BP West Coast Products LLC v. Crossroad Petroleum, Inc. et al

Filing 699

ORDER Adopting #688 Report and Recommendation. The Court hereby: (1) Adopts Magistrate Judge Burkhardt's Report and Recommendation with respect to the four remaining Defendants; and (2) Enters Judgment against Defendants (1) Behzad Kianmahd; (2) Nader Sahih; (3) Rajesh Arora; and (4) Parshotam S. Kamboj and dismisses with prejudice any counterclaims asserted by these Defendants. Signed by Judge Janis L. Sammartino on 11/29/2017. (All non-registered users served via U.S. Mail Service)(mpl)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

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BP WEST COAST PRODUCTS, LLC,

Case No.: 12-CV-665 JLS (JLB) Lead
Case

Plaintiff and Counter-Defendant,
v.

ORDER ADOPTING REPORT AND
RECOMMENDATION

CROSSROAD PETROLEUM, INC., et
al.,

(ECF No. 688)

Defendants and Counter-Claimants.
AND RELATED CONSOLIDATED
ACTIONS

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Presently before the Court is the Report and Recommendation (R&R) of Magistrate

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Judge Jill L. Burkhardt, recommending the Court issue terminating sanctions against five

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Defendants in this matter, (ECF No. 688).

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Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1) set forth a district

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court’s duties in connection with a magistrate judge’s report and recommendation. The

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district court must “make a de novo determination of those portion of the report to which

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objection is made,” and “may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1); see also United

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States v. Raddatz, 447 U.S. 667, 673–76 (1980); United States v. Remsing, 874 F.2d 614,

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617 (9th Cir. 1989). However, in the absence of timely objection, the Court “need only
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satisfy itself that there is no clear error on the face of the record in order to accept the

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recommendation.” Fed. R. Civ. P. 72 advisory committee’s note to 1983 amendment

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(citing Campbell v. U.S. Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974)); see also United

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States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (“[T]he district judge must

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review the magistrate judge’s findings and recommendations de novo if objection is made,

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but not otherwise.”).

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Here, no party has filed an objection to Magistrate Burkhardt’s R&R, (see R&R 13

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(objections due by October 27, 2017).) However, counsel Pamela Lacey did file a

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“Declaration In Support of Opposition to Proposed Sanction Order Dated 10/13/17,”

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(“Lacey Decl.,” ECF No. 690). Although this declaration is not titled as requested by Judge

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Burkhardt, (see R&R 13 (“The document should be captioned ‘Objections to Report and

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Recommendation.’”)), the Court considers the Declaration.

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ANALYSIS

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Judge Burkhardt recommends issuing terminating sanctions against five Defendants:

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(1) Behzad Kianmahd; (2) Nader Sahih; (3) Rajesh Arora; (4) Basel Hassounch; and (5)

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Parshotam S. Kamboj. (R&R 1.) In the declaration, Ms. Lacey requests the Court not

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issue sanctions against Defendants William Kirmiz, Sahar Kirmiz,1 and Basel Hassounch.

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As to William Kirmiz and Sahar Kirmiz, Ms. Lacey declares these two Defendants

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“were excused from appearing at the October 18–19, 2016 mediation, because they had

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previously settled with BP in early September 2016.” (Lacey Decl. ¶ 3.) First, this is

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factually incorrect, as there is no order by the Court excusing these Defendants from the

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October 2016 MSC. In fact, these Defendants were ordered by name to appear on October

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19, 2016 at 11:45 a.m. (See ECF Nos. 597, 611). Second, the Kirmiz Defendants wear

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two hats in this litigation: they were named as individual Defendants as guarantors for both

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S.M.O Oil’s Franchise Agreement and Mr. Kamboj’s Franchise Agreement. BP did reach

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William and Sahar Kirmiz are guarantors on Defendant Kamboj’s Franchise Agreement with BP West
Coast Products LLC (“BPWCP”).
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a settlement on S.M.O. Oil’s Franchise Agreement, (see ECF No. 605), but that settlement

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did not dismiss Defendants William and Sahar Kirmiz from this case. As clearly stated in

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the stipulation, each Kirmiz Defendant stipulated to the dismissal “solely in his capacity as

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guarantor of S.M.O Oil, Inc.” (ECF No. 605, at 2.) Thus, the record is clear that William

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and Sahar Kirmiz remain as guarantor Defendants with respect to Mr. Kamboj’s Franchise

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Agreement. And if the Court dismisses Mr. Kamboj, this does not mean the Kirmiz

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Defendants are dismissed as well; the Kirmiz Defendants remain as named individual

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Defendants because they signed the lease agreement at issue guaranteeing

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performance/payment of the lease by Mr. Kamboj.

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As to Basel Hassounch, Ms. Lacey stated Mr. Hassounch has settled this matter with

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BPWCP. (Lacey Decl. ¶ 5.)

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Claimants Basel Hassounch & Rafael Castillo d/b/a BHRC Petro, Basel Hassounch (solely

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in his capacity as guarantor of Basel Hassounch & Rafael Castillo d/b/a BHRC Petro) and

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Rafael Castillo (solely in his capacity as guarantor of Basel Hassounch & Rafael Castillo

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d/b/a BHRC Petro) (“the BHRC PETRO parties”) stipulated to dismiss their claims against

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one another. (See ECF No. 695.) The Court granted the stipulation and the BHRC PETRO

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parties have been dismissed. (See ECF No. 696.)

Subsequently, BPWCP and Defendant and Counter-

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After analyzing Ms. Lacey’s declaration and Judge Burkhardt’s R&R, the Court

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finds that the R&R is thorough, well-reasoned, and contains no clear error. The Court has

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generously given these Defendants multiple opportunities to comply with the Court orders

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and engage in litigation in this matter. The Court gave the Defendants a clear warning of

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dismissal. (ECF No. 649, at 11 (“[T]he Court GIVES NOTICE to all sanctioned

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Defendants that further failure to comply with Court orders or to meaningfully participate

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in discovery, even absent an order to compel, SHALL result in an entry of judgment

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against them and dismissal of their counterclaims pursuant to Rule 37(b).”).) Thus, the

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Court agrees dispositive sanctions are appropriate in this matter.

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Given the recent dismissal of Defendant Hassounch, the Court hereby: (1) ADOPTS

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Magistrate Judge Burkhardt’s Report and Recommendation with respect to the four
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remaining Defendants; and (2) ENTERS JUDGMENT against Defendants (1) Behzad

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Kianmahd; (2) Nader Sahih; (3) Rajesh Arora; and (4) Parshotam S. Kamboj and

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DISMISSES WITH PREJUDICE any counterclaims asserted by these Defendants.

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IT IS SO ORDERED.
Dated: November 29, 2017

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