Hunt v. Steffensen (In re Steffensen)

534 B.R. 180

In re: Brian W. Steffensen, Debtor.

Peggy Hunt, as Chapter 7 Trustee, Plaintiff

v.Brian W. Steffensen, Defendant.

Bankruptcy Number: 12–34004

Adversary Proceeding No. 13–2192

United States Bankruptcy Court, D. Utah.

Signed July 22, 2015

Filed July 23, 2015

Jeffrey M. Armington, Steven T. Waterman, Dorsey & Whitney, LLP, Salt Lake City, UT, for Plaintiff.

Brian W. Steffensen, Steffensen Law, Larry G. Reed, Salt Lake City, for Defendant.

MEMORANDUM DECISION

WILLIAM T. THURMAN, U.S. Bankruptcy Judge

The Court has three matters before it in this adversary proceeding filed by Peggy Hunt, the Chapter 7 Trustee and Plaintiff. The first is Defendant Brian Steffensen's Renewed Motion for Summary Judgment (the “Renewed Motion”). The second is the Trustee's Motion for Partial Summary Judgment (the “Motion for Partial Summary Judgment”). The third is the Trustee's Motion to Strike Defendant's Deposition Corrections Pursuant to Fed.R.Civ.P. 30(e) (the “Motion to Strike”).

The Defendant filed a voluntary Chapter 7 petition on November 5, 2012, and the Trustee filed a timely complaint on June 3, 2013 seeking to deny the Defendant's discharge pursuant to 11 U.S.C. § 727(a)(2)(A) and (B) ; § 727(a)(3) ; § 727(a)(4)(A), (C), and (D), and § 727(a)(5).¹ The Defendant initially filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) on July 12, 2013, and the Court conducted a hearing on that motion on September 24, 2013. At that hearing, the Court treated the Defendant's motion as one for summary judgment in accordance with Federal Rule of Civil Procedure 12(d) and gave the parties additional time to brief the issue in the context of summary judgment. The Court's treatment of the Defendant's motion to dismiss as one for summary judgment, however, was without prejudice to the Defendant arguing his motion to dismiss merged with a motion for summary judgment. The Defendant subsequently filed a combined motion to dismiss and for summary judgment. After briefing and oral argument, the Court issued its ruling dismissing the Plaintiff's claim under § 727(a)(4)(C) but denying the Defendant's motion in all other respects.²

The Defendant's Renewed Motion seeks summary judgment on all remaining claims, arguing succinctly that the undisputed facts show that the Plaintiff cannot carry her burden as to any of those claims. The Plaintiff's Motion for Partial Summary Judgment concerns only those claims alleged under § 727(a)(3) and § 727(a)(5). In conjunction with his opposition to the Plaintiff's Motion for Partial Summary Judgment, the Defendant submitted seventy-five corrections to his deposition transcript, on which the Motion for Partial Summary Judgment relied. In response, the Plaintiff filed the Motion to Strike.

The Court conducted a hearing on all three motions on June 3, 2015, at which Steven T. Waterman and Jeffrey M. Armington appeared on behalf of the Plaintiff and the Defendant appeared pro se. The Court then took the matters under advisement. After carefully considering the parties' briefs, the evidence presented therewith, and the arguments of counsel, and after conducting its own independent research of applicable law, the Court now issues the following Memorandum Decision, which constitutes the Court's findings of fact and conclusions of law under Fed. R. Civ. P. 52, made applicable to this proceeding by Fed. R. Bankr.P. 7052.

I. JURISDICTION AND VENUE

The Court's jurisdiction over this adversary proceeding is properly invoked under 28 U.S.C. § 1334(b) and § 157(a) and (b). The Plaintiff's complaint seeks to deny the Defendant's discharge, making this a core proceeding under 28 U.S.C. § 157(b)(2)(J). Venue is appropriately laid in this District under 28 U.S.C. § 1409, and notice of the hearing on all three motions was properly given in all respects.

II. DISCUSSION

A. Plaintiff's Motion to Strike

Of the three motions at issue in this decision, the Motion to Strike must be addressed first. Its resolution will determine whether the Plaintiff may properly rely upon the original and uncorrected version of the Defendant's deposition as support for her Motion for Partial Summary Judgment. Federal Rule of Civil Procedure 30(e) provides:

(1) Review; Statement of Changes. On request by the deponent or a party before the deposition is completed, the deponent must be allowed 30 days after being notified by the officer that the transcript or recording is available in which:

(A) to review the transcript or recording; and

(B) if there are changes in form or substance, to sign a statement listing the changes and the reasons for making them.

