                         This opinion will be unpublished and
                         may not be cited except as provided by
                         Minn. Stat. § 480A.08, subd. 3 (2014).

                              STATE OF MINNESOTA
                              IN COURT OF APPEALS
                                    A14-1251

                              Jeffrey Hugh Boldon, et al.,
                                      Appellants,

                                           vs.

                               Brian Perry Boldon, et al.,
                                     Respondents.

                                  Filed April 27, 2015
                                       Affirmed
                                   Klaphake, Judge*

                              Dakota County District Court
                              File No. 19HA-CV-12-5683

Steven E. Uhr, Eden Prairie, Minnesota (for appellants)

Thomas F. DeVincke, Malkerson Gunn Martin LLP, Minneapolis, Minnesota (for
respondents)

      Considered and decided by Larkin, Presiding Judge; Rodenberg, Judge; and

Klaphake, Judge.




*
 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
                        UNPUBLISHED OPINION

KLAPHAKE, Judge

       In this appeal from judgment following a jury trial of their conversion and breach-

of-contract claims, appellants challenge pretrial orders denying their motion to amend the

complaint and limiting discovery. Because the district court did not abuse its discretion,

we affirm.

                                     DECISION

                                            I.

       Appellants first challenge the district court’s denial of their motion to amend the

complaint. Once a responsive pleading has been filed, a complaint may be amended only

with leave of court, which “shall be freely given when justice so requires.” Minn. R. Civ.

P. 15.01. “A major consideration in the [district] court’s decision is the prejudice which

may result to the opposing party.” McDonald v. Stonebraker, 255 N.W.2d 827, 830

(Minn. 1977). “[T]he liberality to be shown in the allowance of amendments to pleadings

depends in part upon the stage of the action and in a great measure upon the facts and

circumstance of the particular case.” Bebo v. Delander, 632 N.W.2d 732, 741 (Minn.

App. 2001) (citing Dale v. Pushor, 246 Minn. 254, 262, 75 N.W.2d 595, 601 (1956)),

review denied (Minn. Oct. 16, 2001). “Despite the need for liberality, it is not to be

overlooked that the granting or denial of a motion for an amendment to the pleadings is a

matter lying in the sound discretion of the trial court and its action will not be reversed

except for a clear abuse of discretion.” Dale, 246 Minn. at 262, 75 N.W.2d at 601.

Appellants must act with “due diligence in their attempts to amend.” Meyer v. Best W.


                                            2
Seville Plaza Hotel, 562 N.W.2d 690, 694 (Minn. App. 1997), review denied (Minn. June

26, 1997).

       Appellants initiated this action in October 2012, asserting ownership of certain

items of property in the possession of respondents. On June 12, 2013, appellants sought

to amend their complaint to add an additional breach-of-contract theory and identify

additional items allegedly converted by respondents.         Although appellants had not

previously attempted to amend their complaint in this action, they had asserted two

previous actions seeking to recover property and/or conversion damages from

respondents and respondent Brian Boldon’s wife.          An entire year elapsed between

appellants’ initiation of the first action and their assertion of the motion to amend in this

action. Moreover, the district court had already granted partial summary judgment with

respect to some items of property by the time that appellants’ filed their motion to amend.

Under these circumstances, the district court did not abuse its discretion by denying

appellants’ motion to amend.       See Bebo, 632 N.W.2d at 741 (affirming based on

prejudice denial of motion to amend filed more than a year after the action had been filed

and one week after respondent moved for summary judgment).

                                             II.

       The remaining issues raised by appellants all relate to the scope of discovery

allowed by the district court. Under Minn. R. Civ. P. 26.02,

              [d]iscovery must be limited to matters that would enable a
              party to prove or disprove a claim or defense or to impeach a
              witness and must comport with the factors of proportionality,
              including without limitation, the burden or expense of the
              proposed discovery weighed against its likely benefit,


                                             3
              considering the needs of the case, the amount in controversy,
              the parties’ resources, the importance of the issues at stake in
              the action, and the importance of the discovery in resolving
              the issues.

