Myhre v. Seventh-Day Adventist Church Reform Movement American Union International Missionary Society et al, No. 3:2013cv02741 - Document 102 (S.D. Cal. 2014)

Court Description: ORDER granting in part and denying in part Plaintiff's 79 Motion for Sanctions for Non-Compliance with Discovery Orders. Court grants Pla's request for reasonable atty's fees in the amount of $6,297.50 incurred in pursuing this motion. Sanctions are assessed against Dfts IMS-TX, IMS-GA, IMS-FL, IMS-Miami, and IMS-NJ, severally. Each Dft shall pay to Plaintiff $1,259.50 by 8/15/2014. Court denies Pla's request for other sanctions. Signed by Magistrate Judge Ruben B. Brooks on 7/1/2014. (jah)

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Myhre v. Seventh-Day Adventist Church Reform Movement American Union Inte...Missionary Society et al Doc. 102 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 STEINAR MYHRE, 12 Plaintiff, 13 v. 14 SEVENTH-DAY ADVENTIST CHURCH REFORM MOVEMENT AMERICAN UNION INTERNATIONAL MISSIONARY SOCIETY, a New Jersey corporation; INTERNATIONAL MISSIONARY SOCIETY SEVENTH-DAY ADVENTIST CHURCH REFORM MOVEMENT GENERAL CONFERENCE, a California corporation; and DOES 1-100, 15 16 17 18 19 Defendants. 20 Civil No. 13cv2741 BAS(RBB) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR RULE 37 SANCTIONS AGAINST DEFENDANTS IMS-NEW JERSEY, IMS-TEXAS, IMS-GEORGIA, IMS-FLORIDA, AND IMS-MIAMI [ECF NO. 79] 21 Plaintiff Steinar Myhre’s Motion for Rule 37 Sanctions Against 22 Defendants IMS-New Jersey, IMS-Texas, IMS-Georgia, IMS-Florida, and 23 IMS-Miami [ECF No. 79] (“Motion for Sanctions”) was filed on May 24 16, 2014. 25 and Myhre filed a reply [ECF No. 84]. 26 Defendants filed a response in opposition [ECF No. 82], The hearing on the motion was set for June 16, 2014. The 27 Court determined the matter to be suitable for resolution without 28 oral argument, submitted the motion on the parties’ papers pursuant 1 13cv2741 BAS(RBB) Dockets.Justia.com 1 to the Local Civil Rule 7.1(d), and vacated the motion hearing. 2 (Mins., June 13, 2014, ECF No. 87.) 3 Plaintiff’s Motion for Sanctions is GRANTED in part and DENIED in 4 part. 5 I. 6 For the following reasons, FACTUAL BACKGROUND On November 14, 2013, Plaintiff Steinar Myhre filed a 7 Complaint against Defendants Seventh-Day Adventist Church 8 Reform Movement American Union International Missionary Society, a 9 New Jersey Corporation (“IMS-NJ”) and International Missionary 10 Society Seventh Day Adventist Church Reform Movement General 11 Conference (“IMS-GC”), alleging breach of contract, breach of the 12 covenant of good faith and fair dealing, fraud, interference with 13 contract, conversion, and civil conspiracy. 14 1.) 15 injunctive relief for the alleged termination of his pension 16 benefits by his former employer. 17 he was forced to retire over a theological disagreement in 2009; by 18 then, he had worked for Defendants for over twenty-seven years as 19 an ordained minister. 20 retirement payments ceased in 2013. 21 (Compl. 1-2, ECF No. Plaintiff is a retired pastor who seeks money damages and (Id. at 3.) (Id. at 3-5.) Myhre claimed that Plaintiff stated that his (Id. at 9-10.) Myhre alleged that he resides in Colorado and that Defendant 22 IMS-NJ is a New Jersey corporation headquartered in Georgia and 23 doing business in various states, including the State of California 24 and the County of San Diego. 25 Defendant IMS-GC is a California corporation headquartered in 26 Georgia and doing business in various states, including the State 27 of California. 28 Complaint, adding five more Defendants: (Id.) (Id. at 2.) Plaintiff claimed that On January 6, 2014, Plaintiff amended his 2 (1) The Seventh-Day 13cv2741 BAS(RBB) 1 Adventist Church Reform Movement American Union International 2 Missionary Society, a Texas corporation (“IMS-TX”); (2) The 3 Seventh-Day Adventist Church Reform Movement American Union IMS, 4 Inc., a Georgia corporation (“IMS-GA”); (3) Miami Dade Area 5 Seventh-Day Adventist Church Reform Movement, International 6 Missionary Society Inc., a Florida corporation (“IMS-Miami”); (4) 7 The Seventh-Day Adventist Church Reform Movement American Union 8 International Missionary Society, a Florida corporation (“IMS-FL”); 9 and (5) Tampa Bay Area Seventh Day Adventist Church Reform 10 Movement, International Missionary Society Inc., a Florida 11 corporation (“IMS-Tampa”). 12 (Am. Compl. 2-3, ECF No. 15.) Myhre’s Amended Complaint states that “Defendant entities are 13 part of a singular, hierarchical church organization that 14 collectively conducts business throughout the United States and the 15 world, with each level answerable to, and controlled by, higher 16 levels of the organization.” 17 Defendants collectively as “IMS,” Plaintiff also alleged, on 18 information and belief, that “Defendant IMS has officially 19 registered as a non-profit religious organization in the United 20 States via a single entity reference, specifically, ‘International 21 Missionary Society Seventh-Day Adventist Church,’ EIN 71-0905495, 22 without any reference therein to either ‘American Union’ or 23 ‘General Conference.’” (Id.) 24 asserts: 25 26 27 28 (Id. at 3.) Referring to all In the Amended Complaint, Myhre also 15. Defendants IMS-AU-NJ, IMS-Tampa, IMS-AU-TX, IMS-AU-GA, IMS- Miami, and IMS-AU-FL are indistinguishable for purposes of liability under the facts of this case, and are treated as a single entity by Plaintiff herein, collectively referred to as “Defendant American Union” unless otherwise specified in this Amended Complaint. 3 13cv2741 BAS(RBB) 1 2 3 4 5 6 7 16. Upon information and belief, and based on admissions of Defendants, Defendant American Union has not maintained any principal place of business anywhere for almost 30 years. However, Defendant American Union has churches located in various states, including five churches in California, five in Florida, three in Georgia, two each in New York and Texas, and one each in Illinois, Colorado, New Jersey, Rhode Island, Virginia, and Washington DC. (Id. at 3-4.) Myhre alleged that jurisdiction is proper in this Court 8 pursuant to 28 U.S.C. § 1332 because the parties are citizens of 9 different states and the amount of controversy exceeds $75,000. 10 (Id. at 4.) 11 district “because Defendant American Union resides in this district 12 (by virtue of being registered to do business in California, having 13 a church located in Vista, CA in the Southern District of 14 California, and having further personnel located in Oceanside, CA) 15 . . . .” 16 Plaintiff claimed that venue is proper in this (Id.) Currently pending before United States District Court Judge 17 Cynthia A. Bashant are four motions to dismiss filed by the 18 Defendants [ECF No. 81]. 19 Lack of Subject Matter Jurisdiction or Improper Venue argues that 20 because IMS-NJ’s principal place of business is in Colorado, it is 21 a citizen of Colorado and the case must be dismissed for lack of 22 diversity jurisdiction. 23 Mem. P. & A. 8, ECF No. 31.) 24 that the case must be dismissed for improper venue because not all 25 of the corporate Defendants are residents of California. 