USA et al v. United Business Brokers of Utah et al

Filing 64

MEMORANDUM DECISION AND ORDERdenying 61 Motion to Compel. Signed by Judge Dale A. Kimball on 1/16/13. (jlw)

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, NORTHERN DIVISION
UNITED STATES OF AMERICA, ex rel.
JASON R. ELLSWORTH, and JASON
ELLSWORTH, individually, and R. GRANT
SMITH, individually,

MEMORANDUM DECISION
AND ORDER
Case No. 2:09-CV-00353DAK

Plaintiffs,
Judge Dale A. Kimball
vs.
UNITED BUSINESS BROKERS OF UTAH,
LLC, et al.,
Defendants.

This matter is before the Court on Plaintiffs Jason R. Ellsworth and R. Grant Smith’s
Motion to Compel Mediation. The motion is fully briefed and neither party has requested a
hearing. The Court does not believe that a hearing would significantly aid in its determination of
this motion. Having fully considered the motion and memoranda submitted by the parties and
the facts and law relevant to this motion, the Court enters the following Memorandum Decision
and Order.
BACKGROUND
In the parties’ stipulated Second Amended Scheduling Order, it states that the probability
of settlement in this matter is “good.” Based on this representation, Plaintiffs allege that they
attempted to engage Defendants in settlement discussions and have suggested mediation to
Defendants. However, Plaintiffs allege that Defendants have been non-responsive. Defendants

assert that they have not engaged in settlement discussions because they think that Plaintiffs
claims are wholly without merit and settlement efforts would be unproductive.
DISCUSSION
Based on Defendants’ stipulation in the parties’ Second Amended Scheduling Order that
settlement prospects in this case are good, Plaintiffs move the Court to compel Defendants to
participate in mediation. Plaintiffs, however, do not suggest that Defendants’ stipulation
constitutes an agreement to engage in settlement discussions or mediation separate from the
court-ordered settlement evaluation and conference. Plaintiffs also do not allege that there was
any other contractual agreement between the parties that would require mediation. Plaintiffs
have not provided any relevant case law to suggest this Court could or should compel
Defendants to participate in mediation under the present circumstances. Moreover, the courtannexed ADR/mediation program is solely voluntary. Absent a contractual agreement or
supporting case law, this Court declines to compel a defendant to participate in mediation that it
believes would be unproductive. Accordingly, Plaintiffs’ Motion to Compel is DENIED.
DATED this 16th day of January, 2013.

BY THE COURT:

____________________________________
DALE A. KIMBALL,
United States District Judge

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