Golden et al v. Mentor Capital et al

Filing 120

MEMORANDUM DECISION and ORDER granting 108 Mentor's Motion to Compel Complete Discovery Responses from Gena and Susan Golden; granting 109 Mentor's Motion to Compel Further Discovery Responses from Richard Golden. Mentor's request for costs and fees in bringing the respective motions is granted. Signed by Magistrate Judge Brooke C. Wells on 9/5/2017. (blh)

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

MEMORANDUM DECISION AND ORDER
GRANTING MOTIONS 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

Before the court are two motions to compel filed by Defendant and Third-Party Plaintiff
Mentor Capital. Mentor seeks “complete discovery responses from each of Plaintiffs Susan
Golden and Gena Golden” 1 Mentor also moves the court for “complete discovery responses
from Third-Party Defendant Richard Golden.” 2 The court addresses each of these motions in
turn as set forth below.
BACKGROUND
In May 2016 Mentor Capital filed a Third-Party Complaint against Richard Golden and
Scott Van Rixel.3 Mentor seeks contribution, indemnification and indemnity for claims brought
“against Mentor as the purported seller of securities.” 4 In the Complaint Mentor claims it is
“unsure of the true mechanics by which Plaintiffs received the stock about which they complain,
but Plaintiffs have pled that Third-Party Defendant Richard Golden was instrumental in their

1

Motion to Compel Complete Discovery Responses from Gena Golden and Susan Golden p. 2, docket no. 108.

2

Motion to Compel Complete Discovery Responses from Richard Golden p. 2, docket no. 109.

3

Docket no. 65.

4

Third-Party Complaint ¶ 3.

receiving their stock.” 5 Mr. Golden wrote the checks by which Plaintiffs bought their stock and
Mr. Van Rixel “negotiated those checks.” 6
On April 4, 2017, Mentor served Mr. Golden its First Set of Requests for Admission,
First Set of Interrogatories and First Set of Requests for Production. On this same date Mentor
also served on each of the Plaintiffs Susan Golden and Gena Golden, its Second Set of
Interrogatories and its First Set of Requests for Admission. In May 2017 following review of the
responses from each of the parties Mentor sent a meet and confer letter outlining alleged
deficiencies within the responses. These alleged deficiencies included inter alia failures to
verify responses, improper boiler-plate general objections, inadequate specificity in the
responses, failures to produce responsive documents and incomplete responses. In response
Counsel for Mr. Golden and Plaintiffs replied that the responses were sufficient and no
amendments or supplements would be forthcoming. 7 These motions followed. Mentor also
seeks its fees and costs in bringing the motions.
DISCUSSION
Relevant to both motions are Federal Rules 26 and 36. Fed. R. Civ. P. 26(b)(1) provides
that:
“Parties may obtain discovery regarding any nonprivleged matter that is relevant
to any party’s claim or defense and proportional to the needs of the case,
considering the important of the issues at stake in the action, the amount in
controversy, the parties’ relative access to relevant information, the parties’
resources, the importance of the discovery in resolving the issues, and whether the
burden or expense of the proposed discovery outweighs its likely benefit.” 8

5

Id. ¶ 5.

6

Id. ¶ 7.

7

Sean N. Egan is counsel for Plaintiffs and Mr. Golden who are all related. “Mr. Golden’s wife is Susan while his
daughter is Gena.” Mentor’s Reply p.2 fn. 2.

8

Fed. R. Civ. P. 26(b)(1).

2

Fed. R. Civ. P. 36(a)(4) provides:
“If a matter is not admitted, the answer must specifically deny it or state in detail
why the answering party cannot truthfully admit or deny it. A denial must fairly
respond to the substance of the matter; and when good faith requires that a party
qualify an answer or deny only a part of a matter, the answer must specify the part
admitted and qualify or deny the rest.” 9
I.

