United States District Court, D. Arizona
Honorable Roslyn O. Silver Senior United States District
Dishon and Luci Dishon (collectively “the
Dishons”) allege Defendants Gary Haak
(“Haak”) and Connie Gorham (“Mrs. Gorham,
” and collectively with Haak “Defendants”)
began demanding payment from the Dishons which Defendants
claimed the Dishons owed deceased non-party Mr. Gorham. The
Dishons allege Defendants' requests for payment violated
a prior agreement between the parties, and filed this suit
seeking a declaratory judgment barring Defendants' demand
for payment, plus costs and fees. Following this, Haak
initiated a separate suit, which was assigned to Judge
Humetewa, alleging, among other things, that the Dishons also
failed to compensate Haak for his services.
Dishons now move to transfer/consolidate Haak's suit with
the present suit, and also move for leave to amend their
complaint in the present suit. Defendants oppose both
motions. In addition, Defendants move to stay discovery in
the present case pending resolution of the motion to
transfer/consolidate, which the Dishons oppose. Since
Haak's suit and the present suit involve many of the same
underlying facts and a transfer will prevent duplication of
labor, the Dishons' motion to transfer will be granted.
And since the Dishons' proposed amendments are not futile
and will not prejudice Defendants, the Dishons' motion
for leave to amend will be granted as well. However, since
Haak's suit and the present suit are at opposite stages
of litigation, the suits will not be consolidated. And since
Defendants have not set forth a valid basis for staying
discovery, Defendants' motion to stay discovery will be
Dishons' amended complaint, (Doc. 6), alleges the
following: the Dishons owned Dishon Disposal, an oil field
waste disposal company, until November 2012. Non-party David
Gorham (“Mr. Gorham”), husband of Defendant Mrs.
Gorham, provided consulting services to Dishon Disposal.
While providing these consulting services, the Dishons allege
Mr. Gorham and some unnamed associates designed a scheme
whereby another company, Digerati Technologies, acquired
Dishon Disposal through a reverse acquisition in November
2012. As a result of this transaction, numerous disputes and
litigation developed between Mr. Gorham and numerous
third-parties, and Digerati Technologies eventually went
Dishons allege that, although neither the Dishons nor Dishon
Disposal were named in these other suits, the Dishons paid
millions of dollars in legal fees and costs associated with
them. Then, in January 2014, the Dishons, Mr. Gorham, Mr.
Gorham's wife, Defendant Connie Gorham (“Mrs.
Gorham”), and several other individuals and entities
entered into a settlement agreement (the “January 2014
settlement agreement”) allegedly resolving all ongoing
litigation and pending claims between the parties.
year and a half later, in November 2015, Mr. Gorham passed
away in Utah. Then, beginning in February 2016, Defendants
Haak, allegedly a representative of Mr. Gorham's estate,
and Mrs. Gorham began demanding sums from $1, 000, 000 to $1,
500, 000 from the Dishons, and threatening to release the
Dishons' private information to the public if Defendants
did not receive payment. The Dishons allege Defendants
claimed the Dishons failed to compensate Mr. Gorham for
consulting services he provided the Dishons, for Mr.
Gorham's investment in a water treatment system, and for
legal fees Mr. Gorham paid. The Dishons allege
Defendants' payment request violated the parties January
2014 settlement agreement, and thus filed this suit seeking
both a declaratory judgment barring Defendants' monetary
demand, as well as costs and attorney's fees stemming
from that contract's breach.
Dishons now move for leave to amend their complaint. In doing
so, the Dishons explain they “do not seek to add
parties or otherwise make wholesale changes to the
allegations of the pending lawsuit, ” but rather seek
to “clarify . . . the factual background and further
define the scope of the relief sought.” (Doc. 72).
Defendants responded, arguing the Dishons are attempting to
“control damage” and that the proposed amendments
are “futile and prejudicial, ” (Doc. 73), and the
Dishons replied, (Doc. 74).
addition, after the Dishons had already initiated this suit,
Defendant Haak filed a separate suit in October 2017, which
was given case number 17-CV-03576 and assigned to Judge
Humetewa (the “Second Lawsuit”). The Second
Lawsuit involves some of the same underlying facts as the
present suit. For example, like in the present suit, the
Second Lawsuit alleges the Dishons owned Dishon Disposal,
that Dishon Disposal was sold to Digerati Technologies in
November 2012, and that litigation followed this sale and
eventually led to Digerati Technologies' bankruptcy. In
addition, Haak's amended complaint in the Second Lawsuit
names the Dishons, and also several other individuals not
involved in the present suit, as defendants, meaning both
suits involve some of the same parties. That said, the claims
in the Second Lawsuit are distinct from the claims in the
present suit. For example, the Second Lawsuit involves
services that Haak, not Mr. Gorham, allegedly provided the
Dishons and the Dishons' companies.
Dishons now move to transfer/consolidate the two cases,
pursuant to Local Rule 42, arguing Haak's claims in the
Second Lawsuit arise from substantially the same allegations
that are the basis of the Dishons' claims here and that
underlied Defendants' now-dismissed counterclaims. (Doc.
69). Defendants responded, arguing a transfer/consolidation
would prejudice Defendants and would be inappropriate as the
cases involve different parties and issues of law, (Doc. 70),
and the Dishons replied, (Doc. 71). Defendants then moved to
stay discovery pending resolution of the motion to
transfer/consolidate, (Doc. 76), to which the Dishons
responded, (Doc. 77), and Defendants replied, (Doc. 80).
order resolves the Dishons' motion for leave to amend
their complaint, (Doc. 72), the Dishons' motion to
transfer/consolidate, (Doc. 69), and Defendants' motion
to stay discovery, (Doc. 76), which are addressed seriatim.
Motion for Leave to Amend
party seeks to amend its pleading within the date specified
in the scheduling order, the party must demonstrate amendment
is proper under Rule 15. See Johnson v. Mammoth
Recreations, Inc., 975 F.2d 604, 608 (9th Cir. 1992).
Rule 15 states that a party may amend its pleading with the
court's leave, and courts “should freely give leave
when justice so requires.” Fed.R.Civ.P. 15(a)(2).
Courts may, however, deny leave to amend for: (1)
“undue delay, bad faith or dilatory motive on part of
the movant, ” (2) “repeated failure to cure
deficiencies by amendments previously allowed, ” (3)
“undue prejudice to the opposing party, ” or (4)