Golden et al v. Mentor Capital et al

Filing 105

MEMORANDUM DECISION granting in part 93 Motion to Compel. The court will award $1040.25 in costs and fees. The court discounts the amount by half giving credit to Plaintiffs for some cooperation in the discovery process given their health challenges.Defendants are ORDERED to provide the court and Plaintiffs with an affidavit of costs and fees associated with bringing this motion within fourteen (14) days from the date of this order. Upon receipt, Plaintiffs will have fourteen (14) days to pay the required amount of costs and fees to Defendants. Signed by Magistrate Judge Brooke C. Wells on 6/1/17. (jlw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
GENA GOLDEN et al.,

MEMORANDUM DECISION AND ORDER
REGARDING MOTION TO COMPEL

Plaintiffs,
v.

Case No. 2:15-cv-176 JNP

MENTOR CAPITAL, INC. et al.,

District Judge Jill Parrish

Defendants.

Magistrate Judge Brooke Wells

Pending before the court is Defendant Mentor Capital, Inc.’s Motion to Compel the
Depositions of Plaintiffs Susan Golden and Gena Golden. 1 This motion is now largely moot
because the “depositions of Susan and Richard Golden are set to occur on May 3, 2017” 2 and the
deposition of Gena Golden, although not set, is anticipated to occur in “San Francisco on June
17th ….” 3 What remains, however, is Defendants’ request for costs and fees in the amount of
$2,080.50 incurred in bringing the motion to compel.
Federal Rule of Civil Procedure 37(a)(5)(A) provides,
If the motion is granted—or if the disclosure or requested discovery is provided
after the motion was filed—the court must, after giving an opportunity to be
heard, require the party or deponent whose conduct necessitated the motion, the
party or attorney advising that conduct, or both to pay the movant's reasonable
expenses incurred in making the motion, including attorney's fees. 4
According to Defendants, Plaintiffs did not respond to the requests to schedule
depositions until after the filing of the motion. Thus, because the requested discovery was
provided after the motion was filed costs and fees are appropriate.
1

Docket no. 93.

2

Reply p. 2, docket no. 98.

3

Id.

4

Fed. R. Civ. P. 37(a)(5)(A) (emphasis added).

“Cooperation among counsel is not only helpful, but required, and the court has the duty
to ensure that such cooperation is forthcoming.” 5 “The cooperation process should involve
information sharing and dialogue in an attempt to resolve discovery disputes without the
necessity of the Court ruling on each issue in dispute.” 6 In the ideal world discovery should
require at most infrequent court involvement because discovery is designed to be extrajudicial
and self-executing. 7 Federal Rule 37 vests the court with authority to encourage cooperation
between counsel.
The court has carefully reviewed the correspondence between counsel regarding the
scheduling of depositions. After doing so the court finds Plaintiffs’ counsel’s cooperation and
diligence in responding to Defendants’ counsel’s requests for scheduling depositions failed to
meet the necessary cooperation standards. Particularly troubling is the uptick in cooperation and
responsiveness after Defendants motion was filed. While the court is sympathetic to the health
challenges of Plaintiffs and their busy schedules, those matters alone do not justify what
occurred in this case. The court therefore will grant Defendants request for costs and fees in part
based upon the failure to cooperate adequately in scheduling depositions prior to the filing of the
motion.
ORDER
In accordance with Rule 37 and based upon the circumstances in this case before the
court, the court GRANTS IN PART Defendants request for costs and fees. 8 The court will

5

State of Ohio v. Crofters, Inc., 75 F.R.D. 12, 21 (D. Colo. 1977), aff'd sub nom. State of Ohio v. Arthur Andersen &
Co., 570 F.2d 1370, (10th Cir. 1978).
6

High Point SARL v. Sprint Nextel Corp., 2012 WL 234024 at *5 (D. Kan. Jan. 25, 2012).

7

See Fed. R. Civ. P. 26; Selecticia, Inc. v. Novatus, Inc. 2014 WL 1930426 at *2 (M.D. Florida May 14, 2014).

8

The remaining portions of the Motion to Compel the Depositions is moot.

2

award $1040.25 in costs and fees. The court discounts the amount by half giving credit to
Plaintiffs for some cooperation in the discovery process given their health challenges.
Defendants are ORDERED to provide the court and Plaintiffs with an affidavit of costs
and fees associated with bringing this motion within fourteen (14) days from the date of this
order. Upon receipt, Plaintiffs will have fourteen (14) days to pay the required amount of costs
and fees to Defendants.

DATED this 1 June 2017.

Brooke C. Wells
United States Magistrate Judge

3