Opinion
No. 226-2012-CV-871
10-21-2016
HyTechPro, Inc. v. Sylvain Analytics, Inc.
ORDER
In 2012, HyTechPro, Inc. ("HyTech") filed an action alleging breach of contract against Sylvain Analytics, Inc. ("Sylvain"). Eventually, a default judgment was entered against Sylvain in the amount of $271,597 plus costs and interest. Sylvain has now filed a Motion to Bring Forward and a Verified Motion to Set Aside Final Judgment Order, alleging in substance that the affidavit submitted in support of the default judgment against it was fraudulent. For the reasons stated in this Order, the Court orders that an evidentiary hearing be held.
At the hearing, Sylvain will bear the burden of proving fraud by clear and convincing evidence. It will also need to establish that it made reasonable efforts to ascertain the fraud, and that it acted diligently after it learned of the fraud. Its claim of fraud is limited to the claim that HyTech submitted fraudulent invoices to the Court in connection with its Affidavit of Damages, filed in support of its Motion for Judgment. HyTech may, if it chooses to do so, present evidence on whether or not its reliance interests would be affected by a determination in favor of Sylvain. The Court recognizes that discovery may be necessary in order for the parties to properly present evidence on their claims. Accordingly, the Court orders that the parties shall meet and confer and prepare a proposed order for discovery for the Court's approval. If the parties cannot agree on dates for discovery, then a hearing shall be held. The parties shall contact the Clerk, and arrange a mutually convenient date for a hearing in advance of preparing a scheduling order for discovery as the discovery necessary will obviously be a significant factor in determining when a hearing can be held
I
At the time litigation was instituted in 2012, neither party was located in New Hampshire; HyTech was operating in Washington, D.C. and Sylvain was operating in Reston, Virginia. However, the contract between the parties provided that the parties consented to jurisdiction in New Hampshire. The file reflects that Sylvain accepted service of the Complaint in a pleading dated December 27, 2012 signed by Sylvain's attorney, Geralda Jean, Esq., who listed herself as general counsel for Sylvain Analytics, Inc., 12007 Sunrise Valley Drive, Suite #105 Reston, VA 20191. An appearance was filed on behalf of Sylvain on January 24, 2013. The parties agreed to transfer the case to the Business and Commercial Dispute Docket. Litigation proceeded through the pleading stage and the case was mediated in May 2013.
Sylvain's counsel filed a Motion to Withdraw dated October 3, 2013, and represented in her motion that:
Good cause exists for this application [to withdraw] as Sylvain has failed to maintain communications with Movants, and as a result Movant has been unable to adequately represent Sylvain in this action, including providing timely and adequate responses to outstanding discovery. The failure of communication also violates the fee agreement between Movant and Sylvain.(Mot. for Leave to Withdraw as Counsel ¶ 1.)
The Court granted the Motion for Leave to Withdraw. Sylvain was defaulted on December 2, 2013. The Court's file reflects that on December 4, 2013, a copy of the Court's Order granting the default was mailed to the parties, and to Ray Sylvain, the principal of Sylvain. The December 4, 2013 Notice of Default stated that:
Before final judgment will be entered, the party seeking judgment must certify that it has mailed to the last known address of the defaulting party copies of the above documents and that it has notified the defaulting party that the entry of final judgment or decree is being sought.
A hearing as to final judgment shall be scheduled upon the request of any party. Otherwise, the Court may enter final judgment based on the pleadings submitted or may schedule a hearing at its discretion.
On February 3, 2014, HyTech filed a Motion for Entry of Final Judgment and Award of Damages including an affidavit setting forth its claims of damages. The certificate of service recited that a copy was sent to Sylvain at 12007 Sunrise Valley Drive, Suite #105 Reston, Virginia 20191, the address listed on the appearance filed by its corporate counsel, via first class mail. No hearing was requested by Sylvain. A final judgment order was entered on February 19, 2014, in the amount of $271,597 plus statutory interest and $205 in costs. On or about February 16, 2016, HyTech filed a certified copy of the judgment in Virginia and then sought to collect on its judgment.
Sylvain now moves to set aside the judgment obtained against it. It has filed two pleadings. First, it has filed a Motion to Bring Forward in which it recites that:
6. At the time the case was filed and continuing into 2013, [Sylvain's] business was hit hard by the US Government's budget sequestration as a substantial portion of its business came from Department of Defense contracts. As a result, [Sylvain] did not have the resources to continue the litigation and the underlying counsel withdrew. The company offices were already closed and all employees had been released.
