La Jolla Spa MD, Inc. et al v. Avidas Pharmaceuticals, LLC et al

Filing 112

ORDER re #105 Objection to Magistrate Judge's Sanctions Order. The Court finds the objection untimely and declines to rule on the merits of Defense Counsel's objection to the Magistrate Judge's sanctions order. Accordingly, the Magistrate Judge's order remains in full force and effect. Signed by Judge Michael M. Anello on 10/10/2019.(rmc)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Case No. 3:17-CV-01124-MMA-WVG

LA JOLLA SPA MD, INC,
Plaintiff,

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v.

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ORDER RE: OBJECTION TO
MAGISTRATE JUDGE’S
SANCTIONS ORDER

AVIDAS PHARMACEUTICALS, LLC,
Defendant.

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[Doc. No. 105]

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Defense Counsel Julie Chovanes (“Defense Counsel”) for Avidas Pharmaceuticals,

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LLC (“Defendant”) filed an objection to Magistrate Judge William V. Gallo’s Order

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Granting Plaintiff’s Motion for Sanctions. Doc. No. 93.1 La Jolla Spa MD, Inc.

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(“Plaintiff”) filed an opposition to the objection. Doc. No. 107. Defense Counsel did not

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The Court refers to Julie Chovanes as “Defense Counsel” even though it received two ex parte
communications on October 7, 2019, noting that Defendant terminated the attorney-client relationship
and intends to retain new counsel. See Doc. No. 110. However, she is still counsel of record for
Defendant. As such, the Court refers to her as “Defense Counsel” for the purposes of this Order.
Further, despite Ms. Chovanes filing the objection on behalf of Defendant, an ex parte
communication received from President of Defendant states that Chovanes filed the objection “without
any consultation of me, and despite the fact that the sanctions order was directed against her personally
without contribution by Avidas.” Therefore, the Court treats the objection as an objection made
personally by Ms. Chovanes.
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file a reply.2 For the reasons set forth below, the Court finds the objection untimely and

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declines to rule on the merits of Defense Counsel’s objection to the Magistrate Judge’s

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order.

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BACKGROUND

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Defense Counsel objects to a sanctions order issued by the Magistrate Judge on

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August 30, 2019. The underlying dispute centers on the deposition of Margaret Gardner

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on May 3, 2019, in Philadelphia, Pennsylvania. Doc. No. 103 at 3–4. The Magistrate

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Judge found that Defense Counsel went beyond the bounds of professionalism and

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“continuously interrupted, lodged frivolous objections, improperly instructed Gardner to

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not answer questions, and extensively argued with [Plaintiff’s Counsel] Ryan.” Id. at 2,

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4.

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After a hearing on Friday, August 16, 2019, the Magistrate Judge issued an Order

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Granting Plaintiff’s Motion for Sanctions. Doc. No. 103. The Magistrate Judge ordered

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as follows:

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Plaintiff’s motion for sanctions is GRANTED, and Chovanes is sanctioned
for the conduct, reasons, and under the authority set forth above.
Accordingly:

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1.
Without reimbursement from Defendant, Chovanes is sanctioned in
the amount of $28,502.03 payable to Ryan’s trust account on or before
September 17, 2019.

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2.
Chovanes shall self-report to the State Bar of Pennsylvania on or
before September 24, 2019. The reporting shall consist of a copy of this
Order, the full transcript of the Gardner deposition, the full transcript of the
August 16, 2019 sanctions hearing, and the 128 video clips submitted as part

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The Court’s Minute Order on September 17, 2019, established the briefing schedule for the objection.
Doc. No. 106. The Minute Order called for a reply brief due on or before October 7, 2019. Id. Defense
Counsel failed to file a reply, apparently due to the breakdown in the attorney-client relationship.
Regardless, no reply brief is necessary because the Court disposes of the matter on procedural grounds.
See infra.
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of Plaintiff’s sanctions motion. On or before October 1, 2019, Chovanes
shall file a declaration under oath that confirms compliance with this Order
and that all documents and video clips were submitted to the State Bar of
Pennsylvania.
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Chovanes shall henceforth attach a copy of this Order as an exhibit to
any pro hac vice application for admission to practice before the United
States District Court for the Southern District of California. This
requirement shall have no expiration date and shall remain in effect in
perpetuity.

