1

IN THE UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF ALABAMA

VFS LEASING CO., )

)

PLAINTIFF, )

) CIVIL ACTION NO.: 3:06CV638-SRW

VS. )

)

G. F. KELLY, INC d/b/a KELLY )

TRUCKING; and GUY KELLY, ) 

)

DEFENDANTS. )

MOTION TO EXTEND SCHEDULE FOR SUBMISSION 

 IN OPPOSITION TO MOTION FOR SUMMARY JUDGEMENT

Comes now the Defendants G. F. Kelly, Inc. D/b/a Kelly Trucking and Guy Kelly and,

pursuant to Rule 56(f) of the Federal Rules of Civil Procedure, move the court to extend the schedule

set out in the Order issued on November 3, 2006 for filing their Submission in Opposition to Motion

for Summary Judgement. As grounds for this motion, Defendants show the following:

 1. The Scheduling Order was issued in this case on November 3, 2006. It provides that

all discovery be completed by April 1, 2006. 

2. The factual issues in this case involve the amount of the deficiencies being claimed by

the Plaintiff and whether the repossessed tractors were disposed of in a commercially reasonable

manner and in accordance with the leases and applicable law. Defendants need to do discovery on this

issue. (See Affidavit of James H. Starnes-Exhibit “A”). A Notice of Deposition requesting testimony

and documents relating to a limited number of issues has been provided to the attorney for Plaintiff.

(Exhibit “B”). 

 3. The Plaintiff filed a Motion for Summary Judgement on November 27, 2006, less than

30 days after entry ofthe Scheduling Order. According to the Order of November 3, 2006, Defendants

must file its submissions in opposition to the Motion by December 18, 2006.

 4. Defendants request that the time for filing the Submission in Opposition to

Motion for Summary Judgement be extended to January 31, 2007. This will allow sufficient time

to take the necessary depositions, review the documents produced and receive and review the

transcript.

 

Case 3:06-cv-00638-SRW Document 13 Filed 11/30/2006 Page 1 of 2
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 Respectfully Submitted, 

/s/ James H. Starnes 

James H. Starnes, Attorney for Defendants 

OF COUNSEL:

P. O. Box 590003

Birmingham, AL 35259-0003

(205) 320-0800

/s/ S. Sanford Holliday 

S. Sanford Holliday, Attorney for Defendants 

OF COUNSEL:

P. O. Box 727

Roanoke, AL 36274

(334)863-2717

 CERTIFICATE OF SERVICE

I hereby certify that I have the foregoing pleading electronically using the CM/ECF system

which will electronically serve a copy of same on all counsel of record on this the 29th day of

November, 2006 as follows:

David B. Hall

Jason Asbell

BAKER DONALDSON 

420 North 20 Street, Suite 1600 th

Birmingham, AL 35203

 

/s/ James H. Starnes 

 OF COUNSEL

Case 3:06-cv-00638-SRW Document 13 Filed 11/30/2006 Page 2 of 2
IN THE UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF ALABAMA

VFS LEASING CO.,

PLAINTIFF,

VS.

G. F. KELLY, INC d/b/a KELLY

TRUCKING; and GUY KELLY,

DEFENDANTS.

)

)

)

) CIVIL ACTION NO.: 3:06cv638-SRW

)

)

)

)

)

)

NOTICE OF TAKING DEPOSITION UPON ORAL EXAMINATION

The Defendants, G. F. Kelly, Inc. and Guy Kelly, will take the deposition of the

REPRESENTATIVE'S)OFVFS LEASINGCO. ("VFS"). The deposition will be taken at the time

and place set out herein. The oral examination will encompass those matters discoverable under

Rule 26 of the Federal Rules of Civil Procedure.

Said depositions will be held at Baker Donelson on DECEMBER14, 2006 BEGINNING

PROMPTLY AT 9:00 AM, and shall continue to time thereafter until the same has been

completed.

In connection with the examination, Sunbelt requests the production at the taking of the

deposition of material and documents subject to production under Rule 30(b) (5) and (6) and 34

of the Federal Rules of Civil Procedure. The material and documents are identified hereafter.