7. Because [Sylvain] was unable to obtain new counsel, a default was entered
against it on December 2, 2013. Although Ray Sylvain, the principal of [Sylvain], provided a forwarding address to the U.S. Post Office when Sylvain vacated its leased premises, he did not receive any pleadings from the New Hampshire court after the undersigned counsel withdrew. Accordingly, he was unaware that HyTech was moving forward with its efforts to obtain a fraudulent judgment.Sylvain also asserts in its pleading that "it is likely that the USPS forward mailing service had expired by this time as the service of first class mail is limited to one year. (Mot. to Bring Forward ¶ 7, n.2.)
The only relief requested in the Motion to Bring Forward is that the Court "bring this matter forward and grant such other and further relief as may be just." However, in its Verified Motion to Set Aside Final Judgment Order, filed the same date, Sylvain expands its argument as to why the judgment rendered against it in 2014 should be set aside. Essentially, it alleges that the affidavit of damages, filed with the Verified Motion, was fraudulent. In substance, Sylvain alleges that HyTech overbilled it by including time entries for an individual named Manoj Jain ("Jain") when Jain did not actually provide services for Sylvain:
24. During the period of April 2011 through July 2012, HyTechPro invoiced [Sylvain] for Mr. Jain's services at the full time agreed rate of $3,900.00 per month (with the exception of one invoice) totaling $61,912.50.(Verified Mot. to Set Aside Final Judgment Order ¶¶ 24-26.)
25. However, upon information and belief, Mr. Jain ceased performing services for [Sylvain] in approximately April 2011. Instead, Mr. Jain was reassigned by HyTech and Gupta to other customers, including HomeConnections, based in the United Kingdom.
26. Fearful of losing [Sylvain's] business if it discovered that Mr. Jain was no longer part of the Sylvain Team, Mr. Jain was directed by HyTech and Gupta to continue submitting the [Sylvain] timesheets even though he was no longer performing services for [Sylvain] and HyTech continued invoicing [Sylvain] for Mr. Jain's services. Examples of the falsified timesheets are attached hereto as Exhibit B.
Sylvain has provided an affidavit from Jain as part of its Motion in which he verifies the claims made by Sylvain and asserts that after April 2011 he was assigned to a new client called HomeConnections based in the United Kingdom but was directed by HyTech to continue submitting timesheets to Sylvain even though he was no longer performing services for it. (Jain Aff. ¶ 8, June 9, 2016.) Sylvain also alleges that HyTech had waived any late fees by course of performance and that therefore its claim of late fees is fraudulent.
The Plaintiff has objected to the Motion to Bring Forward. It argues that Sylvain's opportunity to challenge the final judgment entered against it has long past:
Although couched as an effort to set aside a "fraudulent judgment," Sylvain's motion is actually not a challenge to the way HyTech obtained the judgment. Rather, it is a challenge to HyTech's calculation of damages and an attempt to re-litigate the merits of the case two years after a judgment was entered. Sylvain had ample opportunity to litigate the issues raised in its present motion before this Court entered final judgment against it, and had opportunities to challenge or appeal the judgment after it entered [it]. It failed to do so in both instances.(Pl.'s Obj. to Def.'s Mot. to Bring Forward 1, 1.)
II
In its Verified Motion to Set Aside Judgment, Sylvain argues that the judgment was procured by fraud, and the Court has discretion to set it aside. (Verified Mot. to Set Aside Final Judgment Order ¶ 39, citing Aranson v. Schroeder, 140 N.H. 359, 372 (1995)). In its Reply, Sylvain references RSA 526:4, and seems to argue that its request is in fact, a Motion for New Trial which may be brought within three years of the verdict. (Reply to Pl.'s Obj. to Def.'s Mot. to Bring Forward 1, 2.) Sylvain appears to be making two distinct arguments: first, that it did not have adequate notice of the proceedings in New Hampshire; and second that the proceedings themselves were tainted by fraud. While the former claim has little merit, the Court believes that an evidentiary hearing is necessary to determine the validity of Sylvain's second claim.
