STATE OF MINNESOTA DISTRICT COURT

COUNTY OF DAKOTA FIRST JUDICIAL DISTRICT

Type of Case: Civil Other/Misc.

State Farm Fire & Casualty Company,
Plaintiff,
v.
David V. Rucki; Samantha Rucki;
Gianna Rucki; Sandra Sue Grazzini-
Rucki; Deirdre Elise Evavold; Destiny
Equine Intervention d/b/a White Horse
Ranch, a Minnesota Nonprofit
Corporation; Gina Schmit Dahlen;
Douglas Dahlen; Destiny Church;
Steve Quernemoen and Trish
Quernemoen,
Defendants.
Court File No. 19-HA-CV-18-905
The Honorable Jerome B. Abrams
STATE FARM FIRE AND
CASUALTY COMPANY’S
MEMORANDUM OF LAW IN
SUPPORT OF ITS MOTION TO
COMPEL THE DEPOSITION OF
DEFENDANT DEIRDRE ELISE
EVAVOLD, ISSUANCE OF A
DIRECTIVE TO DARIN
EVAVOLD, AND MOTION TO
MODIFY THE SCHEDULING
ORDER

INTRODUCTION

At its core, discovery is about gathering facts to take the surprise out

of cases. Discovery not only ensures all parties have the relevant facts and

information pertaining to an action, but also encourages settlement and

resolution outside of the courtroom. Discovery is a fundamental right—one

that has been withheld from State Farm Fire and Casualty Company

(“State Farm”) thus far in this litigation. Accordingly, State Farm

respectfully submits this Memorandum of Law in Support of its Motion to

Compel the Deposition of Deirdre Evavold (“Mrs. Evavold”); and requests

that the Court issue a directive that Darin Evavold (“Mr. Evavold”) complies

with his subpoena to appear for a deposition. Further, because discovery

in this litigation has become necessary and proportional, ample good

cause exists for the Court to extend various deadlines, ensuring that State

Farm may obtain that discovery, which will likely lead to information that

State Farm may use to support its later dispositive motion.

DOCUMENTS COMPRISING THE RECORD

In addition to the documents already on file with the Court, the

following exhibits are attached to the Affidavit of Lehoan T. Pham:

1. State Farm’s letter to the Evavolds, dated March 14, 2018;

2. State Farm’s Complaint in Declaratory Judgment;

3. State Farm’s Notice of Motion and Motion for Summary

Judgment;

4. The Court’s Order postponing State Farm’s Motion for

Summary Judgment;

5. State Farm’s letter to the Evavolds, dated January 21, 2019;

6. State Farm’s Amended Notice of Motion and Motion for

Summary Judgment;

7. The Court’s Order filed on May 7, 2019;

8. The Evavolds’ Personal Liability and Umbrella Policy;

9. The Joint Discovery Plan, filed on August 24, 2018;

10. The Notices of Taking Deposition of the Evavolds;

2
 11. E-Serve confirmation of Notices of Taking Deposition of the

Evavolds;

12. The cover letter, dated July 1, 2019, enclosed with the Notices

of Taking Deposition of the Evavolds;

13. State Farm’s letter dated July 8, 2019 to the Evavolds;

14. An email exchange between Mrs. Evavold and State Farm;

15. The Amended Notices of Taking Video Deposition of the

Evavolds;

16. E-Serve confirmation of Amended Notices of Taking Video

Deposition of the Evavolds;

17. Letter dated August 8, 2019 from Mrs. Evavold to State Farm;

18. McKey v. U.S. Bank Nat’l Ass’n, No. 17-5058 (JRT/DTS),

2018 WL 3344239 (D. Minn. July 9, 2018);

19. The Amended Summons and Complaint in the underlying

action;

20. Letter dated December 14, 2017 from State Farm to Mrs.

Evavold;

21. The subpoena (and related documents) issued to Mr.

Evavold1;

1
At the time of this filing, State Farm has not yet formally effectuated
service on Mr. Evavold. Once State Farm formally effectuates service,
State Farm will supplement the record by filing the affidavit of service.

