Peter Kiewit Sons', Inc. v. Wall Street Equity Group, Inc. et al

Filing 411

ORDER denying West's 410 Motion for Reconsideration. The Clerk of the Court is directed to e-mail copies of this order and the Court's order of October 9, 2013 409 to each of the non-corporate defendant's, and to fax them to West's fax number at [phone]. Ordered by Judge John M. Gerrard. (Copy faxed and e-mailed to pro se party)(MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
PETER KIEWIT SONS', INC.,
Plaintiff,

8:10-CV-365

vs.
ORDER
WALL STREET EQUITY GROUP,
INC., ET AL.,
Defendants.
Defendant Steven S. West has filed an "emergency motion for
reconsideration" (filing 410) of the Court's denial of his oral motion to
continue (filing 408). For the reasons stated in the Court's order of October 9,
2013 (filing 409), West's motion for reconsideration will be denied.
Two points merit some additional explanation. One is that now, West
has specifically asked for only a 30-60 day continuance, based on his
"estimate" of how long it will take his condition to improve. He asserts there
was a "downturn" in his condition in August but "one could assume there will
be an upturn in the near future." Filing 410. The Court is unwilling to make
that assumption absent persuasive evidence, which West has not provided.
West's personal estimate of when he feels he might be ready for trial is not
sufficient reason to further delay resolution of the plaintiff's claims.1
Second, West claims that he has not delayed the trial: that it has taken
3 years "[d]ue to the complexity of this matter" and that he has never
requested a delay. Filing 410. Those contentions are contradicted by the
record. Trial of this case was originally set for October 4, 2011, but was
postponed because of difficulties in establishing the defendants' availability
for depositions. See filings 38, 51, and 59. It was delayed again, until June 5,
2012, on the joint motion of the parties (including, obviously, the
defendants).2 See filings 85 and 132. But that trial date was canceled after an
This is particularly the case given well-founded concerns, based on West's previous
conduct, about his credibility. See filing 263.
1

It is well established that a party is responsible for the actions and conduct of his or her
counsel. See, e.g., Link v. Wabash R.R., 370 U.S. 626, 633-34 (1962), Wescott Agri-Products,
Inc. v. Sterling State Bank, Inc., 682 F.3d 1091, 1096 (8th Cir. 2012), Everyday Learning
Corp. v. Larson, 242 F.3d 815, 817 (8th Cir. 2001), Rodgers v. Curators of the Univ. of Mo.,
2

in-court hearing on the defendants' conduct in resisting the plaintiff's
discovery. See filings 221 and 244. When the trial date was reset for April 2,
2013, the final case progression schedule was based in large measure on
West's contumacious and deceitful conduct during the discovery process. See
filings 263 and 290. The trial was delayed again by a suggestion of
bankruptcy filed by a corporate defendant. See filing 331. Finally, the Court
arrived at the present trial date, over 3 years since the complaint was filed.
Given the history of these proceedings, West cannot disclaim
responsibility for their delay. He sought delay through counsel, and he made
further delay inevitable by frustrating the plaintiff's attempts at discovery
through destruction of evidence and false testimony. He is already more than
partially responsible for unreasonably delaying the resolution of this case,
and the Court is not persuaded by this last-minute attempt to further
postpone the plaintiff's prosecution of its claims. West's motion for
reconsideration will be denied, and the trial of this case will proceed at
9:00 a.m. on October 11, 2013, in Courtroom 3, Roman L. Hruska
Federal Courthouse, 111 South 18th Plaza, Omaha, Nebraska.
IT IS ORDERED:
1.

West's motion for reconsideration (filing 410) is denied.

2.

The Clerk of the Court is directed to e-mail copies of this
order and the Court's order of October 9, 2013 (filing 409)
to each of the non-corporate defendants, and to fax them to
West's fax number at [phone].3

Dated this 10th day of October, 2013.
BY THE COURT:

John M. Gerrard
United States District Judge
135 F.3d 1216, 1220 (8th Cir. 1998), Inman v. Am. Home Furniture Placement, Inc., 120
F.3d 117, 118 (8th Cir. 1997), Comiskey v. JFTJ Corp., 989 F.2d 1007, 1010 (8th Cir. 1993).
The e-mail address of record for Steven West is [e-mail], and the e-mail address for
Shepherd Friedman is [e-mail]. The Court notes, for the record, that
West's motion for reconsideration (filing 410) was received by e-mail to chambers from
[e-mail], and by fax to the clerk's office from [phone].
3

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