A
The pleadings reflect no procedural irregularity in the course of this case and Sylvain points to no impropriety in the manner in which the judgment against it was obtained. It does not dispute that it ceased communicating with its New Hampshire attorney during the course of the litigation, and ceased paying its attorney, so that its attorney withdrew. (Mot. to Bring Forward ¶ 6.) It does not dispute that pleadings from HyTech's counsel and from the Court were sent to its last known place of business, but asserts that it had vacated those premises at the time the pleadings were sent. It concedes, however, that while it had provided a forwarding address to the U.S. Post Office when it vacated its former business premises, it was aware that the Post Office only forwards mail for one year unless a further request is made, and that it never made any request after one year that its mail continue to be forwarded, and that is probably the reason it never received notice of the progress of the proceedings in this Court. (Mot. to Bring Forward ¶ 7, n. 2.)
It is true that the New Hampshire Supreme Court has been willing to allow a default to be stricken when a party, through no fault of his own, had no notice of proceedings. See generally Cote v. Cote, 123 N.H. 376, 378 (1983). But in this case, if in fact Sylvain had no notice of the proceeding in New Hampshire, it was not due to any improper conduct of the Court or HyTech. As noted in HyTech's Objection to the Defendant's Motion to Bring Forward:
Sylvain's excuse for not objecting to Hytech's motion for final judgment or contesting the judgment after it was entered is that it allegedly did not receive copies of HyTech's pleadings or the Court's orders. If this was in fact true, it is Sylvain's fault alone. Sylvain's counsel provided the last known address for the company and its registered agent when she withdrew from the case. HyTech and the Court properly relied on these representations and were under no obligation to independently investigate the corporate status or office location of Sylvain.(Obj. to Mot. to Bring Forward 1, 4-5.)
Sylvain's claim of lack of notice provides no basis for the Court to allow it to attack the judgment against it. It does not, and could not make a due process claim. Apart from constitutional claims, a party who seeks to set aside a judgment against him seeks to invoke the equity jurisdiction of the court. It has long been settled that a "court of equity will not interfere in behalf of a party whose defeat . . . is in any essential degree attributable to his own negligence." Craft v. Thompson, 51 N.H. 536, 541 (1872). In Craft, the Court denied the defendant's attempt to set aside a judgment on the ground that he had failed to employ counsel and lost a document that would have supported his testimony, reasoning that "it is to be presumed that the arbitrators would have granted time, if requested, to enable the plaintiff to employ counsel and to search for his book." Id. at 542. The Court was, however willing to consider Craft's claim that the judgment should be set aside on the ground that the opposing party had committed perjury during the arbitration.
B
As illustrated by Craft, Sylvain's claim that HyTech acted fraudulently by submitting perjured testimony to obtain the judgment stands on a different footing from its notice claim. In New Hampshire, fraud has long been considered a defense to a judgment: "positive fraud vitiates every thing- contracts, obligations, deeds of conveyance, and even the records and judgments of courts, incontrovertible as they are on every other ground . . . ." Jones v. Emery, 40 N.H. 348, 350 (1860); see also Craft, 51 N.H. at 543. In Conant v. O'Meara, 167 N.H. 644, 650 (2015), the New Hampshire Supreme Court cited with approval the decision of the United States Supreme Court holding that federal courts had authority to alter a judgment after the expiration of the term at which the judgment was entered if fraud was shown:
From the beginning there has existed alongside the term rule a rule of equity to the effect that under certain circumstances, one of which is after-discovered fraud, relief will be granted against judgments regardless of the term of their entry. This equity rule, which was firmly established in English practice long before the foundation of our Republic, the courts have developed and fashioned to fulfill a universally recognized need for correcting injustices which, in certain instances, are deemed sufficiently gross to demand a departure from rigid adherence to the term rule. . . .Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 244 (1944), overruled on other grounds by Standard Oil Company of California v. United States, 429 U.S. 17 (1976).
Conant involved the claim of fraud outside the three-year statute of limitations contained in RSA 526:4 for Motions for a New Trial. The Court noted that under the federal system, the ability of a party to attack a judgment based upon fraud outside of the one-year limitation period imposed by Federal Rule of Civil Procedure 60(c) did not include "garden variety fraud claims such as suspected perjury by a witness." Conant, 167 N.H. at 651, citing Geo. P. Reinjtjes v. Riley Stoker Corp., 71 F.3d 44, 47-48 (1st Cir. 1995). In the federal system, perjury constitutes fraud on the court only in special situations, such as when an officer of the court commits the perjury. Id.
