Court Summaries, 1220 WYBJ, Vol. 43 No. 6. 46

PositionVol. 43 6 Pg. 46

Court Summaries

No. Vol. 43 No. 6 Pg. 46

Wyoming Bar Journal

December, 2020

Daniel Groskop as Trustee of the Black Diamond Liquidating Litigation Trust v. S&T Bank.

S-19-0254, S-19-0255 2020 WY 113

August 26, 2020

In 2010, the Black Diamond Companies (BDC) sued S&T Bank and alleged that the Bank’s lending policies caused its financial loss. In 2015, Daniel Groskop, a former financial manager of BDC was appointed as the named representative of BDC in the litigation.

During the litigation, the bank filed a motion to compel production, a motion for additional sanctions, and three motions to dismiss. The district court entered two orders compelling discovery. Then, Groskop failed to prepare for the Rule 30(b)(6) deposition after being designated as the 30(b)(6) deponent. In light of Groskop’s noncompliance, the district court dismissed the case with prejudice.

In its Order of Dismissal, the district court found that the case should be dismissed because Groskop: (1) failed to properly verify interrogatories; (2) failed to produce responsive documents; and (3) violated W.R.C.P. 30(b)(6) when he did not prepare for his deposition.

On appeal, the Supreme Court affirmed. The Court noted that requiring a party to sign interrogatory responses under oath serves the critical purpose of ensuring that the responding party attests to the truth of the responses. In this case, Groskop swore under oath that he had read the interrogatories, but later admitted that he had not read them. Consequently, he could not know whether the answers were true or not. Consequently, Groskop signed a false oath.

Turning to the requests for production, the Supreme Court held that Groskop failed to comply with an order requiring him to respond to requests for production and the bank was prejudiced by his refusal to respond. When he did respond, it was “too little, too late.”

With regard to the 30(b)(6) deposition, Groskop conceded that he violated Rule 30(b)(6), but he claimed that his conduct was not willful. The Supreme Court disagreed and held that because Groskop failed to prepare for the Rule 30(b)(6) deposition after designating himself as the 30(b)(6) deponent, that was “tantamount to a failure to appear” at a deposition.

The Court then held that the district court did not abuse its discretion when it dismissed the case with prejudice. Affirmed.

Gas Sensing Technology Corp. d/b/a Welldog, v. New Horizon Ventures PTY LTD


2020 WY 114

August 27, 2020

New Horizon Ventures Pty Ltd. (NHV) sued Gas Sensing Technology Corporation (GSTC) for payment of loans NHV made to GSTC to finance its oil and gas service operations in Australia. GSTC asserted numerous affirmative defenses and counterclaims. The district court dismissed GSTC’s counterclaims because it believed they were permissive and unduly complicated the action. After a trial, the jury found that GSTC was not required to pay its debt.

On appeal, the Supreme Court reversed and held that the district court should not have dismissed GSTC’s counterclaims. The Court noted that compulsory counterclaims—those which arise out of the transaction or occurrence that is the subject matter of the opposing party’s claim and do not require adding another party over whom the court cannot acquire jurisdiction—must be pleaded in an action or the claim will be barred in future proceedings.

Any claim that is not compulsory is permissive. A permissive counterclaim is “one that does not arise out of the same transaction or occurrence furnishing the subject matter of the plaintiff’s claim.” With a permissive counterclaim, the claimant has the option of whether or not to plead it.

In determining whether a claim is compulsory, the Tenth Circuit has set out the following test: [A] counterclaim is compulsory if “(1) the issues of fact and law raised by the principal claim and the counterclaim are largely the same; (2) res judicata would bar a subsequent suit on the defendant’s claim; (3) the same evidence supports or refutes the principal claim and the counterclaim; and (4) there is a logical relationship between the claim and counterclaim.”

The Court held that under this test, two of GSTC’s counterclaims were compulsory and, therefore, should...

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