Crocs, Inc. v. Cheng's Enterprises, Inc. et al

Filing 1126

ORDER by Chief Judge Philip A. Brimmer on 3/28/2022, re: 1000 Dawgs' Unopposed Motion to File Amended Reply to Crocs' Opposition to Dawgs' Objections to Magistrate Judge's Sanctions Order (Dkt. 998) is GRANTED; and 987 Counterclaim Plaintiffs' Objection to Magistrate Judge KathleenTafoya's Order (Dkt. No. 975) Awarding Sanctions in Connection with Crocs' Motion to Compel (Dkt. No. 947) is OVERRULED. (sphil, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Philip A. Brimmer
Civil Action No. 06-cv-00605-PAB-MEH
(Consolidated with Civil Action No. 16-cv-02004-PAB-STV)
Civil Action No. 06-cv-00605-PAB-MEH
CROCS, INC.,
Plaintiff,
v.
EFFERVESCENT, INC., et al.,
Defendants.
Civil Action No. 16-cv-02004-PAB-STV
U.S.A. DAWGS, INC., et al.,
Plaintiffs,
v.
RONALD SNYDER, et al.,
Defendants.

ORDER

This matter is before the Court on Counterclaim Plaintiffs’ Objection to
Magistrate Judge Kathleen Tafoya’s Order (Dkt. No. 975) Awarding Sanctions in
Connection with Crocs’ Motion to Compel (Dkt. No. 947) [Docket No. 987], as well as
the counterclaim plaintiffs’, U.S.A. Dawgs, Inc. (“U.S.A. Dawgs”), Double Diamond
Distribution, Ltd. (“Double Diamond”), and Mojave Desert Holdings, LLC (“Mojave”),
collectively referred to as “Dawgs,” Unopposed Motion to File Amended Reply to Crocs’

Opposition to Dawgs’ Objections to Magistrate Judge’s Sanctions Order (Dkt. 998)
[Docket No. 1000].
I. BACKGROUND1
On May 11, 2021, Magistrate Judge Kathleen M. Tafoya held a hearing on a
number of motions, including Crocs, Inc.’s Motion to Compel the Deposition
Appearance and Testimony of Steven Mann [Docket No. 943] (the “motion to compel”)
and Crocs, Inc.’s Motion to Compel and for Sanctions Under Rule 37 [Docket No. 947]
(the “motion for sanctions”). In her oral ruling, the magistrate judge granted both of the
motions filed by Crocs, Inc. (“Crocs”). See Docket No. 975 at 1–3 (courtroom minutes).
A. Motion to Compel
In the motion to compel, Crocs explained that Steven Mann is the founder, CEO,
president, and majority owner of Double Diamond and, prior to its dissolution, U.S.A.
Dawgs. Docket No. 943 at 2. He is also a managing member of Mojave. Id. He is the
“only Dawgs-affiliated witness that Dawgs now lists in its amended Rule 26(a)
disclosures.” Id. As such, Crocs served a single Federal Rule of Civil Procedure
30(b)(6) notice to cover all three Dawgs entities. Id. Dawgs designated Steven Mann
as the “sole individual to speak on behalf of these entities.” Id. However, as the parties
were scheduling Steven Mann’s deposition, and after most of the other depositions had
been requested, Dawgs replaced Steven Mann as the Rule 30(b)(6) designee with
Karen O’Dell, who previously worked at U.S.A. Dawgs. Id. at 2–3. In light of this, Crocs
1

