Salinas v. Istar Blues, LLC et al, No. 3:2015cv02456 - Document 46 (S.D. Cal. 2016)
Court Description: ORDER granting in part and denying in part 36 Motion to Compel Deposition of Defendants Istar Blues, LLC And Live Nation Entertainment, Inc.; Denying Defendants' Request for Sanctions. This Defendant shall submit to a deposition no later than December 9, 2016. Signed by Magistrate Judge Ruben B. Brooks on 11/9/2016. (dxj)
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Salinas v. Istar Blues, LLC et al Doc. 46 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Case No.: 15cv2456-AJB (RBB) GILBERT SALINAS, 12 13 14 15 16 17 18 ORDER GRANTING IN PART AND DENYING IN PART MOTION TO COMPEL DEPOSITION OF DEFENDANTS ISTAR BLUES, LLC AND LIVE NATION ENTERTAINMENT, INC. [ECF NO. 36]; DENYING DEFENDANTS’ REQUEST FOR SANCTIONS Plaintiff, v. ISTAR BLUES, LLC, a Delaware Limited Liability Company; LIVE NATION ENTERTAINMENT, INC., a Delaware corporation; and DOES 1-10, Defendants. 19 20 21 22 23 24 25 26 27 28 On August 19, 2016, Plaintiff Gilbert Salinas filed a “Motion to Compel Deposition of Defendants Istar Blues, LLC and Live Nation Entertainment, Inc.” (the “Motion to Compel”) with a supporting memorandum of points and authorities, a declaration of Isabel Rose Masanque, and several exhibits [ECF No. 36]. Defendants Istar Blues, LLC and Live Nation Entertainment, Inc. filed an “Opposition to Plaintiff’s Motion to Compel Defendants’ Depositions” (the “Opposition”) on September 7, 2016, with a declaration of Michael J. Chilleen [ECF No. 40]. There, they request that sanctions be assessed against Salinas. (Opp’n 4, ECF No. 40.) On September 14, 2016, Plaintiff filed a Reply with a declaration of Isabel Rose Masanque and three exhibits 1 15cv2456-AJB (RBB) Dockets.Justia.com 1 [ECF No. 41]. For the reasons discussed below, Salinas’s Motion to Compel is 2 GRANTED in part and DENIED in part, and Defendants’ request for sanctions is 3 DENIED. 4 I. FACTUAL BACKGROUND 5 Plaintiff filed his lawsuit against Defendants on October 30, 2015. (Compl. 1, ECF 6 No. 1.)1 In his Amended Complaint, Salinas asserts claims against Defendants for 7 violations of the Americans with Disabilities Act and the Unruh Civil Rights Act. (Am. 8 Compl. 17-24, ECF No. 19.) Plaintiff is an individual with physical disabilities, and he 9 uses a wheelchair for mobility. (Id. at 1.) He contends that Istar Blues, who owns the 10 Sleep Train Amphitheater, and Live Nation, a business owner and lessee of the 11 Amphitheater, hosted a concert that he attended on October 3, 2015. (Id. at 1-2, 3.) 12 Salinas alleges that the elevator next to the section of the Amphitheater where he was 13 seated is not independently operable by persons with disabilities and requires the 14 assistance of a staff member. (Id. at 5.) As a result, while attempting to leave the 15 Amphitheater on the night of the concert, Plaintiff was forced to wait over fifteen minutes 16 before being able to use the elevator, which was the only accessible way for him to leave. 17 (Id. at 4, 6.) Because he had to wait for this period of time, Salinas urinated on himself. 18 (Id.) Plaintiff additionally indicates that the Amphitheater lacks adequate wheelchair 19 accessible seating areas, as well as accessibility issues with the gates, ramps, handrails, 20 and restrooms. (Id. at 3-4, 7-17.) He seeks injunctive relief, damages, and attorney’s 21 fees. (Id. at 24.) 22 II. PROCEDURAL BACKGROUND 23 Defendants answered Salinas’s Complaint on November 24, 2015 [ECF No. 5]. 24 After being given leave to amend, Plaintiff filed an Amended Complaint on May 10, 25 2016 [ECF No. 19], and Defendants filed an answer to this pleading on May 19, 2016 26 27 28 1 The Court will cite to documents as paginated on the electronic case filing system. 