AMERICAN BOARD OF INTERNAL MED V. BRADLEY MITTMAN, No. 10-56981 (9th Cir. 2013)

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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS OCT 23 2013 MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT AMERICAN BOARD OF INTERNAL MEDICINE, No. 10-56981 D.C. No. 8:08-cv-00929-AG-MLG Plaintiff - Appellee, MEMORANDUM * v. BRADLEY D. MITTMAN, M.D., DBA Frontrunners Board Review, AKA Frontrunners Publishing, Defendant - Appellant. Appeal from the United States District Court for the Central District of California Andrew J. Guilford, District Judge, Presiding Submitted October 15, 2013 ** Before: FISHER, GOULD and BYBEE, Circuit Judges. Bradley D. Mittman, M.D., DBA Frontrunners Board Review, AKA Frontrunners Publishing, appeals pro se from the district court s default judgment * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). in the American Board of Internal Medicine s ( ABIM ) action alleging violations of the Copyright Act and state law. We have jurisdiction under 28 U.S.C. § 1291. We review for an abuse of discretion. Patelco Credit Union v. Sahni, 262 F.3d 897, 912-13 (9th Cir. 2001). We affirm. The district court did not abuse its discretion in entering default judgment as a sanction for Mittman s repeated failure to comply with his discovery obligations. See Fed. R. Civ. P. 37(b)(2)(A)(vi) (district court may enter default judgment as a sanction for failure to comply with a discovery order); Dreith v. Nu Image, Inc., 648 F.3d 779, 788 (9th Cir. 2011) (setting forth factors that a district court must consider before imposing the sanction of default). The district court did not abuse its discretion in awarding attorney s fees in connection with ABIM s motions to compel because Mittman s nondisclosures in response to discovery requests were not substantially justified. See Fed. R. Civ. P. 37(a)(5)(A) (district court must require the party whose conduct necessitated a successful motion to compel to pay reasonable expenses, including attorney s fees, unless the party s nondisclosure was substantially justified). The district court properly dismissed Mittman s counterclaim as time-barred because Mittman filed it after the statute of limitations had run. See Lukovsky v. City & County of San Francisco, 535 F.3d 1044, 1047 (9th Cir. 2008) (reviewing 2 10-56981 de novo); Pace Indus., Inc. v. Three Phoenix Co., 813 F.2d 234, 236, 238 (9th Cir. 1987) (four-year statute of limitations for Sherman Antitrust Act claims; only a new and independent act that inflicts new and accumulating injury will restart the limitations period). The district court did not abuse its discretion in denying Mittman s motion for reconsideration because Mittman provided no new evidence or argument supporting the motion. See Sch. Dist. No. 1J, Multnomah Cnty, Or. v. ACandS, Inc., 5 F.3d 1255, 1262-63 (9th Cir. 1993) (setting forth standard of review and grounds for granting a motion for reconsideration). Mittman s contention that the district court failed to consider his arguments and filings is unpersuasive. AFFIRMED. 3 10-56981

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