Hussein v. ERSEK et al, No. 3:2007cv00056 - Document 167 (D. Nev. 2010)
Court Description: ORDER denying 127 plaintiff's Motion for Sanctions re Discovery. Signed by Magistrate Judge Valerie P. Cooke on 1/8/10. (Copies have been distributed pursuant to the NEF - DN)
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Hussein v. ERSEK et al Doc. 167 1 2 3 4 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 5 6 7 8 9 10 HUSSEIN S. HUSSEIN, ) ) Plaintiff, ) ) vs. ) ) ADEL ERSEK, et al., ) ) Defendants. ) ____________________________________) 3:07-CV-0056-LRH (VPC) ORDER 11 Plaintiff filed a document styled as “emergency motion for an order reviewing defense counsel’s 12 conduct, for sanctions, for setting an evidentiary hearing to identify ghost writers participating in the 13 fraudulent and/or improper conduct in this case, and for allowing plaintiff to complete his discovery by 14 re-deposing the defendants in person and the witnesses under complete supervision of this court after 15 compelling the production of documents and the responses to the subpoenas and the written discovery 16 sought by plaintiff from defendants, the University of Nevada, Reno, and Sierra Biomedical Research 17 Corporation” (#127). This court stayed further briefing of plaintiff’s motion until further order of this 18 court (#131) pursuant to Local Rule IA 3-1. The court has reviewed plaintiff’s motion and enters this 19 order without further briefing, 20 I. Procedural History 21 On February 2, 2007, plaintiff filed his complaint (#1), which he amended on May 14, 2007 (#6). 22 The court approved the first discovery plan and scheduling order in this action on June 14, 2007, six 23 months after the filing of the original complaint, and the discovery cutoff was December 6, 2007 (#12). 24 The court granted plaintiff an extension of time to serve defendant Laslo under the Hague Convention 25 on June 29, 2007 (#13), and thereafter granted an extension of the discovery plan and scheduling order, 26 which required discovery to be completed by February 6, 2008, over one year after the filing of the 27 original complaint (#18). 28 Dockets.Justia.com 1 On February 26, 2008, this court granted a second extension of the discovery plan and scheduling 2 order, which required discovery to be completed by April 7, 2008 (#37). On March 25, 2008, the court 3 held a hearing and granted defendants’ motion for protective order to prohibit depositions of the named 4 defendants in this case until the District Court decided the dispositive motions pending in Hussein 1 and 5 2 (#40). The court agreed with defendants that the outcome of those motions might dispose of or limit 6 additional discovery in this action and stayed discovery pending the outcome of the Hussein 1 and 2 7 dispositive motions. Id. Counsel were ordered to file a notice with this court within ten days of the 8 issuance of the District Court’s order in Hussein 1 and 2 so that a case management conference could 9 be scheduled. Id. 10 Although the District Court in Hussein 1 and 2 initially denied defendants’ motions for summary 11 judgment, the court vacated that order for the limited purpose of reconsidering certain issues, and set a 12 briefing schedule to be complete completed by May 16, 2008 (#43). On June 12, 2008, the District 13 Court granted summary judgment to defendants as to all claims and as to all defendants in Hussein 1 and 14 2 (#45). Defendants acknowledged that apart from initial disclosures, no discovery had been conducted 15 in this action, and further advised of their intention to file a dispositive motion in this action based in 16 part on the ruling in Hussein 1 and 2. Id. 17 On July 7, 2008, this court held a case management conference in this action and directed 18 defendants to file their dispositive motion no later than August 1, 2008 (#48). The parties were ordered 19 to meet and confer during the week of August 3, 2008 to determine what discovery was necessary in this 20 action and to then file a stipulation regarding that discovery no later than August 8, 2008. The court 21 stayed discovery with the exception of its direction to counsel to meet, confer, and propose a discovery 22 schedule. Id. 23 On August 1, 2008, defendants filed a motion for judgment on the pleadings; thereafter, the 24 parties submitted a stipulation to stay discovery until disposition of this motion, which the court 25 approved (#54). The court also ordered the parties to file a status report within fifteen days of the 26 decision on the dispositive motion concerning a discovery plan. Id. On March 6, 2009, the District 27 Court issued its order granting in part and denying in part defendants’ motion for judgment on the 28 2 1 pleadings (#68). On April 1, 2009, this court issued its order providing that discovery would close by 2 September 2, 2009, with dispositive motions due October 2, 2009, and stated that no further extensions 3 would be granted (#70). 