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Case 3:06-cv-00638-SRW Document 13-2 Filed 11/30/2006 Page 1 of 3
SCOPE OF EXAMINATION

Pursuant to Rule 30(b)(6), VFS is requested to designate one or more officers, directors,

or managing agents or other persons who consent to testify on its behalf, to provide testimony on

the following matters:

1. The date, time and place of repossession of the tractors at issue in this case.

2. The mileage of each of the tractors at the time of repossession.

3. The condition of the tractors at the time of repossession.

4. Any work performed on the tractors after repossession and prior to resell.

5. All efforts made to publicize the availability of the tractors for resell.

6. The resell of the tractors.

IDENTIFICATION OF MATERIALS AND DOCUMENTS TO BE PRODUCED

Pursuant to Rule 30(b)(5) VFS is requested to produce the following documents:

1. All documents reflecting the date, time and place of repossession of the

tractors at issue in this case.

2. All documents reflecting the mileage of each of the tractors at the time of

reposseSSIOn.

3. All documents and photographs reflecting the condition of the tractors at

the time of repossession.

4. All documents reflecting any work performed on the tractors after

repossession and prior to resell.

5. All documents reflecting efforts made to publicize the availability of the tractors

for resell.

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Case 3:06-cv-00638-SRW Document 13-2 Filed 11/30/2006 Page 2 of 3
6. All documents reflecting the date of resell of each tractor, the name and address of

the purchaser and the amount paid

~ S H STARNES, Attorney for Plaintiffs

OF COUNSEL:

P. O. Box 590003

Birmingham, AL 35259

(205) 320-0800

CERTIFICATE OF SERVICE

I hereby certify that I have served a copy of the foregoing pleading on all counsel of

record by placing the same in the U.S. Mail, postage prepaid and properly addressed, on this the

;ICJ /1 day of ;2/6 Je~ be /" , 2006 as follows:

Jason Asbell

BAKER DONALDSON

420 North 20th Street, Suite 1600

Birmingham, AL 35203

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Case 3:06-cv-00638-SRW Document 13-2 Filed 11/30/2006 Page 3 of 3
IN THE UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF ALABAMA

VFS LEASING CO., )

)

PLAINTIFF, )

) CIVIL ACTION NO.: 3:06CV638-SRW

VS. )

)

G. F. KELLY, INC d/b/a KELLY )

TRUCKING; and GUY KELLY, ) 

)

DEFENDANTS. )

AFFIDAVIT OF JAMES H. STARNES

STATE OF ALABAMA

COUNTY OF JEFFERSON

 Before me, the undersigned authority in and for said state and county personally appeared

James H. Starnes who, after being duly sworn, deposes and says as follows:

 1. I am one of the attorneys for the defendants in this case.

 2. The factual issues in this case involve the amount of the deficiencies being claimed

by he Plaintiff. The Defendants contend that the tractors were disposed of by the Plaintiff for less

than their value and thus the amount owed by defendants is substantially less than the amount

claimed.

 3. After receiving the scheduling order on November 3, 2006, I began preparation of

a Rule 30(b) Deposition Notice to VFS so I could obtain the testimony and documents needed by

the expert we have retained to determine the value of the tractors at the time of repossession. I

had previously advised the attorney for VFS that I would need information on the mileage and

condition of the tractors at the time of repossession, the manner in which the tractors were

publicized for resell, the name of the purchaser, and the amount paid for each tractor. I dictated

the Notice prior to Thanksgiving but it was not typed until November 28. It was served on

Plaintiffs attorney on that date.

4. On Monday, November 27, less than 30 days after the Scheduling order was

issued, I received electronically the Motion for Summary Judgement filed by VFS. According to a

previous Order issued by the Court on November 3, 2006, I have 21 days, or until December 18,

2006, to file the Submission in Opposition to the Motion for Summary Judgement. This is not

sufficient time to conduct the need discovery described above. The testimony and documents

requested in the Deposition Notice are necessary for obtaining the required affidavit from the

Case 3:06-cv-00638-SRW Document 13-3 Filed 11/30/2006 Page 1 of 2
expert witness to properly oppose the Motion for Summary Judgement. I request that the time for

filing the Submission be extended to January 31, 2007 which will allow sufficient time to take the

depositions, review the documents produced and receive and review the transcripts

 

 5. Extending the time for filing the submission approximately 45 days will not

prejudice any party or delay the ultimate resolution of this case. 

/s/James H. Starnes 

James H. Starnes

 SWORN TO AND SUBSCRIBED BEFORE ME this the 30 day of November, 2006.

/s/Tammy Pennington 

Notary Public

My Commission Expires: ________

Case 3:06-cv-00638-SRW Document 13-3 Filed 11/30/2006 Page 2 of 2