26 13-14.) 27 claim, arguing that Plaintiff fails to allege any facts against it. 28 (Def. [IMS-GC’s] Mot. Dismiss Attach. #1 Mem. P. & A. 6, ECF No. Defendant IMS-NJ’s Motion to Dismiss for (Def. [IMS-NJ’s] Mot. Dismiss Attach. #1 In the alternative, IMS-NJ argues (Id. at Defendant IMS-GC moves to dismiss for failure to state a 4 13cv2741 BAS(RBB) 1 32.) 2 principal place of business in Georgia, and it seeks dismissal for 3 improper venue or transfer to the Northern District of Georgia. 4 (Id. at 11-14.) 5 IMS-GC also claims that it is a California corporation with a Defendants IMS-TX, IMS-GA, IMS-Miami and IMS-FL filed a Motion 6 to Dismiss for Lack of Subject Matter Jurisdiction or Improper 7 Venue, arguing that both IMS-GA and IMS-FL are citizens of Colorado 8 for purposes of diversity jurisdiction. 9 IMS-Miami & IMS-FL’s] Mot. Dismiss Attach. #1 Mem. P. & A. 12, ECF (Defs. [IMS-TX, IMS-GA, 10 No. 34.) Finally, Defendant IMS-Tampa filed a Motion to Dismiss 11 for Improper Venue or, in the Alternative, to Transfer; it claims 12 that transfer to Florida is proper because its principal place of 13 business is in Florida. 14 #1 Mem. P. & A. 6, ECF No. 39.) 15 transfer this case to Georgia because IMS-NJ’s1 principal place of 16 business is in Georgia. (Def. [IMS-Tampa’s] Mot. Dismiss Attach. In the alternative, it moves to (Id.) 17 In response to Defendants’ challenges to jurisdiction and 18 venue, Plaintiff served discovery requests and subsequently brought 19 a Motion to Compel seeking production of documents and 20 interrogatory answers related to the citizenship of IMS-NJ, IMS-GA, 21 and IMS-FL for diversity jurisdiction, as well as the Defendants’ 22 contacts with the Southern District for purposes of venue. 23 Mot. Compel Attach. #1 Mem. P. & A. 7-8, ECF No. 42.) 24 requested Defendants’ corporate documents to ascertain whether 25 Defendants observed corporate formalities to withstand allegations 26 that they are alter egos of each other. (Id.) (Pl.’s Myhre also Plaintiff sought to 27 1 28 IMS-Tampa’s memorandum of points and authorities refers to IMS-NJ as “American Union.” (Def. [IMS-Tampa’s] Mot. Dismiss Attach. #1 Mem. P. & A. 5-6, ECF No. 39.) 5 13cv2741 BAS(RBB) 1 depose Henry Dering, IMS-NJ’s vice president, and the president or 2 secretary of IMS-TX. 3 motion on April 17, 2014, and set the deadline for compliance with 4 the Order for May 8, 2014. 5 Compel Jurisdictional Disc. 33, ECF No. 67.) 6 (Id.) The Court granted in part Plaintiff’s (Order Granting & Den. Pl.’s Mot. In his Motion for Sanctions, Myhre alleges that Defendants’ 7 supplemental discovery responses served on May 8 and May 9, 2014, 8 were “materially non-compliant with the Court’s discovery order.” 9 (Pl.’s Mot. Sanctions Attach. #1 Mem. P. & A. 5,2 ECF No. 79.) 10 Myhre seeks various issue sanctions as well as the attorney’s fees 11 associated with bringing this motion. II. 12 13 (Id.) LEGAL STANDARDS Rule 37 of the Federal Rules of Civil Procedure enables the 14 propounding party to bring a motion to compel responses to 15 discovery requests. 16 authorizes the imposition of sanctions against the party whose 17 conduct necessitated the motion to compel. 18 Court to issue the following types of sanctions against a party who 19 fails to obey an order to provide or permit discovery: 20 21 22 Fed. R. Civ. P. 37(a)(3)(B). Rule 37(a)(5) The rule authorizes the (i) directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims; 23 (ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence; 24 (iii) striking pleadings in whole or in part; 25 (iv) staying further proceedings until the order is obeyed; 26 27 2 28 Because Plaintiff’s brief is not consecutively paginated, the Court will cite to it using the page numbers assigned by the Court’s ECF system. 6 13cv2741 BAS(RBB) 1 (v) dismissing the action or proceeding in whole or in part; 2 (vi) rendering a default judgment against the disobedient party; or 3 4 (vii) treating as contempt of court the failure to obey any order except an order to submit to a physical or mental examination. 5 6 Fed. R. Civ. P. 37(b)(2)(A). Furthermore, Rule 37(b)(2)(C) 7 provides that “[i]nstead of or in addition to the orders above, the 8 court must order the disobedient party, the attorney advising that 9 party, or both to pay the reasonable expenses, including attorney's 10 fees, caused by the failure, unless the failure was substantially 11 justified or other circumstances make an award of expenses unjust.” 12 Id. 13 Rule 37 must be left to the sound discretion of the trial judge.” 14 O'Connell v. Fernandez–Pol, 542 F. App’x 546, 547–48 (9th Cir. 15 2013) (citing Craig v. Far West Eng'g Co., 265 F.2d 251, 260 (9th 16 Cir. 1959)). “By the very nature of its language, sanctions imposed under In addition, federal courts have inherent power to impose 17 18 sanctions against both attorneys and parties for “bad faith” 19 conduct in litigation or for “willful disobedience” of a court 20 order. 21 Express, Inc. v. Piper, 447 U.S. 752, 764–66 (1980). 22 assess attorney fees or other sanctions under its inherent power 23 for the “wilful disobedience of a court order.” 24 at 45 (citing Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 25 U.S. 240, 258 (1975)). 26 power is meant to vindicate judicial authority, rather than to 27 provide a substantive remedy to an aggrieved party: 28 // Chambers v. NASCO, Inc., 501 U.S. 32, 45 (1991); Roadway The Court may Chambers, 501 U.S. A fee award under the Court's inherent 7 “The wrong 13cv2741 BAS(RBB) 1 done was to the court.” 2 Inc., 50 F.3d 730, 733 (9th Cir. 1995). 3 Mark Indus., Ltd. v. Sea Captain's Choice, III. 4 DISCUSSION Plaintiff moves the Court for sanctions under the Federal Rule 5 of Civil Procedure 37 against Defendants IMS-NJ, IMS-TX, IMS-GA, 6 IMS-FL, and IMS-Miami because of their failure to comply with the 7 Court’s April 17, 2014 Order Granting in Part and Denying in Part 8 Plaintiff’s Motion to Compel Jurisdictional Discovery [ECF No. 67]. 9 (Pl.’s Mot. Sanctions Attach. #1 Mem. P. & A. 4-5, ECF No. 79.) 10 Myhre alleges that the supplemental discovery responses Defendants 11 provided were not in compliance with the Court’s discovery order. 12 (Id. at 5.) 13 sanctions: 14 Based on this, Plaintiff requests the following 1. Prohibiting these Defendants from opposing Plaintiff’s allegations that they are alter egos of each other for purposes of this case; 15 16 2. Prohibiting these Defendants from opposing diversity jurisdiction over this case; 17 18 3. Prohibiting these Defendants from contesting venue of this case; and 19 4. Attorney’s fees in an amount . . . caused by Defendants’ non-compliance with the subject discovery order. 20 21 (Id.) 22 produce relate to their corporate structure, as well as the 23 disputed issues of jurisdiction and venue, Defendants should be 24 precluded from challenging Plaintiff’s alter ego allegations, 25 contesting venue, and disputing subject matter jurisdiction in this 26 case. 27 $6,297.50 incurred as a result of Defendants’ failure to comply 28 with the Court’s discovery order. Myhre argues that because the documents Defendants failed to (Id.) Plaintiff also seeks attorney’s fees in the amount of (Pl.’s Reply 11, ECF No. 84.) 