2 15cv2456-AJB (RBB) 1 [ECF No. 20]. Salinas served Defendants with notices of deposition on February 22, 2 2016. (Mot. Compel Attach. #2 Decl. Masanque 1, ECF No. 36.) Defendants objected, 3 and Plaintiff served amended notices of deposition on April 19, 2016. (Id. at 2.) After 4 another round of objections, Salinas served second amended notices of deposition on July 5 1, 2016. (Id. at 2.) Istar Blues and Live Nation filed a Motion to Compel Arbitration on 6 July 20, 2016, and the Defendants objected to the second amended notices the following 7 day. (Id.) Meet-and-confer efforts between the parties were unsuccessful, with 8 Defendants maintaining that depositions were not appropriate while the Motion to 9 Compel Arbitration was pending. (Id. at 2-3.) Plaintiff filed the Motion to Compel on 10 August 19, 2016. (Mot. Compel 1, ECF No. 36.) 11 On October 12, 2016, United States District Court Judge Anthony J. Battaglia 12 issued an Order Granting in Part and Denying in Part Defendants’ Motion to Compel 13 Arbitration and Denying Defendants’ Motion to Enforce Settlement [ECF No. 44]. The 14 Motion to Compel Arbitration was granted as to Live Nation, and the action was stayed 15 against that Defendant pending arbitration. (Order Granting in Part & Den. in Part Defs.’ 16 Mot. Compel Arbitration 17, ECF No. 44.) Judge Battaglia denied the Motion to Compel 17 Arbitration as to Istar Blues. (Id.) 18 19 III. LEGAL STANDARD Under Federal Rule of Civil Procedure 30(a)(1), “[a] party may, by oral questions, 20 depose any person, including a party, without leave of court except as provided in Rule 21 30(a)(2).” Fed. R. Civ. P. 30(a)(1). But “[w]here an action has been stayed pending 22 arbitration, a district court may not permit the parties to conduct discovery under the 23 Federal Rules of Civil Procedure.” Corpman v. Prudential-Bache Sec., Inc., 907 F.2d 29, 24 31 (3d Cir. 1990); see also Suarez-Valdez v. Shearson Lehman/Am. Express, Inc., 858 25 F.2d 648, 649 (11th Cir. 1988) (footnote omitted) (“The district court erred in refusing to 26 stay discovery. An agreement to arbitrate is an agreement to proceed under arbitration 27 and not under court rules.”); Advanced Tech. Assocs., Inc. v. Seligman, No. Civ. A. 97– 28 2374–GTV, 1997 WL 756604, at *5 (D. Kan. Nov. 18, 1997) (internal citations omitted) 3 15cv2456-AJB (RBB) 1 (“The majority of case law on this subject holds that all discovery should be suspended 2 where litigation has been stayed pending arbitration. To allow discovery to proceed 3 would interfere with the arbitration process.”); Schacht v. Hartford Fire Ins. Co., No. 91 4 C 2228, 1991 WL 247644, at *4 (N.D. Ill. Nov. 6, 1991) (same). 5 6 IV. DISCUSSION A. Deposition of Live Nation 7 In the Motion to Compel, Salinas makes several arguments why Live Nation 8 should be compelled to attend a deposition. (See Mot. Compel Attach. #1 Mem. P. & A. 9 4-5, ECF No. 36.) As discussed above, however, Judge Battaglia has granted the Motion 10 to Compel Arbitration as to Live Nation, and the action is stayed against this Defendant. 11 (Order 17, ECF No. 44.) Because of this ruling, the Court cannot order Live Nation to 12 submit to a deposition or participate in any discovery. See Corpman, 907 F.2d at 31. 13 Accordingly, Plaintiff’s Motion to Compel as to the request that Live Nation be 14 compelled to attend a deposition is DENIED. See Visa USA, Inc. v. Maritz Inc., No. C 15 07-05585 JSW, 2008 WL 744832, at *6 (N.D. Cal. Mar. 18, 2008) (“[B]ecause the Court 16 has determined that arbitration is the correct forum to resolve arbitrability, the Court finds 17 that Maritz’s request for additional discovery is improper and DENIES it as well.”). 