Archive for the ‘Judge Dee Benson’ 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.”

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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.

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.”

Judge Dee Benson – Jackie Chiles law society

April 13, 2007

The Jackie Chiles law society will be having a banquet tonight at the Little America Hotel.  For those unfamiliar, Jackie Chiles is Kramer’s attorney in the television series Seinfeld.  The Society was created at the University of Utah and “takes a look at the law through pop culture’s eyes.”  Phil Morris, the actor who portrayed the character in Seinfeld, will be speaking and honored tonight at the society’s year-end banquet.

The master of ceremonies will be U.S. District Judge Dee Benson.

http://deseretnews.com/dn/view/1%2C1249%2C660211467%2C00.html

Judge Dee Benson – Motion to Amend Judgment denied

January 2, 2007

BARRICK RESOURCES (USA), INC., and SUBSIDIARIES, Plaintiffs, vs. UNITED STATES OF AMERICA, Defendant.

Case No. 2:03-CV-01006

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

2006 U.S. Dist. LEXIS 93249

December 26, 2006 

Barrick Resources received a tax refund check in the amount of $215,463.  The IRS later determined that they shouldn’t have given Barrick any portion of that refund.

“The Internal Revenue Code permits the United States to recover tax refunds paid in error. See I.R.C. 7405(b). In order for the United States to recover an allegedly erroneous refund, it must show: (1) a refund made to the taxpayer; (2) the amount of the refund; (3)  the timely commencement of the § 7405(b) recovery action; and (4) no entitlement by the taxpayer to the refund that the United States seeks to recover.”

Judge Benson earlier ruled (on October 31, 2006) that the IRS met all four elements and was entitled to reimbursement of the enire refund.

After the judgment was entered, Barrick filed a Motion to Amend Judgment pursuant to Rule 59(e).  In filing the Motion to Amend Judgment, Barrick “simply reiterated its [prior] arguments.” The Court clarified that it “is not appropriate to revisit issues already addressed or advance arguments that could have been raised in prior briefing in a Rule 59(e) motion.”

Barrick’s Motion to Amend Judgment denied.

United States v. John and Susan Ross

December 13, 2006

As previously reported, the Rosses are charged with 47 counts of fraud, theft, money laundering and copyright infringement.

Magistrate Brooke Wells disqualified the Rosses’ attorney (Paul Gotay) for conflicts of interest.  Judge Wells named three conflicts that she said called for disqualification:
   * The Rosses need separate attorneys to represent their individual interests.
   * Gotay gave advice to witnesses who testified before a grand jury that indicted the couple.
   * Gotay himself could be called as a witness because he was involved in a financial transaction with the Rosses.

Gotay has 10 days to appeal the ruling to U.S. District Judge Dee Benson, who is assigned to the fraud case. 

A previously-threatened Motion to Recuse (Magistrate Judge Wells) has not been filed.