Case 2:14-cv-00876-DN-DBP Document 192 Filed 10/20/15 Page 1 of 16

Marcus R. Mumford (12737)

MUMFORD PC
405 South Main Street, Suite 975
Salt Lake City, Utah 84111
Telephone: (801) 428-2000
Email: mrm@mumfordpc.com
Attorney for Plaintiff Utah Republican Party
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
UTAH REPUBLICAN PARTY,

PLAINTIFFS RESPONSE TO THE

COURTS ORDER TO SHOW CAUSE RE:
CONTEMPT [182] AND REQUEST THAT
THE COURT CORRECT ITS
MISSTATEMENTS OF RECORD

Plaintiff,
CONSTITUTION PARTY OF UTAH,
Plaintiff and Intervenor,
v.

Case No. 2:14-cv-00876-DN

GARY R. HERBERT, et al.,

Judge David Nuffer

Magistrate Judge Dustin B. Pead

Defendants.

In response to (1) the Courts Order to Show Cause re: Contempt [182], and (2) the
Courts Order [171] Striking Motion for Summary Judgment [167] and Corrected Motion for
Summary Judgment [168], counsel for Plaintiff Utah Republican Party (the Party), states and
requests that the Court correct its misstatements of record as follows:
INTRODUCTION
The Courts order to show cause asserts that counsel for the Utah Republican Party
(Party) has failed to comply with at least sixteen deadlines, or seventeen deadlines if one
includes the Courts assertions regarding Partys recent opposition [176] to Defendants motion
for summary judgment, and, on that basis, ordered that the Partys counsel show cause why he

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should not be held in contempt and appropriately sanctioned.1 Undersigned counsel has
struggled to convey the appropriate tone in this response.
On the one hand, I remain willing to take ownership of my actions, as I have from the
beginning of this case. For example, I recently filed my clients motion for summary judgment
[167] at 12:02 a.m. on September 23, 2015, and the corrected motion [168] at 1:44 p.m. that
same day, with exhibits and hyperlinks, after the Court granted my motion for a one-day
extension to September 22, 2015. As stated in my motion to extend time [165], I had been under
unanticipated exigencies at work and home as a result of my special needs son being in the
pediatric ICU for almost two weeks, and the burdens of a small firm law practice. I should have
asked for two extra days instead of one, and I must accept the consequences of my actions.
On the other hand, as I started to share in the brief I filed last Friday,2 the Court should
reject Defendants increasingly frequent attempts to have the Court apply the rules unequally as
between the parties.3 The Courts list of deadlines I purportedly missed [171] is exaggerated
and lacking in a consistent criteria. For example, it is not clear in at least ten instances what basis
the Court would have to fault me for an allegedly missed deadline. Second, it appears the Court
is relying in some instances on assertions made by Defendants counsel, David Wolf and Parker
Douglas, which are unreliable. For example, one of those sixteen missed deadlines, number 3
on the Rebuttal Chart attached as Exhibit 1, falsely attributes to me the failure to file a single
order, where Defendants submission admit that they were the ones to file two orders where the
1

Doc. 182 at 1-2.

Doc. 185 at 1-3.
3
See Modrowski v. Pigatto, 712 F.3d 1166, 1169 (7th Cir. 2013) (affirming a district courts
discretion in how it applies the rules, so long as it does not enforce the rules unequally as
between the parties) (quoting Stevo v. Frasor, 662 F.3d 880, 887 (7th Cir. 2011) (emphasis
added)).
2

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Court had requested one, or, number 4, listing a deadline I did not miss to note the magistrates
concern about the tenor of the litigation and request that the parties act with civility, where I
understood that was a general admonition to both sides. I have attached a chart disputing the
basis that the Court would have to hold me in contempt for any of the purportedly missed
deadlines.
It is unfair for the Court to allow Defendants counsel, Wolf and Douglas, to urge that the
Court apply its rules more strictly against me, and advocate for an increasingly audacious double
standard. For example, the Court justified the striking of my clients motion for summary
judgment on the fact that it was two minutes late and the corrected motion was filed
approximately fourteen hours later without leave of court.4 But contrary to Wolf and Parkers
claim that they have continue[d] to abide by the Courts deadlines,5 where the Party has not, on
March 31, 2015, they did not file their response brief, as required by the Courts Scheduling
Order, until 11:58 p.m.6 They did not file exhibits until the following day, April 1, 2015, at 12:05
a.m.7 And they then filed a corrected version of their opposition brief two days later, on April
2, 2015, at 7:28 a.m., all without any motion to extend time or leave of court.8 In fact, the only
leave Defendants sought was leave to file their original brief, which had 54 pages of argument,
where the applicable limit was 25 pages.9 The Court granted that motion before Plaintiff had any

