Hofmann et al v Hall et al
Filing
286
AMENDED RULING & ORDER granting in part and denying in part 214 Motion to Compel; granting in part and denying in part 215 Motion for Short Term Discovery; granting in part and denying in part 216 Motion for Short Term Disco very; granting in part and denying in part 217 Motion for Short Term Discovery; granting in part and denying in part 218 Motion for Short Term Discovery; granting in part and denying in part 219 Motion for Short Term Discovery; granting in part and denying in part 220 Motion for Short Term Discovery; granting in part and denying in part 221 Motion for Short Term Discovery; granting in part and denying in part 222 Motion for Short Term Discovery; granting in part and denying in part 223 Motion for Short Term Discovery. Signed by Magistrate Judge Dustin B. Pead on 9/4/2018. (jwt)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
ELLIS-HALL CONSULTANTS, LLC, a
Utah limited liability company; and
ANTHONY HALL, an individual,
Plaintiffs,
AMENDED RULING & ORDER 1
v.
Case No. 2:12-cv-00771
GEORGE B. HOFFMANN IV, an
individual; PARSONS KINGHORN
HARRIS NKA COHNE KINGHORN, P.C.,
a Utah professional corporation;
MATTHEW M. BOLEY, an individual;
KIMBERLEY L. HANSEN, an individual;
GARY E. JUBBER, an individual; and
DAVID R. HAGUE, an individual, FABIAN
& CLENDENIN NKA FABIAN
VANCOTT, P.C., a Utah professional
corporation,
Member Case 2:15-cv-00913
Judge Dee Benson
Magistrate Judge Dustin B. Pead
Defendants.
BACKGROUND
The following matters are before the court pursuant to a 28 U.S.C. §636(b)(1)(A) referral
from the District Court. (ECF No. 171.) Currently pending are Defendants and Third-Party
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The Amended Ruling & Order is identical to the Ruling & Order issued on August 31, 2018
(ECF No. 283), but for the amendments inclusion of a reference to the court’s ruling on motions 219, 220
and 221. These motions were identified and ruled upon in the body of the August 31, 2018, Ruling but
mistakenly omitted in the Order. In addition, the Amended Ruling & Order omits reference to ECF No.
231, 232, and 229 as docket numbers reflect responsive pleadings and not pending motions. Of note, the
Defendants George B. Hofmann, Matthew Boley, Kimberly Hansen and Victor Copeland’s
(collectively Defendants) motions seeking to compel non-parties Cedar City Wind (CCW),
Carbon Free Power (CFP), Monticello Wind Farm Project (MWFP), Monticello Wind Farm 2
(MWF2), Monticello Wind Farm II (MWFII), Monticello Wind Farm LLC (MWFLLC), Western
Investment Alliance (WIA) and Sage Grouse Energy Project, LLC’s (SGEP) to comply with the
subpoenas duces tecum, and Defendants’ motions to compel Plaintiffs Anthony Hall (Hall) and
Ellis-Hall Consultants (EHC) to respond to written discovery. (ECF No. 222, ECF No. 223.)
PENDING MOTIONS
As to the pending motions seeking compliance, the court rules as follows:
1.
Third Party Cedar City Wind.
On March 27, 2018, Defendants provided notice to the parties of their intent to serve a
subpoena duces tecum on non-party CCW. (ECF No. 214-2.) Receiving no objections,
Defendants mailed the subpoena to CCW’s Registered Agent on April 3, 2018. (ECF No. 214-3.)
CCW’s counsel, Michael E. Pfau (Attorney Pfau), responded indicating that CCW’s “legal
existence” was canceled in September 2015 and prior to its cancellation CCW “never sought to
enforce any of the ‘Blue Mountain Wind Asset’ leases or executory contracts described in the
subpoena.” (ECF No. 214-4.)
