Burbidge Mitchell & Gross v. Olson et al

Filing 186

MEMORANDUM DECISION AND ORDERgranting 179 Motion for Extension of Time; granting 184 Motion for Joinder. Signed by Magistrate Judge Dustin B. Pead on 3/22/13. (jlw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

BURBIDGE MITCHELL & GROSS,
MEMORANDUM DECISION AND ORDER
Plaintiff,
Case No. 2:11-cv-00640-DB-DBP
v.
District Judge Dee Benson
TIMOTHY OLSON, et al.
Magistrate Judge Dustin B. Pead
Defendants.

I.

INTRODUCTION

This diversity matter was referred to the Court under 28 U.S.C. § 636(b)(1)(A). Plaintiff is
Burbidge Mitchell & Gross. Defendants are: (1) Timothy Olson; (2) Kenneth W. Griswold; (3)
Paul H. Peters; (4) C&M Properties; (5) High Mountain Partners; and (6) JJRRNL Trust 1998.
On March 20, 2013, Defendants Timothy Olson, C&M Properties, High Mountain Partners,
and JJRRNL Trust 1998 (the “Olson Defendants”) filed an emergency motion to extend the
dispositive motion deadline from April 1, 2013 to April 8, 2013. Defendant Griswold moved to
join their motion. For the reasons below, the Court GRANTS both motions. (Docket Nos. 179;
184.)
II.

OLSON DEFENDANTS’ MOTION TO AMEND DEADLINE

The Olson Defendants move to extend the dispositive motion deadline because of an
unfinalized deposition, and their legal assistant’s serious illness. (Dkt. No. 179.) “A schedule
may be modified only for good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4).

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A. Unfinalized Deposition
The Olson Defendants claim the parties agreed to the current dispositive motion deadline
because they assumed they could complete their depositions by then. (Dkt. No. 179 at 5.)
However, the Olson Defendants recently learned Richard Burbidge’s 1 deposition transcript will
not be finalized until April 8, 2013. (Id. at 3; 179-2.) The Olson Defendants feel this situation
warrants an extension. Plaintiff does not respond to this argument.
B. Legal Assistant’s Illness
On March 19, 2013, the Olson Defendants’ counsel, Alan K. Hyde, learned his longtime
legal assistant, Ms. Opsahl, had been hospitalized for lung cancer surgery, and would not be
working “for several days.” (Dkt. No. 179 at 3.) As such, she cannot timely assist Hyde in
preparing the Olson Defendants’ dispositive motion, locating and assembling all relevant
exhibits, and “executing a declaration regarding the accuracy of documents received and
maintained.” (Id. at 3, 4.)
Plaintiff opposes because it believes others in the two firms representing the Olson
Defendants can perform Opsahl’s functions. (Dkt. No. 181 at 2-3.) However, the Olson
Defendants persuasively emphasize that Opsahl possesses unique information about “this case
and its documents” because she is the only person in Hyde’s firm who has worked the case since
its inception. (Dkt. No. 179 at 3-4; 182 at 3.)
Nevertheless, Plaintiff argues it would be “prejudiced” by a dispositive motion extension.
(Dkt. No. 181 at 4.) From mid-April to mid-June, Plaintiff’s lead counsel will participate in a
multi-week trial. (Id. at 2, 4.) Therefore, he will not be able to respond to the Olson Defendants’
dispositive motion “after mid-April.” (Id. at 2.) However, to lessen this prejudice, the Olson

1

Richard Burbidge serves as one of Plaintiff’s principles. (Dkt. No. 179 at 2.)
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Defendants “will be happy to grant [P]laintiff’s counsel until sometime in June, if needed . . . for
[P]laintiff to file its dispositive motion response . . . .” (Dkt. No. 182 at 5.)
III.

DEFENDANT GRISWOLD’S JOINDER

Defendant Griswold filed a “Joinder in Emergency Motion to Extend Dispositive Motion
Deadline.” (Dkt. No. 184.) 2 Plaintiff opposes because it argues Opsahl’s illness does not affect
the other Defendants’ abilities to meet the current deadline. (Dkt. No. 185 at 2.) Plaintiff also
fears allowing all Defendants to file their dispositive motions on April 8, 2013 will complicate
Plaintiff’s ability to timely respond, given its lead counsel’s scheduling issues. (Id. at 2-3.)
However, Defendant Griswold cogently reasons that any extension should apply to all
Defendants where Plaintiff’s causes of action “inextricably tie together all of the [D]efendants
and the defenses anticipated for dispositive motions.” (Dkt. No. 184 at 2.) He believes allowing
“all [D]efendants to coordinate their dispositive motion filings will serve interests of judicial
economy and minimize unnecessary repetition and overlap among several anticipated dispositive
motions addressing closely related factual and legal matters.” (Id.)
IV.

ORDERS

The Court recognizes Plaintiff’s scheduling concerns. However, Richard Burbidge’s
deposition will not be finalized until April 8, 2013. Moreover, Opsahl’s institutional knowledge
of this case justifies the Olson Defendants’ reliance on her. Given these circumstances, and
Defendants’ assurances they will accommodate Plaintiff’s future dispositive motion extension
requests (Dkt. Nos. 182 at 5; 184 at 2), the Court finds good cause for the Olson Defendants’
motion. As such, the Court issues the following ORDERS:

2

Defendant Griswold’s joinder request is not docketed as a motion for joinder, but rather as a
memorandum in support of the original extension motion. (Dkt. No. 184.) However, in the
interest of issuing a prompt decision, the Court considers it a motion for joinder.
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The Olson Defendants’ motion to extend the dispositive motion deadline to April 8, 2013 is
GRANTED as to all Defendants in this case. (Dkt. No. 179.)
All Defendants’ counsels of record, and any unrepresented parties, shall meet and confer
with Plaintiff’s counsel to reach agreement upon any requested briefing extension in connection
with any dispositive motions filed, so as to accommodate Plaintiff’s counsel’s schedule and
availability.
Defendant Griswold’s motion for joinder is GRANTED. (Dkt. No. 184.)
Dated this 22nd day of March, 2013.
_____________________________________
Dustin B. Pead
United States Magistrate Judge

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