8 13cv2741 BAS(RBB) 1 A. Failure to Produce Documents Due to Counsel’s Oversight 2 The Court's jurisdictional discovery order addressed 3 Plaintiff's requests for production which Defendants had not 4 opposed. 5 Disc. 31, ECF No. 67.) 6 ordered production of the following corporate records: 7 or governing documents for Defendants IMS-TX (request number two), 8 IMS-GA (request number two), IMS-FL (request number two), and 9 IMS-Miami (request number two); (2) articles of incorporation and (Order Granting & Den. Pl.’s Mot. Compel Jurisdictional Under "Unopposed Requests," the Court (1) bylaws 10 any amendments for Defendants IMS-FL (request number one) and 11 IMS-Miami (request number one); (3) corporate records reflecting 12 election of directors and/or officers since incorporation for 13 Defendants IMS-TX (request number three), IMS-FL (request number 14 three), and IMS-Miami (request number three); and (4) annual 15 reports filed with any secretary of state since the date of 16 incorporation for Defendants IMS-FL (request number four) and 17 IMS-Miami (request number four). 18 (Id.) Defendants concede that they failed to produce the documents 19 specified in this section of the Court’s Order but claim that it 20 was due to their counsel’s oversight. (Defs.’ Opp’n Mot. Sanctions 21 Attach. #1 Decl. Wade 3, ECF No. 82.) They represent that it was a 22 “good faith mistake that defendants are urgently trying to 23 remedy[,]” and they “fully expect to provide all responsive 24 documents in their possession from the “Unopposed Requests” section 25 // 26 // 27 // 28 // 9 13cv2741 BAS(RBB) 1 of the Order as soon as possible and prior to the [June 16, 2014] 2 hearing on this motion.” 3 82.) 4 (Defs.’ Opp’n Mot. Sanctions 4,3 ECF No. Defendants had not opposed these requests. It is unclear 5 whether this failure to oppose was also due to counsel's oversight. 6 Myhre’s Motion to Compel, however, explained that Defendants had 7 promised, but failed to provide, the responsive documents. 8 Mot. Compel Attach. #1 Mem. P. & A. 12, ECF No. 42.) 9 least, Defendants were aware of these requests on March 5, 2014, (Pl.’s At the very 10 when the Motion to Compel was filed, if not before. 11 attorneys do not contend that the first time they were put on 12 notice regarding these requests was after the May 8, 2014 deadline 13 to supplement discovery responses passed. 14 failed to comply with the Court’s Order, and the Plaintiff was 15 forced to file yet another motion. 16 B. 17 18 Defendants’ In any event, Defendants Defendants’ Incomplete Supplemental Responses 1. Request for production 5 to IMS-TX Myhre alleges that Defendant IMS-TX’s supplemental response to 19 request for production five is noncompliant. 20 Attach. #1 Mem. P. & A. 6, ECF No. 79.) 21 to produce its profit and loss statements for the last five years. 22 Plaintiff alleges that Defendant produced “a one-page document 23 captioned ‘Houston Profit/Loss Statement’ with a single line for 24 income and expense for the past four years.” 25 that a statement from the Houston church is incomplete because 26 “[a]ccording to the official church website, there are churches in (Pl.’s Mot. Sanctions The Court ordered IMS-TX (Id.) Myhre argues 27 3 28 Because Defendants’ brief is not consecutively paginated, the Court will cite to it using the page numbers assigned by the Court’s ECF system. 10 13cv2741 BAS(RBB) 1 Dallas and Houston, and this is backed up by Church Member Reports 2 produced that show the existence of a church in Dallas at least as 3 late as 2010.” 4 response is inconsistent with IMS-TX’s initial response to 5 interrogatory number eight which discussed multiple church 6 locations in Texas. 7 (Id.) Plaintiff argues that the supplemental (Id.) In opposition, IMS-TX argues that its initial response to 8 interrogatory eight, which listed a “local business contact 9 address” in Henderson, Texas, should be ignored because that 10 response has been updated by the supplemental response, which 11 discloses only one church. 12 No. 82.) 13 within its possession, custody, and control. 14 Defendant does not cite any authority or explanation for its 15 contention that because it has provided a supplemental response to 16 interrogatory eight, the initial response should be ignored. 17 (Defs.’ Opp’n Mot. Sanctions 11-12, ECF Defendant also maintains that it produced all records (Id. at 11.) The original response to Plaintiff’s interrogatory stated that 18 IMS-TX has “multiple church locations in Texas, all of which are 19 public record, with a local business contact address of 4765 FM 20 2865 E. Henderson, TX 75654-2329.” 21 Attach. #6 Ex. F, at 8, ECF No. 44.) 22 February 24, 2014, under penalty of perjury, by Pastor Tzvetan 23 Petkov, President of the Seventh-Day Adventist Church Reform 24 Movement American Union. 25 1-5, ECF No. 42.) 26 order, Defendant supplemented its response and now states that 27 “[t]here is one church in Texas located at 1812 Maine St., 28 Pasadena, TX 77587.” (Second Notice of Resubmission This response was verified on (Pl.’s Mot. Compel Attach. #13 Ex. J, at Following the Court’s jurisdictional discovery (Pl.’s Mot. Sanctions Attach. #3 Ex. 2, at 11 13cv2741 BAS(RBB) 1 12, ECF No. 79.) This undated supplemental response is verified by 2 Virgilio Zapeta, an officer of IMS-TX. 3 even this response is incorrect. 4 declaration from Pastor Petkov, who verified IMS-TX’s initial 5 responses to the interrogatories, in which Petkov states that 6 “[t]he address for the Texas church had also changed,” and he 7 corrects Zapeta’s verified discovery response and states that “the 8 proper address” is actually 1812 Main St., South Houston, TX 77587. 9 (Defs.’ Opp’n Mot. Sanctions Attach. #3 Decl. Petkov 3, ECF No. (Id.) Yet, it appears that Defendant now submits a 10 82.) 11 penalty of perjury on May 29, 2014. This most recent declaration is signed by Petkov under (Id. at 5.) Defendants do not explain the inconsistency between the 12 13 original interrogatory response and the supplemental responses. 14 The Defendant’s responses and argument leave the Court with the 15 impression that at some point during the relevant time period more 16 than a “Houston” church existed. 17 Profit/Loss Statement” appears to be a document created in response 18 to request for production number five. 19 insufficient. 20 2. 21 Similarly, the five-line “Houston If so, that is Interrogatories 5, 7, and 8 to IMS-TX Myhre contends that IMS-TX’s supplemental responses to 22 interrogatories five, seven, and eight are incomplete. 23 Sanctions Attach. #1 Mem. P. & A. 7, ECF No. 79.) 24 number five requested the name, address, and role of any employees, 25 independent contractors, or other agents that conduct the 26 day-to-day activities of Defendant. 27 11.) 28 period of December 2013 through January 2014, Virgilio Zapeta, Interrogatory (Id. Attach. #3 Ex. 2, at 10- Defendant provided the following response: 12 (Pl.’s Mot. “During the time 13cv2741 BAS(RBB) 1 12487 Wood Creek Drive, Willis, TX 77318, conducted the day to day 2 operations.” 