On April 20, 2018, Defendants informed Attorney Pfau that CCW’s responses were
inadequate and requested to meet and confer. (ECF No. 214-5.) A day later, Attorney Pfau
court has not issued a ruling on Plaintiff’s motion for judicial notice at ECF No. 233 and that matter
remains currently pending. (ECF No. 233.)
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emailed Defendants reaffirming that CCW was cancelled and stating it “has no records.” (ECF
No. 214-7.) Thereafter, Defendants made additional attempts to meet and confer, without
response. (ECF No. 214-8.)
Defendants filed and served their motion to compel against CCW on July 26, 2018. (ECF
No. 214.) As of this date, no response to the motion has been filed. Accordingly, Defendants
unopposed motion to compel is granted. CCW failed to produce materials responsive to
Defendants’ April 3, 2018, subpoena duces tecum or raise a proper objection thereto. As a result,
it is ORDERED that:
CCW shall produce the documents, records and/or materials responsive
to Defendants’ subpoena, or respond appropriately claiming privilege or
protection under Rule 45 of the Federal Rules of Civil Procedure within
thirty days of the date of this Order. The parties are further ordered to
meet and confer to resolve any issues and address any confusion
surrounding the materials sought no later than September 7, 2018. Failure
to comply may be grounds for sanctions.
2.
Carbon Free Power, Monticello Wind Farm, Monticello Wind Farm 2,
Monticello Wind Farm II, Monticello Wind Farm, LLC, Western
Investment Alliance and Sage Grouse Energy Project.
On March 27, 2018, Defendants provided notice to the parties in this case of their
intent to serve subpoenas duces tecum on non-parties CFP, MWF, MWF2, MWFII, MWFLLC,
WIA and SGEP. (ECF No. 215-2, ECF No. 216-2, ECF No. 217-2, ECF No. 218-2, ECF No.
219-2, ECF No. 220-2, ECF No. 221-2.) Receiving no objections, on April 3, 2018, Defendants
mailed subpoenas to the non-parties’ Registered Agents commanding a response by April 20,
2018. (ECF No. 215-3, ECF No. 216-3, ECF No. 217-3, ECF No. 218-3, ECF No. 219-3, ECF
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No. 220-3, ECF No. 221-3.) None of the non-parties responded to the subpoenas. As a result,
Defendants sent letters requesting to meet and confer. (ECF No. 215-4, ECF No. 216-4, ECF No.
217-4, ECF No. 218-4, ECF No. 219-4, ECF No. 220-4, ECF No. 221-4.) On April 25, 2018, a
stay was imposed and therefore a meet and confer was never held. (ECF No. 180, ECF No. 181.)
After expiration of the stay, Defendants scheduled another telephonic meet and confer for
June 27, 2018 at 10:00. (ECF No. 215-5, ECF No. 216-5, ECF No. 217-5, ECF No. 218-5, ECF
No. 219-5, ECF No. 220-5, ECF No. 221-5.) On that date, Defendants were waiting on the
conference line, but none of the non-parties appeared. On July 10, 2018, Kimberly Ceruit (Ms.
Ceruti) emailed Defendants indicating that she may be the individual responsible for responding
to the subpoenas. At Ms. Ceruti’s request, all relevant materials were placed on a disc and made
available for her at the front desk of the law firm Strong & Hanni. (ECF No. 215-5, ECF No.
216-6, ECF No. 217-6, ECF No. 218-6, ECF No. 219-6, ECF No. 220-6, ECF No. 221-6.) Based
on non-parties’ failure to any produce materials sought, object, or otherwise respond to the
subpoena, Defendants filed their pending motions to compel on July 26, 2018. (ECF No. 215,
ECF No. 216, ECF No. 217, ECF No. 218, ECF No. 231, ECF No. 232, ECF No. 233, ECF No.
229.)
On August 2, 2018, non-parties responded to Defendants’ motions to compel through
their attorney, Jared Bramwell (Attorney Bramwell). Non-parties mount procedural challenges to
the subpoenas, arguing: (1) the subpoenas failed to include a copy of local rule 37-1(a)(9)(2) and;
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(2) Defendants failed to effectuate personal service. (ECF No. 226, ECF No. 227, ECF No. 228,
ECF No. 229, ECF No. 230, ECF No. 231, ECF No. 232.)
a.
