Bob Fletcher

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Everything posted by Bob Fletcher

  1. BV80 - Thanks!! I like it. i think that adds a little meat! I think you mean Rule 37(h) FAILURE TO DISCLOSE ?
  2. Need Help please! Many Thanks in advance!!!!!!!!!!!!!!!! Here is my draft of Motion to Preclude. Is the conclusion strong enough and is it properly formated???? THIRD JUDICIAL DISTRICT COURT, STATE OF UTAH MIDLAND FUNDING LLC, Plaintiff, Vs. GonnaWin, Defendant ) ) ) ) ) ) ) ) ) ) Case No.: Judge: DEFENDANT’S MOTION TO PRECLUDE PLAINTIFF’S INITIAL DISCLOSURES Pursuant to Rule 7 ( (1) of the Rules of Civil Procedure for the State of Utah, Defendant GonnaWin, appearing Pro Se, submits his Motion to Preclude Plaintiff's Initial Disclosures and any Disclosures, which may follow. STATEMENT OF FACTS 1. Plaintiff filed Complaint on or around June 1st, 2012 2. Defendant filed his answer to the Complaint and Notice of Appearance on June 19th, 2012. 3. As Defendant had not received Initial Disclosures as required by U.R.C.P., Rule 26 (a)(2)(A), Defendant sent a letter via certified mail, return receipt requested, to Johnson Mark LLC on August 2nd, 2012, asking since he had heard nothing from their office had the action been dropped. 4. Defendant did not receive a response to the above stated letter. 5. Defendant received Plaintiff’s first requests for Discovery on or around November 20th, 2012. 6. Defendant answered Plaintiff’s Discovery requests on December 19th, 2012. 7. Defendant received Plaintiff’s Initial Disclosures on or around December 22nd, 2012. MEMORANDUM In accordance with Rule 26 (a)(1) of the Utah Rules of Civil Procedure, Plaintiff must serve the Defendant with Initial Disclosures within 14 days of filing an answer to a Complaint. According to Rule 26 (a)(2)(A) of the Utah Rules of Civil Procedure, Timing of initial disclosures. “The disclosures required by paragraph (a)(1) shall be served on the other parties: (a)(2)(A) by the plaintiff within 14 days after filing of the first answer to the complaint”. According to Rule 26 (a)(2)(A), the clock begins to run with the first filing in the case. In this instance, the Plaintiff’s Initial Disclosures should have been provided by at the very latest, July 6th, 2012. When the Defendant had not received Initial Disclosures by August 1st, 2012, he sent a letter (Exhibit A), to Johnson Mark LLC via Certified Mail Return Receipt Requested, on August, 2nd asking since he had heard nothing from the Plaintiff had the action been dropped. Copies of the Defendants Answer and Notice of Appearance, was included with the letter. Defendant heard nothing in return and assumed the action had been dropped. Defendant finally received the Plaintiff’s Initial Disclosure’s on or around December 20th, 2012. The Plaintiff submitted Initial Disclosures after receiving the Defendants response to Plaintiff’s first request for Discovery. In the Plaintiff’s submission of Initial Disclosures, (Exhibit , it was stated, the documents were “received by the Plaintiff’s counsel after the due date. Due to the volume of Plaintiff’s accounts and documents spread across the country, it typically takes longer than 14 days to obtain documents on any one account”. This does not represent good cause for being well over 5 months late certainly does not comply with the intentions of saving time and money and can only be seen as “sandbagging”. One has to assume the Plaintiff was waiting to receive Defendant’s reply to Discovery to determine what they were going to disclose. According to the Michigan State Law Review, New Utah Rule 26: A Blueprint for Proportionality Under the Federal Rules of Civil Procedure. Philip J. Favro, The Honorable Derek P Pullan. Volume2012,” Failure to disclose or supplement timely comes with a stiff penalty. The party failing to disclose may not use the witness or document in its case - in - chief at trial. This “make the disclosure requirement meaningful” and “discourage sandbagging…. The penalty for failing to make timely disclosures is that the evidence may not be used in the party’s case-in-chief. To make the disclosure requirement meaningful, and to discourage sandbagging, parties must know that if they fail to disclose important information that is helpful to their case, they will not be able to use that information at trial. The courts will be expected to enforce them unless the failure is harmless or