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Estate of Petersen v. Bitters

United States District Court, D. Nebraska

March 14, 2018

ESTATE OF JOYCE ROSAMOND PETERSEN, deceased; Plaintiff,
v.
WILLIAM E. BITTERS, ROBERT W. BOLANDJR., JOHN L. HENRY, and UNITED FINANCIAL SERVICES, Defendants.

          MEMORANDUM AND ORDER

          Cheryl R. Zwart United States Magistrate Judge.

         The following motions are currently pending before me:

• Defendant Henry's Motion for Protective Order, (Filing No. 162), and Motion to Quash, (Filing No. 164);
• Plaintiffs Motion to Extend Deadlines in Progression Order, Motion to File a Second Amended Complaint to add parties, and Motion for Attorney Fees as Sanctions against Henry, (Filing No. 166); and
• Defendant Henry's Motion for Additional Time to Respond to Plaintiff's Motion, (Filing No. 174).

         For the reasons stated below, Henry's motions for protective order and to quash will be denied; Plaintiff's motion to extend the case progression deadlines will be granted in part; Plaintiff's motion to file an amended complaint will be denied; Plaintiff's for attorney fees and sanctions against Henry is granted in part and denied in part; and Henry's motion for additional time will be denied as moot.

         PROCEDURAL BACKGROUND

         1. Service of Process.

         This case was initially filed in the United States District Court for the Eastern District of Texas on December 1, 2014. (Filing No. 1). The summons for service on Defendants were not requested and issued until three months later, on March 3, 2015. (Filing Nos. 2, 3, 4). Bitters and Henry were promptly thereafter. (Filing No. 44). On June 3, 2015, more than six months after the case was filed, Plaintiff moved for additional time to serve Boland. (Filing No. 20). This motion was stricken by the Clerk of the Eastern District of Texas. It was not re-filed. Boland was served on June 3, 2015. (Filing No. 33).

         2. Texas Filings.

         Plaintiff's lawsuit arises from a promissory note executed in Nebraska by Henry on February 08, 2008 in favor Plaintiff's decedent in the amount of $150, 000.00. Henry is a citizen of Nebraska, Bitters is a citizen of Iowa, and the transaction at issue was allegedly signed in Omaha, Nebraska. (Filing No. 5).

         After receiving service, Defendant Bitters timely moved to dismiss for lack of personal jurisdiction, improper venue, and based on the statute of limitations, for failure to state a claim. Defendant Boland timely moved to dismiss on June 10, 2015. In addition to the arguments raised by Bitters, Boland argued Plaintiff, without good cause, failed to timely effectuate service on Boland. (Filing No. 36).

         Plaintiff requested additional time to respond to Bitter's motion to dismiss due to family health issues. (Filing No. 9). The motion filed by Plaintiff's counsel in the Texas litigation, (J. Hamilton McMenamy), [1] stated:

Counsel requests additional time to respond to Defendant Bitters' Motion to Dismiss, to April 30, 2015. Counsel requests the time not only to respond to the Motion, but also to amend Plaintiff's pleadings to incorporate information just received in the meantime from a Deposition on Written Questions from the bank of Defendant John L. Henry.

(Filing No. 9 at CM/ECF p. 2). The motion was initially filed on April 24, 2015, but it was stricken by the Clerk as deficient. Plaintiff refiled the motion on April 29, 2015. Defense counsel opposed the motion for additional time, explaining:

Plaintiff is seeking an extension of time about 12 days after the due date of filing a response (i.e., April 13, 2015) to Defendant William E. Bitters' motion to dismiss. Plaintiff's Counsel has never attempted to seek an extension from the Court or Defendant before the due date of his responsive brief. Furthermore, Plaintiff Counsel has not even attempted to meet and confer regarding his motion for extension of time after the due date of the responsive brief. Defendant sympathizes with the Counsel's situation; however, it is Defendant William E. Bitters' position that an extension would not change the fact that claims brought by Plaintiff are barred by statute of limitation. Therefore, the case against Defendant William E. Bitters should be dismissed.