Doc. 171 at 2.
Doc. 178 at 4.
6
Doc. 68. Meaning that, pursuant to the 4:30 p.m. deadline [43 at 2], their opposition was
approximately 7.5 hours late.
7
Doc. 69.
8
Doc. 71; compare doc. 178 at 2, 5.
9
Doc. 67.
5

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opportunity to respond.10 And the Court will recall the prejudice Plaintiff suffered as a result.
The parties had set a tight briefing schedule in advance of the April 10 hearing, as reflected in
the Courts scheduling order.11 Prior to filing their opposition, Wolf and Parker never indicated
the need to file a brief more than double the allowable length. In response, the Party filed an
unopposed motion for one extra day to file its reply brief.12 The Court gave the Party until the
following day at 2:00 p.m.13 I missed that deadline by several hours, and the Court continues to
revisit that fact as grounds justifying its rulings against the Party.14 I fear that the Court has
forgotten the serial missteps and rule violations by Defendants counsel leading to it. In my
willingness to accept responsibility for my actions, as I did in an email that evening, I have to ask
why the Court has not demanded the same of Defendants counsel? Why did it not make an issue
of their filing a corrected brief and appendix filed after the applicable deadline without leave of
court? Why did the Court not only grant their unanticipated motion to file an overlength brief
without any opportunity to respond, but deny me a similar courtesy in seeking one extra day to
prepare the Partys reply brief? If the Court is going to apply the rules severely, I would ask that
the Court apply them equally severely as against Defendants counsel.
The Court stated in its order striking the Partys motion for summary judgment that this
is not the first, second, third, or even tenth time Plaintiffs counsel had missed a deadline in this
case.15 News outlets have reported that statement and how the Court benchslapped Plaintiffs

10

Doc. 70.
Doc. 43.
12
Doc. 73.
13
Doc. 74.
14
Doc. 171.
15
Dkt 171 at 2.
11

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counsel.16 It led attorneys Wolf and Douglas to make a misleading and inappropriate motion to
strike last week, where they false asserted that have continue[d] to abide by the Courts
deadlines,17 where the Party has not.18 Yesterday, I understand that Douglas went on Doug
Wrights local KSL radio program yesterday to pile on regarding how the Court is getting fed up
with the Partys claims, all the while denying that Defendants have missed any deadlines in the
case: the accusation that weve been late on any filings is completely false, and Id ask anybody
just to look over the docket. We havent missed a deadline 19
All the while, we have shown in briefing how Defendants have not complied with the
substantive rules concerning motions and misled the Court on issues of substance to this case. I
will leave it to the Court to determine what kind of double standard Defendants counsel are able
to carve out for themselves. But I would ask the Court to correct its misstatements of record.
AUTHORITY REGARDING THE CONTEMPT STANDARD
To find Plaintiffs counsel in contempt, the Court must find, by either clear and
convincing evidence or beyond a reasonable doubt, that a valid court order existed, that
[Plaintiffs counsel] had knowledge of the order, and that [Plaintiffs counsel] disobeyed the

16

See Ben Winslow, Judge says Utah GOP Missed Deadlines, Sept. 24, 2015, available at
http://fox13now.com/2015/09/24/judge-says-utah-gop-missed-deadlines-so-he-drops-theirrequest-to-rule-in-sb54-case/; Joe Patrice, Republican Party Brutally Benchslapped, Oct. 1, 2015,
available at http://abovethelaw.com/2015/10/republican-party-brutally-benchslapped/.
17
Doc. 178 at 4.
18
Courts have cautioned courts in making contempt ruling against lawyers because of the
potential stigma flowing from [it]; contempt should not be based on a mere technicality, but
should be imposed only where necessary to maintain an orderly system of justice. In re Hunt,
367 A.2d 155, 158 (D.C. 1976).
19
Doug Wright Show, 1st hour, 10/19/2015, available online, at approximately 50:50.
5

