendants.
______________________________________
GUARDIAN BROKERS LTD., INC.,
Counter Claimant,
vs.
ANDY MOHR TRUCK CENTER, INC.,
ANTON REALTY, LLC,
Counter Defendants.
______________________________________
FIFTH THIRD BANK,
Interested Party.

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No. 1:13-cv-01915-JMS-TAB

ORDER ON PLAINTIFFS’ MOTION TO REOPEN DISCOVERY1
Before the Court is Plaintiffs’ motion to reopen discovery. Plaintiffs seek to reopen
discovery of an allegedly fraudulent mortgage issued the day before the case was removed to

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Plaintiffs’ full motion is entitled motion to reopen discovery and compel deposition or, in the
alternative, petition for order to show cause why Defendant, Guardian Brokers, should not be
held in contempt. [Filing No. 145.] For the sake of brevity, the Court will refer to this as
Plaintiff’s motion to reopen discovery.

federal court. Plaintiffs’ motion also seeks to compel the deposition of Keith Sharp and a Rule
30(b)(6) representative of Defendant Guardian Brokers LTD, Inc. Plaintiffs argue that the only
possible purpose for the creation of this mortgage is bolstering Guardian Brokers’ claims and
defenses in this action. [Filing No. 146, at ECF p. 6.] Defendants, however, insist that the
mortgage is not pertinent to the issues before the Court on summary judgment. [Filing No. 147,
at ECF p. 2, 3.] For the reasons described below, Plaintiffs’ motion to reopen discovery [Filing
No. 145] is granted in part and denied in part.
Plaintiffs argue that discovery should be reopened to allow depositions of Sharp and a
Rule 30(b)(6) representative of Guardian Brokers. Under Federal Rule of Civil Procedure
16(b)(4), “a schedule may be modified only for good cause and with the judge’s consent.”
Moreover, a motion that is made after the deadline has expired may only be granted if the
moving party failed to act because of excusable neglect. Fed. R. Civ. P. 6(b)(1). Plaintiffs assert
that both good cause and excusable neglect exist due to the newly discovered evidence that
National Bank of Commerce did not prepare, file, or know anything about the mortgage, despite
the fact that is was purportedly issued to National Bank of Commerce by Guardian Brokers.
[Filing No. 146, at ECF p. 6.] However, Plaintiffs’ limited discussion of this issue does not
provide a sufficient showing of good cause or excusable neglect. Therefore, the motion is denied
to the extent that it seeks to reopen discovery and compel the depositions.
Likewise, the Court denies Plaintiffs’ alternative motion to issue an order to show cause
why Guardian Brokers should not be held in direct contempt of court. [Filing No. 146, at ECF p.
7.] Even if the purported mortgage is unusual, the Court’s power to hold a party in contempt is
reserved for egregious misbehavior or disobedience. To be held in contempt, a party “must have
violated an order that sets forth in specific detail an unequivocal command from the court.” U.S.

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v. Dowell, 257 F.3d 694, 69 (7th Cir. 2001) (quoting Jones v. Lincoln Elec. Co., 188 F.3d 709,
737 (7th Cir. 1999)). Use of the Court’s contempt power in this circumstance would be unwise
and inappropriate.
By denying Plaintiffs’ request to reopen discovery for depositions, the Court is not
suggesting that Plaintiffs’ motion is wholly without merit. Plaintiffs’ request is understandable,
if largely unsuccessful. Although the allegedly fraudulent mortgage does not justify allowing an
untimely deposition, the Court will not completely foreclose Plaintiffs’ inquiry. The Court will
permit Plaintiffs to serve two interrogatories on Defendant Guardian Brokers and two
interrogatories on Defendant National Bank of Commerce regarding the allegedly fraudulent
mortgage. If Plaintiffs still believe that a deposition regarding the mortgage is needed after the
interrogatories have been answered and the Court has ruled on the cross motions for summary
judgment, the Court would consider setting a hearing on the matter.
Finally, it bears noting that Guardian Brokers stated that Plaintiffs’ motion is “either an
attempt to run up the tab after the fact, an attempt to cloud the issues already presented and
pending, or an attempt simply to further delay this matter.” [Filing No. 147, at ECF p. 4.] Such
an allegation is not well taken. Guardian Brokers may have intended this characterization to be
innocuous, but it is in fact a serious allegation that should not be casually included in a brief.
For the foregoing reasons, Plaintiffs’ motion to reopen discovery [Filing No. 145] is
granted in part and denied in part.
Date: 6/11/2015
___________________________
Tim A. Baker
U.S. Magistrate Judge
Southern District of Indiana

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Distribution:
Mark R. Waterfill
BENESCH, FRIEDLANDER, COPLAN, &
ARONOFF, LLP
[e-mail]

Ryan Michael Hurley
FAEGRE BAKER DANIELS LLP
[e-mail]
Sean T. White
HOOVER HULL LLP
[e-mail]

Christopher Charles Hagenow
BLACKWELL, BURKE & RAMSEY, P.C.
[e-mail]

Andrew W. Hull
HOOVER HULL TURNER LLP
[e-mail]

Cynthia Reese
BLACKWELL, BURKE & RAMSEY, P.C.
[e-mail]

Scott Stuart Morrisson
KRIEG DEVAULT LLP
[e-mail]

Jason R. Delk
DELK MCNALLY
[e-mail]

Kevin C. Gray
MAYNARD COOPER & GALE PC
[e-mail]

Michael T. McNally
DELK MCNALLY
[e-mail]
Michael L. Einterz, Jr.
EINTERZ & EINTERZ
[e-mail]
Michael L. Einterz, Sr.
EINTERZ & EINTERZ
[e-mail]
Anne Kramer Ricchiuto
FAEGRE BAKER DANIELS LLP
[e-mail]
Kathryn E. Olivier
FAEGRE BAKER DANIELS LLP
[e-mail]

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