(Filing No. 12). The opposition was initially filed on April 27, 2015, (Filing No. 8), then re-filed on May 6, 2015, (Filing No. 10), after Plaintiff's corrected motion was re-filed. The May 6, 2015 filing was initially stricken by the Clerk as deficient for lack of a signature, but it did have an s/ signature (which is permitted in Nebraska). Defendant's opposition to the motion for additional time was immediately re-filed. (Filing No. 12). Plaintiff's counsel responded that there was good cause for his untimely response to Bitter's motion to dismiss: His wife's medical condition required his attention and Defendants suffered no prejudice due to the delay. (Filing No. 11). The motion to continue the response deadline was granted, with Plaintiff's response to the motion to dismiss due on May 21, 2015. (Filing No. 13).

         Plaintiff filed a responsive brief, (Filing No. 14), which extensively cited to an affidavit (Filing No. 15). But this affidavit filing was deemed deficient by the Clerk of Court for the Eastern District of Texas and stricken, with Plaintiff given one day to filed a corrected response. When Plaintiff failed to timely and properly file the affidavit supporting the arguments in Plaintiff's brief, on May 28, 2015, Bitters moved to strike the court's consideration of those facts as cited within Plaintiff's brief. (Filing No. 17).

         Plaintiff responded by re-filing a response to Bitter's motion to dismiss with the previously stricken affidavit attached. (Filing No. 18). By order of the court, the Filing No. 18 response was stricken because Plaintiff's counsel failed to seek leave of the court before filing an untimely response to Bitter's motion to dismiss. (Filing No. 19). The order instructed, “[u]ntil Plaintiff is granted leave to file a second response out of time, the May 20, 2015 response (Filing No. 14) shall govern.” (Id). Plaintiff filed an affidavit in opposition to Bitter's motion to dismiss on June 8, 2015. (Filing No. 21). This filing was stricken by the Clerk for the Eastern District of Texas. Plaintiff then filed an eighteen-page brief with four affidavits (including the previously stricken affidavit) as a response to Bitters' motion to strike the improperly cited and filed affidavit, (Filing No. 25), [2] a filing defense counsel characterizes as “an impermissible attempt to ‘sneak-in' that which Plaintiff failed to properly file in the first place.” (Filing No. 26).

         Ultimately, the motion to dismiss filed by Bitters on March 30, 2015 (to dismiss a complaint filed on December 1, 2014, with no summons requested until March 3, 2015), was not fully submitted for the court's review until June 25, 2015. (Filing No. 34). In the meantime, Boland filed his motion to dismiss, (Filing No. 23), and the parties began briefing that motion, along with Plaintiff's motion for additional time to serve Boland (or to find good cause excusing Plaintiff's failure to timely serve Boland). (Filing No. 34).

         On August 11, 2015, the Texas court held a case management conference with the parties. The court's order states:

This case would be more properly brought in Nebraska to avoid the potential of piecemeal litigation. Within 14 days of the date of this Order, the parties shall either file an agreed motion to transfer venue to Nebraska or notify the Court that no motion will be filed. If no motion is filed, the Court will proceed with the consideration of Defendants' motions to dismiss and Plaintiff will be bound by those rulings.

(Filing No. 43).

         Fourteen days later, on August 25, 2015, Plaintiff filed a motion to continue the deadline for filing a motion to transfer venue “to a time 2 weeks after the Court's decision on Plaintiff's Motion for Summary Judgment against John L. Henry, or in the alternative, 4 weeks from this date. (Filing No. 45 at CM/ECF p. 2). The Texas court granted the motion, but only in part, explaining:

The Court will not consider a motion for default judgment as to Henry at this time. Defendant Henry was served in Nebraska (see Dkt. 44), and, as noted at the August 11, 2015 hearing, no facts are alleged by Plaintiff in the Complaint to establish conclusively that this Court can exercise personal jurisdiction over him (see Dkt. 1). The Court cannot and will not recommend the entry of default judgment against a party over whom it has no jurisdiction. . . .
Plaintiff requests an alternative four week extension. Plaintiff's motion is GRANTED in part and DENIED in part. The Court finds that two weeks is sufficient time for the parties to agree upon a transfer. Plaintiff is reminded that, in light of the pending motions in this case, Plaintiff faces dismissal of some, or all, of its claims for improper venue.
Within 14 days of the date of this Order, the parties shall either file an agreed motion to transfer venue to Nebraska or notify the Court that no motion will be filed. If no motion is filed, the Court will proceed with the consideration of Defendants' motions to dismiss and Plaintiff will be bound by those rulings and any consequences thereof.

