Gurvey v. Legend Films, Inc. et al

Filing 193

ORDER (1) granting Plaintiff's 191 Request for an Extension of Time to Oppose Defendants' Rule 11 Motion; (2) denying Plaintiff's Request to file Cross-Motion under Rules 11 and 37; and (3) denying Plaintiff's 192 Motion to Reconstruct Record.(Responses due by 3/21/2013, replies due by 4/5/2013 as to 189 MOTION for Sanctions Against Plaintiff Amy R. Gurvey). Signed by Judge Anthony J. Battaglia on 2/27/13. (cge)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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AMY R. GURVEY,

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Plaintiff,
v.

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LEGEND FILMS, INC. formerly
known as LEGEND FILMS, LLC,
16 JEFFREY B. YAPP, BARRY B.
SANDREW, LEGEND3D, INC., and
17 LEGEND FILMS, LLC,
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Defendants.

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Case No.: 3:09-cv-00942 AJB (BGS)
ORDER (1) GRANTING
PLAINTIFF’S REQUEST FOR AN
EXTENSION OF TIME TO OPPOSE
DEFENDANTS’ RULE 11
MOTION; (2) DENYING
PLAINTIFF’S REQUEST TO FILE
CROSS-MOTION UNDER RULES
11 AND 37; AND (3) DENYING
PLAINTIFF’S MOTION TO
RECONSTRUCT THE RECORD
[Doc. Nos. 191 and 192]

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Before the Court are two pending motions filed by Plaintiff Amy Gurvey. On

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February 19, 2013, Plaintiff filed an Ex Parte Application for a 30 Day Extension of

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Time to Oppose Defendants’ Motion for Rule 11 Sanctions and to File a Cross-Motion

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Pursuant to Rules 11 and 37. (Doc. No. 191.) On February 23, 2013, Plaintiff filed an

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Application to Reconstruct the Record pursuant to Federal Rule of Appellate Procedure

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10(c). (Doc. No. 192.) As of the date of this Order, Defendants have not opposed either

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of the instant motions. Under the circumstances, the Court finds it unnecessary to order

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or await Defendant’s responses. The Court will address each of these three requests in

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turn.
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I.

Plaintiff’s Request for an Extension of Time
On January 22, 2013, Defendants filed a Motion for Sanctions against Plaintiff

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pursuant to Rule 11 of the Federal Rules of Civil Procedure. (Doc. No. 189.) Thereafter,

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the Court set a briefing schedule and hearing date for Defendant’s motion. (Doc. No.

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190.) The Court instructed the parties to file opposition briefs by February 19, 2013 and

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reply briefs by March 12, 2013. (Id.) The Court set the hearing for April 18, 2013 at

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2:00 p.m. (Id.) On February 19, 2013, Plaintiff filed the instant request for a thirty day

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extension of time in which to file her opposition. (Doc. No. 191.)
Considered in light of the current schedule, Plaintiff’s requested extension does not

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require a continuance of the April 18, 2013 hearing date or cause unnecessary delay in

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the resolution of Defendants’ motion. Therefore, the Court grants Plaintiff’s request for a

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thirty day extension of time in which to oppose Defendants’ motion. Accordingly,

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Plaintiff’s opposition brief must be filed by March 21, 2013, and Defendants’ reply brief

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must be filed by April 5, 2013. The hearing date will remain as set previously.

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The Court notes, however, that any arguments pertaining to the merits of

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Defendants’ Rule 11 motion made by Plaintiff in her motion for an extension of time will

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not be considered by the Court when ruling upon Defendants’ motion. All of Plaintiff’s

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substantive arguments in this regard must be set forth fully within her opposition brief.

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II.

Plaintiff’s Request to File a Cross-Motion Under Rule 11 and 37

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As an initial matter, the Court notes that Plaintiff does not require permission from

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the Court to file motions in this action. Should Plaintiff wish to file a motion, she may do

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so in accordance with the Federal Rules of Civil Procedure, the Southern District’s Civil

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Local Rules, and this Court’s Chamber Rules.

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While it is unclear what discovery related issues Plaintiff wants to raise under Rule

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37, those should be raised before Magistrate Judge Skomal who has supervised discovery

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in this case. Motions relating to discovery violations, like discovery matters in

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general, are referred to a magistrate judge for handling in this district. The issue of

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discovery sanctions, other than claim or affirmative defense preclusion and the striking of
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evidence and/or witnesses, is within the purview of the magistrate judge, and must be

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filed in accordance with the magistrate judge’s chambers rules as well as the scheduling

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orders in the case.
Finally, to the extent that Plaintiff requests leave to file a Cross-Motion under Rule

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11 in order to avoid the procedural requirements of Rule 11's safe harbor provision,

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Plaintiff’s request is denied. Plaintiff must proceed appropriately under Rule 11 in this

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regard.

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III.