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order.20 The party seeking a citation of contempt bears a heavy burden.21 While it is true that,
in the case of civil contempt, a court need not conclude that the disobedience of its order was
willful,22 courts in this district have repeatedly stressed that [a] party will not be held in
contempt if it was reasonably diligent and energetic in attempting to accomplish what was
ordered.23 The distinction between actions that are reasonably diligent and not is best
illustrated by comparing the Catheter Connections and Bad Ass Coffee cases. In Bad Ass Coffee,
the court held the defendant in contempt where it took over a month to demonstrate substantial
compliance with the its preliminary injunction order.24 In Catheter Connections, the party subject
to the courts order began acting within five to six days to contact distributors and coordinate the
recall.25 The court noted that perhaps the party could have been more energetic in its follow-

20

Catheter Connections, Inc. v. Ivera Med. Corp., No. 2:14-CV-70-TC, 2015 WL 93881, at *3
(D. Utah Jan. 7, 2015) (quoting Reliance Ins. Co. v. Mast Constr. Co., 159 F.3d 1311, 1315 (10th
Cir. 1998)); see also Fed. Trade Commn v. Kuykendall, 371 F.3d 745, 756-57 (10th Cir. 2004)
(en banc).
21
Equifax Servs., Inc. v. Hiltz, 968 F.2d 1224, 1992 WL 163282, at *13 (10th Cir. July 9, 1992)
(unpublished table decision) (affirming judgment that defendant breached contract for the
reasons asserted in a district court ruling attached as part of the record where district court further
denied plaintiffs motion for contempt); see also Catheter Connections, 2015 WL 93881, at *3
(denying motion for contempt where moving party did not satisf[y] its heightened burden of
proof).
22
Bad Ass Coffee Co. of Haw., Inc. v. Bad Ass Coffee Ltd. Pship, 95 F. Supp. 2d 1252, 1256 (D.
Utah 2000) (citing Goluba v. School Dist. of Ripon, 45 F.3d 1035, 1037 (7th Cir. 1995)).
23
Catheter Connections, 2015 WL 93881, at *3 (quoting Bad Ass Coffee, 95 F. Supp. 2d at
1256). A party may also establish its defense to civil contempt by showing by clear and
convincing evidence that all reasonable steps were taken in good faith to ensure compliance
with the court order and that there was substantial compliance, or relatedly by proving plainly
and unmistakably that it was unable to comply with the court order. Bad Ass Coffee, 95 F. Supp.
2d at 1256 n.8 (citing Bauchman v. West High School, 906 F. Supp. 1483, 1494 (D. Utah 1995),
Donovan v. Burgett Greenhouses, Inc., 759 F.2d 1483, 1486 (10th Cir. 1985), and Spectra Sonics
Aviation, Inc. v. Ogden City, 931 F.2d 63, 1991 WL 59369, at *2 (10th Cir. Apr. 19, 1991)
(unpublished table decision)).
24
Bad Ass Coffee, 95 F. Supp. 2d at 1256.
25
Catheter Connections, 2015 WL 93881, at *5-*6.
6

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through (for example, the court would have preferred that [the party] clarified the reason for the
recall and stated that it was bound by a deadline set by a federal district court), but it denied the
motion for contempt based on its reasonably diligence.26
The distinction regarding willfulness is related to civil contempt. It is not clear what the
Court intends to consider here. There are two traditional types of contempt: civil contempt and
criminal contempt.27 Contempt is considered civil if it is remedial and for the benefit of the
complainant,28 including to compensate for losses or damages sustained by reason of
noncompliance.29 Criminal contempt, on the other hand, is a crime in the ordinary sense.30
The distinction is important because criminal penalties may not be imposed on someone who
has not been afforded the protection that the Constitution requires of such criminal
proceedings.31 Given this added level of protection in the criminal contempt context, a court
errs where it imposes a contempt sanction in the civil context that crosses into the realm of
criminal contempt.32 If the relief provided is a fine, it is remedial when it is paid to the
complainant and punitive when it is paid to the court.33 In Law, the Tenth Circuit construed the
imposition of a fine and surcharge as a criminal sanction, reversing the district court on grounds
that it had not provided the party and its counsel with the required procedural safeguards for a
criminal contempt order, including the essential facts constituting the criminal contempt

