Archive for the ‘Civil’ category

Magistrate Paul M. Warner – Motion to Compel and Motion for Sanctions granted

December 10, 2007

CHANNEL BAKER, Plaintiff, v. SIZZLING PLATTER, INC.; SIZZLING PLATTER, L.L.C.; all entities dba Red Robin and dba Red Robin Layton; and JOHN DOES 1-5, Defendants.

Case No. 2:06cv1045

United States District Court for the District of Utah, Central Division

2007 U.S. Dist. LEXIS 90044

December 6, 2007

Magistrate Paul M. Warner

Defendant contends it has made diligent and good faith, but futile, efforts to work with Plaintiff and her counsel regarding various discovery matters. Accordingly, Defendant asked the court for an order: (1) compelling Plaintiff to respond to Defendant’s First Set of Interrogatories and First Requests for Production of Documents, (2) compelling Plaintiff to appear for a deposition at the offices of Defendant’s counsel within thirty days after service of Plaintiff’s responses to the discovery requests, and (3) sanctioning Plaintiff and her counsel by requiring them to pay Defendant’s reasonable costs and attorney fees incurred in connection with the motion.

Plaintiff did not contest the appropriateness of the court compelling responses to the discovery requests and compelling her appearance for a deposition in Utah. Accordingly, the court granted Defendant’s motion to compel and ordered Plaintiff to provide responses to the discovery requests within fifteen days. Plaintiff was also ordered to appear for a deposition in Utah within thirty days after service of her discovery responses.

Plaintiff does, however, contend that sanctions are not warranted in this matter because (1) Plaintiff’s counsel has attempted to work with Defendant’s counsel to comply with Plaintiff’s discovery obligations; (2) Plaintiff resides in Texas and the requested documents
are in storage in Utah; (3) Plaintiff’s current employer does not allow her to take leave for the purposes of being deposed; and (4) Plaintiff offered to appear for a deposition in Texas, which was refused by Defendants.

Regarding sanctions, the court held:

“The court has determined that Plaintiff’s excuses are entirely without merit. Plaintiff chose to sue Defendant in this forum. The fact that she now lives in Texas is of no moment to the court. Plaintiff has an obligation to cooperate in discovery. It is her responsibility, as the plaintiff in this matter, to aid her counsel in moving this case forward. She has utterly failed to do so, and the court concludes that sanctions are appropriate.” The sanctions to be issued by the court will consist of defendant’s attorney fees incurred in bringing defendant’s motion to compel.

So who is actually going to pay the sanctions?

“While the court finds that Plaintiff’s counsel could have been more diligent in obtaining the requested information from Plaintiff, the court concludes that it would not be appropriate to require Plaintiff’s counsel to pay the attorney fee award. Instead, Plaintiff shall be responsible for paying the award.”

Judge Dee Benson – Motion to Recuse denied

November 29, 2007

BRYAN L. TRAVIS, Plaintiff, vs. PARK CITY MUNICIPAL CORPORATION, et al., Defendants.

Case No. 2:05-CV-269

United States District Court for the District of Utah, Central Division

2007 U.S. Dist. LEXIS 86691

November 21, 2007

Plaintiff filed a motion to remove both Judge Dee Benson and Magistrate Judge David Nuffer from the case.

Title 28 U.S.C. § 455(a) provides that a federal judge must recuse himself “in any proceeding in which his impartiality might be reasonably questioned.” In applying this standard, the Tenth Circuit looks to determine “whether a reasonable person, knowing all the relevant facts, would harbor doubts about the judge’s impartiality.” United States v. Burger, 964 F.2d 1065, 1070 (10th Cir. 1992). “The inquiry is limited to outward manifestations and reasonable inferences drawn therefrom.” United States v. Cooley, 1 F.3d 985, 993 (10th Cir. 1993).

Plaintiff’s evidence for bias consisted generally of several motions that either Judge Benson and/or Judge Nuffer had ruled in Defendant’s favor. However, Judge Benson holds that “an adverse ruling is not sufficient evidence of bias to satisfy the requirements for disqualification.”

“Mr. Travis provides no facts to support his allegations that Judge Benson and Judge Nuffer have a personal bias or prejudice against him. Rather, he makes cursory and unsubstantiated claims that Judge Benson and Judge Nuffer have worked against him in an effort to deny him justice.”

Motion to Recuse denied.