Plaintiff’s Motion to Reconstruct the Record

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Under Rule 10(c) of the Federal Rules of Appellate Procedure, it is possible to

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reconstruct the record for purposes of appeal when a transcript of a hearing or trial is

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unavailable and the proceeding was not recorded. In this instance, the “appellant may

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prepare a statement of the evidence or proceedings from the best available means,

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including the appellant’s recollection.” Fed. R. App. P. 10(c). The appellant must serve

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the statement on the appellee, “who may serve objections or proposed amendments

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within 14 days” after being served with the statement. Id. “The statement and any

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objections or proposed amendments must then be submitted to the district court for

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settlement and approval.” Id. “As settled and approved, the statement must be included

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by the district clerk in the record on appeal.” Id.

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Here, Plaintiff seeks to reconstruct the record with regard to a “missing essential

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recording” of the June 13, 2011 proceeding before Magistrate Judge Skomal. (Doc. No.

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192 at 1.) The Court finds Plaintiff’s motion deficient for two reasons. First, Plaintiff

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has not complied with the procedure set forth within Rule 10(c) for reconstructing the

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record. Plaintiff has not prepared a statement of the proceedings and served it upon

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Defendants in order for them to provide objections and proposed amendments. Without

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this statement, the Court has nothing to consider adding into the record. The role of the

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Court is to review the provided statement along with any objections and proposed

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amendments. Only then can the Court settle and approve the final statement to be

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included by the district clerk in the record on appeal. Here, Plaintiff has not provided her
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statement reflecting the proceedings or provided any indication that she has served such a

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statement upon Defendants. As such, Plaintiff has not complied with the proper

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procedure for reconstructing the record provided by Rule 10(c) and, thus, the Court

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cannot reconstruct the record under the current circumstances.

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Second, Plaintiff seeks reconstruction of a proceeding that is not typically held on

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the record. Plaintiff states that the “subject of the June 13[,] 2011 hearing was to

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determine if there was sufficient justification not to sanction Plaintiff who contended she

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could not fly and physically appear in Magistrate’s Courtroom for a personal hearing.”

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(Id. at 3.) However, the Court’s docket does not reflect her description of the proceeding.

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Per several docket entries, the June 13, 2011 proceeding was, in fact, a mandatory

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settlement conference rather than a hearing regarding sanctions based upon Plaintiff’s

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failure to appear. (Doc. No. 69 (case management order setting mandatory settlement

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conference on June 13, 2011); Doc. No. 88 (minute entry stating “Mandatory Settlement

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Conference held on June 13, 2011"); and Doc. No. 87 (order to show cause why sanctions

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should not be imposed for Plaintiff’s failure to appear at the mandatory scheduling

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conference held on June 13, 2011).)1 Pursuant to Civil Local Rule 16.3, settlement

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conferences, mandatory or otherwise, are “off the record, privileged and confidential,

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unless otherwise ordered by the court.” Generally, settlement communications between

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the parties are privileged under Rule 408 of the Federal Rules of Evidence. As such, the

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parties’ discussions at mandatory settlement conference are not routinely recorded or

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transcribed as they are held “off the record.” For this reason, the mandatory settlement

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conference would not typically be part of the record on appeal, and Plaintiff has not

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provided any evidence why the Court should find otherwise.

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Further, the Court notes that despite Plaintiff’s contention that Magistrate Judge
Skomal assured her the June 13, 2011 proceeding was being recorded, it appears that
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led to the subsequent order to show cause and the possibility of sanctions being imposed
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Reconstruct the Record.
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To the extent that matters of settlement were adjudicated during the settlement

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conference, plaintiff has failed to give any meaningful information for the Court to

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consider.

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Under these circumstances, the Court cannot reconstruct the record of the June 13,

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2011 proceeding as Plaintiff has not complied with the procedural requirements set forth

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in Rule 10(c) or established that the June 13, 2011 proceeding should properly be

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included in the record for appeal. Accordingly, Plaintiff’s Motion for Reconstruction of

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the Record is denied.

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IV.

Conclusion

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For the reasons set forth above, the Court ORDERS as follows:

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motion is GRANTED, (Doc. No. 191);

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Plaintiff’s request for an extension of time to oppose Defendant’s Rule 11

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Accordingly, Plaintiff must file her opposition brief on or before March 21,

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2013, Defendants’ must file their reply brief on or before April 5, 2013, and

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the hearing will be held on April 18, 2013 as previously set;

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3.

(Doc. No. 191);

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Plaintiff’s request to file Cross-Motions under Rules 11 and 37 is DENIED,

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Should Plaintiff wish to file motions under Rules 11 and 37 in the future, she

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may do so in accordance with the Federal Rules of Civil Procedure, the Civil

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Local Rules, and the appropriate chambers rules;

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5.

Plaintiff’s Motion to Reconstruct the Record is DENIED, (Doc. No. 192).

IT IS SO ORDERED.

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DATED: February 27, 2013
Hon. Anthony J. Battaglia
U.S. District Judge

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3:09-cv-00942 AJB (BGS)