26

Id. at *5.
Kuykendall, 371 F.3d at 752.
28
Catheter Connections, 2015 WL 93881, at *3 (quoting Kuykendall, 371 F.3d at 752).
29
McComb v. Jacksonville Paper Co., 336 U.S. 187, 191 (1949).
30
Law v. Natl Collegiate Athletic Assn, 134 F.3d 1438, 1442 (10th Cir. 1998) (quoting Intl
Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 826 (1994)).
31
Id. (quoting Bagwell, 512 U.S. at 826).
32
See Bagwell, 512 U.S. at 833.
33
Hicks v. Feiock, 485 U.S. 624, 632 (1988).
27

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charged, and notice describ[ing] it as such.34 Courts construe proceedings regarding past
acts as criminal, requiring that the Court find willfulness.35 Where a court is contemplating a
contempt order that is partially civil and partially criminal, the criminal aspect controls for
purposes of [appellate] review.36
It is well-settled law that a district court has broad discretion in using its contempt
power to require adherence to court orders.37 But the Tenth Circuit has reversed contempt
orders were counsel was five minutes late to a pretrial detention hearing.38 Citing that case,
other circuits have observed how they do not consider tardiness or absence from court to
provide an adequate basis for summary disposition under Rule 42(b).39 [W]hen tardiness
provides the basis of a contempt charge, the district court should ... appl[y] the procedural
safeguards set forth in Rule 42(a) in considering [the] conduct.40

34

Law, 134 F.3d at 1443-44 (quoting Fed. R. Crim. P. 42(b) (emphasis added)). Law explained
further: [T]his Court has found that defendants in criminal contempt proceedings must be
presumed innocent, proved guilty beyond a reasonable doubt, and accorded the right to refuse to
testify against themselves; must be advised of charges, have a reasonable opportunity to respond
to them, and be permitted the assistance of counsel and the right to call witnesses; must be given
a public trial before an unbiased judge; and must be afforded a jury trial for serious contempts.
Id. (quoting Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 798-99 (1987)).
35
UFCW Local 880-Retail Food Employers Joint Pension Fund v. Newmont Mining Corp., 2008
WL 4452332, at *7 (D. Colo. Sept. 30, 2008) aff'd in part sub nom. UFCW Local 880-Retail
Food Employers Joint Pension Fund v. Newmont Min. Corp., 352 F. Appx 232 (10th Cir. 2009)
(citing Bagwell, 512 U.S. at 828-29, and In re Contempt Order, 441 F.3d 1266, 1268 (10th Cir.
2006)).
36
Law, 134 F.3d at 1443 (citing Hicks, 485 U.S. at 638-39 n.10, and Lamar Fin. Corp. v. Adams,
918 F.2d 564 (5th Cir. 1990)).
37
Sara Lee Corp. v. Sycamore Family Bakery Inc., 2011 WL 1807779, at *2-3 (D. Utah May 12,
2011) order clarified, 2011 WL 3794237 (D. Utah Aug. 25, 2011) (citing Consumers Gas & Oil,
Inc. v. Farmland Indus., Inc., 84 F.3d 367, 370 (10th Cir. 1996)).
38
In re Contempt Order, 441 F.3d 1266, 1267 (10th Cir. 2006).
39
United States v. Peoples, 698 F.3d 185, 192 (4th Cir. 2012) (citations omitted).
40
Id. (citing In re Gates, 600 F.3d at 339).
8

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Abuse of discretion is established if the district court's adjudication of the contempt

proceedings is based upon an error of law or a clearly erroneous finding of fact. John Zink Co.
v. Zink, 241 F.3d 1256, 1259 (10th Cir. 2001) (internal quotation omitted). Clear and convincing
evidence in the context of civil contempt is evidence that produces in the mind of the trier of
fact a firm belief or conviction as to the truth of the allegations sought to be established, evidence
so clear, direct and weighty and convincing as to enable [the fact finder] to come to a clear
conviction, without hesitancy, of the truth of the precise facts in issue.41 Though this standard
is deferential, a district court must provide findings of facts on which it bases its judgment
sufficient to make possible meaningful appellate review.42
ADDITIONAL FACTS CONCERNING THE PURPORTED MISSED DEADLINES
Filing Motion Papers Without Leave
1.

