Filed: Dec. 21, 2016
Latest Update: Dec. 21, 2016
Summary: MEMORANDUM OPINION AND ORDER DENYING DEFENDANT'S MOTION TO VACATE (Adv. 16 A 136, Dkt. No. 95). JACK B. SCHMETTERER , Bankruptcy Judge . Defendant has moved (Dkt. 95) to vacate the order entered on December 15, 2016 (Dkt. No. 91) which allowed Defendant's discovery to go forward. Defendant now relies on an earlier Motion (Dkt. No. 79), which Defendant asserts was not yet ruled on. The Opinion and Order complained of made reference to a different Motion of Defendant (Dkt. No. 70). The Motio
Summary: MEMORANDUM OPINION AND ORDER DENYING DEFENDANT'S MOTION TO VACATE (Adv. 16 A 136, Dkt. No. 95). JACK B. SCHMETTERER , Bankruptcy Judge . Defendant has moved (Dkt. 95) to vacate the order entered on December 15, 2016 (Dkt. No. 91) which allowed Defendant's discovery to go forward. Defendant now relies on an earlier Motion (Dkt. No. 79), which Defendant asserts was not yet ruled on. The Opinion and Order complained of made reference to a different Motion of Defendant (Dkt. No. 70). The Motion..
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MEMORANDUM OPINION AND ORDER DENYING DEFENDANT'S MOTION TO VACATE (Adv. 16 A 136, Dkt. No. 95).
JACK B. SCHMETTERER, Bankruptcy Judge.
Defendant has moved (Dkt. 95) to vacate the order entered on December 15, 2016 (Dkt. No. 91) which allowed Defendant's discovery to go forward. Defendant now relies on an earlier Motion (Dkt. No. 79), which Defendant asserts was not yet ruled on. The Opinion and Order complained of made reference to a different Motion of Defendant (Dkt. No. 70).
The Motion under Dkt. No. 79 made the following argument:
That in moving for a trial continuance the counsel for Plaintiffs misrepresented a number of facts pertaining to prior discovery, that the misrepresentations were deliberate, that because of the misrepresentations Plaintiffs' counsel should be sanctioned and Plaintiffs should be barred from further discovery.
Defendant also complains that he was not served with copies of subpoenas, but those have now been served (Dkt. No. 96).
The Opinion and Order complained of assumed that some factual errors had been made in argument by Plaintiffs' counsel, but the Court does not find such errors were shown to have been deliberate and sanctionable. The mistakes made are viewed as mistakes not deception. Nothing said by Plaintiffs' lawyer warrants the drastic punishment sought by Defendant — monetary sanctions and a bar on further discovery.
The trial was delayed for good reasons that were made clear. Discretion was exercised in the interest of a trial to explore the issues fully and slow down the chaotic nature of discovery on the eve of trial. Defense counsel has not been able to accept that decision and the discovery that follows from it.
The original trial date was continued for reasons summarized in the Opinion complained of (Dkt. No. 91). Plaintiffs show no reason to bar further discovery that is relevant and can be completed in the time available to complete such discovery before trial in an orderly manner. Reasoning of the Opinion complained of (Dkt. No. 91) applies as well to the Motion that Defendant complains was never ruled on (Dkt. No. 79). That earlier Motion (Dkt. No. 79) is now denied, and Defendant's current Motion to Vacate is also denied.
