Berry v. Van Ru Credit

Filing 29

MEMORANDUM DECISION AND ORDER finding as moot 20 Motion to Compel; granting 21 Motion for Amended Scheduling Order: Expert Discovery due by 3/4/2016; Motions due by 4/1/2016; Final Pretrial Conference set for 8/15/2016 at 02:30 PM in Rm 3.100 before Judge David Nuffer; 2-Day Jury Trial set for 8/29/2016 at 08:30 AM in Rm 3.100 before Judge David Nuffer. Signed by Magistrate Judge Paul M. Warner on 12/10/15 (alt)

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

DOUGLAS BERRY,

MEMORANDUM DECISION AND
ORDER
Plaintiff,

v.

Case No. 2:15-cv-150

VAN RU CREDIT,

District Judge David Nuffer
Defendant.

Magistrate Judge Paul M. Warner

This matter was referred to Magistrate Judge Paul M. Warner by District Judge David
Nuffer pursuant to 28 U.S.C. § 636(b)(1)(A). Before the court are (1) Douglas Berry’s
(“Plaintiff”) motion to compel recordings,1 and (2) Plaintiff’s motion to amend the scheduling
order.2
Plaintiff asserts that Van Ru Credit (“Defendant”) failed to provide all of the recordings
requested by Plaintiff until immediately before Defendant’s rule 30(b)(6) deposition. Plaintiff
seeks an order compelling Defendant to produce all recordings, as well as for attorneys fees and
costs incurred in filing this motion. In response, Defendant contends that Plaintiff failed to
conduct an informal conference to settle this dispute as required by local rule 37-1, nor did he
comply with that rule’s requirements. See DUCivR 37-1. Defendant further asserts that that it
informed Plaintiff that it would produce the recordings of all conversations between Defendant
and Plaintiff related to the terms of the loan rehabilitation, the subject of Plaintiff’s complaint,

1

See docket no. 20.

2

See docket no. 21.

but not all recordings. And, Defendant contends, Plaintiff did not express any issue with that
assertion until the rule 30(b)(6) deposition. However, since the filing of the instant motion,
Defendant states that it has now produced all requested recordings.
Because Defendant has now produced all requested recordings, this court concludes that
Plaintiff’s motion to compel is rendered MOOT. In addition, the court declines to award
sanctions in this matter.
Plaintiff further requests an order extending the litigation deadlines by several months
due to Defendant’s failure to provide all of the recordings. Specifically, Plaintiff seeks an
additional two months for fact discovery and to amend pleadings, four months for expert
discovery, and five months for dispositive motions. Plaintiff also seeks an extension to redepose Defendant’s 30(b)(6) witness.
Defendant opposes amending the scheduling order. Defendant contends that at the
original deposition, Plaintiff’s counsel “proceeded to shout at defense counsel and Defendant’s
representative regarding additional call recordings he felt he was entitled to receive and then
abruptly ended the telephonic deposition by hanging up without any notice.”3 Defendant asserts
that there was no discussion of re-deposing Defendant’s 30(b)(6) witness, who appeared and was
ready to participate. Defendant argues that Plaintiff should not be afforded additional time to
complete the deposition when it was his counsel’s decision to cut the deposition short.
While the court understands Defendant’s position, it is not persuaded by it. Furthermore,
the court notes that this is the first request by either party to amend the scheduling order and
there is no apparent prejudice by doing so. Accordingly, the court GRANTS Plaintiff’s motion
to amend the scheduling order. In addition, the court will allow Plaintiff to re-depose

3

Docket no. 24.

2

Defendant’s 30(b)(6) witness for the time remaining, as set forth in the original scheduling order.
The scheduling order is amended as follows.
(1) The parties shall meet and confer no later than December 21, 2015 to reschedule
Defendant’s rule 30(b)(6) deposition to occur by January 11, 2016. If the parties cannot find a
mutually agreeable date for the deposition, the parties shall inform the court and the court will
set the date.
(2) Fact discovery shall be completed by February 5, 2016.
(3) Expert discovery shall be complete by March 4, 2016.
(4) Dispositive motion deadline is April 1, 2016.
(5) Evaluation of case for settlement/ADR by February 5, 2016.
(6) Plaintiff’s Rule 26(a)(3) pretrial disclosures due June 13, 2016, and Defendant’s Rule
26(a)(3) pretrial disclosures due June 27, 2016.
(7) Special Attorney Conference on or before July 18, 2016.
(8) Settlement Conference on or before July 18, 2016.
(9) Final pretrial conference on August 15, 2016, at 2:30 p.m.
(10) Two-day jury trial to begin on August 29, 2016 at 8:30 a.m.
All other dates in the original scheduling order remain unchanged.
IT IS SO ORDERED.
DATED this 10th day of December, 2015.
BY THE COURT:

________________________________
PAUL M. WARNER
United States Magistrate Judge

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