Regarding number 15 and 16 in the attached chart, see above and opposition to motion to

strike filed last Friday.

Other Missed Deadlines
2.

As an initial matter, the Court may not be aware of the competing order I was under

beginning at least April 2, 2015, in the case United States v. Mower, 2:09-cr-460-DS (D. Utah)
(hereinafter, Mower case), before the Honorable David Sam, to prioritize the Mower case over
this one. The Mower case had settled last October, and Judge Sam had rejected prosecutors
efforts to renege on that settlement as border[ing] on prosecutorial unprofessionalism and
bullying. See United States v. Mower, __ F. Supp. 3d __, 2015 WL 687304, at *6 (D. Utah Feb.
41

Orbit Irr. Products v. Sunhills Int'l, No. 2:10-CV-113 TS, 2014 WL 1329526, at *3 (D. Utah
Apr. 2, 2014) (quoting Cruzan v. Dir., Mo. Dept of Health, 497 U.S. 261, 285 n. 11 (1990)).
42
Kuykendall, 371 F.3d at 756-57 (citing Fed.R.Civ.P. 52(a); Wolfe v. Dep't of Human Services,
69 F.3d 1081, 1087 (10th Cir. 1995)).
9

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18, 2015). Nevertheless, when prosecutors raised additional arguments in February 2015,
including Judge Sams purported violation of rules when he arranged for another judge to assist
the parties in settlement discussions, Judge Sam did not accept my clients plea and set the
Mower case for trial beginning April 20, 2015. All of this was after the Court had entered its
scheduling order [43] in this case on February 17, 2015. At hearings held March 4 and April 2,
2015, I informed Judge Sam that I could not go to trial beginning April 20 in Mower, specifically
referencing the scheduling order that had been entered in this case, and the need to withdraw
from Mower if Judge Sam insisted on going to trial on April 20, 2015. In response, Judge Sam
adopted the argument made by government counsel and ordered me into trial over my objections,
based on the fact that civil conflicts take second secondary to criminal matters. (Mower case
4/2/2015 Hrg. 10-13, 18-21, and 3/4/2015 Hrg. 15-16, 18-21) I had not previously heard of such
a rule, and I was without notice that might be required of me. The Mower case involved more
than 50 witnesses, more than 3000 exhibits, and the governments allegations of a complex tax
conspiracy, of which defendants were acquitted by jury verdict rendered June 12, 2015. It was a
trial of more than 8 weeks. I have not yet been compensated for my efforts.43
3.

Perhaps the Court will ask why I did not raise sooner the conflict created by Judge Sams

order. First, I did not realize this Court was keeping tally on me. And as set forth below, Im still
at somewhat of a loss as to what criteria the Court is using in keeping its tally. It was not my
intent to miss any deadlines as a result of Judge Sams order. Second, the Court must appreciate
how private counsel must prioritize how his time is spent in disputing or setting the record

43

I would be remiss if I did not acknowledge how understanding Judge Sam was in continuing
the trial for a day in May when my special needs son was rushed to the emergency room, where
he stayed for another approximately two week stay in the pediatric ICU.
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straight concerning the type of misunderstandings the court referenced in its order [171] entered
September 24, 2015, deeming it more important to rectify misunderstandings regarding the
substantive law than procedure. For example, the demands my clients impose, and the standards
I set for myself, prevent me from being able to bill my client for any of the time spent in
preparing this response.
4.

Notwithstanding Judge Sams order, it was incorrect for the Court to state that I have

missed sixteen deadlines.

There Were No Missed Court Deadlines Related To The Initial Disclosures
5.

The Court asserts that the Party missed court deadlines in making their initial disclosures,

citing Defendants motion to compel [44], and the Courts order [38]. (See Dkt 171 at 4) But
Defendants filed their answer [31] on February 2, 2015. Under the applicable rules, the Party
would have had at least 14 days from the Rule 26(f) conference held after the answer was filed to
serve initial disclosures. Fed. R. Civ. P. 26(a).44
6.

