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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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Case No.: 17cv1118-BEN (BLM)

WHITEWATER WEST INDUSTRIES, LTD.,

ORDER DENYING DEFENDANTS’
REQUEST TO FILE A MOTION FOR
ALTERNATIVE SANCTIONS

Plaintiffs,

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v.

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PACIFIC SURF DESIGNS, INC. AND FLOW
SERVICES, INC.,

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Defendants.

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AND RELATED COUNTERCLAIMS

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On August 8, 2018, Defendants filed a Motion for Sanctions. ECF No. 154. Defendants

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sought terminating sanctions on the grounds that Plaintiff repeatedly failed to comply with this

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Court’s past discovery orders. Id. Defendants did not request any alternative sanction to

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dismissal. Id. at 20, 26 (“this Court has no alternative but to dismiss Plaintiff’s action with

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prejudice” and “lesser, alternative sanctions are inappropriate in this situation”).

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On August 31, 2018, the Court denied Defendants’ motion for terminating sanctions. ECF

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No. 170. In denying the motion, the Court noted that “[b]ecause Defendants did not request

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an alternative sanction, the Court will not impose one.” Id. at 14.

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On September 17th or 18th, 2018, counsel for Defendants, Mr. Christopher Franich,
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17CV1118-BEN (BLM)

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contacted the Court regarding Defendants’ desire to file a Motion for Reconsideration of the

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Court’s August 31, 2018 Order. On September 19, 2018, counsel for Defendants, Messrs.

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Christopher Franich and Charanjit Brahma and counsel for Plaintiff, Mr. Roger Scott, participated

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in a discovery call with Judge Major’s law clerk.

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explained that the motion they sought to file was actually a request for alternative sanctions

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and not a motion for reconsideration. Defense counsel further explained that the proposed

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motion would be based on the same discovery violations and facts that were raised in their

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previous motion for sanctions, but would seek different relief.

During that call, counsel for Defendants

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Defendants’ request to file a motion for alternative sanctions is DENIED. Defendants

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had the opportunity to seek whatever sanctions they felt appropriate when they filed their

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motion for sanctions. Defendants made a strategic decision to seek only terminating sanctions

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and declined to provide any alternative options for the Court to consider. See ECF No. 154 at

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26 (“lesser, alternative sanctions are inappropriate in this situation”). Having gambled and lost,

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Defendants are not entitled to return to Court and seek new sanctions based upon the same

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conduct. Permitting such a procedure would result in an incredible waste of litigation and judicial

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resources as a party could repeatedly litigate the same motion, seeking new or different

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remedies every time. The fact that the Court discussed during its analysis of Defendants’ request

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for terminating sanctions that less drastic sanctions may have been available, does not mean

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that such sanctions are available or appropriate at this time. See Boeing Co. v. KB Yuzhnoye,

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2015 WL 12803766, at *3 n.3 (C.D. Cal. Dec. 4, 2015) (“[t]he Court will not reward Plaintiffs

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after gambling on one particular sanction, receiving no return in that gamble, and then trying

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to remedy their failure to hedge their initial bet.”).

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IT IS SO ORDERED.
Dated: 9/20/2018

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17CV1118-BEN (BLM)