3 response is incomplete because it is limited to an arbitrary time 4 frame which “neither extends back to the time the lawsuit was 5 filed, nor extends to the date of the responses.” (Pl.’s Mot. 6 Sanctions Attach. #1 Mem. P. & A. 8, ECF No. 79.) Defendant IMS-TX 7 argues that the request is “written in the present tense” and does 8 not call for past information, and thus the response need not go 9 back to the time the lawsuit was filed. (Id. at 11.) Myhre argues that the supplemental (Defs.’ Opp’n Mot. 10 Sanctions 12, ECF No. 82.) 11 interrogatory answer does not extend through the date of the 12 response and states that it will provide a further verified 13 response that “Zapeta continues to conduct day-to-day activities.” 14 (Id. at 13.) 15 Defendant acknowledges that the Interrogatory seven asked for all officers and directors of 16 IMS-TX from incorporation to the present. 17 Attach. #1 Mem. P. & A. 7, ECF No. 79.) 18 provided: 19 (Pl.’s Mot. Sanctions The following response was During the time period of December 2013 through January 2014, Church Directors were as follows: 20 21 Virgilio Zapeta, 12487 Wood Creek Dr., Willis, TX 77318 22 Juan Pablo Reyes, 8044 Milredge St., Houston, TX 77017 23 24 Cecelia Hernandez, 1610 Beaver Bend Rd., Houston, TX 77587 25 Uldarico Alejos, 1280 Little Deer Run, Canton, GA 30102 26 27 The Seventh-Day Adventist Church Reform Movement American Union International Missionary Society was incorporated in 1998 and dissolved in 2009, then was re-incorporated by Uldarico Alejos in 2012. 28 13 13cv2741 BAS(RBB) 1 (Id. at 7-8.) 2 incomplete and contains false information; he notes that the 2012 3 filing that placed Defendant back in active status was done by 4 Petkov, not Alejos. 5 frame of December 2013 through January 2014 is incomplete. 6 The Court’s order set the responsive time frame as the last ten 7 years or from the date of incorporation, whichever is shorter. 8 (Id.) 9 Plaintiff alleges this supplemental response is both (Id. at 8.) Myhre also argues that the time (Id.) Defendant argues that its response is neither deceptive nor 10 incomplete because it provided all the information in its 11 possession. 12 Defendant’s explanation that it dissolved in 2009 and re- 13 incorporated in 2012 suggests, however, that records dating back at 14 least to 2012 should be available. 15 Defendant for the failure to produce its records for the time 16 period from 2004 to 2009 and from 2012 until December 2013. 17 statement that it produced all responsive information implies that 18 no other records exist. 19 with this Court’s order or clearly describe the reasons it could 20 not do so. 21 (Defs.’ Opp’n Mot. Sanctions 4, ECF No. 82.) No explanation is offered by The The Defendant was required to fully comply IMS-TX has done neither. Interrogatory eight sought “actual office locations” of 22 Defendant IMS-TX. 23 ECF No. 79.) 24 discovery responses to this interrogatory. 25 resolve these inconsistencies. 26 venue is for Judge Bashant to determine. 27 // 28 // (Pl.’s Mot. Sanctions Attach. #1 Mem. P. & A. 8, As discussed above, Defendant provided inconsistent The Court need not Their effect on jurisdiction and 14 13cv2741 BAS(RBB) 1 3. 2 Requests for production 3 and 5 to IMS-GA Myhre argues that Defendant IMS-GA’s supplemental responses to 3 requests for production three and five do not comply with the 4 Court’s discovery order. 5 production number three, which sought records reflecting the 6 election of directors and officers of IMS-GA since incorporation, 7 Defendant responded that “all documents within the possession, 8 custody, and control of Responding Party will be produced 9 herewith[,]” and produced a list of officers for “Southeastern (Id. at 9.) In response to request for 10 Field,” going back to 2008 instead of the date of incorporation in 11 1998. 12 id. Attach. #3 Ex. 3, at 2.) 13 consistent with IMS-GA’s identification of officers in Defendant’s 14 annual reporting to the Georgia Secretary of State. 15 Sanctions Attach. #1 Mem. P. & A. 10, ECF No. 79.) 16 (Pl.’s Mot. Sanctions Attach. #1 Mem. P. & A. 9, ECF No. 79; Plaintiff argues this response is not (Pl.’s Mot. Defendant’s opposition explains that the document was produced 17 by mistake; it was intended to be produced in response to request 18 number fourteen to IMS-NJ. 19 No. 82.) 20 response to this request in the ‘Unopposed Requests’ section of its 21 order for which [its counsel] initially failed to request documents 22 from the defendant churches.” 23 (Defs.’ Opp’n Mot. Sanctions 15-16, ECF Defendant incorrectly argues that “the Court compelled a (Id. at 15.) The only unopposed requests for corporate records reflecting 24 the election of directors and/or officers since incorporation were 25 made to Defendants IMS-TX, IMS-FL, and IMS-Miami. 26 NJ both objected to this request. 27 produce documents described in request number three for “either the 28 last ten years or since incorporation, whichever is shorter.” 15 IMS-GA and IMS- Defendant IMS-GA was ordered to 13cv2741 BAS(RBB) 1 (Order Granting & Den. Pl.’s Mot. Compel Jurisdictional Disc. 24, 2 ECF No. 67.) 3 discovery requests, its responses, and the Court’s orders before 4 making assertions not based in fact. 5 it is obtaining the requested documents and expects to produce them 6 to Plaintiff “prior to the hearing on this motion.” 7 Mot. Sanctions 16, ECF No. 82.) 8 9 The Court cautions Defendant to carefully review the Defendant again states that (Defs.’ Opp’n Myhre maintains that the supplemental response to request number five for profit and loss statements for the past five years 10 is incomplete. 11 ECF No. 79.) 12 entitled “Income and Expenses Financial Statement From the Year 13 2009 to 2013 From the Marietta Church.” 14 22-23.) 15 there are five churches in Georgia. (Pl.’s Mot. Sanctions Attach. 16 #1 Mem. P. & A. at 10, ECF No. 79.) In opposition, Defendant 17 argues that it complied with the order and produced all documents 18 within its possession, custody and control. 19 Sanctions 16, ECF No. 82.) 20 provides no evidence that there are five churches in Georgia, and 21 indeed there are not. 22 the point. 23 Georgia. 24 information from one church–-the Marietta church–-is responsive. 25 The declaration submitted by Pastor Petkov indicates that it is 26 not. 27 28 (Pl.’s Mot. Sanctions Attach. #1 Mem. P. & A. 10, Defendant IMS-GA produced a two-page document (Id. Attach. #3 Ex. 3, at Myhre contends that this response is insufficient because (Defs.’ Opp’n Mot. IMS-GA also states: Petkov Dec. ¶ 11.” (Id.) “Plaintiff Defendant misses The issue is not whether there are five churches in Rather, it is whether the production of financial He states: The plaintiff claims that we have five churches under the Georgia corporation. This is not true. The corporation was originally registered when believers 16 13cv2741 BAS(RBB) 1 2 3 formed the first church in Marietta, Georgia. This was also where the first property was purchased. Later on, a small group of members began worshipping in Acworth, Georgia. When the headquarters of the General Conference of the IMS moved from California to Georgia, the Cedartown church was organized. 