And it was not until February 10, 2015, that Defendants filed the relevant proposed order

via email, (see Dkt 36), setting the date for Plaintiffs initial disclosures on constitutional
claims as being due February 9, 2015. But that same day, the Party filed objections [36]
pointing out that Defendants email submission was contrary to DUCivR 5-1(b) and DUCivR
54-1(b), how Defendants had indicated the intent to use the bifurcation of issues regarding
constitutional claims to limit their discovery responses, and raising issues of scope regarding

44

The Court cannot claim that the Party missed a February 9 deadline set by its order [38], which
was not entered until February 17, 2015, where Defendants only submitted that order [38] to the
Court on February 10, 2015, see Dkt 36 at 1, and the Party filed objections [36] to it that same
day, objecting in particular to Defendants use of the word constitutional in defining the scope
of initial disclosures to be served.
11

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constitutional claims. The Court cannot hold it against the Party that it did not make initial
disclosures while there were still issues and uncertainties pending about what was due, and while
those issues about scope were pending before the Court. By the time the Court resolved those
questions with its order entered February 12, 2015, the purported deadline of February 9, 2015,
had passed. Rather than spending time correcting the record on what seemed at the time to be an
insignificant point, the Party served its initial disclosures within five days of the Courts order,
via email dated February 17, 2015, at 8:43 a.m., before the hearing scheduled that day to resolve
other scheduling issues.
7.

The Court asserts as one of these missed court deadlines that I was ten minutes late for a

meet and confer with Defendants counsel. (Dkt 171 at 4) This is what Defendants gratuitously
asserted in a filing submitting their second proposed scheduling order [39]. First, nowhere was it
ever established that this was a court deadline. Second, records from my office manager show
that Mr. Wolf was late for the meeting at my office and was verbally abusive when he arrived. I
would ask that the Court verify matters before making a public example based on the frivolous
and gratuitous statement from opposing counsel. In this, I generally adhere to an approach where
I try not to waste my clients resources or the Courts time in disputing tangential matters. It has
been my experience that courts do not appreciate when counsel takes up court time in briefing or
at hearings raising issues about the conduct of counsel. But if the Court intends to use every
unaddressed misstatement of opposing counsel against my client, I would appreciate advance
notice, so that I can advise my client of the need to dispute every cheap shot.
8.

Third, the Court asserts that the Party disregarded a court imposed deadline by failing to

submit a single redlined scheduling order, (Dkt 171 at 4), but Defendants submission [39]

12

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admits that they were responsible for violating the courts order to submit a single redlined order,
attaching two redlined versions of the order with their notice [39], with a confusing indication of
who was responsible for what changes. Sure, they tried to shift the blame for their actions,
accusing me of using the meet and confer to reiterate unfounded objections, and discuss
issues already decided by this Court. (Dkt 39 at 2) But the Court has to realize that my version
of that meeting varies dramatically. Rather than spend the Courts time correcting the record, I
judged it a better use of time to address the issues presented by filing a motion to reconsider [40]
and also a notice [41] with a clean version of the Partys proposed scheduling order, to clarify
what the Party was seeking.45 If the Court judges those matter significant, I will devote more
time to correcting defense counsels serial misstatements. But for the Court to construe this as
some kind of missed deadline on my part is error.
9.

The Court noted in its list of missed deadlines how Magistrate Judge Pead noted his

concern with the tenor of litigation. (Dkt 171 at 4) With respect, the Court cannot somehow
attributed Magistrate Judge Peads concerns regarding the litigation generally to me individually,

45

The Courts list of missed deadlines asserts that [i]nstead of submitting a single order,
Mumford filed a separate redline copy [40] in addition to the copy already submitted by the State
[39]. As a historical matter, this is inaccurate. Docket [39] was the States submission, which
attached two redline versions of the proposed order, filed by Assistant Attorney General David
Wolf. Docket [40] was a motion to reconsider that I filed based on new evidence arising, where
the Party had understood that Defendants asked the Court to delay action on its motion for
preliminary injunction based on actions it either anticipated or hoped for from the legislature.
Almost immediately after the Court consented to that delay, Governor Herbert held a press
conference where we felt he had changed his position from what was presented to the Court, and
thus asking the Court to reconsider its scheduling order delaying action on the motion for
preliminary injunction until after the legislative session. Perhaps the Court meant to refer to
Docket [41-1], which was clean version submitted by the Party to clarify the position we
intended to take. But this was NOT a separate redline copy or a violation of any Court order.
13

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or somehow use opposing counsels actions from months ago to justify its action striking the
Partys motion [168].
10.