3
 22. Consumer Justice Ctr. P.A. v. Trans Union L.L.C., Nos. A05-

975, A05-1433, 2006 WL 920182 (Minn. Ct. App. Apr. 11, 2006);

23. An email dated April 2, 2018 from Mrs. Evavold to State Farm;

and

24. An email dated September 4, 2019 showing how State Farm

has exercised reasonable efforts so far to try to effectuate service on Mr.

Evavold.

FACTUAL BACKGROUND

I. The Relevant Facts from the Underlying Action.

In or around November 2017, David Rucki (“David”), Samantha

Rucki (“Samantha”), and Gianna Rucki (“Gianna”) commenced the

underlying action against Mrs. Evavold and others, in which they alleged

claims for: (1) Loss of Services of Children; (2) Intentional Infliction of

Emotional Distress; (3) Negligent Infliction of Emotional Distress; (4) False

Imprisonment; and (5) Intentional Interference with Custodial Relationship.

(See generally Pham Aff. ¶ 3, Ex. No. 2, ¶¶ 1–57)). In October 2018,

David, Samantha, and Gianna were granted leave to amend their

Complaint and asserted two additional counts against Mrs. Evavold: (6)

4
Defamation and Defamation per se; and (7) Defamation by Implication. (Id.

at ¶ 20, Ex. No. 19, ¶¶ 58–77).2

II. Mrs. Evavold Notifies State Farm About the Underlying Action.

After Mrs. Evavold notified State Farm of the underlying action, State

Farm issued a letter to Mrs. Evavold dated December 14, 2017, while it

investigated coverage. (Id. at ¶ 21, Ex. No. 20). State Farm specifically

informed Evavold of her right to hire counsel at her own expense, subject

to reimbursement, while State Farm investigated the claim. (Id.). By letter

dated March 14, 2018, State Farm denied coverage for all the claims

asserted against Mrs. Evavold in the original Complaint. (Id. at ¶ 2, Ex.

No. 1). Notably, in an email dated April 2, 2018, Mrs. Evavold advised that

she was waiving her right to contest coverage for Counts 1 through 5—

under the Homeowner’s Policy—in the original Complaint. (Id. at ¶ 24, Ex.

No. 23).3

Then, in or around October 2018, after being served with the

Amended Underlying Complaint, which included Counts 6 (defamation and

defamation per se) and 7 (defamation by implication), Mrs. Evavold

2
There appears to be a typographical error in the Amended Underlying
Complaint, as ¶¶ 58–59 appear twice; once under Count 6, and the other
under Count 7.
3
State Farm argued that, because of this email, Mrs. Evavold waived her
right to contest coverage. This Court found this waiver to not be effective in
its May 7, 2019 Order. (Pham Aff. ¶ 8, Ex. No. 7, pg. 11) (“Notwithstanding
the purported waiver for counts 1–5 the Court considers the waiver from
coverage was ineffective.”).

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tendered defense of these new claims to State Farm. (Id. at ¶ 6, Ex. No. 5,

pg. 1). Upon completing its investigation, by letter dated January 21, 2019,

State Farm disclaimed coverage for each new count under the governing

Homeowner’s Policy and Personal Liability Umbrella Policy (“PLUP”). (Id.

at pg. 5).

II. State Farm Commences this Declaratory Judgment Action.

In or around February 2018, State Farm initiated this declaratory

judgment action seeking a declaration that it owed no duty to defend and

no duty to indemnify Mrs. Evavold, or anyone else, in the underlying

action. (Id. at ¶ 3, Ex. No. 2, pg. 11). State Farm later moved for summary

judgment. (Id. at ¶¶ 4, 7, Ex. Nos. 3, 6).4 Eventually, in the Court’s Order

filed on May 7, 2019, this Court granted summary judgment as to Counts 1

through 3 and 5 through 7; but determined a question of fact remained as

to Count 4 (false imprisonment).5 (Id. at ¶ 8, Ex. No. 7, pgs. 11–12).

Specifically, the Court explained that “there is a fact dispute concerning

coverage under her Umbrella Policy as there are claims asserted, inter alia

4
State Farm agreed to postpone the original hearing date on its Motion for
Summary Judgment because the underlying plaintiffs were moving to
amend the underlying complaint. (Pham Aff. ¶ 5, Ex. No. 4). The hearing
date was rescheduled for February 22, 2019.
5
In other words, the Court has relieved State Farm of all coverage
obligations as to Counts 1 through 3 and 5 through 7, which were asserted
in the underlying action.

