Deem et al v. Baron et al
MEMORANDUM DECISION AND ORDER-denying 150 Motion to Strike/Dismiss Plaintiffs' Complaint ; granting 156 Motion for Extension of Time and notes that it considered the arguments set forth in the reply in deciding the Motion to Strike. See Order for details. Signed by Judge David Sam on 4/9/18. (jmr)
UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION
DARRELL L. DEEM, et. al.,
TRACEY BARON, et. al.,
District Judge David Sam
Defendants have moved the court for an order striking and dismissing Plaintiffs’ Third
Amended Complaint and dismissing this case due to “fraud upon this Court.” ECF No. 150 at 1.
Alternatively, they ask that the court strike the new claims for relief that allege fraud. For the
following reasons, the court denies this motion.
Defendants base their allegations of “fraud upon the court” on the fact that the first and
second amended complaints did not allege that Mr. Baron had committed fraud, but the third
amended complaint does assert a claim for fraud. However, Plaintiffs’ Motion for Leave to File
an Amendment states that “[S]ince the case was first filed, and as new information has been
discovery [sic] during preparation of this case for trial, a number of issues have come to light or
come into focus which were not clear earlier.” ECF No. 109 at 2. Defendants also point out that
when Plaintiff Darrel Deem was asked about these fraud claims during his deposition, he said,
“No, I didn’t know Mr. Baron committed fraud” (ECF No. 150 at 3), asserting that clearly these
new fraud claims have no basis in fact, because Mr. Deem has “admitted” that they have no
Defendant failed to mention, however, that the very next thing that Mr. Deem said, when
asked during his deposition whether he believes that Mr. Baron did not commit fraud, was the
following: “Well, maybe not on this issue, but there’s fraud in there somewhere.” ECF No. 153
at 3. While Mr. Deem’s statement at his deposition is indefinite and lacks particularity, the
plaintiffs’ Third Amended Complaint sets forth with particularity a number of facts to support
their claim of fraud. Defendants’ allegations of fraud upon the court are serious allegations
requiring substantial evidence, and Defendants have presented no evidence on which to base
The court hereby GRANTS Defendants’ Motion for Enlargement to [File] Reply (ECF
No. 156), and notes that it considered the arguments set forth in the reply in deciding the Motion
to Strike. For the reasons stated above, and after careful consideration of all the pleadings, the
court hereby DENIES Defendants’ Motion to Strike/Dismiss Plaintiffs’ Complaint. ECF No.
150. SO ORDERED.
DATED this 9th day of April, 2018.
BY THE COURT:
United States District Judge
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