Green v. Blake et al

Filing 31

ORDER denying 27 motion for early discovery. Signed by Magistrate Judge James P. O'Hara on 5/29/2019. Mailed to pro se defendants by regular mail. (amh)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JEFFREY S. GREEN,

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Plaintiff,
v.
CHRISTIAN BLAKE and
JOSHUA LEONARD,
Defendants.

Case No. 18-2247-CM

ORDER
Plaintiff, Jeffrey S. Green, is a member and manager of 63rd Street Enterprises, LLC
(“the LLC”). He sues two former managers and officers of the LLC, Christian Blake and
Joshua Leonard, alleging they breached fiduciary duties owed the LLC’s members,
converted LLC assets for their own use, failed to produce an accounting of the LLC’s
income and expenses, and made numerous misrepresentations to plaintiff and other
members about the LLC’s financial position and Blake’s background and net worth.
Because defendants have filed a motion to disqualify plaintiff’s counsel1 and a motion to
dismiss the case for lack of subject matter jurisdiction,2 the court has found good cause to
delay ordering the parties to conduct a Fed. R. Civ. P. 26(f) conference and to issue a Fed.
R. Civ. P. 16(b) scheduling order until the motions are resolved. Plaintiff has now filed a

1

ECF No. 9.

2

ECF No. 19.
1

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motion under Fed. R. Civ. P. 26(d)(1) for an order allowing him to pursue limited early
discovery of an issue involving a witness allegedly in declining health (ECF No. 27).
Because plaintiff has failed to establish good cause for the early discovery, the motion is
denied.
As an initial matter, there is no indication plaintiff attempted to meet and confer
with defendants before filing the motion. D. Kan. Rule 37.2 states,
The court will not entertain any motion to resolve a discovery dispute
pursuant to Fed. R. Civ. P. 26 through 37 . . . unless the attorney for the
moving party has conferred or has made reasonable effort to confer with
opposing counsel concerning the matter in dispute prior to the filing of the
motion. . . . A “reasonable effort to confer” means more than mailing or
faxing a letter to the opposing party. It requires that the parties in good faith
converse, confer, compare views, consult, and deliberate, or in good faith
attempt to do so.
In the future, the court directs plaintiff’s counsel to follow the letter and spirit of Rule 37.2
before filing a discovery motion.
A bigger concern is plaintiff’s failure to submit any evidence in support of his
motion. First, plaintiff has submitted no evidence that the witness at issue, Jeffrey
Marsden, has health problems that could make him unavailable in the foreseeable future.
Plaintiff states Marsden “is inflicted with AIDS as well as other maladies.”3 This very
general statement says nothing about Marsden’s life expectancy or capacity, nor is it
supported by an affidavit, medical records, or other evidence.

3

ECF No. 28 at 3.
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Although the court

previously granted plaintiff’s motion to depose Marsden, the court did so not on the merits,
but on the basis that the motion was uncontested.4 In contrast, because defendants oppose
the instant motion, the court now conducts a substantive analysis and finds plaintiff has
submitted no evidence to establish good cause for early discovery.
Second, to the extent plaintiff’s motion is based on the asserted need to conduct
discovery into an inconsistency between Marsden’s deposition testimony and a
representation in defendants’ answer,5 plaintiff has provided the court no basis on which
to evaluate the alleged inconsistency.

Plaintiff has failed to submit a transcript of

Marsden’s deposition or any other evidence to support a finding of good cause on this
basis.
IT IS SO THEREFORE ORDERED that plaintiff’s motion for additional early
discovery is denied.
Dated May 29, 2019, at Kansas City, Kansas.
s/ James P. O=Hara
James P. O=Hara
U.S. Magistrate Judge

4

ECF No. 26. See D. Kan. R. 7.4(b) (“If a responsive brief is not filed within the
D. Kan. Rule 6.1(d) time requirements, the court will consider and decide the motion as an
uncontested motion. Ordinarily, the court will grant the motion without further notice.”).
5

Plaintiff alleges defendants induced him to invest in the LLC by assuring him
Marsden “had committed to provide his unique assets, talents, and energies” to the LLC.
ECF No. 28 at 3. In their answer to plaintiff’s complaint, defendants state they had a “fully
executed contract with Mr. Marsden.” ECF No. 6 at 3. Plaintiff now asserts that during his
deposition, Marsden denied having entered a contract with the LLC.
3
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