Failure to include rule.
Local rule 37-1(a)(9) states:
A party subpoenaing a non-party must include a copy of this rule with
the subpoena. Any motion to quash, motion for a protective order, or
motion to compel a subpoena will follow this procedure.
DUCivR 37-1(a)(9). Defendants admittedly failed to include a copy of local rule
37-1(a)(9), but did include a copy of the federal rule setting forth the protections available to a
recipient of a third-party subpoena. Given that non-parties clearly “figured out how to seek this
Court’s protection as demonstrated by this motion[,]” Defendants’ technical failure to include a
copy of the local rule does not provide sufficient grounds to deny the Defendants’ motions to
compel. Wopstock v. Dalton, 2018 U.S. Dist. LEXIS 54605 *18 (D. Utah, March 29, 2018).
b. Service of Subpoena
Non-parties also argue they were not personally served with the subpoenas in violation of
the federal rules. Again, Defendants do not dispute that the subpoenas were delivered via mailed,
but argue the non-parties did not indicate personal service was required 2 and objections to the
subpoenas were not raised until after Defendants filed their motions to compel.
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Defendants assert the non-parties were asked to indicate if they required personal service, as set
forth in the letter attached to subpoenas:
Please note that if you send us a copy of the requested records,
it is not necessary for you to personally appear in answer to this
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Rule 45 of the Federal Rules of Civil Procedure addresses service of subpoenas on nonparties:
Any person who is at least 18 years old and not a party may serve a
subpoena. Serving a subpoena requires delivering a copy to the named
person and, if the subpoena requires that person’s attendance,
tendering the fees for 1 day’s attendance and the mileage allowed
by law.
Fed. R. Civ. P. 45(b)(1); see also Thompson v. Gonzales, 2016 U.S. Dist. LEXIS 132673
Lehman v. Kornblau, 206 F.R.D. 345, 346-47 (E. D. N. Y. 2001) (“Where discovery is sought
from non-parties, a court’s subpoena power is invoked pursuant to federal rule 45.”) Rule 45
applies to persons, encompassing both parties and non-parties. See Rule 45, Advisory Committee
Note, 2013 Amendments. The “longstanding interpretation of Rule 45 has been that personal
service of a subpoena is required.” Bank of Okla. v. Arnold, 2008 U.S. Dist. LEXIS 12677 *4 (N.
D. Okla. Feb. 20, 2008) (citing 9A Charles Alan Wright & Arthur R. Miller, Federal Practice &
Procedure §2454 (2d ed. 2007). Yet, recognizing the ambiguity of Rule 45 in the context of other
federal rules, an “emerging minority position” has determined that “service of a subpoena under
Rule 45 [is] proper absent personal service.” Id. at *5 (citing Wright & Miller at §2454). Courts
allowing other service generally limit extensions to service “in a manner that reasonably insures
actual receipt of the subpoena”. King v. Crown Plastering Corp., 170 F.R.D. 355, 356 (E. D. N.
Y. 1997).
subpoena. Should you require personal service of this subpoena,
please contact me immediately at (801) 532-7080.
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In this case, given the responses filed, it is clear that non-parties and Attorney Bramwell
have received the subpoenas. Indeed, non-parties do not raise a failure to receive. Rather, they
challenge the subpoenas on the basis of procedural technicalities. While the court could certainly
require Defendants to re-serve the subpoenas, to do so would elevate form over substance and fly
in the face of securing “the just, speedy, and inexpensive determination of every action and
proceeding.” Fed. R. Civ. P. 1. Courts have authority, “governed not by rule or statute but by the
control necessarily vest in [them] to manage their own affairs so as to achieve the orderly and
expedition disposition of cases.” Link v. Wabash R. Co., 370 U.S, 626, 630-31, 82 S. Ct. 1386, 8
L.Ed.2d 734 (1962) (footnote omitted), and this court has wide discretion in controlling
discovery. Accordingly, the court finds non-parties have received adequate notice of the
subpoena and it is ORDERED that:
