Klein v. Wings Over the World Ministries et al
Filing
78
MEMORANDUM DECISION granting 70 Motion to Compel: Receiver is granted an additional 60 days after receipt of information within which to conduct fact discovery. Signed by Magistrate Judge Dustin B. Pead on 12/18/13 (alt)
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
R. WAYNE KLEIN, the Court-Appointed
Receiver of U.S. Ventures LC, Winsome
Investment Trust, and the assets of Robert
J. Andres and Robert L. Holloway,
MEMORANDUM DECISION & RULING
Case No. 2:12-cv-00023
Plaintiff,
United States District Court
Judge David Nuffer
v.
WINGS OVER THE WORLD
MINISTRIES and TERRY L. HARPER,
Magistrate Judge Dustin Pead
Defendants.
Pursuant to a 28 U.S.C. §636(b)(1)(B) referral (doc. 27), the following matter is currently
pending before this Court: (1) the Receiver, R. Wayne Klein’s (the “Receiver”) “Motion To
Compel” Defendant Terry L. Harper (“Mr. Harper”) to respond to the Receiver’s August 23,
2013, First Set of Discovery Requests (doc. 70). Defendant Harper has not filed an objection to
the pending motion.1
I. BACKGROUND
On August 23, 2013, the Receiver served Mr. Harper with his First Set of Discovery
Requests (doc. 70-1). On August 26, 2013, Mr. Harper filed a document entitled “Respondent
Answer to Requests for Admission from R. Wayne Klein/Receiver and Request for Certification
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The Receiver’s Motion To Compel Responses to Discovery Requests was filed on
October 29, 2013 (doc. 70). A memorandum opposing any motion not filed pursuant to Fed. R.
Civ. P. 12(b), 12(c) and 56 must be filed within fourteen (14) days after service of the motion.
See DUCivR 7-1(b)(3)(B).
of the Record” (doc. 49). Despite its title, Mr. Harper’s submission failed to address the
Receiver’s discovery requests, and was stricken from the record (doc. 67). On October 2, 2013,
the Receiver sent Mr. Harper a letter informing him that his responses were overdue, and
requesting that Mr. Harper immediately respond to discovery (doc. 70-2). Mr. Harper failed to
respond to the Receiver’s letter. Thereafter, on October 23, 2013, the Receiver sent an e-mail
requesting that Mr. Harper provide an immediate response to the discovery requests (doc. 70-3).
Mr. Harper failed to respond to the Receiver’s email. Accordingly, on October 29, 2013, the
Receiver filed his pending Motion To Compel (doc. 70).
II. MOTION TO COMPEL
Federal Rule of Civil Procedure 37(a)(3)(B) provides,
A party seeking discovery may move for an order compelling an answer,
designation, production or inspection. This motion may be made if:
(iii) a party fails to answer an interrogatory submitted under Rule 33; or
(iv) a party fails to respond that inspection will be permitted—or fails to
permit inspection— as requested under Rule 34.
Both Rule 33 and Rule 34 require that a party served with discovery requests respond
within thirty (30) days of service. See Fed. R. Civ. P. 33(b)(2) (“The responding party must serve
its answers and any objections within 30 days after being served with the interrogatories.”); Fed.
R. Civ. P. 34(b)(2) (“The party to whom the request is directed must respond in writing within 30
days after being served.”).
Federal Rule of Civil Procedure 36 addresses the effect of a party’s failure to respond to
discovery requests within the 30 day period. See Fed. R. Civ. P. 36(a)(3) (“A matter is admitted
unless, within 30 days after being served, the party to whom the request is directed serves on the
requesting party a written answer or objection addressed to the matter and signed by the party or
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its attorney. A shorter or longer time for responding may be stipulated to under Rule 29 or be
ordered by the court.”).
Here, on August 23, 2013, the Receiver served Mr. Harper with six (6) Requests For
Admission, 18 (eighteen) Interrogatories and 18 (eighteen) Requests For Production (doc. 70-1).
It has now been over ninety (90) days since he was served, and Mr. Harper has failed to respond
to the discovery requests.2 Based thereon, the Court hereby GRANTS the Receiver’s Motion To
Compel and ORDERS that Mr. Harper provide complete and meaningful responses to the
Receiver’s discovery requests within fifteen (15) days from the date of this Order. All responses
must comply with the federal and local rules of civil procedure. A failure by to do so, shall result
in the imposition of sanctions against Mr. Harper, including the Receiver’s Requests For
Admission being admitted pursuant to Federal Rule 36(a)(3).
Under the current Scheduling Order, the date set for the completion of fact discovery is
November 26, 2013 (doc. 35). Accordingly, given the current posture of the case, the Receiver is
granted an additional sixty (60) days after Mr. Harper provides the information ordered by the
Court, within which to conduct fact discovery.
2
As discussed previously, on August 26, 2013, Mr. Harper filed a document entitled
“Respondent Answer to Requests for Admissions from R. Wayne Klein/Receiver and Request
for Certification of the Record” (doc. 49). While the title of the submission suggests that it is
responsive to the Receiver’s discovery requests, the content of the document in non-responsive.
The document itself was stricken by Judge Nuffer in his Order adopting the Magistrate’s Report
& Recommendation on October 25, 2013 (doc. 67).
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III. ORDER
Based upon the foregoing, the Court hereby Orders:
1. The Receiver’s Motion To Compel is GRANTED (doc.70); and
2. The Receiver is granted an additional sixty (60) days after receipt of information
within which to conduct fact discovery.
DATED the 18th day of December, 2013.
BY THE COURT:
___________________
Dustin B. Pead
U.S. Magistrate Judge
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