the party shows good cause for the failure….Consequences of failure to disclose Rule 26(d). If a party fails to disclose or to supplement timely its discovery responses, that party cannot use the undisclosed witness, document, or material at any hearing or trial, absent proof that non-disclosure was harmless or justified by good cause. More complete disclosures increase the likelihood that the case will be resolved justly, speedily, and inexpensively. Not being able to use evidence that a party fails properly to disclose provides a powerful incentive to make complete disclosures. This is true only if trial courts hold parties to this standard. Accordingly, although a trial court retains discretion to determine how properly to address this issue in a given case, the usual and expected result should be exclusion of the evidence”. U.R.C.P Rule 26 advisory committee’s note. “The penalty for failing to disclose or supplement timely is imposed under Rule 26. U.R.C.P 26 (d)(4). Unlike a Rule 37 sanction, it does not require a showing of fault, willfulness, or persistent dilatory conduct. Exclusion of undisclosed evidence is not automatic and may be avoided. However, the burden is on the non-disclosing party to show good cause or that the failure to disclose was harmless”. Id. According to the Utah Supreme Court: Committee notes are given “great weight,” should “guide” the trial court in determining application of the Rule and are an “aid” in interpreting the rules. In short they are a greatly weighted guide and aid. See D.J. Inv. Group, L.L.C. v. DAE/Westbrook, L.L.C., 2006 UT 62, ¶ 14, 147 P.3d 414: “While advisory committee comments to rules adopted by this court are not ‘authoritative,’ we give them great weight.’ We generally consider the comments a fairly reliable indicator of our intent in adopting the rules because the comments to the rules were available to this court at the time of their adoption.”(citations omitted) D.J. Inv. Group, L.L.C., 2006 UT 62, ¶ 14: “[W]here revisions to the advisory committee’s comment [are]recently approved by this court, the advisory committee's comment carries even greater weight.” Hi-Country Estates Homeowners a$$’n v. Foothills Water Co., 942 P.2d 305, 306 (Utah 1996) (per curiam): “This court has held a number of times that we may look to the notes of the advisory committee as an aid in interpreting the rules.” CONCLUSION It is clear the Plaintiff did not have its case properly prepared prior to the filing of the Complaint and the excuse of having too many cases going on throughout the country to have time to provide initial disclosures is without merit and serves to prejudice the Defendant. Furthermore, this is in direct opposition to the intentions of the revised Rule 26, which is to shorten Discovery and reduce costs. Defendant was unable to find any Utah case law addressing the implications of the revisions of Rule 26, which took effect November 1st, 2011 and must rely on the above references. Defendant prays the Court move to preclude the documents provided in Plaintiff’s initial disclosures, specifically: bank statements for the alleged account for December, November, October 2007; December, November, October, August, June, May, April, February, January 2008; January, March 2009; the Cardmember Agreement for the alleged account; the Affidavit of Sale of Account by Original Creditor for the alleged account, dated January 25th, 2011. The Defendant prays the Court further preclude any documents which may be provided by the Plaintiff as Discovery continues. Respectfully Submitted,
  3. Kentwa, That's what I figure. Will get it in asap. Did you get a chance to look at what I have so far on my Motion to Preclude? It is posted just prior to my post re: Deposition
  4. Still working on my Motion to Preclude, part of which is posted above, but had to share. Must have ticked off the Midland attorney, with my MTD, even though it was denied by the judge. When I harvested the mail yesterday, I had a subpoena for a deposition in July. They are asking me to bring everything I have that I plan to use at trial. Funny how they only expect us to provide information. It is at their law offices of course, which is probably a minimum 70 miles round trip for me. Wondering if this a recoup-able expense and if so would this be a good reason to re-submit my motion for a security deposit? I think the IRS allows somewhere around 55 cents per mile.
