Summary
In Kirk v. Salt Lake City, 32 Utah 143, 89 P. 458, 12 L.R.A., N.S., 1021, this court held that in view of our trial procedure as established by statute, a trial 1, 2 court has no authority to entertain a motion for judgment nothwithstanding the verdict by reason of any deficiency in proof; and that if the evidence is insufficient to warrant a verdict or judgment in favor of plaintiff, defendant may request a directed verdict in his favor, or, after entry of judgment, he can challenge the sufficiency of the evidence by a motion for new trial.
Summary of this case from Buhler v. MadisonOpinion
Case No. 2:97CV674K.
March, 2001.
ORDER
This matter is before the court on Plaintiff Ted Kirk's ("Plaintiff") Amended Motion to Set Aside Default Judgment. A hearing on the motion was held on March 9, 2001. At the hearing, Plaintiff was represented by Clayne I. Corey, and Defendant Salt Lake City Corporation ("Defendant") was represented by Martha S. Stonebrook. Before the hearing, the court considered carefully the memoranda and other materials submitted by the parties. Since taking the matter under advisement, the court has further considered the law and facts relating to this motion. Now being fully advised, the court renders the following Order.
Plaintiff has requested that the court set aside its Order of November 21, 2000, in which the court granted Defendant's Motion for Summary Judgment because Plaintiff had failed to timely respond to the motion, which was due on or about November 3, 2000.
Contrary to Plaintiff's assertion, Defendant did not request that the court grant the summary judgment motion or to enter default judgment. Rather, the court sua sponte granted the motion.
Plaintiff's counsel offers several reasons for his failure to timely respond to the motion, including, primarily, the chaotic dissolution of his law firm and the alleged misrepresentations and inappropriate conduct of Defendant's counsel.
The court finds no merit in Plaintiff's assertions regarding Defendant's counsel. Instead, the court believes Defendant's counsel's version of the events and conversations between counsel that have taken place since this case was filed over three years ago. Nevertheless, the court very reluctantly grants Plaintiff's motion because the court does not want to penalize Plaintiff because of his counsel's neglect during the dissolution of his law firm.
The discovery deadline of August 31, 2000 has long since past, and the court is troubled by Plaintiff's counsel's failure to conduct discovery during the more than three years that this case has been pending. However, so that this case may be resolved on the merits, the court will permit Plaintiff to depose Plaintiff's direct supervisor, so long as that deposition takes place within 30 days from the date of this Order. Plaintiff's response to Defendant's Motion for Summary Judgment is then due 10 days after the date of the deposition. The court will not permit any further delay.
Accordingly, IT IS HEREBY ORDERED that Plaintiff's Amended Motion to Set Aside Default Judgement is GRANTED, and the court's Order dated November 21, 2000 is VACATED. Plaintiff may depose Plaintiff's direct supervisor within 30 days from the date of this Order, and Plaintiff's response to the motion for summary judgment is due 10 days after the deposition.