Norman et al v. Lavern et al

Filing 181

ORDER denying 162 Plaintiffs' Motion for Default Judgment (as more fully set out). Signed by Honorable Vicki Miles-LaGrange on 5/15/2017. (ks)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA

ESTATE OF MOE NORMAN, TODD )
GRAVES, and TODD GRAVES GOLF )
SCHOOL, LLC,
)
)
Plaintiffs,
)
)
v.
)
)
GREG LAVERN,
)
)
Defendant.
)

Case No. CIV-14-1435-M

ORDER
Before the Court is Plaintiffs’ Motion for Default Judgment and Brief in Support, filed
April 21, 2017. On May 5, 2017, defendant responded. Based on the parties’ submissions, the
Court makes its determination.
Plaintiffs seek an order from this Court entering default judgment against defendant for
violating the Court’s April 5, 2017 Order requiring defendant to sit for a deposition with plaintiffs
no later than April 21, 2017, and enjoining defendant from selling his book “Finish to the Sky The Authentic Tournament Winning Golf Swing of Canadian Master Ball Striker Moe Norman, I
Personally Experienced (Volume 2).” Specifically, plaintiffs contend that defendant was a no show
for the deposition scheduled for April 21, 2017 1, and that defendant continues to sell his book.
Defendant contends that he advised plaintiffs, prior to the deposition, that due to his health

1

Plaintiffs contend that, pursuant to Federal Rule of Civil Procedure 45, they located the
law firm Beaton, Blaikie Nurse & Farrell located in Amherst, Nova Scotia, 82 miles from
defendant’s residence, to conduct the deposition. Plaintiffs contend that it was important to have
the deposition at this law firm so sufficient legal staff would be available, including a court
reporter, to conduct the deposition.

condition, he would not be able to travel to the location plaintiffs selected for the deposition.2
Further, defendant contends that he suggested to plaintiffs to conduct the deposition at the Atlantic
Technology Centre in Charlottetown, PEI, where defendant resides. Defendant further advises that
he is no longer selling his book online, pursuant to the Court’s Order.
Having carefully reviewed the parties’ submissions, the Court finds that entering default
judgment would not be appropriate in this matter. The Court understands that plaintiffs, in
compliance with Rule 45, scheduled a location for the deposition within 100 miles from
defendant’s residence; however, defendant responded and informed plaintiffs that he would not be
able to travel to that location for medical reasons and, therefore, was not attending the deposition.
While plaintiffs did offer to transport defendant to the deposition site, no evidence has been
presented to show that plaintiffs even attempted to accommodate defendant in having the
deposition at the location he suggested. 3 Therefore, the Court finds that plaintiffs’ motion for
default judgment should be denied.

2

On April 28, 2017, defendant filed his Response to Deposition of Greg Lavern, and
advised the Court that as a result of the location of the deposition selected by plaintiffs, that he
would not be attending the deposition due to his health issues. See [docket no. 171] and Ex. 4
attached to defendant’s response.
3

On April 5, 2017, plaintiffs’ counsel contacted defendant via email and informed
defendant of the Court’s Order requiring defendant to sit for a deposition. Plaintiff’s counsel asked
defendant to “please advise where the nearest video-conferencing facility [was] to [his] home.”
Ex. 1, Email between Bryan Sugar and Greg Lavern, attached to defendant’s response. On April
6, 2017, plaintiffs’ counsel advised defendant via email that he was “working out the details of
[the] deposition.” Ex. 3, Email between Bryan Sugar and Greg Lavern, attached to plaintiffs’ Mot.
for Default. J. On April 7, 2017, defendant sent plaintiffs’ counsel a letter informing them of the
video conferencing center in Charlottetown, PE, Ex. 2, Letter to Bryan Sugar and Maxwell
Petersen from Greg Lavern, attached to defendant’s response, and plaintiffs’ counsel sent
defendant an email and advised that they would be moving forward with the deposition at the law
firm that was 82 miles from defendant’s residence. See Ex. 3, Email from Bryan Sugar to Greg
Lavern, attached to plaintiffs’ Mot. for Default J.
2

Accordingly, the Court DENIES Plaintiffs’ Motion for Default Judgment and Brief in
Support [docket no. 162].
IT IS SO ORDERED this 15th day of May, 2017.

3