(Filing No. 46).

         The following day, August 28, 2015, Plaintiff moved to amend the complaint to add a RICO claim. (Filing No. 47). The motion was denied on September 2, 2015, the court explaining:

Plaintiff has not shown how his amended complaint would state additional facts regarding proper venue in this District. Moreover, nothing in the motion indicates how the amended complaint would state facts to show how this Court could exercise personal jurisdiction over some or all of Defendants here. Plaintiff is again reminded that, if Plaintiff does not agree to the transfer of this case to a more suitable venue, Plaintiff faces dismissal of some, or all, of its claims.

(Filing No. 48).

         Plaintiff filed a motion to change venue on September 10, 2015. (Filing No. 50). Bitters and Boland refused to join in the motion unless Boland was dismissed, arguing Nebraska has no personal jurisdiction over Boland. (Filing Nos. 51 and 52). The Texas court disagreed, and on March 17, 2016-14 months after the case was filed-Plaintiff's lawsuit was transferred to this forum from the United States District Court for the Eastern District of Texas, with the motions to dismiss and related motions to strike filed in the Texas forum denied as moot. (Filing Nos. 54, 55, 56, and 57).

         3. Nebraska Filings.

         The case arrived in the District of Nebraska on April 25, 2016. (Filing No. 58). Two days later, this court entered an order requiring Defendants to file an answer or otherwise respond to Plaintiff's complaint by May 13, 2016, and to file a Rule 26(f) Report by May 30, 2016. (Filing No. 62). Acting through their local counsel, Defendants moved for an additional 30 days to file their answer or responsive motions. (Filing No. 64). Plaintiff did not respond to the motion to continue, and the motion was granted on June 1, 2016. (Filing No. 67).

         Defendants timely filed Rule 12(b)(6) motions to dismiss on June 13, 2016. (Filing Nos. 68-71). On July 5, 2016, Plaintiff moved to amend the complaint. (Filing No. 80). The motion to amend was granted, with the motions to dismiss denied as moot. (Filing No. 98).

         Plaintiff's amended complaint, filed on August 8, 2016, alleged (1) breach of fiduciary duty; (2) negligence; (3) negligent misrepresentation; (4) breach of contract; (5) breach implied duty of good faith and fair dealing; (6) fraud; (7) assumpsit; (8) violations of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1961 et seq.; (9) violations of the Nebraska Uniform Deceptive Trade Practices Act (“NUDTPA”), Neb. Rev. Stat. § 87-301 et seq.; and (10) violations the Nebraska Consumer Protection Act (“NCPA”), Neb. Rev. Stat. § 59-1601 et seq. Defendants Bitters and Boland again filed Rule 12(b)(6) motions to dismiss. (Filing Nos. 104 & 106). Henry, appearing pro se, also moved to dismiss.

         On October 19, 2016, this court entered an order dismissing Plaintiff's claims for recovery under the NUDTPA, the NCPA, and RICO. As to all other claims, Defendants' motions to dismiss were denied, and their motion to dismiss on the basis of the statute of limitations was denied. (Filing No. 121).

         Consistent with the parties' proposed discovery deadlines in their jointly filed Rule 26(f) Report, (Filing No. 126), the court entered a final progression order on February 10, 2017. (Filing No. 127). That order set a November 1, 2017 written discovery deadline and a November 30, 2017 deposition deadline. (Id).

         Over the following seven months, Plaintiff served no discovery. On September 19, 2017, Plaintiff served 34 Requests for Admission, 102 Requests for Production, and 33 Interrogatories on Defendants Bitters and Boland and 86 discovery requests in the form of Requests for ...


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