In Conant, the Court held that perjury by an officer of the court constituted a fraud on the court and therefore constituted sufficient grounds under New Hampshire law to set aside the judgment or award, even though the three-year period to file a motion for a new trial had expired. 167 N.H. at 652. The Court noted that it had "not explicitly addressed whether, or under what circumstances, a judgment may be set aside or a new trial granted, on grounds of perjury, long after the original judgment was rendered." Id. It noted, however, citing Craft, that in cases where a judgment was set aside or a new trial granted on grounds of perjury, the action was brought in a timely way. Id.
Craft seems to have been decided under Gen Stats., ch. 190 sec. 1, which provided authority to courts of equity to grant relief in the case of fraud, mistake, or accident. 51 N.H. at 542. This statute appears to be the predecessor of RSA 526:1, which permits new trials "in any case when through accident, mistake or misfortune justice has not been done and a further hearing would be equitable." RSA 526:4 permits a motion for new trial only within three years of the proceeding complained of.
That perjury by a witness may be grounds for a Motion for a New Trial is illustrated by Rasquin v. Cohen, 92 N.H. 440 (1943) decided under R.L. 398:1, which contains the same language as the current RSA 526:1. In Rasquin, the Court formulated a general rule that:
When a party is given a verdict and it later appears that he testified falsely on a material issue, and the evidence proves, or strongly tends to prove, that the false testimony is dishonest, the verdict will be set aside even if it is not found that a new trial will probably produce a different result. This is in accordance with the rule which prevails in this state, that the misconduct of a party at the trial is a cause for setting aside a verdict.92 N.H. at 442.
From the opinion of the New Hampshire Supreme Court, it appears that the trial in which perjury was committed occurred later than November 1941. The Supreme Court decided the appeal in June 1943, which means that the Motion for a New Trial was timely under the statute then in effect, R.L. 398:4, which provided, as does the current RSA 526:4, that "a new trial shall not be granted unless the petition is filed within three years after the rendition of the judgment complained of, or the failure of the suit." In this case, the statute, by its terms, is not strictly applicable because Sylvain does not seek a new trial, but rather a renewed hearing on damages. However, the court sees no functional difference between a challenge to a damage claim and a challenge to a trial that involved both liability and damages. Moreover, even assuming the statute was not strictly applicable, the equitable principles that provide relief in circumstances of this nature would compel the same result, since Sylvain's claim was brought within three years after the judgment complained of.
But even if a Motion for New Trial based on perjured testimony is timely, in order to obtain a new trial based upon supposedly perjured testimony under RSA 526:1, the testimony must be false upon a material issue. Tremblay v. Donnelly, 103 N.H. 498, 503 (1961) (No basis for a new trial where the evidence sought to be introduced at best would show that the defendant's testimony that she did not drink was not accurate). In Barton v. Plaisted, 109 N.H. 428, 432 (1969), the Court rejected a claim that a new trial should be granted because the plaintiff's expert testified falsely. The Court recognized the rule that:
A new trial will be granted only if specified conditions are met, which include findings that the parties were not at fault in not discovering the evidence at the former trial and that the newly discovered evidence is such that a different result will probably be reached upon new trial. A single exception to this requirement is recognized in cases where there is newly discovered evidence that a party has given false and dishonest testimony concerning a material issue. In such cases it has been held that the verdict be set aside even if it is not found that a new trial will probably produce a different result. (emphasis added)Barton, 109 N.H. at 432 (internal citation omitted).
However, the Court held that the exception did not apply because it declined to adopt a rule that the false testimony of an expert witness is attributable to such testimony by a party. Id. The Court, therefore, upheld the trial court's finding that a new trial should not be ordered, because the newly discovered testimony, the false testimony of the expert witness, would not probably produce a different verdict upon retrial. Id. at 433. A similar result was reached in Cormier v. Stevens, 107 N.H. 66, 69 (1966).