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Doc. No. 103 at 47. The Magistrate Judge found sanctions appropriate based on the

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power conferred by Federal Rule of Civil Procedure 30(d)(2), 28 U.S.C. § 1927, and the

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inherent power of federal courts to levy sanctions. Id. at 7–10, 20, 40–44. Defense

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Counsel filed her Rule 72(a) objection on Monday, September 16, 2019. Doc. No. 105.

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Defense Counsel argues that the Magistrate Judge failed to consider a recent Supreme

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Court case, which would have rendered the sanctions improper. See Doc. No. 105 at 2–4.

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Additionally, Defense Counsel claims that the Magistrate Judge’s previous discovery

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orders made her conduct permissible. See Doc. No. 105 at 4–6.

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LEGAL STANDARD
A district judge’s review of a magistrate judge’s order on a nondispositive motion

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is limited. “[A] party may serve and file objections to the order within 14 days after

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being served with a copy. A party may not assign as error a defect in the order not

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timely objected to. The district judge in the case must consider timely objections and

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modify or set aside any part of the order that is clearly erroneous or is contrary to law.”

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Fed. R. Civ. P. 72(a) (emphasis added); see also 28 U.S.C. § 636(b)(1)(A) (“A judge of

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the court may reconsider any pretrial matter under this subparagraph (A) where it has

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been shown that the magistrate judge’s order is clearly erroneous or contrary to law.”);

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Grimes v. City & Cty. of San Francisco, 951 F.2d 236, 240 (9th Cir. 1991) (“The district

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court shall defer to the magistrate’s orders unless they are clearly erroneous or contrary to

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law.”). Under Rule 72, the reviewing district judge may not supplant his or her own

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judgment in place of the deciding magistrate judge. Grimes, 951 F.2d at 241.

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The decision whether to impose sanctions is a nondispositive matter. See 28

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U.S.C. § 636(b)(1)(A); Civ. Loc. R. 72.1(b); see also Grimes, 951 F.2d at 241 (noting

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that discovery sanctions are nondispositive and thus magistrate judges may “may impose

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prospective sanctions pursuant to Rule 37 where such sanctions are necessary to enforce

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compliance with a valid discovery order”); Apple Inc. v. Samsung Elecs. Co., 888 F.

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Supp. 2d 976, 985–89 (N.D. Cal. 2012) (holding that a magistrate judge has the inherent

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power to issue spoliation sanctions); Keithley v. Homestore.com, Inc., 629 F. Supp. 2d

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972, 974 (N.D. Cal. 2008) (deeming monetary sanctions for attorneys’ fees and costs to

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be a nondispositive ruling).

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DISCUSSION
Plaintiff argues Defense Counsel’s objection is untimely because she failed to seek

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relief within the 14-day deadline under Rule 72(a). Doc. No. 107 at 5. Plaintiff asserts

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that Defense Counsel was thirty (30) days late based on the Magistrate Judge’s oral ruling

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at the August 16, 2019 hearing. Id. at 6.

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As noted above, an objecting party under Rule 72(a) must “file objections to the

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order within 14 days” of the magistrate judge’s order. Fed. R. Civ. P. 72(a). In

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computing time, the Court must “(A) exclude the day of the event that triggers the period;

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(B) count every day, including intermediate Saturdays, Sundays, and legal holidays; and

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(C) include the last day of the period, but if the last day is a Saturday, Sunday, or legal

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holiday, the period continues to run until the end of the next day that is not a Saturday,

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Sunday, or legal holiday.” Id. at 6(a)(1).

