Whitewater West Industries, LTD. v. Pacific Surf Designs, Inc. et al

Filing 174

ORDER Denying Defendants' Request to File A Motion for Alternative Sanctions. Signed by Magistrate Judge Barbara Lynn Major on 9/20/2018.(anh)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 Case No.: 17cv1118-BEN (BLM) WHITEWATER WEST INDUSTRIES, LTD., ORDER DENYING DEFENDANTS’ REQUEST TO FILE A MOTION FOR ALTERNATIVE SANCTIONS Plaintiffs, 11 12 v. 13 PACIFIC SURF DESIGNS, INC. AND FLOW SERVICES, INC., 14 15 Defendants. 16 17 AND RELATED COUNTERCLAIMS 18 19 On August 8, 2018, Defendants filed a Motion for Sanctions. ECF No. 154. Defendants 20 sought terminating sanctions on the grounds that Plaintiff repeatedly failed to comply with this 21 Court’s past discovery orders. Id. Defendants did not request any alternative sanction to 22 dismissal. Id. at 20, 26 (“this Court has no alternative but to dismiss Plaintiff’s action with 23 prejudice” and “lesser, alternative sanctions are inappropriate in this situation”). 24 On August 31, 2018, the Court denied Defendants’ motion for terminating sanctions. ECF 25 No. 170. In denying the motion, the Court noted that “[b]ecause Defendants did not request 26 an alternative sanction, the Court will not impose one.” Id. at 14. 27 28 On September 17th or 18th, 2018, counsel for Defendants, Mr. Christopher Franich, 1 17CV1118-BEN (BLM) 1 contacted the Court regarding Defendants’ desire to file a Motion for Reconsideration of the 2 Court’s August 31, 2018 Order. On September 19, 2018, counsel for Defendants, Messrs. 3 Christopher Franich and Charanjit Brahma and counsel for Plaintiff, Mr. Roger Scott, participated 4 in a discovery call with Judge Major’s law clerk. 5 explained that the motion they sought to file was actually a request for alternative sanctions 6 and not a motion for reconsideration. Defense counsel further explained that the proposed 7 motion would be based on the same discovery violations and facts that were raised in their 8 previous motion for sanctions, but would seek different relief. During that call, counsel for Defendants 9 Defendants’ request to file a motion for alternative sanctions is DENIED. Defendants 10 had the opportunity to seek whatever sanctions they felt appropriate when they filed their 11 motion for sanctions. Defendants made a strategic decision to seek only terminating sanctions 12 and declined to provide any alternative options for the Court to consider. See ECF No. 154 at 13 26 (“lesser, alternative sanctions are inappropriate in this situation”). Having gambled and lost, 14 Defendants are not entitled to return to Court and seek new sanctions based upon the same 15 conduct. Permitting such a procedure would result in an incredible waste of litigation and judicial 16 resources as a party could repeatedly litigate the same motion, seeking new or different 17 remedies every time. The fact that the Court discussed during its analysis of Defendants’ request 18 for terminating sanctions that less drastic sanctions may have been available, does not mean 19 that such sanctions are available or appropriate at this time. See Boeing Co. v. KB Yuzhnoye, 20 2015 WL 12803766, at *3 n.3 (C.D. Cal. Dec. 4, 2015) (“[t]he Court will not reward Plaintiffs 21 after gambling on one particular sanction, receiving no return in that gamble, and then trying 22 to remedy their failure to hedge their initial bet.”). 23 24 IT IS SO ORDERED. Dated: 9/20/2018 25 26 27 28 2 17CV1118-BEN (BLM)

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