6
in the underlying case that constitute ‘personal injury’ within the meaning of

the definitions the Umbrella Policy.” (Id. at pg. 11).6

The PLUP defines “personal injury” as:

8. “personal injury” means injury other than bodily injury

arising out of one or more of the following offenses:

a. false arrest, false imprisonment, wrongful

eviction, wrongful detention of a person;

b. abuse of process, malicious prosecution;

c. libel, slander, defamation of character; or

d. invasion of a person’s right of private occupancy

by physically entering into that person’s personal
residence.

(Id. at ¶ 9, Ex. No. 8, pgs. 9–10).7

6
The Court completely relieved State Farm of any coverage obligations
under the Homeowner’s Policy:

In the Court’s view, with respect to the Homeowner’s Policy,

there is no room for argument: it does not provide coverage
for any of the claims asserted in the underlying Complaints.

(Pham Aff. ¶ 8, Ex. No. 7, pg. 8).

PLUP: PERSONAL LIABILITY UMBRELLA POLICY
To that end, the sole remaining issue in this litigation is whether State
Farm owes coverage obligations under the PLUP as to Count 4 (false
imprisonment) in the Amended Underlying Complaint.
7
Also in relevant part, the PLUP defines “loss” as:

...

b. the commission of an offense which first results in

personal injury during the policy period. A series of
similar or related offenses is considered to be one loss.

7
 By default, the PLUP provides liability coverage when a claim or suit

is brought against an insured “for damages because of a loss”:

COVERAGES

COVERAGE L – PERSONAL LIABILITY

If a claim is made or suit is brought against an insured for

damages because of a loss for which the insured is legally
liable and to which this policy applies, we will pay on behalf of
the insured, the damages that exceed the retained limit. The
most we will pay for such loss is the Coverage L Limit of
Liability, as shown on the declarations page, regardless of the
number of insureds who may be liable, claims made, or
persons injured.

Defense

If a suit is brought against any insured for damages because

of a loss to which this policy applies, we will provide a
defense to the insured at our expense by counsel of our
choice when the basis for the suit is a loss that is not covered
by any other insurance policy but is covered by this policy. We
have no duty to defend any claim or suit after we tender,
deposit in court, or pay the amount due under this policy.

(Id. at pg. 13).

The liability coverage provided by the PLUP is subject to the

following exclusion:

EXCLUSIONS

There is no coverage under this policy for any:

...

17. personal injury when the insured acts with specific

intent to cause any harm;

(Pham Aff. ¶ 9, Ex. No. 8, pg. 9).

8
(Id. at pg. 16).

In sum, the Court found a fact question remained as to “whether

[Mrs.] Evavold’s purpose was part of an uncovered intentional plan or

scheme; or fits within the realm of a covered false imprisonment event.”

(Id. at ¶ 8, Ex. No. 7, pg. 11).

III. Facts Pertaining to Taking the Depositions of the Evavolds.

The Joint Discovery Plan was filed on August 24, 2018. (Id. at ¶ 10,

Ex. No. 9). Given that insurance coverage questions are generally

questions of law, the parties did not contemplate conducting any discovery.

(Id. at pgs. 1–2). After the Court’s May 7, 2019 Order, discovery became

necessary and proportional to the needs of this case, and so State Farm

served Notices of Taking Deposition of Mrs. and Mr. Evavold

(respectively). (Id. at ¶ 11, Ex. No. 10). The notices were served on July 1,

2019. (Id. at ¶ 12, Ex. No. 11). The depositions were set for August 13 and

14, 2019, in St. Paul, Minnesota. (Id. at ¶ 11, Ex. No. 10, pgs. 1, 3). State

Farm enclosed a cover latter with these notices, in which it requested

objections by July 15, 2019. (Id. at ¶ 13, Ex. No. 12).

Also, via letter dated July 8, 2019, State Farm advised the Evavolds

about their depositions and provided them with the contact information of

State Farm’s counsel should they have further questions. (Id. at ¶ 14, Ex.

