Erus Builders LLC v. Volt Solar Sys. Inc., CV-14-02686-PHX-JZB
Decision Date | 07 June 2016 |
Docket Number | No. CV-14-02686-PHX-JZB,CV-14-02686-PHX-JZB |
Parties | Erus Builders LLC, Plaintiff, v. Volt Solar Systems Incorporated, et al., Defendants. |
Court | U.S. District Court — District of Arizona |
Pending before the Court are Plaintiff Erus Builders, LLC's Ex Parte Application to Amend Case Management Order, or Alternatively, to Vacate Dates and Schedule New Case Management Conference (Doc. 64), Erus' Notice of Joinder of Parties Pursuant to Rules 15 and 20 of the Federal Rules of Civil Procedure (Doc. 66),1 Erus' Motion to Compel Deposition of Defendant Malcolm Adler (MAdler) (Doc. 69), and MAdler's Motion for a Referral to a Magistrate Judge for a Settlement Conference (Doc. 94). Below, the Court addresses these Motions.
Erus requests the Court extend the discovery deadlines in this matter because: (1) the Court previously stayed the proceedings for two months; (2) MAdler's discovery responses are incomplete; (3) Wells Fargo did not produce full documents in response to a subpoena; (4) Erus seeks to add additional parties to this action "which will not onlyrequire additional discovery, but will affect the scope and breadth of the issues and claims in this case"; and (5) MAdler cancelled his deposition with one day's notice because he was advised by counsel not to answer any questions besides his name or biographical information pursuant to his Fifth Amendment rights. (Doc. 64 at 3-5.)
Defendants Jerome Wenger (JWenger) and Sharon Altman (SAltman) oppose Erus' Motion. (Doc. 74.) Specifically, they contend that they believe there is no basis for liability against them in this action, the Court should deny Erus' request to add additional parties, and Erus has had sufficient time to complete discovery. MAdler has not responded to Erus' Motion, and the time to do so has passed. LRCiv 7.2(c).
As detailed below, the Court will grant Erus additional time to depose MAdler, and will grant in part and deny in part Erus' request to add new parties. Accordingly, the Court will extend the case management deadlines in this matter as follows:
On November 2, 2015, Erus noticed the deposition of MAdler for November 13, 2015, in Philadelphia. (Doc. 69-4 at 2-3.) The parties also scheduled the depositions of JWenger and SAltman for the previous day, November 12, 2015, in Philadelphia. (Doc. 69 at 3.) MAdler's counsel, Robert Mann, asserts that on November 10, 2015, he learned that MAdler had received an SEC subpoena. (Doc. 78 at 2.) After a preliminary investigation, Mr. Mann asserts, MAdler decided to invoke his Fifth Amendmentprivilege to questions asked during his deposition. (Id.) Mr. Mann informed counsel of MAdler's decision the day before MAdler was to be deposed. (Id.) It appears that the parties, after the other depositions were completed on November 12, 2015, put their positions on the record:
Erus now moves to compel the Deposition of MAdler. (Doc. 69.) Erus contends that MAdler improperly cancelled his deposition the day before it was scheduled to take place, after Erus' counsel had traveled to the East Coast, based on an assertion that his Fifth Amendment rights protect him from testifying in this matter.3 Erus also requests the Court order MAdler to pay Erus' attorneys' fees caused by his failure to appear at his deposition. (Id. at 8.)
MAdler opposes Erus' Motion, arguing that Erus failed to comply with the Court's Scheduling Order, Erus failed to meet and confer regarding rescheduling MAdler's deposition, Erus chose to cancel the deposition, MAdler did not fail to appear, MAdler's current counsel was not aware of the SEC Subpoena until November 10, 2015, and MAdler has a right to invoke his Fifth Amendment rights. (Doc. 78 at 3-15.) MAdler further seeks his attorney's fees incurred in having to respond to Erus' Motion to Compel. (Id. at 16.)
As an initial matter, the Court's Case Management Order provides the following:
(Doc. 36 at 4.)4 Here, Erus did not seek leave before filing its Motion to Compel in violation of the Court's Case Management Order, which has caused delay and the parties to incur additional and unnecessary fees in resolving this dispute. Erus acknowledges in its Reply that it failed to comply with the Court's Case Management Order, but asserts it did so "in hopes of expediting [the] process." (Doc. 85 at 8.)
The parties must fully comply with the Court's Orders. Such compliance is NOT optional. Although the Court could deny or strike Erus' Motion for its failure to comply with the Court's Case Management Order, in the interest of judicial economy, the Court will address Erus' Motion based on the parties' briefing.
As the parties appear to agree, the Fifth Amendment privilege must be invoked on a question-by-question basis. (Doc 69 at 7-8; Doc. 78 at 13.) Specifically, "[t]he only way the privilege can be asserted is on a question-by-question basis, and thus as to each question asked, [MAdler] has to decide whether or not to raise his Fifth Amendment right." Doe v. Glanzer, 232 F.3d 1258, 1263 (9th Cir. 2000); see also United States v. Seifert, 648 F.2d 557, 560 (9th Cir. 1980) () ; United States v. Tsui, 646 F.2d 365, 367 (9th Cir. 1981) (). Therefore, a "blanket claim of privilege is simply not sufficient." Davis v. Fendler, 650 F.2d 1154, 1160 (9th Cir. 1981).
Here, it appears from the record that MAdler conveyed his intent to assert his Fifth Amendment rights to almost all of Erus' questions. However, those questions were never asked. Therefore, the Court cannot determine whether invocation of his Fifth Amendment rights in response to Erus' questions is proper.
Erus is entitled to depose MAdler because he is a named party. See Fed. R. Civ. P. 30(a)(1). And, as stated above, a blanket assertion of Fifth Amendment protections is not a sufficient basis on which to not answer questions during a properly noticed deposition. Accordingly, the Court...
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