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Peter Kiewit Sons', Inc. v. Wall Street Equity Group, Inc.

United States District Court, Eighth Circuit

October 10, 2013

PETER KIEWIT SONS', INC., Plaintiff,
v.
WALL STREET EQUITY GROUP, INC., ET AL., Defendants.

ORDER

JOHN M. GERRARD, District Judge.

Defendant Steven S. West has filed an "emergency motion for reconsideration" (filing 410) of the Court's denial of his oral motion to continue (filing 408). For the reasons stated in the Court's order of October 9, 2013 (filing 409), West's motion for reconsideration will be denied.

Two points merit some additional explanation. One is that now, West has specifically asked for only a 30-60 day continuance, based on his "estimate" of how long it will take his condition to improve. He asserts there was a "downturn" in his condition in August but "one could assume there will be an upturn in the near future." Filing 410. The Court is unwilling to make that assumption absent persuasive evidence, which West has not provided. West's personal estimate of when he feels he might be ready for trial is not sufficient reason to further delay resolution of the plaintiff's claims.[1]

Second, West claims that he has not delayed the trial: that it has taken 3 years "[d]ue to the complexity of this matter" and that he has never requested a delay. Filing 410. Those contentions are contradicted by the record. Trial of this case was originally set for October 4, 2011, but was postponed because of difficulties in establishing the defendants' availability for depositions. See filings 38, 51, and 59. It was delayed again, until June 5, 2012, on the joint motion of the parties (including, obviously, the defendants).[2] See filings 85 and 132. But that trial date was canceled after an in-court hearing on the defendants' conduct in resisting the plaintiff's discovery. See filings 221 and 244. When the trial date was reset for April 2, 2013, the final case progression schedule was based in large measure on West's contumacious and deceitful conduct during the discovery process. See filings 263 and 290. The trial was delayed again by a suggestion of bankruptcy filed by a corporate defendant. See filing 331. Finally, the Court arrived at the present trial date, over 3 years since the complaint was filed.

Given the history of these proceedings, West cannot disclaim responsibility for their delay. He sought delay through counsel, and he made further delay inevitable by frustrating the plaintiff's attempts at discovery through destruction of evidence and false testimony. He is already more than partially responsible for unreasonably delaying the resolution of this case, and the Court is not persuaded by this last-minute attempt to further postpone the plaintiff's prosecution of its claims. West's motion for reconsideration will be denied, and the trial of this case will proceed at 9:00 a.m. on October 11, 2013, in Courtroom 3, Roman L. Hruska Federal Courthouse, 111 South 18th Plaza, Omaha, Nebraska.

IT IS ORDERED:

1. West's motion for reconsideration (filing 410) is denied.
2. The Clerk of the Court is directed to e-mail copies of this order and the Court's order of October 9, 2013 (filing 409) to each of the non-corporate defendants, and to fax them to West's fax number at (954) 582-5090.[3]

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