18 B. 19 Deposition of Istar Blues As with Live Nation, Salinas’s arguments in the Motion to Compel concern this 20 Defendant’s refusal to be deposed before the Motion to Compel Arbitration has been 21 ruled on. (See Mot. Compel Attach. #1 Mem. P. & A. 4-5, ECF No. 36.) In the 22 Opposition, Istar Blues contends that “the Court should stay discovery until Defendants’ 23 motion to stay and compel arbitration is resolved.” (Opp’n 2, ECF No. 40.) This 24 Defendant asserts that under the Federal Arbitration Act, discovery obligations are stayed 25 when there is a pending motion to compel arbitration. (Id.) Istar Blues additionally notes 26 that “courts routinely deny motions to compel and stay merits discovery until the issue of 27 arbitration has been resolved.” (Id. at 3 (citations omitted).) In the Reply, Plaintiff 28 complains that Istar Blues did not seek a separate stay of discovery, distinguishing the 4 15cv2456-AJB (RBB) 1 case law cited by the Defendant in the Opposition. (Reply 2-3, ECF No. 41 (citations 2 omitted).) Salinas further disputes the appropriateness of a stay. (Id. at 3-5.) 3 Istar Blues’s entire argument for refusing to submit to a deposition rests on the 4 inappropriateness of discovery when a motion to compel arbitration is pending. But as 5 mentioned above, Judge Battaglia denied the Motion to Compel Arbitration as to Istar 6 Blues. (Order Granting in Part & Den. in Part Defs.’ Mot. Compel Arbitration 17, ECF 7 No. 44.) This Defendant has provided the Court with no other reason why it should not 8 be compelled to attend a deposition, and its arguments are now moot. As a result, 9 Plaintiff’s Motion to Compel as to the request that Istar Blues be compelled to attend a 10 deposition is GRANTED. This Defendant shall submit to a deposition no later than 11 December 9, 2016. The fact discovery deadline in this case is extended to that date for 12 the sole purpose of compliance with this order. 13 C. The Parties’ Requests for Sanctions 14 In his Motion to Compel, Salinas contends that sanctions should be assessed 15 against Defendants because they “have refused to participate in the discovery process by 16 failing to appear for several noticed depositions and have unilaterally decided, without 17 first obtaining a court order, to essentially stay discovery.” (Mot. Compel Attach. #1 18 Mem. P. & A. 6, ECF No. 36.) The Plaintiff maintains that it needed these depositions 19 and that the Defendants’ refusal to participate “is without justification, substantial or 20 otherwise.” (Id.) Salinas requests a sanctions award in the amount of $1,100. (Id. 21 (citation omitted).) Defendants do not respond to these arguments in the Opposition, but 22 they argue that “Plaintiff should be sanctioned for bringing this frivolous motion.” 23 (Opp’n 4, ECF No. 40.) They ask for sanctions in the amount of $1,500. (Id. (citing id. 24 Attach. #1 Decl. Chilleen 2).) Salinas does not address sanctions in the Reply. 25 Federal Rule of Civil Procedure 37(a)(5) provides as follows: 26 If the motion [to compel] is granted--or if the disclosure or requested discovery is provided after the motion was filed--the court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both 27 28 5 15cv2456-AJB (RBB) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 to pay the movant’s reasonable expenses incurred in making the motion, including attorney’s fees. But the court must not order this payment if: (i) the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action; (ii) the opposing party’s nondisclosure, response, or objection was substantially justified; or (iii) other circumstances make an award of expenses unjust. Fed. R. Civ. P. 37(a)(5)(i)-(iii). “A request for discovery is ‘substantially justified’ under Rule 37 if reasonable people could differ on the matter in dispute.” U.S. EEOC v. Caesars Entm’t, Inc., 237 F.R.D. 428, 435 (D. Nev. 2006) (citation omitted). “The nonmoving