Alvion Properties, Inc. et al v. Weber et al

Filing 579

MEMORANDUM AND ORDER: For the reasons stated in this memorandum, the Magistrate Judge finds that plaintiffs' motion to compel should be granted, and that their motion for sanctions should be denied without prejudice 552 . Accordingly, plaintiff s' motion to compel is GRANTED. Defendant Weber is ORDERED to appear to give a discovery deposition on June 21, 2012, commencing at 9:30 a.m. This deposition will be taken in Courtroom 776, U. S. Courthouse, 801 Broadway, Nashville, TN. Defendan t Chauveau is ORDERED to appear for his discovery deposition on June 22, 2012, commencing at 9:30 a.m., also in the above-referenced courtroom. To the extent that plaintiffs seek the imposition of sanctions for failure to participate in discovery, th eir motion is DENIED without prejudice to filing a further motion for sanctions if defendants, or either of them, fail to appear in accord with this order. Signed by Magistrate Judge John S. Bryant on 5/10/12.(xc:Pro se parties by email notification) (tmw) Modified text on 5/10/2012 (tmw).

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
ALVION PROPERTIES, INC., SHIRLEY)
K. MEDLEY, and HAROLD M.
)
REYNOLDS,
)
)
Plaintiffs,
)
)
v.
)
)
BERND H. WEBER, RAYMONDE WEBER, )
CLAUDE J. CHAUVEAU, AMERICAN
)
GULF FINANCE CORP., ALVION
)
PARTNERS, LLC, AGF REALTY
)
SOLUTIONS, INC., TIMEDATA
)
HOLDINGS, LLC,
)
)
Defendants.
)
)
BERND H. WEBER, CLAUDE J.
)
CHAUVEAU,
)
)
Counter-Claimants,
)
)
Harold M. Reynolds, Shirley K. )
Medley, Donald M. Medley,
)
Farmers State Bank Of Alto Pass,)
Brad Henshaw, Allain de la
)
Motte, Elizabeth Melland,
)
Robert M. West, Melland Group, )
LLC,
)
Counter-Defendants.
)

NO. 3:08-0866
Judge Sharp/Bryant
Jury Demand

MEMORANDUM AND ORDER
Pending in this case is plaintiffs’ motion to compel
and/or motion to strike defendants’ counterclaim and/or for default
for failure to comply with discovery (Docket Entry No. 552).
Summarizing, plaintiffs seek sanctions against defendants Weber and
Chauveau for their failure to appear at their noticed discovery
depositions in Nashville on March 8 and 9, 2012.

Alternatively,

plaintiffs seek an order requiring defendants to appear for their
discovery depositions at a date and place certain.

Defendants Weber and Chauveau have filed a response in
opposition (Docket Entry No. 561).
For the reasons stated in this memorandum, the Magistrate
Judge finds that plaintiffs’ motion to compel should be granted,
and that their motion for sanctions should be denied without
prejudice.
As background, the complaint in this case was filed on
September 12, 2008 (Docket Entry No. 1).

Drastically summarizing

the 46-page complaint, plaintiffs allege that defendant Weber,
assisted by defendant Chauveau, through fraudulent and deceptive
means, has stolen their ownership interest in Alvion Properties,
Inc., which is claimed to own several thousand acres of undeveloped
coal reserves located in Virginia.
Defendants Weber and Chauveau have denied that they are
guilty of any wrongdoing and assert that plaintiffs’ claims are
without merit.
On November 4, 2010, defendants Weber and Chauveau filed
their joint answer to first amended complaint, affirmative defenses
and counterclaim (Docket Entry No. 322).

By this filing, these

defendants asserted counterclaims against plaintiffs and joined
multiple new parties as third-party defendants.
Although defendants Weber and Chauveau are proceeding pro
se in this action, the case has nevertheless been vigorously
litigated.

As of the date of this order, there have been 578

docket filings in this case.