  5. Ok, so this is what I have so far and would love some input. Am I on the correct track? I really need to be strong on my arguments and know the Plaintiff's will make a up some lame excuse for being tardy. Plus I need a break. It feels like my head is going to explode THIRD JUDICIAL DISTRICT COURT, STATE OF UTAH MIDLAND FUNDING LLC, Plaintiff, Vs. GonnaWin Defendant ) ) ) ) ) ) ) ) ) ) Case No.: Judge: DEFENDANT’S MOTION TO PRECLUDE PLAINTIFF’S INITIAL DISCLOSURES Pursuant to Rule 7 ( (1) of the Rules of Civil Procedure for the State of Utah, Defendant GonnaWin, appearing Pro Se, submits his Motion to Preclude Plaintiff's Initial Disclosures and any disclosures which may follow. STATEMENT OF FACTS 1. Plaintiff filed Complaint on or around June 1st, 2012 2. Defendant filed his answer to the Complaint and Notice of Appearance on June 19th, 2012. 3. As Defendant had not received Initial Disclosures as required by U.R.C.P., Rule 26 (a)(2)(A), Defendant sent a letter via certified mail, return receipt requested, to Johnson Mark LLC on August 2nd, 2012, asking since he had heard nothing from their office had the action been dropped. 4. Defendant did not receive a response to the above stated letter. 5. Defendant received Plaintiff’s first requests for Discovery on or around November 20th, 2012. 6. Defendant answered Plaintiff’s Discovery requests on December 19th, 2012. 7. Defendant received Plaintiff’s Initial Disclosures on or around December 22nd, 2012. MEMORANDUM In accordance with Rule 26 (a)(1) of the Utah Rules of Civil Procedure, Plaintiff must serve the Defendant with Initial Disclosures within 14 days of filing an answer to a Complaint. According to Rule 26 (a)(2)(A) of the Utah Rules of Civil Procedure, Timing of initial disclosures. “The disclosures required by paragraph (a)(1) shall be served on the other parties: (a)(2)(A) by the plaintiff within 14 days after filing of the first answer to the complaint”. According to Rule 26 (a)(2)(A), the clock begins to run with the first filing in the case. In this instance, the Plaintiff’s Initial Disclosures should have been provided by at the very latest, July 6th, 2012. When the Defendant had not received Initial Disclosures by August 1st, 2012, he sent a letter (Exhibit A), to Johnson Mark LLC via Certified Mail Return Receipt Requested, on August, 2nd asking since he had heard nothing from the Plaintiff had the action been dropped. Copies of the Defendants Answer and Notice of Appearance, was included with the letter. Defendant heard nothing in return and assumed the action had been dropped. Defendant finally received the Plaintiff’s Initial Disclosure’s on or around December 20th, 2012. It would seem the Plaintiff submitted Initial Disclosures after receiving the Defendants response to Plaintiff’s first request for Discovery. In the Plaintiff’s submission of Initial Disclosures, (Exhibit , it was stated, the documents were “received by the Plaintiff’s counsel after the due date. Due to the volume of Plaintiff’s accounts and documents spread across the country, it typically takes longer than 14 days to obtain documents on any one account”. According to the Michigan State Law Review, New Utah Rule 26: A Blueprint for Proportionality Under the Federal Rules of Civil Procedure. Philip J. Favro, The Honorable Derek P Pullan. Volume2012,” Failure to disclose or supplement timely comes with a stiff penalty. The party failing to disclose may not use the witness or document in its case - in - chief at trial. This “make the disclosure requirement meaningful” and “discourage sandbagging…. The penalty for failing to make timely disclosures is that the evidence may not be used in the party’s case-in-chief. To make the disclosure requirement meaningful, and to discourage sandbagging, parties must know that if they fail to disclose important information that is helpful to their case, they will not be able to use that information at trial. The courts will be expected to enforce them unless the failure is harmless or the party shows good cause for the failure….Consequences of failure to disclose Rule 26(d). If a party fails to disclose or to supplement timely its discovery responses, that party cannot use the undisclosed witness, document, or material at any hearing or trial, absent proof that non-disclosure was harmless or justified by good cause. More complete disclosures increase the likelihood that the case will be resolved justly, speedily, and inexpensively. Not being able to use evidence that a party fails properly to disclose provides a powerful incentive to make complete disclosures. This is true only if trial courts hold parties to this standard. Accordingly, although a trial court retains discretion to determine how properly to address this issue in a given case, the usual and expected result should be exclusion of the evidence”. U.R.C.P Rule 26 advisory committee’s note. “The penalty for failing to disclose or supplement timely is imposed under Rule 26. U.R.C.P 26 (d)(4). Unlike a Rule 37 sanction, it does not require a showing of fault, willfulness, or persistent dilatory conduct. Exclusion of undisclosed evidence is not automatic and may be avoided. However, the burden is on the non-disclosing party to show good cause or that the failure to disclose was harmless”. Id. According to the Utah Supreme Court: Committee notes are given “great weight,” should “guide” the trial court in determining application of the Rule and are an “aid” in interpreting the rules. In short they are a greatly weighted guide and aid. See D.J. Inv. Group, L.L.C. v. DAE/Westbrook, L.L.C., 2006 UT 62, ¶ 14, 147 P.3d 414: “While advisory committee comments to rules adopted by this court are not ‘authoritative,’ we give them great weight.’ We generally consider the comments a fairly reliable indicator of our intent in adopting the rules because the comments to the rules were available to this court at the time of their adoption.”(citations omitted) D.J. Inv. Group, L.L.C., 2006 UT 62, ¶ 14: “[W]here revisions to the advisory committee’s comment [are]recently approved by this court, the advisory committee's comment carries even greater weight.” Hi-Country Estates Homeowners a$$’n v. Foothills Water Co., 942 P.2d 305, 306 (Utah 1996) (per curiam): “This court has held a number of times that we may look to the notes of the advisory committee as an aid in interpreting the rules.” It is clear the Plaintiff did not have its case properly prepared prior to the filing of the Complaint and the excuse of being having too many cases going on throughout the country to have time to provide Initial Disclosures is without merit. This is in direct opposition to the intentions of the revised Rule 26, which is to shorten Discovery and reduce costs. Respectfully Submitted,
  6. Thanks!!! Working on Motion, hope to have a draft to post in the next day or so.
  7. Kentwa, In my Motion to Preclude, do I list each document which was received 5 months after the required date by Rule 26? Thanks!!
  8. Quick question. In my Motion to Preclude, do I list each item which was received 5 months after the required date by Rule 26?
  9. Kentwa, Also, would the Motion to preclude be a Motion in Limine?
  10. There id something I am not clear on. They submitted the affidavit of sale from the OC as part of their initial disclosures, These have yet to be submitted to the court. Is it considered evidence at this time? And if so, how do I properly attack?
  11. Earlier in this thread I mentioned I did not receive initial disclosures from the Plaintiff until almost 5 months after my answer to the Complaint. According to Utah rule 26, they have 14 days to provide initial disclosures. Their disclosures were a cardmember agreement, last 10-12 months of statements and affidavit of sale of account from OC. The affidavit does not have any account numbers, names etc. Should I motion to preclude items submitted in initial disclosures? Especially the affidavit from the OC. I used the cardmember agreement in my MTD, based upon the rule of law being Delaware. Or should I just press on making lack of standing my main Defense. I am concerned their next trick will be MSJ, since I lost on MTD.
  12. LATEST UP DATE Judge denied both my 1)Motion for Dismissal based on Delaware SOL and 2)Motion for Security Deposit. 1) He ruled the state of Utah SOL is applicable based on A) "The state of Utah SOL is applicable for two reasons: 1- the choice of law provision in the parties contract (Actually Agreement) means Delaware substantive law applies, but not its procedural law" and 2 - I had argued that the agreement did not stipulate a difference and said the law of delaware should apply. I argued Plaintiff cannot pick and choose how to interpret the agreement. and 2 - "Utah's borrowing statute does not apply because the cause of action in this case did not arise exclusively in Delaware or another jurisdiction". I had argued the cause of action took place in Delaware as the default occured in Delaware. Basically the Judge accepted the Plaintiff's arguments at face value and did not seem to pay attention to my arguments. I admit I could have done much better at oral arguments which is probably what hurt me. I think fellow Utah Defendants should still go for the Delaware SOL, but just be prepared for the possible reasoning by a judge. 2)Motion for security costs denied because "Defendant has not established reasonable necessity for a cost bond at this point in litigation. In the event circumstances in the future warrant a cost bond, defendant may raise that issue at that time". I had argued I would have Lexis Nexis, Pacer account and Westlaw's Keycite costs. Oh, well, on to the next phase. I have sent my first meet and compel letter with no answer and will send the next letter tomorrow. Then it will be on to my discovery issues.
  13. Peanutrs says "Here is a doc with lists of proper reasons for objecting to a question." I could not download, is it available in another form?
  14. Kentwa, Actually the judge ordered me to simply answer, (again) their request for 6 years of bank statements and if I do not have them to simply, say that and tell why. I just do not want to say something stupid. My gut says to keep it as simple as possible. Also Kentwa, it was interesting the Judge was unaware if Rule 12 (J) admitted it
  15. Forgot to mention, the CA attorney asked me out in the lobby before we went before the Judge. He introduced himself and asked if I would like to discuss a settlement or payment terms? Many things went through my head, but I just said no. The look on his face was classic and after a pregnant pause, he said, "I guess we'll just have to argue the Motions".