Finally, contrary to the Courts assertions regarding deadlines on February 27, 2015, (Dkt

171 at 4), the only court deadline in the magistrate judges order [46] was for Defendants to act
by February 27, 2015, no later than close of business. Defendants filed their report [51] on
February 27, 2015, at 11:48 a.m., but neglected to update their report to reveal that the parties
met and conferred later that day, February 27, 2015, at 3:15 p.m., to resolve Defendants
concerns. (See Dkt 54 at 1-2) The Courts docket reflects a phone call from my office to the
Court at 2:00 p.m. that day, but it does not appear Defendants corrected their report until March
3, 2015, when they acknowledged that the parties had resolved the issue of the initial disclosures,
without acknowledging that took place on February 27, 2015, prior to the close of business, as
the Party reported in its response [54] filed March 2, 2015).
11.

In summary, I did not miss any pending deadlines between February 9 and 27, 2015, as

asserted by the Court in the summary of missed deadlines attached to its order [171].
Missed Deadline Related To The Partys Opposition To Motion To Quash
12.

I would refer the Court to the Partys motion for leave to reopen [108] filed April 15,

2015, on this issue. Two additional points:

13.

First, given that the Court refused hear the Partys motion to reopen, notwithstanding the

accommodation we made in agreeing to postpone the deposition of Mr. Bramble until after the
issue was resolved, which eliminated the urgency that led the Magistrate Judge to order a
response on one-days expedited notice, I would question why the Court continues to raise this
issue as grounds to strike, essentially, another filing. Neither the Court nor the opposition parties

14

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made any accommodation of counsels missing this deadline. It should not serve as justification
for striking the Partys motion for summary judgment [168] several months later.
14.

Second, while I asserted in the Partys motion to reopen how I was unable to respond in

one days notice based on my work in the Mower case, I did not indicate Judge Sams order
directing me to prioritize my work on that matter over all civil matters, including this one after I
referenced it by its case number at the April 2, 2015 hearing.
15.

In summary, this is one instance where I missed a court-imposed deadline. I would

question why defendants have never had to respond on a one day turnaround.
Two Filings In May 2015
16.

The Court pointed out how I filed objections [126] to the Magistrate Decision a day

after the Court extended the deadline by one day pursuant to its order [129] granting me one
additional day to file. First, it seems significant that when the Court states that my objections
[126] were filed a day late, they were filed one minute late, on May 13, 2015, at 12:01 a.m.
Second, realize this was while I was under Judge Sams order to prioritize that matter over all
criminal matters.
17.

The Court pointed out that I filed the joint opposition of the Constitution and Republican

Parties to Defendants motion a day after the Court extended the deadline by one day
pursuant to its order [129] granted the parties one additional day to file. First, it seems significant
that when the Court states that the joint opposition [128] was filed a day late, it was filed 53
minutes late, on May 16, 2015, at 12:53 a.m. And the Parties joint motion to extend time was
not granted [129] until the opposition had been filed for two days, in other words, after the Court
was already on notice of the fact that it had been filed Saturday morning at 12:53 a.m., instead of

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Friday night. Third, it seems significant to note that Defendants did not file their reply brief until
14 + 3 days after May 16, 2015, as opposed to May 15, 2015. They did so without any leave of
Court and the Party did not raise any issue about it. Accordingly, there was no prejudice to
Defendants. And this again was in the time frame I was under Judge Sams order to prioritize the
Mower case over all other civil matters.
Missed Deadlines In Submitted The Partys Objections To Defendants Proposed Order
18.

The Party responded to the issue raised in number 11 and 12 in the filings made,

including docket 147. Also, the response to item 13 was attached to Defendants papers. The first
of these was also while I was under Judge Sams order.
Respectfully submitted this 20th day of October, 2015.
/s/ Marcus R. Mumford
Attorney for Plaintiff Utah Republican Party

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