C
While, as the New Hampshire Supreme Court noted in Conant, the treatment of perjured testimony in its cases is not completely clear, the Court believes that the New Hampshire law is essentially the common law. Remedies available to a party who claims a judgment was the product of fraud are the product of equity jurisprudence. Hazel-Atlas Glass, 322 U.S. at 244-45. Equity courts have jurisdiction in all cases of fraud, where complete and adequate remedies cannot be provided at law. See Stevens v. Williams, 12 N.H. 246, 247 (1841). As the Court noted in Wells v. Pierce, 27 N.H. 503, 512 (1853), "this Court has a broad jurisdiction, as a court of equity, in all cases of trust, fraud, accidents or mistakes." New Hampshire courts have long recognized that they had the authority to afford new trials where "justice has not been done through any accident, mistake or misfortune" by statute only when "further hearing would be just and equitable." Chase v. Brown, 32 N.H. 130, 131 (1855). However, equitable remedies are not available where a party has "slept upon his rights." George v. Johnson, 45 N.H. 456, 459 (1864). This doctrine, referred to in equity as laches, "is not triggered by the mere passage of time, but may be appropriate where a suit has been unreasonably delayed and the delay has resulted in unfair prejudice." Miner v. A & C Tire Co., 146 N.H. 631, 633 (2001).
The Court believes that these common-law principles are expressed in the Restatement (Second) of Judgments section 70, titled "Judgment Procured by Corruption, Duress, or Fraud," which provides in relevant part as follows:
(1) Subject to the limitations stated in § 74, a judgment in a contested action may be avoided if the judgment:The Restatement goes on to state that:
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(b) Was based on a claim that the party obtaining the judgment knew to be fraudulent.
(2) A party seeking relief under Subsection (1) must:
(a) Have acted with due diligence in discovering the facts constituting the basis for relief;
(b) Assert his claim for relief from the judgment with such particularity as to indicate it is well founded and prove the allegations by clear and convincing evidence; and
(c) When his claim is based on falsity of the evidence on which the judgment was based, show that he had made a reasonable effort in the original action to ascertain the truth of the matter.
Except with regard to judgments referred to in §§ 65-68 and 69, relief from a judgment will be denied if:Restatement (Second) of Judgments § 74 (1982). The Court must therefore apply these criteria to the facts of this case.
(1) The person seeking relief failed to exercise reasonable diligence in discovering the ground for relief, or after such discovery was unreasonably dilatory in seeking relief; or
(2) The application for relief is barred by lapse of time; or
(3) Granting the relief will inequitably disturb an interest of reliance on the judgment. When such interest can be adequately protected by giving the applicant limited or conditional relief, the relief will be shaped accordingly.
III
Treating the pleadings filed by Sylvain as a Motion for a New Trial, they are timely; the default was entered in February 2014, and these pleadings were filed on June 10, 2016, well within the three-year time period of RSA 526:1. Moreover, the false representation was made by a party, HyTech, a corporation that can only act through its agents.
Second, the claim of fraudulent billing made by Sylvain is clear, material, and pled with particularity, as is required in cases of fraud, at least with respect to the claim that HyTech submitted fraudulent billing records. See Brizca v. Trustees of Dartmouth College, 147 N. H. 443, 449 (2002). Sylvain has submitted an affidavit by Jain, a former employee of HyTech, with its Verified Motion to Set Aside Final Judgment Order in which Jain states:
6. I was one of the senior leaders of the Sylvain Team. This meant that I oversaw the project in India and attended meetings with the Sylvain Team and employees from Sylvain located in the United States. I also traveled to the United States to collect project data and requirements.(Jain Aff. ¶¶ 6-8, 10.)
7. I was required to provide weekly timesheets to [Sylvain] to verify the services that I was performing for it. Each member of the Sylvain Team submitted their own timesheets. These timesheets represented the work that we, individually, had completed and did not include work performed by other team members.
8. In approximately April, 2011, Gupta [a HyTech employee] reassigned me to a new client called HomeConnections Lettings Limited ("HomeConnections") which was based in the United Kingdom. At that time, I began working full-time for HomeConnections. However, Gupta directed me to continue submitting timesheets to [Sylvain] even though I was no longer performing services for it. A true and correct copy of the falsified timesheets are attached to the Motion as Exhibit B. Also attached to the motion as Exhibit F is a copy of a letter Rajeev Gupta and HyTech (together) submitted to the UK Visa Application Centre so that I could travel to HomeConnections. My Visa for travel is attached to the Motion as Exhibit H and reflects that I travel[ed] to London in April 2011.
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10. This continued for over a year and was very stressful to me. I did not feel that I had any other choice but to mislead [Sylvain] because employers in India have enormous influence of an employee's ability to get another job.