The court will order Gena and Susan Golden to provide the requested discovery
Mentor argues it is entitled to complete discovery responses because Plaintiffs initiated

this matter and Mentor is “entitled to know exactly how it is alleged to have engaged in fraud
and conspiracy and what specifically it is alleged to have misrepresented.” 10 In response,
Plaintiffs argue that Mentor already knows how their shares were purchased and further
supplementing the discovery is unnecessary. This knowledge came from the depositions of
Plaintiffs and Plaintiffs point to their “Reply Memorandum in support of their Motion for Leave
to Amend their Complaint” that provides “how they came to possess Mentor stock.” 11 Plaintiffs
then summarize how they came into possession of their stock and also point to an email from
“Chester Billingsley to Tod DiTommaso dated August 6, 2014.” 12
The court finds Plaintiffs arguments unpersuasive. Under the Federal Rules Mentor may
use all the discovery tools that are available and is not confined to only depositions. Mentor
should not be required to hunt through memoranda looking for discovery responses, nor is it
appropriate for a party to answer discovery requests in an opposition memorandum to a motion
to compel. Requiring a party to search through a party’s filings for discovery responses is akin
to asking someone to find the proverbial needle in a haystack and undermines the basic purpose

9

Fed. R. Civ. P. 26(a)(4).

10

Motion to Compel Complete Discovery Responses from Gena Golden and Susan Golden p. 3.

11

Op to motion p. 2, docket no. 112.

12

Id. p. 3.

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of the Federal Civil Rules to “secure the just, speedy and inexpensive determination of every
action and proceeding.” 13 The court has reviewed the propounded discovery as set forth in the
memoranda and finds it falls within the requirements of Rule 26(b)(1). The court will therefore
require Gena and Susan Golden to provide verified and signed responses to Requests for
Admission numbers 1 through 6 and Interrogatory number 9.
II.

The court will order Richard Golden to supplement or amend the discovery
responses
The arguments made in the motion to compel Richard Golden to supplement or amend

discovery responses are similar to those mentioned previously. Mentor seeks complete
responses to Request for Admission numbers 3, 4 and 5, Interrogatory numbers 4, 5, 7, 8, 9, 10,
15 and 16 and production of documents in response to the First Set for Requests for Production.
Mr. Golden points to his deposition and again answers some of the requested discovery in
opposition to Mentor’s motion. Once again this approach fails. Mentor may seek discovery
under the Federal Rules and under those same rules Mr. Golden is required to provide verified
answers that do not seek to play a game of hide and seek.
III.

The court will award Mentor its fees and costs for bringing the motions
Rule 37(a)(5)(A) provides that,
“If the motion [to compel] 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.” 14
Mentor seeks $2,321 in costs and fees for bringing the motion to compel discovery from

Gena and Susan Golden. Mentor Further seeks $2,215 in its motion to compel discovery from
13

Fed. R. Civ. P. 1.

14

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

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Richard Golden. The court finds the Golden’s responses to discovery along with the granting of
Mentor’s motions warrant the imposition of costs and fees. This is the second time the court
enters sanctions for discovery violations against Plaintiffs. 15 It is concerning to the court that
either Plaintiffs or Plaintiffs’ counsel seem intent on delaying and not cooperating in this action.
There is no need for such conduct in the civil arena of dispute resolution and the court
admonishes Plaintiffs and their counsel to follow the Federal Rules and use better judgment in
their litigation strategy.
CONCLUSION and ORDER
As set forth above and for good cause shown, the court GRANTS Mentor’s Motion to
Compel Complete Discovery Responses from Gena and Susan Golden. 16 The court also
GRANTS Mentor’s Motion to Compel Further Discovery Responses from Richard Golden. The
discovery is ORDERED to be produced within thirty (30) days from the date of this order.
IT IS FURTHER ORDERED that Mentor’s request for costs and fees in bringing the
respective motions is GRANTED. The Goldens and or their counsel are to pay $4,536 to
Defendant Mentor within thirty (30) days from the date of this order.
IT IS SO ORDERED.

15

Memorandum decision and order regarding motion to compel, docket no. 105.

16

Docket no. 108.

5

DATED this 5 September 2017.

Brooke C. Wells
United States Magistrate Judge

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