(2) Changes Indicated in the Officer's Certificate. The officer must note in the certificate prescribed by Rule 30(f)(1) whether a review was requested and, if so, must attach any changes the deponent makes during the 30–day period.³

This Rule imposes three discrete procedural demands on the deponent or party requesting changes. These must be satisfied before a court will consider the propriety of the changes.⁴ The first requires that the deponent “request review of his deposition before its completion.”⁵ In turn, “the officer conducting the deposition [—i.e., the court reporter—]must denote the request on [the] certificate” mandated by Rule 30(f)(1).⁶ Requesting review is “an absolute prerequisite to amending or correcting a deposition under Rule 30(e).”⁷

In this case, the court reporter's certificate attached to the Defendant's deposition transcript does not specify whether he requested review of his deposition.⁸ But at the very close of the deposition transcript, the Defendant stated: “I will want to read it and review it.”⁹ The Court considers this to be the request that Rule 30(e) calls for, and consequently, the Defendant has met the first procedural hurdle.

The second procedural requirement entails the submission of changes within thirty days after the deponent has been notified by the court reporter that the transcript is available for review. “Rule 30(e)'s thirty-day clock begins to run when the party is notified by the court reporter that [the] transcript is available for review, not when the party or deponent physically receives the transcript from the court reporter.”¹⁰ Here, the dates of notification and receipt were the same. On March 10, 2015, the court reporter sent the Defendant an e-mail with the full- and mini-size versions of his deposition transcript attached.¹¹ The Defendant sent a reply e-mail on April 10, attaching his corrections to the transcript.¹² The thirty-day deadline expired on April 9,¹³ and the Defendant's deposition corrections were therefore untimely. At oral argument on the Motion to Strike, the Defendant admitted that his corrections were one day late. Nevertheless, in his objection to the Motion to Strike, the Defendant argues that the tardiness of the corrections should be forgiven because “they are helpful and provide a full, complete and accurate set of answers,”¹⁴ and “the interests of justice are furthered by having accurate and complete testimony.”¹⁵

Doubtless every party offering deposition corrections believes that they make the record accurate and complete. If that argument were allowed to excuse late-filed errata sheets, however, it would vitiate the thirty-day deadline of Rule 30(e). Procedural rules cannot be disregarded. “The Tenth Circuit construes the 30–day period for submitting changes as ‘mandatory’ and that deposition changes are permissible under Rule 30(e)only if the party submitting the errata sheet establishes that the submission was provided to the court reporter within the time limit.”¹⁶ The Defendant missed the thirty-day deadline, but only by the slightest of margins, and this appears to be a case where minor untimeliness could have been excused, had the Defendant followed the correct procedure.

When the Rules require that an act be performed within a certain period, a party may obtain an extension of time through Federal Rule of Bankruptcy Procedure 9006(b). When the extension is requested after the time period has expired, the moving party must show cause and file a motion demonstrating that its failure to act within the specified time period was due to excusable neglect. The Defendant did not file a Rule 9006(b) motion, invoke that Rule in his objection or at oral argument, argue excusable neglect, or make an informal request to extend the time to provide his corrections to April 10, 2015. A deadline missed, even if only by one day, does not evince compliance, and in the absence of a Rule 9006(b) motion, the Court concludes that the Motion to Strike could be granted on the untimeliness of the Defendant's corrections alone.

The closest the Defendant approaches a Rule 9006(b) motion is the point at which his objection asks the Court “to order that his Corrections will be allowed even if they were one day late.” Similarly, he requested at oral argument to have the Court waive the violation of Rule 30(e)'s thirty-day deadline. He then stated that his failure to meet the April 9 deadline was due to a simple counting error—he had forgotten that there were thirty-one days in March. Courts “have a limited and neutral role in the adversarial process, and are wary of becoming advocates who ... make a party's case for it.”¹⁷ The Defendant's requests and statements regarding the thirty-day deadline are attenuated, but resemble the building blocks of a motion for Rule 9006(b) relief. Even if the Court construed them as a kind of Rule 9006(b) motion and accepted that misremembering the number of days in a month constitutes excusable neglect, which the Court is inclined to do, thereby extending the deadline to submit deposition corrections until April 10, the Defendant would still falter on Rule 30(e)'s third and final procedural hurdle.

That hurdle “requires the party or deponent seeking to change a deposition transcript to include with the proposed changes a statement of reasons for making them.”¹⁸ In other words, the deponent needs...