Comment d to the Restatement (Second) of Judgments section 70, sets forth four requirements that are required to obtain relief from fraud: first, "it must be shown that the fabrication or concealment was a material basis for the judgment and was not merely cumulative or relevant only to a peripheral issue"; second, "the party seeking relief must show that he adequately pursued means for discovering the truth available to him in the original action"; third, "the applicant must show due diligence after judgment"; fourth, "the party seeking relief must demonstrate, before being allowed to present his case, that he has a substantial case to present, and must offer clear and convincing proof to establish that the evidence underlying the judgment was indeed fabricated or concealed."
Sylvain has established that the claim of fraudulent billing is relevant to a material issue in the case, and that it has a substantial case to present. But the pleadings Sylvain filed are silent as to whether or not it made a reasonable effort in the original action to ascertain the truth of the matter. Moreover, Sylvain has not explicitly alleged that it acted diligently in discovering the ground for relief. It has, however secured an affidavit from a former employee of the Plaintiff, HyTech, which at the least, suggests some effort has been made to ascertain the truth.
On the other hand, HyTech has not disputed the allegations of fraud. It has not alleged that grant of relief would disturb an interest of reliance on the judgment.
Ultimately the resolution of this case involves competing considerations. For centuries, courts have fashioned equitable rules "to fulfill a universally recognized need for correcting injustices which, in certain instances, are deemed sufficiently gross" when a judgment is obtained by fraud. Hazel Atlas Glass Co., 332 U.S. at 244. But a court of equity will not assist a party whose defeat is "attributable to his own negligence" or who has slept on his rights. Craft, 51 N.H. at 541. The rationale for refusing to provide relief in such cases is, of course, prejudice to a party who may not be able to obtain evidence that might have been available to it in an earlier time. George, 45 N.H. 458-59. The rules established by the New Hampshire courts sitting in equity are well stated in a modern fashion in the Restatement (Second) of Judgments:
It is said that the granting of relief is in the "discretion" of the court. This does not mean it is a matter of idiosyncratic choice whether relief is to be granted, for what is required is the exercise of "sound discretion." What is meant is that the decision involves taking account of several incommensurable factors, some relating to the particular case and others to the larger system of administered justice. The factors relating to the particular case include the magnitude and consequences of the judgment, the relative clarity with which it appears that the judgment was unjust, the relative fault of the parties (fraud being different from mistake or change of circumstances), the requirements of diligence referred to in Subsection (1) of this Section, and the equities in the interests of reliance. Factors relating to the system of justice are the degree of diligence and competence expected of counsel (since many of the cases involve lapses on their part), the extent to which the court should rely on the adversary presentations in contrast with seeking a just result on its own initiative, the balance to be struck between finality and correctness of judgments, and the distribution of responsibility for deciding upon relief between the trial court and the appellate court. Given this variety of relevant factors, the criteria for granting relief cannot be stated in categorical terms. What can be said is that in modern context, given the abundant means of acquiring information through self-help, the power of usually available discovery techniques, and the rapidity with which events evolve in the out-of-court world, proper exercise of discretion entails granting relief only in a very strong case.Restatement (Second) of Judgments § 74 comment g (1982).
Therefore, in order to determine whether or not Sylvain should be afforded relief, the Court believes that an evidentiary hearing must be held. Sylvain bears the burden of proving fraud by clear and convincing evidence. Caledonia, Inc. v. Trainor, 123 N.H. 116, 124 (1983). It will also need to prove that it made reasonable efforts to ascertain the truth of the matter, and that it acted diligently. See Brizca, 147 N. H. at 449-50. Its claim of fraud is limited to the claim that HyTech submitted fraudulent invoices to the Court in connection with this petition for judgment. And of course it must show that a different result would likely be reached upon a new hearing.
HyTech may, if it chooses to do so, present evidence on whether or not its reliance interests would be affected by a determination in favor of Sylvain or whether its position in litigation has been compromised by the delay.
The Court recognizes that discovery may be necessary in order for the parties to properly present evidence on their claims. Accordingly, the Court orders that the parties shall meet and confer and prepare a proposed order for discovery for the Court's approval. If the parties cannot agree on dates for discovery, then a hearing shall be held. The parties shall contact the Clerk and arrange a mutually convenient date for a hearing in advance of preparing a scheduling order for discovery as discovery will obviously be a significant factor in determining when a hearing can be held.
SO ORDERED
10/21/16
DATE
s/Richard B . McNamara
Richard B. McNamara,
Presiding Justice RBM/