party bears the burden of demonstrating its conduct was substantially justified.” Blair v. CBE Grp., No. 13cv134–MMA (WVG), 2014 WL 4658731, at *1 (S.D. Cal. Sept. 17, 2014) (citing Aevoe Corp. v. AE Tech Co., No. 2:12–cv–00053–GMN–NJK, 2013 WL 5324787, at *2 (D. Nev. Sept. 20, 2013)). “By the very nature of its language, sanctions imposed under Rule 37 must be left to the sound discretion of the trial judge.” O’Connell v. Fernandez–Pol, 542 F. App’x 546, 547-48 (9th Cir. 2013) (citing Craig v. Far West Eng’g Co., 265 F.2d 251, 260 (9th Cir. 1959)). As a preliminary matter, Plaintiff’s Motion to Compel Defendant Live Nation to submit to a deposition has been denied. Accordingly, Salinas’s Motion to Compel as to the request for sanctions against this Defendant is also DENIED. Regarding Plaintiff’s request for sanctions against Defendant Istar Blues, the Court notes that Defendants cite a considerable amount of case law in support of their arguments in the Opposition. (See Opp’n 2-4, ECF No. 40.) As a result, Istar Blues appears to have believed in good faith that it did not need to attend its deposition until the Motion to Compel Arbitration was resolved. This is sufficient to show substantial justification, precluding a sanctions award against Istar Blues. See Nehad v. Browder, Case No.: 15-CV-1386 WQH NLS, 2016 WL 3769807, at *5 (S.D. Cal. July 15, 2016) (“Defendants’ positions were not patently 28 6 15cv2456-AJB (RBB) 1 unreasonable in disputing whether the scope of the discovery was proper or whether cost- 2 shifting should be permitted. As such, the Court cannot say that Defendants’ arguments 3 were so unjustified that they must bear the costs. Accordingly, the Court denies 4 Plaintiffs’ request for sanctions.”). Salinas’s request for sanctions against Istar Blues in 5 connection with his Motion to Compel is DENIED. 6 Finally, the Court addresses Defendants’ request that Plaintiff be sanctioned. This 7 request is conclusory and does not contain any supporting facts or law. The Defendants’ 8 lack of analysis alone is a sufficient reason for the Court to deny this request. See Alston 9 v. Cavalry Portfolio Servs., LLC, Civil Action No. 8:12–cv–03589–AW, 2013 WL 10 4501325, at *3 (D. Md. Aug. 21, 2013) (internal citation omitted) (“Defendant appears to 11 make a conclusory, one-sentence request for sanctions in its reply brief. Defendant has 12 not adequately presented this question for the Court to consider it.”). Moreover, the 13 parties had a genuine dispute regarding whether Defendants should be compelled to 14 attend their depositions in light of the pending Motion to Compel Arbitration. As a 15 result, there is no basis for assessing sanctions against Salinas. Defendants’ request for 16 sanctions is DENIED. 17 V. CONCLUSION 18 For the reasons discussed, Plaintiff’s Motion to Compel [ECF No. 36] is 19 GRANTED in part and DENIED in part. The Motion to Compel as to the request that 20 Live Nation be compelled to attend a deposition is DENIED. Salinas’s Motion to 21 Compel Istar Blues to attend a deposition is GRANTED. This Defendant shall submit to 22 a deposition no later than December 9, 2016. The fact discovery deadline in this case is 23 extended to that date for the limited purpose of compliance with this order. The Motion 24 // 25 // 26 // 27 // 28 // 7 15cv2456-AJB (RBB) 1 to Compel as to the request for sanctions is DENIED as to both Defendants. Defendants’ 2 request that sanctions be assessed against Plaintiff is DENIED. 3 IT IS SO ORDERED. 4 5 DATED: November 9, 2016 6 ___________________________________ Hon. Ruben B. Brooks United States Magistrate Judge 7 8 9 10 cc: Judge Battaglia All Parties of Record 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 15cv2456-AJB (RBB)
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