Free Motion to Compel - District Court of Colorado - Colorado

Case 1:03-cv-01973-PSF-MJW

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 03-cv-1973-PSF-MJW (Consolidated with 04-cv-02112-PSF-MJW) THE WALKER GROUP, INC. Plaintiff, v. FIRST LAYER COMMUNICATIONS, INC. and J.E.H. KNUTSON Defendants.

MOTION TO COMPEL ANSWERS TO INTERROGATORIES AND PRODUCTION OF DOCUMENTS

The Walker Group, Inc. ("Walker Group"), submits this Motion to Compel, pursuant to Federal Rules of Civil Procedure 37(a) and 69(a), on the grounds that the Defendant J.E.H. Knutson ("Defendant") has provided evasive and incomplete responses to Walker Group's Interrogatories and Requests for Production to Supplemental Proceedings. Walker Group therefore respectfully requests that this Court enter an Order compelling Defendant to fully and completely answer interrogatories and provide responsive documents, as discussed more fully in Walker Group's Memorandum of Law in Support of its Motion to Compel Answers to Interrogatories and Production of Documents filed contemporaneously herewith. Specifically, Walker Group seeks an order compelling Defendant to answer Interrogatories 2, 8(c), 8(f), 10, 11, 13, 15, and 16 which ask:

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2.

Are you presently in business or employed? If so, state the particulars

of any contract of employment and the amount of salary, commissions, or other compensations which you receive and the amount of any arrears thereof. RESPONSE: Yes. I am the General Manager of Longs Peak Equipment Company, Inc. and receive compensation of $90,000 per year. I am also the General Manager of High County Equipment, Inc. and receive no compensation for this position.

8.

Have you or your spouse, at any time since January 1, 2000, owned or

had any interest in any of the following; and, if so, state the exact location, value and disposition of each:

c.

Automobiles, trucks, air craft, boats or other vehicles.

RESPONSE: See General Objection. Without waiving this objection, I have the following: 1. 2. 3. 4. Volvo: located at the Property and believed to approximately $1,500. Trailer: located at the Property and believed to approximately $300. Mustang: possessed by my daughter and believed to approximately $4,000. Boat: located at the Property and believed to approximately $500. be worth be worth be worth be worth

f.

Other valuables, including but not limited to guns, diamonds, silver,

furs, jewelry, stamp collections, coin collections, antiques, household furniture, appliances and sporting equipment, such as golf clubs, scuba equipment, etc. RESPONSE: None exempt from attachment pursuant to C.R.S. § 13-54-102.

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10.

If any property identified in response to Interrogatories Nos. 8 and 9 is

mortgaged, pledged, encumbered or subject to any conditional bill of sale, give the full details and status thereof. RESPONSE: Objection. This interrogatory is overbroad, irrelevant and not reasonably likely to lead to the discovery of admissible evidence. Without waiving this objection, there is a lien against my stock in CE DOCs Inc. in the approximate amount of $68,000.

11.

List all money, accounts or debts that other people owe to you.

RESPONSE: Walker Group Inc. owed me approximately $50,000.

13.

Within the past year, have you received any payments of money other

than as already described, and if so, state when and in what amounts, and give the particulars of any checks received, and state what was done with the money. RESPONSE: In 2005, I received $22,000 in full payment of an account receivable. The proceeds were used to pay attorneys fees.

15.

List all your creditors who hold security or are secured creditors.

RESPONSE: James V. White, Harold Company, and my wife.

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16.

List all of your other unsecured, general creditors.

RESPONSE: My wife, Fairfield & Woods, P.C., University of Colorado, and Visa.

