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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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 17 18 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 19 Presently before the Court is the Report and Recommendation (R&R) of Magistrate 20 Judge Jill L. Burkhardt, recommending the Court issue terminating sanctions against five 21 Defendants in this matter, (ECF No. 688). 22 Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1) set forth a district 23 court’s duties in connection with a magistrate judge’s report and recommendation. The 24 district court must “make a de novo determination of those portion of the report to which 25 objection is made,” and “may accept, reject, or modify, in whole or in part, the findings or 26 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1); see also United 27 States v. Raddatz, 447 U.S. 667, 673–76 (1980); United States v. Remsing, 874 F.2d 614, 28 617 (9th Cir. 1989). However, in the absence of timely objection, the Court “need only 1 12-CV-665 JLS (JLB) Lead Case 1 satisfy itself that there is no clear error on the face of the record in order to accept the 2 recommendation.” Fed. R. Civ. P. 72 advisory committee’s note to 1983 amendment 3 (citing Campbell v. U.S. Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974)); see also United 4 States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (“[T]he district judge must 5 review the magistrate judge’s findings and recommendations de novo if objection is made, 6 but not otherwise.”). 7 Here, no party has filed an objection to Magistrate Burkhardt’s R&R, (see R&R 13 8 (objections due by October 27, 2017).) However, counsel Pamela Lacey did file a 9 “Declaration In Support of Opposition to Proposed Sanction Order Dated 10/13/17,” 10 (“Lacey Decl.,” ECF No. 690). Although this declaration is not titled as requested by Judge 11 Burkhardt, (see R&R 13 (“The document should be captioned ‘Objections to Report and 12 Recommendation.’”)), the Court considers the Declaration. 13 ANALYSIS 14 Judge Burkhardt recommends issuing terminating sanctions against five Defendants: 15 (1) Behzad Kianmahd; (2) Nader Sahih; (3) Rajesh Arora; (4) Basel Hassounch; and (5) 16 Parshotam S. Kamboj. (R&R 1.) In the declaration, Ms. Lacey requests the Court not 17 issue sanctions against Defendants William Kirmiz, Sahar Kirmiz,1 and Basel Hassounch. 18 As to William Kirmiz and Sahar Kirmiz, Ms. Lacey declares these two Defendants 19 “were excused from appearing at the October 18–19, 2016 mediation, because they had 20 previously settled with BP in early September 2016.” (Lacey Decl. ¶ 3.) First, this is 21 factually incorrect, as there is no order by the Court excusing these Defendants from the 22 October 2016 MSC. In fact, these Defendants were ordered by name to appear on October 23 19, 2016 at 11:45 a.m. (See ECF Nos. 597, 611). Second, the Kirmiz Defendants wear 24 two hats in this litigation: they were named as individual Defendants as guarantors for both 25 S.M.O Oil’s Franchise Agreement and Mr. Kamboj’s Franchise Agreement. BP did reach 26 27 William and Sahar Kirmiz are guarantors on Defendant Kamboj’s Franchise Agreement with BP West Coast Products LLC (“BPWCP”). 1 28 2 12-CV-665 JLS (JLB) Lead Case 1 a settlement on S.M.O. Oil’s Franchise Agreement, (see ECF No. 605), but that settlement 2 did not dismiss Defendants William and Sahar Kirmiz from this case. As clearly stated in 3 the stipulation, each Kirmiz Defendant stipulated to the dismissal “solely in his capacity as 4 guarantor of S.M.O Oil, Inc.” (ECF No. 605, at 2.) Thus, the record is clear that William 5 and Sahar Kirmiz remain as guarantor Defendants with respect to Mr. Kamboj’s Franchise 6 Agreement. And if the Court dismisses Mr. Kamboj, this does not mean the Kirmiz 7 Defendants are dismissed as well; the Kirmiz Defendants remain as named individual 8 Defendants because they signed the lease agreement at issue guaranteeing 9 performance/payment of the lease by Mr. Kamboj. 10 As to Basel Hassounch, Ms. Lacey stated Mr. Hassounch has settled this matter with 11 BPWCP. (Lacey Decl. ¶ 5.) 12 Claimants Basel Hassounch & Rafael Castillo d/b/a BHRC Petro, Basel Hassounch (solely 13 in his capacity as guarantor of Basel Hassounch & Rafael Castillo d/b/a BHRC Petro) and 14 Rafael Castillo (solely in his capacity as guarantor of Basel Hassounch & Rafael Castillo 15 d/b/a BHRC Petro) (“the BHRC PETRO parties”) stipulated to dismiss their claims against 16 one another. (See ECF No. 695.) The Court granted the stipulation and the BHRC PETRO 17 parties have been dismissed. (See ECF No. 696.) Subsequently, BPWCP and Defendant and Counter- 18 After analyzing Ms. Lacey’s declaration and Judge Burkhardt’s R&R, the Court 19 finds that the R&R is thorough, well-reasoned, and contains no clear error. The Court has 20 generously given these Defendants multiple opportunities to comply with the Court orders 21 and engage in litigation in this matter. The Court gave the Defendants a clear warning of 22 dismissal. (ECF No. 649, at 11 (“[T]he Court GIVES NOTICE to all sanctioned 23 Defendants that further failure to comply with Court orders or to meaningfully participate 24 in discovery, even absent an order to compel, SHALL result in an entry of judgment 25 against them and dismissal of their counterclaims pursuant to Rule 37(b).”).) Thus, the 26 Court agrees dispositive sanctions are appropriate in this matter. 27 Given the recent dismissal of Defendant Hassounch, the Court hereby: (1) ADOPTS 28 Magistrate Judge Burkhardt’s Report and Recommendation with respect to the four 3 12-CV-665 JLS (JLB) Lead Case 1 remaining Defendants; and (2) ENTERS JUDGMENT against Defendants (1) Behzad 2 Kianmahd; (2) Nader Sahih; (3) Rajesh Arora; and (4) Parshotam S. Kamboj and 3 DISMISSES WITH PREJUDICE any counterclaims asserted by these Defendants. 4 5 IT IS SO ORDERED. Dated: November 29, 2017 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 12-CV-665 JLS (JLB) Lead Case

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