4 Several weeks later, the parties submitted a stipulation to extend discovery on the ground that 5 defendants’ counsel, Mr. Hilsabeck, had been seriously injured in a motorcycle accident (#72). On June 6 8, 2009, the court held a hearing and reviewed with counsel in detail the chronology of this case and the 7 court’s concern that discovery must be completed so the case could proceed. Counsel for the parties 8 represented to the court that the facts of this case had largely been covered in Hussein 1 and 2, but that 9 depositions of defendants Laslo and Ersek needed to be taken (#74). These defendants reside in 10 Romania and England; therefore, the court directed defendants’ counsel to arrange these depositions 11 immediately. Id. The court entered a final order regarding discovery and a deadline of November 2, 12 2009, with dispositive motions due on December 2, 2009. Id. As of June 8, 2009, this case had been 13 pending for well over two years. 14 In July 2009, only weeks after the court set these final scheduling deadlines, plaintiff’s counsel 15 sought to withdraw. A flurry of motions and notices followed, which culminated in a September 15, 16 2009 hearing (#96). The court granted plaintiff’s counsel’s motion to withdraw and granted defendants’ 17 motion for protective order. Id. The court ordered that plaintiff’s deposition would proceed as noticed 18 on September 16, 2009, and that the telephonic depositions of defendants Ersek and Laslo would 19 proceed as scheduled on September 17, and 18, 2009. The court further ordered plaintiff and 20 defendants’ counsel to meet and confer to discuss discovery to be completed by November 2, 2009, and 21 set a case management hearing for October 2009. Id. 22 23 24 The court also advised defendants’ counsel and plaintiff as follows: The Court reminds plaintiff that even though he is representing himself in this action in pro se, he is subject to Rule 11 of the Federal Rules of Civil Procedure and also subject to the Court’s inherent power to sanction misconduct by parties or attorneys who appear before the Court. 25 27 The parties are noticed that this Court will not tolerate litigation tactics that include the following: bad faith, filing vexatious pleadings; abuse of the judicial process; tactics that are designed to delay or disrupt litigation; tactics that are engaged in for an improper purpose, such as to harass; and 28 3 26 1 tactics or papers that may misrepresent statements of law or fact. The Court advises the plaintiff it is not interested in this Court becoming a venue for anything but the efficient management of this case. 2 3 The parties are further advised that if the Court determines that either party is engaging in conduct in violation of Rule 11 or is sanctionable, the Court will put an immediate stop to such conduct and implement a protocol which will allow the opposing side to file an immediate paper requesting an emergency hearing for a status conference to determine whether such conduct or such filing is sanctionable under Rule 11, is filed for an improper purpose, or has already been litigated to determine if such paper shall be stricken, or the Court may use its inherent power to impose sanctions. 4 5 6 7 8 Subsequently, plaintiff was given leave to re-depose defendants Ersek and Laslo under court 9 supervision, which he did (##s 132 & 133). Defendants’ counsel also provided plaintiff with a notice 10 of availability of depositions for twelve additional witnesses (#104). Discovery concluded, and 11 defendants filed a motion for summary judgment on December 2, 2009 (#144). 12 II. 13 By his motion, plaintiff generally seeks sanctions against defendants’ counsel and also asks the 14 court to re-open discovery. Since the filing of the motion in October 2009, the court allowed plaintiff 15 to re-depose defendants Ersek and Laslo under this court’s supervision, and the court also ruled on other 16 discovery requests, which render those matters moot. 17 18 19 Discussion and Analysis Turning to the matter of sanctions, plaintiff asks this court to issue sanctions based on eight categories of conduct. A. Improper Discovery 20 Plaintiff contends that defendants’ counsel posed improper questions at plaintiff’s deposition and 21 in written discovery requests. The record before the court indicates that plaintiff refused to answer 22 deposition question he found improper, and he also responded with objections to written discovery, 23 which he characterizes as abusive. Defendants did not move to compel plaintiff to answer deposition 24 questions, nor did they ask the court to overrule plaintiff’s written objections. In other words, plaintiff 25 objected to certain discovery and that was the end of it. While parties to litigation often resist discovery 26 on the grounds that it is improper or abusive, if the requesting party accepts those responses and does 27 28 4 1 not pursue the matter further, the dispute is over, and the court’s intervention is not required. Frustration 2 over questions to which a party objects, standing alone, is no basis for sanctions. 