Walker Group further seeks an order compelling Plaintiff to produce documents in response to Requests for Production of Documents 4, 5, 10, 13, 14, 16, 18 and 21 which seek: 4. Provide copies of any accident, health or life insurance policies on

which you are listed as an insured or additional insured, or for which you pay all or any portion of the premiums. Such copies should indicate the name of the insurance company, the policy number, the amount and type of benefit(s), the name and address of the beneficiary, the date and particulars of any change of beneficiary, the particulars of any assignment(s), and the dates and amounts of any loans against the policy. RESPONSE: I have a life insurance policy with American General Life but was unable to locate a copy of the policy. The policy number is: YME0210097 and the beneficiary is my wife.

5.

Provide copies of any mortgages on real or personal property,

promissory notes, drafts, bills of exchange or other commercial papers for which you or your spouse are liable. RESPONSE: Attached.

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10.

Provide documents evidencing any join ventures or other business

enterprises in which you or your spouse have an interest. RESPONSE: See General Objection. Without waiving this objection, I have none.

13. years.

Provide copies of all financial statements issued within the past five

RESPONSE: Objection. This request is vague, ambiguous and overbroad. Without waiving this objection, I have none.

14.

Provide copies of federal and state income tax returns, including

schedules and/or worksheets, for you and your spouse for the past three years. RESPONSE: Objection. This request is duplicative of previous discovery, overbroad and not likely to lead to the discovery of admissible evidence.

16.

Provide copies of all contracts to which you are a party that are

currently in force or have been in force within the past five years. RESPONSE: Objection. This request is vague and ambiguous. Without

waiving this objection, please see response to request for production no. 5.

18.

Provide all documents evidencing any bank or investment accounts,

held in your own name or jointly since October 1, 2000, including but not limited to commercial, savings, checking, investment or brokerage accounts. Such documents

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should indicate where the accounts are maintained and the amount of balance for each. RESPONSE: Objection. This request is duplicative of previous discovery.

21.

Provide copies of any appraisals or valuations, prepared since October

1, 2000, of any real or personal property owned by your or your spouse in whole or in part. RESPONSE: See General Objection. Without waiving this objection, I have none.

In accordance with Local Rule 7.1, the undersigned certifies that Walker Group attempted in good faith to confer with counsel for Defendant in an effort to secure the information sought without court action by writing to Defendant's counsel, on February 13, 2006, to request supplementation (attached hereto as Exhibit A). When over one month passed without a response from counsel for Defendant, Walker Group's counsel again wrote to Defendant's counsel regarding supplementation (attached hereto as Exhibit B). Despite Defendant's counsel's repeated promises to supplement Defendant's responses, Walker Group has not received any supplemental discovery responses.

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WHEREFORE, the Plaintiff Walker Group respectfully requests that the Court enter an Order: 1. Compelling Defendant to answer Interrogatories 2, 8(c), 8(f), 10, 11, 13, 15, and 16; 2. Compelling Defendant to produce documents responsive to Requests for Production 4, 5, 10, 13, 14, 16, 18 and 21; 3. Awarding attorneys' fees and costs pursuant to Fed. R. Civ. P. 37 for efforts in connection with this Motion; and 4. For such other and further relief as the Court deems just and reasonable.

Respectfully submitted, this the 16th day of May, 2006.

s/ Richard S. Gottlieb Richard S. Gottlieb Laura A. Greer Kilpatrick Stockton LLP 1001 West Fourth Street Winston-Salem, North Carolina 27101-2400 Telephone: (336) 607-7300 Attorneys for Plaintiff Walker Group, Inc. Joshua Maximon, Esq. The Maximon Law Firm, LLC 12202 Airport Way, Suite 170 Broomfield, Colorado 80021 Telephone: (303) 991-3344

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on May 16, 2006, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following email addresses: [email protected] [email protected], and I hereby certify that I have mailed or served the document or paper to the following by first class mail addressed as follows: none.

s/ Richard S. Gottlieb Richard S. Gottlieb Attorney for Plaintiff Walker Group, Inc. Kilpatrick Stockton LLP 1001 West Fourth Street Winston-Salem, North Carolina 27101-2400 Telephone: (336) 607-7300 [email protected]
02560-207219 9299654.1