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Here, the Magistrate Judge issued a written ruling granting Plaintiff’s Motion for

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Sanctions on Friday, August 30, 2019. Doc. No. 103. Defense Counsel filed her

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objection on Monday, September 16, 2019. Doc. No. 105.

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As a preliminary matter, Plaintiff’s argument that that the objection is 30 days late
based on the August 16, 2019, hearing is unavailing. The date of the hearing did not start
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the 14-day objection window because Rule 72(a) addresses “objections to the order.”

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Fed. R. Civ. P. 72(a). Thus, the Magistrate Judge’s August 30 Order triggered the 14-day

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objection window. To be certain, the Magistrate Judge stated at the hearing: “What I’ve

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placed on the record here is not the written order. A written order will issue shortly.”

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Doc. No 104 at 27:17–19. Therefore, the “order” prompting the 14-day objection

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window is the August 30, 2019 order.

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Pursuant to Federal Rule of Civil Procedure 6, the 14-day period in which to

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object began the following day on Saturday, August 31, 2019. See Fed. R. Civ. P.

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6(a)(1)(A). Starting the computation on Saturday August 31, 2019, the Court counts each

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day. The final day of the 14-day objection window fell on Friday, September 13, 2019—

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a weekday and nonholiday that does not trigger the Rule 6(a)(1)(C) tolling provision.

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Therefore, because the objection was due Friday, September 13, 2019, and Defense

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Counsel filed her objection on Monday, September 16, 2019, Defense Counsel’s

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objection is untimely.

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An untimely objection to a nondispositive magistrate judge’s order is a procedural

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defect that forecloses relief under Rule 72(a). See Fed. R. Civ. P. 72(a) (“A party may

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not assign as error a defect in the order not timely objected to.”); CNPq-Conselho

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Nacional de Desenvolvimento Cientificoe Technologico v. Inter-Trade, Inc., 50 F.3d 56,

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59 (D.C. Cir. 1995) (holding that a Rule 72 objection made one day late fails to preserve

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the objection for appeal); Baker v. Ensign, No. 11-CV-2060-BAS WVG, 2014 WL

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4055353, at *6 (S.D. Cal. Aug. 14, 2014) (holding an untimely Rule 72(a) objection did

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not entitle the objecting party to relief under a Rule 60(b) motion and also relief was not

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warranted on the merits); Maisonet v. Genett Grp., Inc., 863 F. Supp. 2d 138, 143 (D.P.R.

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2012) (“Because a district court is under no obligation to review a portion of a magistrate

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judge’s report unless an objection to it has been filed, the belated submission of

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plaintiff’s objection is enough to preclude reexamination of those relevant portions of the

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R & R.”); see also Simpson v. Lear Astronics Corp., 77 F.3d 1170, 1174 (9th Cir. 1996)

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(finding that a failure to file a Rule 72(a) objection at the district court forecloses
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appellate review of discovery sanctions); Stemler v. City of Florence, 126 F.3d 856, 866

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n.9 (6th Cir. 1997) (stating that failure to make a Rule 72(a) objection waives the

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objection on appeal). Because Defense Counsel failed to timely object, she forfeited the

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availability of any relief under Rule 72(a).3

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CONCLUSION

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Based on the foregoing, the Court finds the objection untimely and declines to rule

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on the merits of Defense Counsel’s objection to the Magistrate Judge’s sanctions order.

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Accordingly, the Magistrate Judge’s order remains in full force and effect.

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IT IS SO ORDERED.

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Dated: October 10, 2019

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_____________________________

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Hon. Michael M. Anello
United States District Judge

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Plaintiff further requests the Court impose additional monetary sanctions of at least $4,600 against
Defense Counsel pursuant to 28 U.S.C. § 1927 and the Court’s inherent authority to levy sanctions.
Doc. No. 107 at 13–14. Given that Defense Counsel’s objection is procedurally deficient, the Court
declines to address the merits of the objection and, additionally, declines to entertain Plaintiff’s request
for additional sanctions.
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