Magistrate Judge Nuffer – Motion to Compel Discovery granted in part

November 27, 2007

CLEARONE COMMUNICATIONS, INC., a Utah corporation, Plaintiff, vs. ANDREW CHIANG, an individual, JUN YANG, an individual, LONNY BOWERS, an individual, WIDEBAND SOLUTIONS, INC., a Massachusetts corporation, and BIAMP SYSTEMS CORPORATION, an Oregon corporation, Defendants.

Case No: 2:07cv00037TC

United States District Court for the District of Utah, Central Division

2007 U.S. Dist. LEXIS 85617

November 20, 2007

Case assigned to Judge Tena Campbell – Opinion written by Magsitrate Judge Nuffer

The Plaintiff, ClearOne Communications, Inc., moved to compel discovery against Defendant Biamp Systems Corporation.  . In general, Biamp complained that many of the requests used the phrase “reflecting” or “relating,” which were omnibus terms that made the request overly broad.

Although Judge Nuffer counseled that “ClearOne should strive to make its requests more precise,” the use of terms such as “relating to,” “pertaining to,” or “concerning” does not necessarily make a request overly broad or unduly burdensome as long as these phrases modify a sufficiently specific type of information.

Motion to compel granted in part.

Judge Dee Benson – Motion for Preliminary Injunction denied

July 6, 2007

ANDERSEN MANUFACTURING, INC., an Idaho Corporation, Plaintiff, vs. DIVERSI-TECH CORP., a Utah Corporation, ANGELA BUDGE, and PAUL BUDGE, Defendants

2007 U.S. District LEXIS 47925

Case No.: 2:05-CV-923, Consolidated with 2:07-CV-88

United States District Court for the District of Utah, Central Division

July 2, 2007 – Judge Dee Benson

Plaintiff Andersen Manufacturing, Incorporated requested a preliminary injunction preventing Diversi-Tech Corporation from continuing its alleged infringement of a patent for an extruded aluminum trailer hitch.

The Court stated that “in order to merit the grant of a motion for preliminary injunction, a movant must show: (1) a substantial likelihood of success on the merits of the case; (2) irreparable injury to the movant if the preliminary injunction is denied; (3) the threatened injury to the movant outweighs the injury to the other party under the preliminary injunction; and (4) the injunction is not adverse to the public interest.”

The Court expressed concerns regarding the validity of the Anderson patent, particularly in regard to the obviousness of the apparatus. As to the two item of uniqueness claimed by the plaintiff, the Court states: “there is support for the proposition that both a trailer hitch drop bar and aluminum alloy are well-known elements in the prior art.”

“Accordingly, Andersen’s motion for a preliminary injunction fails to meet the burden of step 1. Andersen has not shown a substantial likelihood of success on the merits due to significant questions as to the validity of the ‘412 patent.”

Watch out local music downloaders

July 6, 2007

If anyone in Provo has been illegally downloading music, watch out.

Several music companies have been granted approval by Magistrate Judge Brooke Wells to issue a subpoena to identify the names, addresses and phone numbers of four Provo internet company customers who are being sued for music piracy.

The internet company has already publicly stated they will not contest the subpoena and will fully cooperate.

See link to opinion here.

http://deseretnews.com/dn/view/1%2C1249%2C680196757%2C00.html

Judge Ted Stewart – Motion for Summary Judgment granted

June 19, 2007

MILNE, et al., Plaintiffs, vs. USA CYCLING INC., et al., Defendants.

Case No. 2:05-CV-675 TS

United States District Court for the District of Utah, Central Division

2007 U.S. Dist. LEXIS 42579

June 11, 2007

Judge Ted Stewart

This case stems from injuries sustained by Plaintiff Robert Milne, and fatal injuries sustained by Ben Hall, participants in the 2004 Tour of Canyonlands (“TOC”) mountain bike race, near Moab, Utah, as a result of a collision with a truck/trailer driven by Defendant Konitshek.

“Race Defendants” (USA Cycling, Inc., Cycle Cyndicate, Inc., and Eric Jean) organized, promoted, and conducted the race.

Plaintiffs stipulated that Mr. Hall and Mr. Milne knowingly and voluntarily executed a release agreement wherein they agreed to waive any and all claims, including those arising from Race Defendants’ own negligence, and release Defendants from all liability for injuries or death suffered while competing in the TOC race.

In short, the court granted the motion for summary judgment (due to the signed release) and dismissed the negligence, gross negligence, and wrongful death claims against the Race Defendants. Claims still remain against the driver of the vehicle.