No. 13). On July 17, 2019, Mrs. Evavold emailed State Farm requesting

further information on the depositions and objected to their location. (Id. at

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¶ 15, Ex. No. 14). On July 22, 2019, State Farm responded to Mrs.

Evavold’s concerns, and agreed to change the location to St. Cloud,

Minnesota. (Id.) State Farm also advised Mrs. Evavold that her deposition

would take a full day; her husband’s deposition would take half-a-day. (Id.).

Amended notices with the updated location were promptly served. (Id. at

¶¶ 16–17, Ex. Nos. 15–16).

State Farm later received a letter via U.S. Mail from Mrs. Evavold

dated August 8, 2019; it received this letter the day before Mrs. Evavold’s

deposition was set to occur. (Id. at ¶ 16, Ex. No. 17). Mrs. Evavold

informed State Farm that neither her nor her husband would be submitting

to their deposition “until coverage is determined.” (Id.). Notably, in this

letter, the Evavolds did not dispute the relevancy or proportionality of their

depositions. (Id.).

Further, because of Mrs. Evavold’s email dated July 17, 2019, State

Farm was under the impression that Mr. Evavold would voluntarily appear

for his deposition, so long as State Farm reasonably accommodated for his

schedule and changed his deposition’s location. (Id. at ¶ 15, Ex. No. 14).

To that end, State Farm did not believe that issuing a subpoena was

necessary to secure his appearance. State Farm now understands that Mr.

Evavold will not voluntarily appear for his deposition. (Id. at ¶ 16, Ex. No.

10
17). And so, on September 3, 2019, State Farm issued a subpoena8 to Mr.

Evavold and scheduled his deposition for September 30, 2019. (Id. at ¶ 22,

Ex. No. 21, pg. 3).

ARGUMENT

I. Taking the Depositions of the Evavolds is Well Within the

Scope of Discovery.

In 2018, the governing scope of discovery under Minnesota law was

amended to mirror the parallel provision under the Federal Rules of Civil

Procedure. Compare Minn. R. Civ. P. 26.02(b) with Fed. R. Civ. P.

26(b)(1).9 And so, the current scope of discovery under Minnesota law is

that a party may obtain discovery that is “relevant to any party’s claim or

8
As of the time of this filing, State Farm has exercised reasonable efforts
to try to effectuate service on Mr. Evavold. But, State Farm’s process
server has run into certain issues serving Mr. Evavold at his residence.
(Pham Aff. ¶ 25, Ex. No. 24, pg. 1). State Farm will nonetheless continue
with its efforts to effectuate service on Mr. Evavold and promptly file the
corresponding affidavit of service upon receipt.

9
As further explained in the Advisory Committee Comment (2018
Amendments) to Minn. R. Civ. P. 26.02:

Rule 26.02 is amended to adopt the changes made to Fed. R.

Civ. P. 26(b) in 2015. The amendments are intended to
improve the operation of the rule and to avoid some of the
problems that were encountered under the former rule.

See also McKey v. U.S. Bank Nat’l Ass’n, Civ. No. 17-5058 (JRT/DTS),
2018 WL 3344239, at *1 (D. Minn. July 9, 2018) (recognizing that under
the amended scope of discovery how Rule 26 “‘is to be construed broadly
and thus encompasses ‘any matter that bears on, or that reasonably could
lead to other matters that could bear on, any issues that is or may be in the
case.’”) (citations omitted).

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defense and proportional to the needs of the case[.]” Minn. R. Civ. P.

26.02(b). In considering proportionality, the Court should weigh, among

other things, the burden, expense, benefit, and importance of the discovery

in resolving the issues:

Unless otherwise limited by court order, the scope of

discovery is as follows. Parties may obtain discovery
regarding any nonprivileged matter that is relevant to any
party’s claim or defense and proportional to the needs of the
case, considering the importance of the issues at stake in the
action, the amount in controversy, the parties’ relative access
to relevant information, the parties' resources, the importance
of the discovery in resolving the issues, and whether the
burden or expense of the proposed discovery outweighs its
likely benefit. Information within this scope of discovery need
not be admissible in evidence to be discoverable.