Non-parties shall produce the documents, records and/or materials
responsive to Defendants’ subpoena, or respond appropriately claiming
privilege or protection under Rule 45 of the Federal Rules of Civil
Procedure within thirty days of the date of this Order. The parties
are further ordered to meet and confer to resolve any issues or address
confusion surrounding the materials sought no later than September 7,
2018. Failure to comply may be grounds for sanctions.
3.
Anthony Hall and Ellis-Hall Consultants.
On May 19, 2017, Defendants served Plaintiffs Hall and EHCwith their first set of
request for production of documents. (ECF No. 222-1, ECF No. 223-1.) Hall and EHC did not
respond to the requests. After a scheduling order was issued, Defendants provided Hall and EHC
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with an extension of time to respond. On February 23, 2018, Hall and EHC responded to
Defendants’ first set of requests for production. (ECF No. 222-3, ECF No. 223-3.)
On March 7, 2018, Defendants served both Hall and EHC with interrogatories and EHC
with a second set of requests for production of documents. (ECF No. 222-2, ECF No. 223-2.) As
of this date, neither Hall nor EHC have responded to the interrogatories or second requests for
production. Defendants attempted to meet and confer with Hall and EHC’s counsel, Jared
Bramwell (Attorney Bramwell). (ECF No. 222-4.) However, in an email dated July 9, 2018,
Attorney Bramwell indicated that he was not prepared to meet but hoped “to be able to address it
with you next week sometime, if that works.” (Id.) As of this date, counsel has not provided
Defendants with any potential dates or times to meet and confer. On July 27, 2018, Defendants
filed their pending motions to compel. (ECF No. 222, ECF No. 223.)
Hall and EHC oppose the motions to compel and request a sixty-day (60) extension to
allow Attorney Bramwell additional time to familiarize himself with the case. Hall and EHC
argue that Defendants are exploiting Attorney Bramwell’s unfamiliarity “with this complex,
multi-faceted case by imposing overwhelming demands and taking advantage of counsel’s and
Plaintiffs’ known schedule and limitations.” (ECF No. 238, ECF No. 239.) Upon review of the
parties’ arguments, the court rules as follows.
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Given that Defendants’ motions to compel responses were filed over a month ago,
Bramwell has already had over thirty days to familiarize himself with the case. Accordingly, the
court ORDERS:
Hall and EHC shall produce the documents, records and/or materials
responsive to Defendants’ requests for production of documents and
interrogatories within thirty days of the date of this Order. The parties
are further ordered to meet and confer to resolve any issues to resolve
any issues or address confusion surrounding the materials sought no later
than September 7, 2018. Failure to comply may be grounds for sanctions.
ORDER
1. Defendants’ motion to compel Cedar City Wind’s compliance with Subpoena Duces
Tecum is granted in part. (ECF No. 214.)
2.
Defendants’ motions to compel Carbon Free Power, Monticello Wind Farm,
Monticello Wind Farm 2,Monticello Wind Farm II, Monticello Wind Farm, LLC,
Western Investment Alliance and Sage Grouse Energy Project’s compliance with
Subpoena Duces Tecum is granted in part.(ECF No. 215, ECF No. 216, ECF
No. 217, ECF No. 218, ECF No. 219, ECF No. 220 and ECF No. 221.)
3. Defendants’ motion to compel Plaintiff Anthony Hall to provide discovery responses
is granted in part. (ECF No. 222.)
4. Defendants’ motion to compel Plaintiff Ellis-Hall Consultants to provide discovery
responses is granted in part. (ECF No. 223.)
SO ORDERED this 4th day September, 2018.
BY THE COURT:
Dustin B. Pead
U.S. Magistrate Judge
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