4 5 (Id. Attach. #3 Decl. Petkov 4-5.) 6 existence of another church located in Acworth, Georgia. 7 Petkov’s declaration also states that IMS-GC moved to Georgia and 8 organized the Cedartown church; whether its financial records 9 should be produced in response to request five directed to IMS-GA 10 The declaration reveals the Pastor cannot be determined from the information before the Court. 11 4. Interrogatories 5 and 7 to IMS-GA 12 Interrogatories number five and seven to Defendant IMS-GA are 13 identical to those propounded on IMS-TX, seeking information about 14 individuals conducting day-to-day activities, and identifying all 15 officers and directors for the past ten years or from the date of 16 incorporation. 17 responses were incomplete. 18 P. & A. 10, ECF No. 79.) 19 Defendant stated: 20 through January 2014, Angel Ojeida of Marieta [sic] Georgia 21 conducted the day to day activities.” 22 original).) 23 incomplete because it is limited to an arbitrary time frame that 24 “neither extends back to the time the lawsuit was filed, nor 25 extends to the date of the responses.” 26 GA was ordered to answer this interrogatory, the Defendant argues 27 that the Plaintiff does not explain why the response should include 28 the period since the time the lawsuit was filed. Myhre alleges that IMS-Georgia’s supplemental (Pl.’s Mot. Sanctions Attach. #1 Mem. In response to interrogatory five, “During the time period of December 2013, (Id. (alteration in Plaintiff argues that the supplemental response is 17 (Id. at 11.) Although IMS- (Defs.’ Opp’n 13cv2741 BAS(RBB) 1 Mot. Sanctions 17, ECF No. 82.) 2 is a “minor issue” that does not warrant sanctions, and it will 3 provide a further verified response stating that Mr. Ojeida 4 continues to conduct day-to-day activities. 5 Defendant also contends that this (Id.) Plaintiff challenges Defendant’s supplemental response to 6 interrogatory seven, stating that it only identifies IMS-GA’s 7 officers and directors from 1997-1999 and December 2013-January 8 2014. (Pl.’s Mot. Sanctions Attach. #1 Mem. P. & A. 11, ECF No. 9 79.) The Court directed IMS-GA to provide names of its officers 10 and directors for the last ten years or since incorporation, 11 whichever is shorter. 12 Jurisdictional Disc. 24, ECF No. 67.) (Order Granting & Den. Pl.’s Mot. Compel 13 Defendant’s supplemental response was as follows: 14 RESPONSE TO INTERROGATORY NO. 7: 15 During the time period of December 2013 through January 2014, Church Directors were as follows: 16 17 Angel Ojeida, Church Leader, 1035 Metropolitan Parkway, Atlanta, GA 30310 18 Niriam Chocoyo, Treasurer, 2433 Swanson Ct., Marieta, GA 30066 19 20 Tzvetan Petkov, 102 Virginia Circle, Cedartown, GA 30125 1998 (founding) 21 Henry Dering, President, 3741 Valerio Dr., Cameron Park, CA 95682; served 1997 – 1999 22 23 Branko Cholich, Vice President, 10238 Bellman Ave., Downey, CA 90241; served 1997 – 1999 24 Gretchen Schendel, Secretary, 8725 Cherrington Lane, Elk Grove, CA 95624; served 1997 – 1999 25 26 Ernestine Schendel, Treasurer, 10117 Sheldon Rd., Elk Grove, CA 95624; served 1997 – 1999 27 Lambert Hazelhoff, Board Member, 1700 Kisra Lane, Powhatan, VA 23139; served 1997 – 1999 28 18 13cv2741 BAS(RBB) 1 Antony Hernandez, Board Member, 3440 Steve Dr., Marietta, GA 33064 2 Idel Suarez, Jr., Board Member, 6515 Sheldon Road, Tampa, FL 33615; served 1997 – 1999 3 4 (Pl.’s Mot. Sanctions Attach. #3 Ex. 4, at 29-30, ECF No. 79.) 5 its opposition to Plaintiff’s Motion for Sanctions, Defendant IMS- 6 GA explains its interrogatory answer. 7 8 9 10 11 12 In A review of defendants’ response shows that defendants provided the names and addresses of 10 different board members from 1999 through 2014. Notice of Lodgment at 29–30. Again, the defendant churches have a total membership of fewer than 400 people, and they have responded with all of the information that they have in their possession. The fact that plaintiff wants more information than defendants possess does not entitle him to Rule 37 sanctions. To the extent defendants discover further material information, such information will be provided in a timely manner pursuant to Federal Rule of Civil Procedure 26(e). 13 14 15 (Defs.’ Opp’n Mot. Sanctions 17, ECF No. 82.) The supplemental response provided by IMS-GA does not clearly 16 show which individuals served as church directors during the 17 relevant time period. 18 December 2013, Defendant IMS-GA should have made that clear. 19 Alternatively, if there are no records or information to identify 20 the individuals who served in that capacity, that response should 21 have been provided. 22 2014 through the date of Defendant’s discovery response. 23 in its prior filings with the Court, Defendant stated that “[a]s of 24 March 14, 2013, Neptali Acevedo was an officer in IMS-AU-GA [ECF 25 15, ¶80], and as of March 7, 2013, a secretary in IMS-AU-GA [Ex. E, 26 Req. JN].” 27 Dismiss Attach. #1 Mem. P. & A. 19, ECF No. 34 (alteration in 28 original).) If there were no directors between 1999 and The same applies to the period from January Notably, (Defs. [IMS-TX, IMS-GA, IMS-Miami & IMS-FL’s] Mot. IMS-GA also identified Tzvetan Petkov and Evelyn 19 13cv2741 BAS(RBB) 1 Arevalo as officers in 2012 and 2013. 2 that its small size explains its inadequate corporate records is 3 belied by its February 10, 2014 representation that “the evidence 4 is that IMS-AU-TX, IMS-AU-GA, IMS MIAMI, and IMS-AU-FL have 5 observed corporate formalities.” 6 (Id.) Defendant’s argument (Id. at 10.) Defendant’s responses are insufficient to satisfy its 7 discovery obligations; it must make a reasonable effort to obtain 8 the records ordered produced. 9 276 OWW DLB, 2007 WL 1449723, *2 (E.D. Cal. May 15, 2007) (ordering See Kaur v. Alameida, No. CV F 05 10 defendants to conduct additional research for responsive documents 11 and reminding defendants and counsel “of their duty under Rule 34 12 to conduct a diligent search and reasonable inquiry in effort to 13 obtain responsive documents”); see also Lopez v. Florez, No. 14 1:08–cv–01975–LJO–JLT, 2013 WL 1151948, at *2 (E.D. Cal. Mar. 19, 15 2013) (“A responding party has an affirmative duty to reasonably 16 seek information requested under Rule 34(a) from its agents or 17 others under its control) (citing Hill v. Eddie Bauer, 242 F.R.D. 18 556, 560 (C.D. Cal. 2007)). 19 When answering interrogatories, the obligations are similar. 20 “Rule 33 imposes a duty on the responding party to secure all 21 information available to it.” 22 1012, 1032 (E.D. Cal. 2010). 23 a party has a duty to respond with all information under its 24 custody and control.” 25 Int’l, Inc., 224 F.R.D. 644, 651 (N.D. Cal. 2004). 26 an obligation to make a reasonable effort to locate all documents 27 and information necessary to fully respond to discovery.” 28 // Thomas v. Cate, 715 F. Supp. 2d “When responding to interrogatories, Fresenius Med. Care Holding, Inc. V. Baxter 20 “Parties have United 13cv2741 BAS(RBB) 1 States v. Reeves, No. 2:12–CV–01916–JAD–GWF, 2013 U.S. Dist. LEXIS 2 146671, at *2-3 (D. Nev. Oct. 3, 2013). 