Minn. R. Civ. P. 26.02(b).

The relevancy and proportionality of Mrs. Evavold’s deposition. In

this litigation, the only issue remaining before the Court is whether State

Farm has a duty to defend or indemnify Mrs. Evavold (or anyone else) as

to the false imprisonment claim—under the PLUP—asserted against her in

the underlying action. (Pham Aff. ¶ 8, Ex. No. 7, pg. 11). The Court found

that there remains a question of fact whether the false imprisonment claim

against Mrs. Evavold falls into the “personal injury” exclusion outlined in

the PLUP (Id.). The exclusion forecloses coverage for a personal injury

“when the insured acts with specific intent to cause any harm.” (Id. at ¶ 9,

Ex. No. 8, pg. 16).

12
 To date, Mrs. Evavold has not disputed the relevancy or

proportionality of her deposition. Further, given the Court’s comment on

how Mrs. Evavold “hiding the kids based on her belief it was necessary for

the kids’ protection, breaks any type of link inextricable or otherwise to an

intentional plan to cause harm,” State Farm seeks highly relevant

information into Mrs. Evavold’s intent behind the alleged taking and

concealing Samantha and Gianna for more than two years. (See Pham Aff.

¶ 8, Ex. No. 7, pgs. 10–11). In other words, through deposing Mrs.

Evavold, State Farm seeks to explore the following topics and allegations:

(1) why she facilitated the taking of Samantha and Gianna; (2) did she

have any evidence suggesting that David was physically, emotionally, or

sexually abusing either girl; (3) the facts surrounding the actual process in

taking the girls and concealing them at the White Horse Ranch; (4) the

extent of her communications with the girls while they were at the White

Horse Ranch; (5) how she managed to conceal the girls’ location for over

two years; and (6) what sort of harm she intended to inflict on David and

the two girls. Those topics fall within the scope of discovery. And so,

through examining those topics with Mrs. Evavold, State Farm will be

better prepared to demonstrate to the Court—in a later dispositive

motion—why and how Mrs. Evavold acted with “specific intent to cause

any harm” to the underlying plaintiffs, and how to that end State Farm

13
owes no coverage obligations over the false imprisonment claim under the

PLUP.

The relevancy and proportionality of Mr. Evavold’s deposition.

Neither Mrs. nor Mr. Evavold have disputed the relevancy or proportionality

of Mr. Evavold’s deposition. State Farm is undisputedly entitled to learn

information concerning the allegations in the underlying civil lawsuit. As

Mrs. Evavold’s husband, Mr. Evavold very likely possesses relevant

information concerning Mrs. Evavold’s intent behind the alleged taking and

concealing Samantha and Gianna; and what harm she intended to inflict

on the underlying plaintiffs. And so, State Farm deposing Mr. Evavold is

appropriate, fair, and falls within the scope of discovery.

II. State Farm’s Need to Depose the Evavolds Outweighs any

Alleged Expense or Burden on Them.

State Farm has acted in good faith to attempt to reduce any alleged

expense or burden on the Evavolds. Mrs. Evavold’s deposition is

scheduled to take one day. The location was changed to be closer to her

home to help accommodate and further reduce the burden of her

attendance. As to Mr. Evavold, State Farm advised that his deposition

would take half-a-day. And, State Farm agreed to move Mr. Evavold’s

deposition to a location closer to the Evavolds’ home. The Evavolds also,

to date, have not addressed how appearing at their respective deposition

is out-of-proportion with the needs of this litigation. By contrast, State Farm

14
has demonstrated why their depositions are proportional to the needs of

this litigation and it has acted in good faith to reduce any alleged burden or

expense. To those ends, State Farm’s request to depose the Evavolds

comports with the scope of discovery.

III. Mrs. Evavold’s Failure to Appear at her Deposition Triggers

Application of Minn. R. Civ. P. 37.