  16. UPDATE, had a court hearing last night to hear oral arguments on Motions before the Court. I have 2 Motions and MCM has 1 Motion. The judge asked me to go first, which surprised me a bit since the plaintiff's Motion was submitted first. It's amazing how hard it is to find my well organized documents, when before the Judge. Fortunately he was patient with my digging around. The first Motion was My Motion for a Security Bond of $300.00. It was obvious the Judge had not read anything, so I basically laid out my Motion and reasons for asking for it. The Judge asked what rule I was basing the Motion on. I told him 12(J) and head read his monitor for a while. What the Judge said next was "Son of a gun, you learn something new everyday". So both parties said their piece and he asked about my second Motion, which was a MTD for Delaware SOL. Again it was obvious the Judge had not read anything, I was not the most eloquent as I was not exactly sure how to proceed, so the points I tried to make was that even though I had not pleaded the SOL as an Affirmative Defense, I should be allowed to do so since the Plaintiff was almost 6 months late on their initial disclosures and I had no idea what the Lawsuit was about until I received the initial disclosures, (I received nothing attached to the Complaint). I went on to explain the Utah Borrowing Statute as the Plaintiff continues to ignore this statute. I also mentioned that it was with the initial disclosures that I received the Card Member agreement upon which the entire Plaintiff case was based upon and there it was in bold letters, THE LAW OF DELAWARE SHALL APPLY. The attorney for the Plaintiff basically reread their answer to my original Motion, even though I had taken apart their notion that due to Tolling, the Statute of Limitations had not started. I explained how tolling did not apply in this case, and I swear the judge nodded in agreement. Next, the Judge asked the CA attorney about their Motion. Their Motion was for the Judge to order me to produce 6 years of bank statements and that it should not be a problem with electronic records, I should be able to just download them online and print them out, or just go into a bank and asked for them. The judge asked if I had responded to this request, and I told him that in my original answer for their RFD. I told the Judge I had said I had not had a bank account for several years and that I searched all available records and was unable to find what they were looking for. I also mentioned they were asking for something beyond what the IRS would ask for. I also mentioned I did not understand how was that it was deemed too burdensome for the Plaintiff when I asked for an a complete accounting of records from day one on the account in question and it they did not feel it was burdensome to ask me for 6 months of bank statements. So next the Judge said he would take my Motions under advisement and get an answer to me as soon as possible. Which I think means he will read the pleadings and make a decision. My feeling was that if the failure to plead the SOL in my affirmative Defenses, was an issue he could have just denied the Motion right there. The Judge then order me to issue a response the request for 6 months of bank statements and that if I did not have the records, I should state why. He gave me 7 days for the response. He told the CA attorney, if they were not satisfied with my response, they could find them with subpoenas etc. Any advice on how best to word my response regarding the bank statements? I have not had an account for several years.
  17. Yes I did,. Did I screw up??? Here is what I wrote in the memorandum: The Statute of Limitation was not tolled by Delaware Code Title 10, Chapter 81, § 8117. A careful reading of the statute shows that the statute of limitation is only tolled until a person can be served with process. The statute also requires that a person first depart from Delaware. The Delaware Supreme Court addressing "Section 8117" held that the statute of limitation was not tolled since the defendants were non-residents and in dicta stated that to hold otherwise would "result in the abolition of the defense of statutes of limitation in actions involving non-residents." Hurwitch v. Adams, 155 A.2d 591, 594 (Del.1959). “In any event, whatever the precise argument made may be, we think that the Delaware statute of limitations on actions for personal injuries runs continuously without interruption when there is available to the plaintiff throughout the period an acceptable means of bringing the defendant into court. Therefore, the answer to the first question posed is that there has been no tolling of the statute of limitations since these defendants, at all times, were subject to substituted service” Hurwitch v. Adams, 155 A.2d 591, 594 (Del.1959). For purposes of this litigation, Defendant has always been and continues to be a Utah resident. The Plaintiff did not file suit and attempt service until beyond the statute of limitations. Since the Defendant, for purposes of this action, has never been a resident of Delaware, Section 8117 does not apply and it does not operate to toll the three years statute of limitations.