3 B. Telephonic Depositions 4 Plaintiff objects to the telephonic depositions of defendants Ersek and Laslo, who reside in 5 England and Romania, respectively, because he could not observe their demeanors, had difficulty 6 questioning them about exhibits, and so on. The court has three observations. First, at the March 25, 7 2008 case management conference, plaintiff’s former counsel acknowledged that if plaintiff wished to 8 depose the defendants in person, he would have to bear that cost, and he recognized that defendants’ 9 telephonic or video depositions made economic sense. Second, at the June 8, 2009, hearing when 10 defendants sought a final extension of discovery due to Mr. Hilsabeck’s injuries, the court admonished 11 defendants’ counsel to immediately begin making arrangements for these two depositions. If plaintiff 12 wished to depose the defendants in England and Romania, or to videotape the depositions, he could have 13 made those arrangements. Finally, plaintiff was given leave to re-depose the defendants under court 14 supervision on November 3, 2009, in response to his claim that defendants’ counsel coached the 15 defendants and that he did not have adequate time to question them. 16 C. Witness Coaching 17 Plaintiff asserts that defendants’ counsel “coached” the defendants and other witnesses, which 18 rendered their deposition testimony a waste of time. According to plaintiff, statements by defendants’ 19 counsel such as, “Go ahead and answer if you know,” or “Go ahead and answer if you remember,” are 20 improper. In addition, witnesses testified they could not answer questions with the document at issue 21 before them. What plaintiff describes is not atypical or sanctionable conduct. An attorney can so advise 22 a client or a witness along these lines, and if this conduct rises to a level the questioner considers an 23 abusive or unfair, the court can be contacted or the deposition can be halted to allow the aggrieved party 24 to seek relief from the court. Plaintiff did not do so. 25 /// 26 /// 27 /// 28 5 1 D. Manufacturing Evidence 2 Plaintiff makes the very serious allegation that defendants’ counsel prepared false affidavits of 3 various witnesses, and offers citations to plaintiff’s papers filed in this and other Hussein cases as proof. 4 The offer of proof is insufficient and the claim is meritless. 5 E. False Objections to Conceal Evidence 6 Plaintiff accuses defendants’ counsel of making false assertions that plaintiff addressed with 7 evidence in plaintiff’s papers. Plaintiff does not tell the court what the allegedly false assertions are, and 8 it is not the court’s responsibility to sift through thousands of pages of papers to ferret out plaintiff’s 9 complaint. 10 F. Lies about the Pending Claims in the Case 11 Plaintiff’s position is that some or all of his claims are still pending, notwithstanding the District 12 Court’s order granting in part and denying in part defendants’ motion for judgment on the pleadings 13 (#68). Defendants’ view is that the only claims that survived the District Court’s order are plaintiff’s 14 defamation claims. Plaintiff considers defendants’ adherence to this view to be sanctionable. The court 15 disagrees. Parties to litigation may disagree about the meaning of an order, and their recourse is simple: 16 seek clarification from the court who issued the order. 17 G. Buying Witnesses 18 Next, plaintiff contends that defendants’ counsel has bought witnesses and asks to submit in 19 camera this conduct. The court does not find this accusation credible on its face and will not allow the 20 court to be manipulated to allow plaintiff to continue this attack on those he considers his adversaries. 21 22 H. Misuse of Court’s Order As noted earlier, this court admonished counsel and plaintiff on September 15, 2009 that 23 it would not tolerate abusive litigation tactics (#96). Plaintiff accuses defendants’ counsel of misusing 24 the court’s order to cast plaintiff in an unfavorable light with another District Court. The court not only 25 does not find reference to its order sanctionable; it is patently clear to this court that plaintiff ignored this 26 court’s admonition through the filing of numerous motions that are vexatious, an abuse of the judicial 27 process, designed to delay or disrupt litigation, and intended for an improper purpose, such as to harass 28 6 1 the opposing party. This is precisely what plaintiff has done since he commenced representing himself 2 in pro se. 3 III. 4 Having reviewed plaintiff’s motion, the court finds there is no basis under the law or the facts 5 to support his claims that defendants’ counsel engaged in sanctionable conduct. It is evident that 6 plaintiff ignored the court’s admonition at the September 15, 2009 hearing. The court stayed briefing 7 on this motion because it is also evident that plaintiff continues to file frivolous motions for an improper 8 purpose; that is, to vex and harass defendants and needlessly multiply these proceedings. The court will 9 not be a party to such tactics. Conclusion 10 Plaintiff’s motion for sanctions (#127) is DENIED. 11 IT IS SO ORDERED. 12 Dated this 8th day of January, 2010. 13 14 _________________________________________ UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7
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