Mrs. Evavold’s failure to appear at the deposition noticed for August

13, 2019 violated Minn. R. Civ. P. 37, which provides the Court the power

to compel discovery and issue sanctions when a party fails to cooperate in

discovery. In pertinent part, Rule 37.04 states:

If a party . . . fails (1) to appear before the officer who is to

take the deposition, after being served with a proper notice . . .
the court in which the action is pending on motion may make
such orders in regard to the failure as are just, including any
action authorized in Rule 37.02(b)(1), (2), and (3). In lieu of
any order in addition thereto, the court shall require the party
failing to act or the attorney advising that party or both to pay
reasonable expenses, including attorney fees, caused by the
failure, unless the court finds that the failure was substantially
justified or that other circumstances make an aware of
expenses unjust.

The failure to act described herein may not be excused on the

ground that the discovery sought is objectionable unless the
party failing to act has applied for a protective order as
provided by Rule 26.03.

Minn. R. Civ. P. 37.04.

Discovery’s core goal is preventing surprises in litigation. See Anderson v.

Florence, 181 N.W.2d 873, 876 (Minn. 1970) (“‘[A] lawsuit should be an

intensive search for the truth, not a game to be determined in outcome by

15
considerations of tactics and surprise.”’) (citations omitted). The Court has

broad discretion to issue discovery-related orders to effectuate that core

goal. Minnesota Twins P’ship v. State ex rel. Hatch, 592 N.W.2d 847, 850

(Minn. 1999) (“A district court has broad discretion ‘to issue discovery

orders’ and will be reversed on appeal only upon an abuse of such

discretion.”) (citation omitted). When a party, here Mrs. Evavold, fails to

appear for a properly noticed deposition, the court may make “such orders

. . . as are just[.]” Minn. R. Civ. P. 37.04.

The Court should exercise its broad discretion and issue an order

that compels Mrs. Evavold to appear for her deposition. She is a party to

this action. She did not appear for her deposition after being properly

served with her notice of deposition. Mrs. Evavold indisputably received

the notice as she requested a change to the location. State Farm

attempted to accommodate by changing the location of her deposition to

somewhere closer to her residence. In response to State Farm’s

accommodation, Mrs. Evavold waited several weeks to send a letter via

U.S. Mail to inform State Farm that she would not be attending her

deposition. Mrs. Evavold did not articulate how or why her deposition falls

outside the scope of discovery, nor has she sought a protective order in

this litigation. In fact, to date, there is no dispute that her deposition is

relevant and proportional to the needs of the case. Accordingly, Mrs.

Evavold has failed to appear for a properly noticed deposition without

16
moving for protective order, which triggers application of Rule 37.04.10 To

that end, the Court in exercising its broad direction, should issue an order

under Rule 37.04 that compels Mrs. Evavold to appear for a deposition

before October 1, 2019 (i.e., the date of the scheduled mediation).11

IV. Given That Mr. Evavold Will not Voluntarily Appear for His
Deposition, State Farm has Issued a Subpoena to Secure his
Appearance.

Even though State Farm initially believed that Mr. Evavold would

voluntarily appear for his deposition, it now appears he will not. To that

end, on September 3, 2019, State Farm issued a subpoena to Mr.

Evavold, and set his deposition for September 30, 2019. Even with that

subpoena, State Farm remains concerned that Mr. Evavold will not appear

for his scheduled deposition. Should he fail to comply with the subpoena,

he may be subject to contempt of court under Rule 45.05:

10 Additionally, taking the Evavolds’ depositions prior to mediation—

scheduled for October 1, 2019—will ensure all parties are armed with the
knowledge to facilitate productive discussions.

11
Rule 37.04 also empowers the Court to award State Farm with
reasonable expenses and attorney’s fees in bringing this Motion to
Compel:

. . . In lieu of any order in addition thereto, the court shall

require the party failing to act or the attorney advising that
party or both to pay reasonable expenses, including attorney
fees, caused by the failure, unless the court finds that the
failure was substantially justified or that other circumstances
make an aware of expenses unjust.

Should the Court grant this Motion, State Farm will file an itemized
statement of expenses and fees within 7 days of the Court filing its order.

17
 Failure by any person without adequate excuse to obey a
subpoena served upon that person may be deemed a
contempt of the court on behalf of which the subpoena was
issued. An adequate cause for failure to obey exists when a
subpoena purports to require a non-party to attend or produce
at a place not within the limits provided by Rule 45(c)(1)(B).