3 For the reasons outlined above, Defendant’s responses to the 4 discovery requests are incomplete, and IMS-GA has not established 5 that its deficient responses should be excused. 6 to obtain the responsive records and information, it should have 7 described its efforts to locate records and information, and the 8 results of those efforts. 9 5. If it was unable Interrogatories 5 and 7 to IMS-FL Plaintiff contends that IMS-FL failed to properly respond to 10 11 interrogatories asking that it identify the persons conducting 12 day-to-day activities (number five) and all officers and directors 13 for the past ten years or from the date of incorporation (number 14 seven). 15 79.) 16 the time period of December 2013 through January 2014, Ciro 17 Arevalo, President of the Southeastern Field, 10700 Harkwood Blvd., 18 Orlando, FL 32817 conducted day to day operations.” 19 #3 Ex. 6, at 42.) 20 extend to the date the response was given,” and promises to provide 21 “a further verified response.” 22 Defendant responded to interrogatory seven in a similar fashion, 23 only providing names of individuals serving on its board of 24 directors from December 2013 through January 2014. 25 argues that “defendants have responded with all of the 26 information that they have in their possession.” 27 clear whether Defendant contends that on May 8, 2014, the date the 28 supplemental response was given, it did not know the identities of (Pl.’s Mot. Sanctions Attach. #1 Mem. P. & A. 12, ECF No. IMS-FL’s response to interrogatory five states that “[d]uring (Id. Attach. Defendant concedes that its response “does not (Defs.’ Opp’n 18, ECF No. 82.) 21 (Id.) (Id.) IMS-FL It is not 13cv2741 BAS(RBB) 1 individuals that previously served as its directors. 2 Defendant does not assert that records prior to December 2013 do 3 not exist. 4 represented that “[a]s of January 14, 2013, [Henry] Dering was vice 5 president for IMS-AU-FL . . . .” 6 & IMS-FL’s] Mot. Dismiss Attach. #1 Mem. P. & A. 18, ECF No. 34.) 7 This statement is inconsistent with Defendant’s argument that it 8 has provided all the information available to it. 9 Likewise, Indeed, in an earlier submission to the Court, IMS-FL (Defs. [IMS-TX, IMS-GA, IMS-Miami IMS-FL’s responses do not satisfy its discovery obligations 10 under Rule 33. 11 information as ordered by the Court. 12 Court’s discovery order, and it has not provided a satisfactory 13 explanation for its failure to do so. 14 15 6. Defendant was required to produce all responsive It has not complied with this Request for production 5 to IMS-Miami Myhre’s request for production number five to Defendant IMS- 16 Miami sought profit and loss statements for the last five years. 17 Plaintiff alleges that Defendant provided only two years of 18 responsive documents, and the documents are in Spanish. (Pl.’s 19 Mot. Sanctions Attach. #1 Mem. P. & A. 13, ECF No. 79.) Defendant 20 argues that sanctions are not warranted “because defendants only 21 possessed two years of such documents when [Myhre] wanted more.” 22 (Defs.’ Opp’n 20, ECF No. 82.) 23 Defendant IMS-Miami was not required to provide Myhre with an 24 English translation of Spanish-language documents, and Plaintiff 25 has cited no authority imposing that requirement. 26 its production is incomplete. 27 what efforts IMS-Miami employed to obtain the requested documents. 28 As stated above, this is insufficient to satisfy its discovery Nevertheless, Defendant’s brief does not explain 22 13cv2741 BAS(RBB) 1 obligations under Rule 34. 2 produce all records for the time period ordered by the Court, or if 3 it was unable to do so, it should have described the efforts made 4 to locate the records and the results of those efforts. 5 6 7. Defendant IMS-Miami was required to Interrogatories 2, 5, and 7 to IMS-Miami In his motion to compel a supplemental response to 7 interrogatory number two to IMS-Miami, Myhre sought clarification 8 of the term “local” as used by Defendants in reference to churches 9 and the area they serve. (See Order Granting & Den. Pl.’s Mot. 10 Compel Jurisdictional Disc. 26, ECF No. 67.) 11 for sanctions, arguing that Defendant’s supplemental response is 12 substantially the same as its original response. 13 Sanctions Attach. #1 Mem. P. & A. 13, ECF No. 79.) 14 concedes that it failed to properly supplement its prior response, 15 and states that this was “an oversight and a further response will 16 be provided as soon as possible and prior to the hearing on this 17 motion.” 18 Plaintiff now moves (Pl.’s Mot. Defendant (Defs.’ Opp’n 20, ECF No. 82.) Interrogatories five and seven to IMS-Miami are identical to 19 those propounded to IMS-TX, IMS-GA, and IMS-FL, requesting 20 identification of the persons conducting day-to-day activities for 21 these churches, and the identification of all officers and 22 directors for the past ten years or from the date of incorporation. 23 (Pl.’s Mot. Sanctions Attach. #1 Mem. P. & A. 14, ECF No. 79.) 24 Plaintiff alleges that, similarly to other Defendants, IMS-Miami 25 provided responses limited to the time period of December 2013 26 through January 2014. 27 28 (Id. at 14-15.) IMS-Miami responded to interrogatory number five that “[d]uring the period of December 2013 through January 2014, 23 13cv2741 BAS(RBB) 1 Alejandro Pena Sr., 528 S W1 St. Apt 2, Miami, FL 33130, conducted 2 day to day operations.” 3 argues that to the extent the response needs to extend to the date 4 it was given, May 8, 2014, it will provide a further verified 5 response. (Id. Attach. #4 Ex. 8, at 10.) Defendant (Defs.’ Opp’n 21, ECF No. 82.) 6 In response to interrogatory seven, Defendant stated: 7 During the time period of December 2013 through January 2014, the Board of Directors were as follows: 8 Elsa Argueta, 1800 S.W. 9 Street, Miami, FL 33135 9 10 Elsa E. Tapia, 1800 SW 9 Street, Miami, FL 33135 Alejandro Pena, Sr., 528 SW 1st Street, Apt. 2, Miami, FL 33130 11 12 During the time period of December 2013 through January 2014, Church Directors were as follows: 13 Church Leader: 14 Secretary: 33135 Amanda Navedo, 501 SW 35 Ave, Miami, FL Treasurer: Alejandro Pena, Sr. Alejandro Pena, Sr. 15 16 17 (Pl.’s Mot. Sanctions Attach. #4 Ex. 8, at 10, ECF No. 79.) 18 Plaintiff contends that this response is incomplete because it is 19 limited to the names of church leaders from December 2013 through 20 January 2014, and does not extend back ten years or to the date of 21 IMS-Miami’s incorporation. 22 P. & A. 15, ECF No. 79.) 23 Defendant again states: 24 responsive information in their possession. 25 that what she will, but plaintiff is not entitled to sanctions when 26 defendants responded to the best of their ability with all of the 27 information at their disposal.” 28 ECF No. 82.) (Pl.’s Mot. Sanctions Attach. #1 Mem. In opposing the request for sanctions, “Defendants have provided all of the Plaintiff can make of (Defs.’ Opp’n Mot. Sanctions 21, 24 13cv2741 BAS(RBB) 1 The Defendant’s response is also contradicted by evidence it 2 submitted previously to the Court. IMS-Miami requested that the 3 Court take judicial notice of a “‘Detail by Entity Name’ from the 4 Florida Department of State website 5 (http://search.sunbiz.org/Inquiry/CorporationSearch) for IMS-Miami 6 as of January 15, 2014.” 7 IMS-FL’s] Mot. Dismiss Attach. #3 Re. Judicial Notice Ex. G, at 1- 8 2, ECF No. 34.) 9 section titled “Officer/Director Detail,” including Elsa Argueta, (See Defs. [IMS-TX, IMS-GA, IMS-Miami & The entry lists several individuals under the 10 Elsa Tapia, and Alejandro Pena. 11 were filed on March 1, 2011, April 3, 2012, and April 24, 2013, 12 which presumably identify the directors for those years. 13 21-22.) 14 not undertake reasonable efforts to answer this interrogatory. 15 16 It also shows that annual reports (Id. at The supplemental response demonstrates that IMS-Miami did 8. Requests for production 14 and 18 to IMS-NJ Plaintiff alleges that Defendant IMS-NJ did not adequately 17 respond to his request for production fourteen which sought “copies 18 of all Field-Union Officer Election, Secretarial Six-Month Report, 19 Quarterly Church Missionary Report, and Church Membership List 20 reports prepared by, submitted to, or copied to, Responding Party 21 from 2008 to the present.” 22 P. & A. 15, ECF No. 79.) 23 Church Membership List reports dating only through December 2010, 24 and Secretarial Six-Month Reports only through June 2011. 25 Defendant’s response stated: 26 reports have been kept since 2011.” 27 ECF No. 79.) 28 other documents produced earlier, namely the minutes of the (Pl.’s Mot. Sanctions Attach. #1 Mem. Myhre contends that IMS-NJ submitted (Id.) “Please note that none of these (Id. Attach. #4 Ex. 9, at 17, Plaintiff argues that this statement “is belied by 25 13cv2741 BAS(RBB) 1 American Union delegates meeting in August 2013, wherein the 2 American Union Secretary provided a report including the precise 3 membership numbers.” 4 15, ECF No. 79.) 5 (Pl.’s Mot. Sanctions Attach. #1 Mem. P. & A. In opposition, IMS-NJ claims that it provided all membership 6 lists within its possession, custody, and control. 7 maintains that no written reports after 2011 exist and explains 8 that the report regarding membership at the 2013 American Union 9 delegates meeting was made orally. 10 Defendant (Defs.’ Opp’n Mot. Sanctions 21-22, ECF No. 82.) 11 Lastly, Plaintiff challenges Defendant’s supplemental response 12 to his request for documents identifying real property in 13 California in which IMS-NJ held a beneficial interest at any time 14 in the past ten years (request eighteen). (Pl.’s Mot. Sanctions 15 Attach. #1 Mem. P. & A. 15, ECF No. 79.) Myhre contends that IMS- 16 NJ failed to provide documents regarding property owned by the 17 church in Huntington Park, California. 18 that it provided all documents in its possession, custody, and 19 control, including for properties located in Sacramento, Elk Grove, 20 and Riverside. 21 that it made a good faith effort “to locate responsive documents 22 for the Huntington Park address that plaintiff has pointed out, but 23 could not locate them[,]” but the documents have since been located 24 and are attached to the opposition papers. 25 should not be sanctioned because its response was “complete and 26 accurate with the information [Defendant] possessed at the time of 27 the response.” 28 // (Id. at 16.) (Defs.’ Opp’n 22, ECF No. 82.) 26 IMS-NJ argues Defendant claims (Id.) IMS-NJ argues it 13cv2741 BAS(RBB) 1 In opposing Myhre’s earlier motion to compel discovery, 2 Defendant IMS-NJ argued that the Court should deny Plaintiff’s 3 request for documents because the real property locations are 4 equally available to Myhre through searches of public records or 5 the church’s website. 6 58.) 7 to comply with the Court’s order because it “made a good faith 8 effort to locate” responsive documents. 9 Sanctions 22, ECF No. 82.) (See Defs.’ Opp’n Mot. Compel 16, ECF No. Defendant now claims it should not be sanctioned for failing (Defs.’ Opp’n Mot. The evidence of IMS-NJ’s good faith 10 efforts is one conclusory paragraph in a declaration of its 11 Secretary, Margie Seely. 12 13 14 15 I also made a good faith effort to locate documents responsive to Request 18 to IMS-New Jersey, including in relation to the Huntington Park, California address mentioned in plaintiff’s motion. At first, I was unable to locate responsive documents. However, we ultimately located one such document, and we understand that this will be provided to plaintiff as soon as possible (if it has not already been provided). 16 17 (Id. Attach. #2 Decl. Seely 6.) 18 explain what actions she undertook to search for the real 19 properties owned by IMS-NJ in California, for example, what she had 20 to do to ultimately locate the Huntington Park documents and why 21 those actions were not undertaken sooner. Seely’s declaration does not 22 C. Attorney’s Fees Sanction 23 Rule 37(b)(2) of the Federal Rules of Civil Procedure states 24 that if a party fails to obey an order to provide or permit 25 discovery, the court may issue further orders, which may include 26 the imposition of sanctions upon the disobedient party. 27 Civ. P. 37(b)(2)(A). 28 to the Federal Rules of Civil Procedure 37(b)(2)(c), which requires Fed. R. The Court may assess attorney's fees pursuant 27 13cv2741 BAS(RBB) 1 the disobedient party to pay reasonable attorney's fees caused by 2 its failure to comply unless the failure was substantially 3 justified or other circumstances make an award of expenses unjust. 4 The party seeking the award of fees must submit evidence to support 5 the number of hours worked and the rates claimed. 6 Guarantee Mut. Life Co., 214 F.3d 1041, 1045 (9th Cir. 2000). 7 Van Gerwen v. Here, Plaintiff originally sought $3,960.00 in attorney’s fees 8 for preparation of the Motion for Sanctions; Myhre’s counsel 9 anticipated incurring additional fees to review and reply to the 10 Defendants’ opposition. 11 A. 23, ECF No. 79.) 12 counsel details the time and expenses incurred. 13 “approximately 6.1 hours in reviewing Defendants’ supplemental 14 discovery responses and identifying areas of non-compliance, 15 seeking to obtain resolution of this matter by way of belated 16 compliance, entry into a stipulation of facts, or other 17 resolution,” and additional 8.3 hours to draft the Motion for 18 Sanctions. 19 No. 79.) 20 represents that her hourly rate of $275 is equal to, if not less 21 than, the rate of similarly qualified attorneys in the Southern 22 District of California. 23 reasonable in light of counsel’s experience and qualifications. 24 (Pl.’s Mot. Sanctions Attach. #1 Mem. P. & The declaration submitted by Plaintiff’s Counsel spent (Pl.’s Mot. Sanctions Attach. #2 Decl. Kramer 3-4, ECF Kramer has twenty years of trial experience and (Id. at 4.) Her rate and fees are After Defendants opposed the Motion for Sanctions, Plaintiff 25 submitted a declaration from his counsel stating that Kramer spent 26 an additional 8.5 hours reviewing and responding to Defendants’ 27 filing. 28 counsel states that she spent a total of 22.9 hours in connection (Pl.’s Reply Attach. #1 Decl. 5, ECF No. 84.) 