“Subject to these limitations, parties may obtain discovery regarding any matter, not

privileged, that is relevant to a claim or defense of any party . . . .” Id. Under Minn. R.

Civ. P. 26.03, however, a district court “may make any order which justice requires to

protect a party or person from annoyance, embarrassment, oppression, or undue burden

or expense.” And “[d]iscovery rules are not meant to be used for fishing expeditions.”

State v. Hunter, 349 N.W.2d 865, 866 (Minn. App. 1984) (quotation omitted). The

district court “has considerable discretion in granting or denying discovery requests” and,

“[a]bsent a clear abuse of discretion, a [district] court’s decision regarding discovery will

not be disturbed.” Erickson v. MacArthur, 414 N.W.2d 406, 407 (Minn. 1987).

       Appellants first assert that the district court erred by quashing subpoenas issued to

two third-party banks because the banks did not object and were not burdened. Thus,

appellants assert, relief was not appropriate under Minn. R. Civ. P. 45.03, which governs

the rights of recipients of third-party subpoenas. But rule 45.03 does not override the

application of rules 26.02 and 26.03.      The district court concluded that appellants’

requests to the banks were overly broad and sought information that would be duplicative

of what respondent had already produced or agreed to produce. Appellants assert that

they may have obtained documents from the bank evidencing contradictory

representations regarding ownership of the property at issue in this action. The district




                                             4
court did not abuse its discretion by declining to allow appellants to go on this

speculative “fishing expedition.”

      Appellants next assert that the district court erred by denying their motion to

compel the production of documents in response to appellants’ first document request,

which demanded production of “all documents that evidence, concern, or refer or relate

to the purchase or sale of any equipment or machinery [at issue in this case].” Appellants

assert that “such purchases would be reflected in the Quick Books general ledger entries

of [respondent] Boldon Recycling.” But the record reflects that respondents agreed to

supplement—and the district court ordered supplementation of—production in response

to this request. And counsel for respondents represented at oral argument that the Quick

Books ledger was produced.1 Thus, this is not a case in which no financial discovery was

allowed. Cf. Ciriacy v. Ciriacy, 431 N.W.2d 596, 599-600 (Minn. App. 1988) (holding

that district court unduly restricted discovery by denying access to financial records

necessary to determine issue in case).     The district courts have discretion to limit

discovery to avoid undue burden or expense. Minn. R. Civ. P. 26.03. Appellants have

not clearly identified to this court what documents were produced by respondents or why

additional discovery would not have been duplicative or burdensome.          Under these

circumstances, we cannot conclude that the district court abused its discretion by denying

appellants’ motion to compel. See Loth v. Loth, 227 Minn. 387, 392, 35 N.W.2d 542,

1
 At oral argument, appellants’ counsel asserted that appellants were entitled to
depreciation schedules that would have demonstrated whether respondents
contemporaneously claimed ownership of the equipment and machinery in dispute.
Because this argument was not made in appellants’ brief, it is waived. Melina v. Chaplin,
327 N.W.2d 19, 20 (Minn. 1982).

                                            5
546 (1949) (holding that error “must be made to appear affirmatively before there can be

reversal,” and “the burden of showing error rests upon the one who relies upon it”).

       Appellants finally assert that the district court erred by denying their request to

inspect the company’s facility to determine the current condition of property at issue in

this action. The district court determined that appellants had made no showing that the

inspection would yield relevant information. We agree that the current condition of

equipment at the facility is not relevant to determining who owns the property at issue in

this case. The district court also properly took into consideration that appellant Jeffrey

Boldon was precluded by a previously issued harassment restraining order from entering

the facility. The district court did not abuse its discretion by denying appellants’ request

to inspect the facility.

       Affirmed.




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