To that end, State Farm requests that the Court exercise its

discretion and issue the following directive:

1. The Court instructs Mr. Evavold to comply with the issued

subpoena and appear for his deposition on September 30, 2019, 10:00

a.m., at the location provided on the subpoena.

2. Should Mr. Evavold not appear for his deposition, State

Farm’s counsel must promptly advise the Court via telephone or written

correspondence. The Court will then issue a contempt order and compel

Mr. Evavold’s appearance at his deposition.

V. Modifying the Current Scheduling Order.

Under Rule 16.02, State Farm may seek to modify the Court’s

Scheduling Order “upon a showing of good cause.” And under Minn. Gen.

Prac. R. 111.04, “[e]xcept in unusual circumstances, a motion to extend

deadlines under a scheduling order shall be made before the expiration of

the deadline.” Yet, fundamentally, management of deadlines rests within

this Court’s discretion. Rice v. Perl, 320 N.W.2d 407, 412 (Minn. 1982)

18
(recognizing that trial courts have “great discretion to determine the

procedural calendar of a case[.]”).12

Here, ample good cause exists for the Court to modify the current

Scheduling Order. Up until the Court issued its Order—filed on May 7,

2019—the parties did not contemplate discovery being necessary. But, in

light of this Court’s Order, discovery related to the false imprisonment

claim has become necessary. State Farm then acted diligently to secure

the Evavolds’ depositions. Not long after the Court issued the May 7, 2019

Order, State Farm served the Evavolds with their deposition notices and

set their depositions for August 13–14, 2019. No dispute exists that the

Evavolds received those notices. Then, on August 12, 2019, State Farm

received (via U.S. Mail) the letter dated August 8, 2019, in which Mrs.

Evavold advised State Farm that neither her nor her husband would

appear for their depositions. One day later, State Farm promptly filed this

pending motion.

12This Court, in its discretion, may even deviate from the Scheduling Order
without State Farm showing good cause:

A district court’s decision to reasonably depart from the schedule

without requiring the moving party to show good cause or modify
the order is within the district court’s discretion[.]

Consumer Justice Ctr. P.A. v. Trans Union L.L.C., Nos. A05-975, A05-
1433, 2006 WL 920182, at *2 (Minn. Ct. App. Apr. 11, 2006).

19
 Moreover, State Farm expects that the information learned from the

Evavolds’ depositions will support State Farm’s anticipated Motion for

Summary Judgment on the false imprisonment claim. Information learned

during those depositions will also ensure productive discussions during the

mediation. Or, in other words, allowing State Farm to conduct this

discovery is entirely fair, just, and produces no harm to any party. To those

ends, State Farm requests that the Court modify the current Scheduling

Order, so that State Farm may depose the Evavolds and later move for

summary judgment on the false imprisonment claim.13

CONCLUSION

State Farm respectfully requests the Court grant its Motion to

Compel the deposition of Mrs. Evavold, as well as compel her appearance

on a date certain prior to October 1, 2019. State Farm also respectfully

requests that the Court issue a directive to Mr. Evavold that he complies

with the issued subpoena, and should he fail to comply, the Court will hold

him in contempt. State Farm further respectfully requests that the Court

extend various deadlines in the current Scheduling Order, so that State

Farm may conduct the requested discovery and later move for summary

judgment on the false imprisonment claim.

13
Per the current Scheduling Order, the discovery deadline was
September 4, 2018. The deadline for hearing dispositive motions was
October 4, 2018. Should the Court agree that extending these deadlines is
appropriate, State Farm contends that a teleconference with the Court
about scheduling matters makes the most sense.

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Dated: September 4, 2019 HKM, P.A.

s/ Lehoan T. Pham
C. Todd Koebele, #1728X
Lehoan T. Pham, #0397635
30 East Seventh Street, Suite 3200
St. Paul, MN 55101-4919
Telephone: (651) 227-9411
Fax: (651) 223-5199
tkoebele@hkmlawgroup.com
lpham@hkmlawgroup.com

Attorneys for Plaintiff State Farm Fire

and Casualty Company

4818-8373-3410, v. 1

21