28 Plaintiff’s 13cv2741 BAS(RBB) 1 with Plaintiff’s Rule 37 motion. 2 award of $6,297.50 in attorney’s fees from Defendants for their 3 failure to sufficiently comply with the Court’s jurisdictional 4 discovery order. 5 (Id.) Myhre currently seeks an Defendants argue they made a good faith effort to comply with 6 the Court’s discovery order. (Defs.’ Opp’n 7, ECF No. 82.) A 7 finding of good faith may be a consideration in determining whether 8 the imposition of sanctions would be unjust. 9 Baker, 24 F.3d 1162, 1171 (9th Cir. 1991). Hyde & Drath v. “[D]isobedient conduct 10 not shown to be outside the control of the litigant is all that is 11 required to demonstrate willfulness, bad faith, or fault.” 12 1167; Fjelstad v. Am. Honda Motor Co., Inc., 762 F.2d 1334, 1341 13 (9th Cir. 1985). 14 sanctions may be imposed even for negligent failures to provide 15 discovery. 16 F.2d 1420, 1427 (9th Cir. 1985); Marquis v. Chrysler Corp., 577 17 F.2d 624, 642 (9th Cir. 1978). 18 of sanctions has the burden of establishing substantial 19 justification for its actions or special circumstances. 20 Drath v. Baker, 24 F.3d at 1171. 21 Id. at Moreover, the Ninth Circuit has held that See Fjelstad, 762 F.2d at 1343; Lew v. Kona Hosp., 754 The party opposing the imposition Defendants have not met their burden. Hyde & First, despite 22 receiving notice from Plaintiff of the insufficient discovery 23 responses on May 9, 2014, counsel did not call Plaintiff’s counsel 24 to resolve the issues until May 16, 2014. 25 Sanctions Attach. #2 Decl. Kramer 3, ECF NO. 79.) 26 acknowledging multiple deficiencies in the supplemental responses, 27 Defendants do not offer a coherent and credible explanation for 28 majority of the omissions. (See Pl.’s Mot. Second, although Instead, they assert the records either 29 13cv2741 BAS(RBB) 1 do not exist, or are outside of Defendants’ control. But when 2 opposing Plaintiff’s Motion to Compel [ECF No. 42], Defendants 3 never argued that these records existed. 4 Defendants also sought a protective order against production of the 5 documents they currently contend never existed. 6 Sanctions Attach. #1 Mem. P. & A. 18, ECF No. 79.) 7 assertion that obtaining documents is difficult because they are 8 small corporations with limited resources is not persuasive. 9 Plaintiff’s request involves basic corporate records. Plaintiff points out that (Pl.’s Mot. Defendants’ Plaintiff 10 notes that in opposing the Motion for Sanctions, Defendants 11 submitted declarations from Mr. Petkov and Ms. Seely, two current 12 officers of four Defendants, who presumably had the duty to observe 13 corporate formalities and maintain records. 14 No. 84.) 15 comply with the deadline for production, they should have sought an 16 extension. 17 substantially justified or that other circumstances make an award 18 of attorney’s fees unjust. 19 (Pl.’s Reply 6-7, ECF Moreover, to the extent Defendants required more time to Defendants have not shown that their noncompliance was As a result of Defendants’ refusal to provide discovery, 20 Plaintiff was forced to file two motions. The initial motion to 21 compel was filed on March 5, 2014. 22 Compel Jurisdictional Disc. 1, ECF No. 67.) 23 Plaintiff’s motion was granted, and Defendants were directed to 24 provide or supplement their discovery responses by May 8, 2014. 25 (Id. at 33.) 26 for sanctions on May 16, 2014. 27 opposition to the motion for sanctions, May 30, 2014, Defendants 28 still had not complied with the Court’s April 17, 2014 discovery (See Order Granting & Den. Mot. For the most part, When they failed to do so, Myhre filed this motion Even at the time of their 30 13cv2741 BAS(RBB) 1 order. 2 bringing Plaintiff’s motion for sanctions for Defendants’ failure 3 to comply with the Court’s order is an appropriate compensatory 4 sanction. 5 (11 Cir. 1993) (affirming award of sanctions where plaintiff 6 brought a successful motion to compel and “then a motion for 7 sanctions when [Defendant] failed to comply with the court order 8 granting the motion to compel[]”). 9 Under these circumstances, the attorney’s fees incurred in D. 10 See Devaney v. Cont’l Am. Ins. Co., 989 F.2d 1154, 1163 Resolving Disputed Issues as a Sanction Myhre seeks evidentiary sanctions in connection with 11 Defendants’ noncompliance with the Court’s discovery order. 12 Plaintiff argues that the disputed issues of citizenship for 13 purposes of diversity jurisdiction, as well as Defendants’ contacts 14 with the Southern District for purposes of venue, should be 15 resolved in Plaintiff’s favor. (Pl.’s Mot. Sanctions Attach. #1 16 Mem. P. & A. 21, ECF No. 79.) Myhre also requests that the Court 17 rule “that these Defendants failed to observe corporate formalities 18 and these five Defendants are alter egos of each other.” 19 22.) 20 available, but wouldn’t be appropriate.” (Id. at Plaintiff argues that “less drastic sanctions . . . may be (Id. at 19.) 21 The requested sanctions against these Defendants are severe. 22 The Court will evaluate the Plaintiff’s request as analogous to a 23 motion seeking dismissal under Rule 37(b)(2) for noncompliance with 24 a discovery order. 25 factors: 26 litigation; (2) the court's need to manage its docket; (3) the risk 27 of prejudice to [the party seeking sanctions]; (4) the public 28 policy favoring disposition of cases on their merits; and (5) the In that context, the Court considers five “(1) the public's interest in expeditious resolution of 31 13cv2741 BAS(RBB) 1 availability of less drastic sanctions.” 2 Int'l Interlink, 284 F.3d 1007, 1022 (9th Cir. 2002); see Computer 3 Task Group, Inc. v. Brotby, 364 F.3d 1112, 1115 (9th Cir. 2004). 4 Rio Props., Inc. v. Rio The Court finds that the requested issue sanctions are not 5 appropriate at this time. Venue and Defendants’ citizenship are 6 currently the subject of Defendants’ Rule 12 motions pending before 7 Judge Bashant. 8 inconsistent assertions to the Court. 9 favoring disposition on the merits weighs against the exclusion of Plaintiff will be able to argue Defendants’ Additionally, the policy 10 evidence, especially when the imposition of monetary sanctions is 11 available. 12 resolved in his favor is premature. Accordingly, Myhre’s request that disputed issues be 13 IV. CONCLUSION 14 For the reasons stated above, the Court GRANTS in part and 15 DENIES in part Plaintiff’s Motion for Sanctions [ECF No. 79]. 16 Court GRANTS Myhre’s request for reasonable attorney’s fees in the 17 amount of $6,297.50 incurred in pursuing this motion. 18 sanctions are assessed against Defendants IMS-TX, IMS-GA, IMS-FL, 19 IMS-Miami, and IMS-NJ, severally. 20 pay to Plaintiff $1,259.50 on or before August 15, 2014. 21 DENIES Plaintiff’s request for other sanctions. 22 23 The Each of these Defendants shall The Court IT IS SO ORDERED. Dated: July 1, 2014 ______________________________ Ruben B. Brooks United States Magistrate Judge 24 25 The cc: Judge Bashant All Parties of Record 26 27 28 32 I:\Chambers Brooks\CASES\MYHRE2741\Order re Motion for Sanctions 3.wpd 13cv2741 BAS(RBB)

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