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Kimm v. Brannan

United States District Court, D. Arizona

March 27, 2017

Jack Kimm, Plaintiff,
Martin Brannan, et al., Defendants.

          ORDER AND OPINION [RE: MOTIONS AT DOCKETS 92, 97, 98, AND 103]



         Before the court are four related motions filed by plaintiff Jack Kimm (“Kimm”). First, at docket 92 Kimm moves for an extension of the February 6, 2017 fact discovery deadline to April 21, 2017, and the dispositive motions and motions in limine deadline from March 24, 2017 to June 23, 2017. Defendants Martin Brannan (“Brannan”), Samuel Verderman (“Verderman”), Frank Haws (“Haws”), Thomas Jones (“Jones”), and La Paz County (collectively, “the La Paz Defendants”) oppose the motion at docket 100.

         The next two motions are motions to strike. At docket 97 Kimm moves to strike defendant Rayburn Evans' (“Evans”) objections at docket 88 to the deposition notice of Steven Suskin (“Suskin”). Evans opposes the motion at docket 104. At docket 98 Kimm moves to strike Evans' objections at docket 89 to the deposition notice of John Churchill (“Churchill”). Evans opposes the motion at docket 105. Kimm's combined reply in support of both of these motions is at docket 107.

         Finally, at docket 103 Kimm moves to compel Suskin's and Churchill's depositions, supported at docket 109 by a declaration of counsel. Evans opposes the motion at docket 106. Kimm replies at docket 108, supported by a declaration of counsel at docket 110. At docket 111 Kimm filed a notice of errata with a corrected Exhibit 3 to his reply.

         Oral argument was not requested and would not assist the court.


         The background to this case set out in the court's order at docket 47 need not be repeated here. Suffice it to say for present purposes that the court's scheduling and planning order established a fact discovery deadline of October 7, 2016, and a dispositive motion and motion in limine deadline of March 24, 2017.[1] In October Kimm's counsel, Joy Bertrand (“Bertrand”), attempted to schedule the defendants' depositions for November or December.[2] Counsel for the La Paz Defendants responded by stating that Haws would be made available for a deposition in Phoenix and requesting that the remaining defendants' depositions take place in La Paz County.[3]

         At docket 72 Kimm moved to extend the fact discovery deadline until February 6, 2017. Kimm stated that he had taken Evans' deposition but, due to scheduling issues, not the La Paz Defendants'.[4] Kimm estimated that the remaining depositions would be complete by the end of January. On December 12, 2016, the court granted the motion over Evans' objection.[5]

         On December 19 Bertrand emailed opposing counsel requesting dates for Suskin's and Churchill's depositions.[6] Suskin and Churchill represented Evans in the case that Kimm filed against Evans in state court, [7] and they currently represent Evans in this action. Churchill responded to Bertrand's email by stating that he preferred to have his deposition taken in Parker and instructed Bertrand to contact his staff to identify a suitable deposition date.[8] Suskin responded to Bertrand also, stating that he was available to be deposed on several dates in January.[9]

         About one month before the discovery deadline, Bertrand emailed Michael Warzynski (“Warzynski”), the La Paz Defendants' counsel, requesting his availability for Suskin's and Churchill's depositions.[10] Warzynski's paralegal responded by stating that Warzynski was in trial from January 17 to February 13 and providing nine dates after the trial ended that Warzynski was available for depositions.[11] Bertrand then reached out to Suskin and Churchill on January 10 to see if they were available on the dates listed by Warzynski's paralegal.[12] Suskin and Churchill did not respond. On January 17 Bertrand emailed Warzynski to see if his trial went forward as scheduled and, if not, if they could schedule depositions.[13] Warzynski did not respond.

         In late January Kimm filed deposition notices for Suskin (February 8), [14] Haws (February 21), [15] and Churchill (March 3).[16] Bertrand emailed opposing counsel regarding Suskin's, Churchill's, [17] and Haws' depositions[18] on February 1. In her email Bertrand informed opposing counsel that she intended to notice the depositions of the remaining defendants (Brannan, Verderman, Jones, and La Paz County) for mid-March.[19] To date, Kimm has not noticed any of these depositions.

         On February 2 Evans filed objections to Suskin's and Churchill's deposition notices, asserting that the depositions (1) were untimely because they were scheduled for after the discovery deadline; (2) seek documents and information protected from disclosure by the attorney-client privilege and work-product doctrines; (3) were not adequately noticed; and (4) would be burdensome, oppressive, and harassing to Evans, Suskin, and Churchill.[20] Warzynski responded to Bertrand's email by stating that he would have been inclined to arrange for Haws' deposition if Kimm had only requested that one deposition, but because Kimm now seemed “intent to attempt a discovery extravaganza after the close of discovery, ” Warzynski would object to the deposition notices for all La Paz Defendants.[21]


         Rule 6(b)(1)(A) provides that the district court may “for good cause” grant a request for an extension of time. “[Rule 6(b)(1)], like all the Federal Rules of Civil Procedure, ‘[is] to be liberally construed to effectuate the general purpose of seeing that cases are tried on the merits.'”[22] The decision to grant or deny a Rule 6(b)(1) motion is committed to the district court's discretion.[23]

         Local Rule of Civil Procedure (“Local Rule”) 7.2(m) governs motions to strike. It provides in pertinent part that a motion to strike may be filed “if it seeks to strike any part of a filing or submission on the ground that it is prohibited (or not authorized) by a statute, rule, or court order.”[24] The decision to grant or deny a motion to strike is within the court's discretion.[25]

         If a party fails to make disclosures or cooperate in discovery, the requesting party may move to compel.[26] “The party who resists discovery has the burden to show that discovery should not be allowed, and has the burden of clarifying, explaining, and supporting its objections.”[27]


         A. The Motion to Compel

         Evans testified at his deposition that Suskin referred Kimm to the La Paz County Attorney's Office for prosecution.[28] The circumstances surrounding this referral are central to Kimm's complaint.[29] Kimm seeks an order compelling Suskin's and Churchill's depositions.

         Kimm's motion is a discovery motion to which Local Rule 7.2(j)[30] and Rule 37(a)(1)[31] apply. The motion runs afoul of these rules because Bertrand did not attach to the motion a statement certifying that she personally consulted Evans' counsel and made sincere efforts to resolve their objections. Based on this deficiency, the court may not consider the motion.[32] Kimm's motion will be denied without prejudice.

         The court notes that Evans raises nine arguments in opposition to Kimm's motion. The court expects that most, if not all, of these objections will be resolved without court intervention after counsel confers with one another. For example, the parties should be able to stipulate to extending the deadline for discovery motions considering that the conduct underlying Kimm's current motion occurred after the deadline, [33] and Evans cannot refuse to comply with a discovery request based on his opinion that Kimm's case should be dismissed.[34] Finally, the court notes that although deposing opposing counsel is generally disfavored, this disfavor “is not a talisman for the resolution of all controversies of this nature.”[35] Once the parties confer regarding persuasive cases on this ...

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