Defendants Weber and Chauveau

themselves have, by the Court’s count, jointly filed at least
sixty-five (65) motions, not including their additional, numerous
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notices, responses, replies, declarations and objections.
Despite

the

considerable

activity

in

this

case,

defendants Weber and Chauveau so far have not given discovery
depositions.
in

the

Attempts to schedule and take these two depositions

past

have

been

unsuccessful,

apparently

because

of

disagreements and general wrangling about the time, place and other
arrangements proposed for the depositions.
for

plaintiffs

served

defendant

Weber

Most recently, counsel
and

defendant

Chauveau

notices to take their depositions in Nashville on March 8, 2012,
and March 9, 2012, respectively.
During a telephone case management conference with the
undersigned Magistrate Judge on March 6, 2012, defendants Weber and
Chauveau stated that they had scheduling problems with the dates of
March 8 and 9, and that their depositions might need to be
rescheduled in order to accommodate their scheduling conflicts.
The Court at that time instructed the parties to confer further and
attempt to agree upon alternative dates for these two depositions
that would be satisfactory to all concerned.

The Court further

instructed the parties that if they were unable to agree upon
alternative dates for the depositions of defendants Weber and
Chauveau, that, upon motion, the Court would set a date for the
depositions by order.
Plaintiffs have now filed their motion to compel in which
they assert that defendants Weber and Chauveau failed to appear for
their depositions as noticed on March 8 and 9, 2012, respectively,
and these defendants, apparently, have failed to suggest a single
alternative date when they could be available for their deposition.
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In their response in opposition (Docket Entry No. 561), defendants
Weber

and

plaintiffs’

Chauveau
motion

challenge
to

compel

the
and

form
its

and

sufficiency

supporting

of

affidavit.

Significantly, however, the Court notes that even in their response
both defendants Weber and Chauveau fail to offer any alternative
dates when they could appear for their depositions.
The
discovery.

Court

is

granted

“wide

discretion”

to

manage

Surles ex rel. Johnson v. Greyhound Lines, Inc., 474

F.3d 288, 305 (6th Cir. 2007).

This case is soon to be four years

old and is set for trial on December 11, 2012.

The depositions of

the defendants need to be taken, and the parties have been unable
to schedule and take these depositions without court intervention.
The undersigned Magistrate Judge finds that it is time for the
Court to order that these two depositions be scheduled and taken at
a particular time and place.
Accordingly, plaintiffs’ motion to compel is GRANTED.
Defendant Weber is ORDERED to appear to give a discovery deposition
on June 21, 2012, commencing at 9:30 a.m.

This deposition will be

taken in Courtroom 776, U. S. Courthouse, 801 Broadway, Nashville,
TN, U.S. Courthouse, 801 Broadway, Nashville, Tennessee. Defendant
Chauveau is ORDERED to appear for his discovery deposition on June
22, 2012, commencing at 9:30 a.m., also in the above-referenced
courtroom.
These depositions shall be taken in accordance with the
Federal Rules of Civil Procedure.

Counsel for plaintiffs shall

employ a court reporter and, if desired, a videographer, to record
these depositions.

Defendants Weber and Chauveau, if they wish,
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may purchase a copy of the transcript and/or the videotape from the
court

reporter

and

videographer,

respectively,

at

the

rates

customarily charged by court reporters and videographers for copies
of such transcripts and videotapes.
To the extent that plaintiffs seek the imposition of
sanctions for failure to participate in discovery, their motion is
DENIED without prejudice to filing a further motion for sanctions
if defendants, or either of them, fail to appear in accord with
this order.
Defendants Weber and Chauveau are admonished that if they
fail to appear for these depositions in accordance with this order,
their failure may cause the undersigned Magistrate Judge to impose
sanctions upon them, including but not limited to recommending that
their counterclaim and third-party complaint be dismissed and
default

entered

against

them

for

failure

to

participate

in

discovery.
It is so ORDERED.
s/ John S. Bryant
JOHN S. BRYANT
United States Magistrate Judge

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