This fifteen-year dispute involves infringement and non-infringement claims
related to three patents concerning variations of shoes made by Crocs, Inc. (“Crocs”).
The background facts and procedural history are set out in previous orders and
recommendation and will not be repeated here. See, e.g., Docket Nos. 673, 897.
2

requested a date for Steven Mann’s individual deposition, but Dawgs refused to provide
one on the grounds that it would be an eleventh deposition, meaning that Crocs would
have to forego taking another deposition to depose Steven Mann. Id.2
The magistrate judge ruled that Crocs would be permitted to take a two-day
deposition, of up to 14 hours, of Steven Mann, regardless of previously set numerical
deposition limits, and that Steven Mann’s deposition will precede any Rule 30(b)(6)
depositions for U.S.A. Dawgs, Double Diamond, or Mojave with each limited to seven
hours of testimony time. Docket No. 975 at 2.
B. Motion for Sanctions
In the motion for sanctions, Crocs requested an order requiring counsel for
Dawgs to permit Crocs to take depositions in the order of its choosing, compelling the
production of documents responsive to Crocs’s subpoena of James Mann, granting
leave to re-depose James Mann in his personal capacity, and awarding attorney’s fees
and costs. Docket No. 947 at 1–2. Along with the issues discussed in the motion to
compel regarding Steven Mann, Crocs states that it has run into issues with respect to
Mojave. Crocs states that it issued a subpoena f or documents in advance of James
Mann’s April 16, 2020 deposition. Id. at 3. James Mann, however, never responded to
the subpoena and testified that he had never seen it. Id. However, at his deposition,
he confirmed that he had responsive documents. Id. After the deposition, counsel for

2

Crocs disputes Dawgs’s counting of the depositions. According to Crocs,
Dawgs has insisted that Crocs’s Rule 30(b)(6) notice should count f or three depositions,
presumably since it pertains to three entities, Double Diamond, U.S.A. Dawgs, and
Mojave. Id. At a previous scheduling conference, however, the magistrate judge
confirmed that this would count as one deposition. See Docket No. 226 at 63:1–14.
3

James Mann and Dawgs filed late responses and objections to the subpoena, but
largely refused to produce documents. Id. Dawgs then announced that it was
designating James Mann as the Rule 30(b)(6) witness for Mojave – after Crocs had
already taken James Mann’s deposition. Id. As a result, Dawgs caused the need for
two Rule 30(b)(6) depositions after previously agreeing that Steven Mann would be the
designee for all three entities. Second, Crocs argued that, if Dawgs intended for James
Mann to be the Rule 30(b)(6) deponent for Mojave, Dawgs should have advised Crocs
of this before James Mann’s deposition so that Crocs could depose Jam es Mann once,
rather than twice. Id. Crocs argues that this conduct is sanctionable and seeks costs
and fees for the additional deposition of James Mann as the Rule 30(b)(6) designee.
C. The Magistrate Judge’s Order
The magistrate judge ruled that Crocs will be allowed to depose James Mann, or
another Rule 30(b)(6) designee, for Dawgs. Docket No. 975 at 2. The magistrate judge
also ordered sanctions under Federal Rule of Civil Procedure 37 in Crocs’s favor as a
result of Dawgs’s “obstreperous and devious behavior with respect the scheduling of
the depositions of James Mann, Steven Mann[,] and the three corporate depositions.”
Id.; see also Docket No. 980 at 43:4–19. The magistrate judge found that Dawgs’s
behavior was “designed to gain a tactical advantage in the litigation” and awarded to
Crocs and against Dawgs (1) the reasonable costs incurred by Crocs, including
reasonable attorney’s fees, related to preparing the motion for sanctions and the reply
brief; and (2) the increased incidental costs associated with having to depose James
Mann a second time, including additional court reporter and videographer fees, but not

4

including attorney’s fees, since the attorneys’ time would have been spent regardless of
Dawgs’s “discovery interference.” Docket No. 975 at 2.
II. LEGAL STANDARD
“Timely objections to magistrate judge recommendations are reviewed de novo
pursuant to Rule 72(b), rather than under the clearly erroneous/contrary to law standard
applied to magistrate judge orders by Rule 72(a).” Gordanier v. Montezuma Water Co.,
No. 08-cv-01849-PAB-MJW, 2010 WL 935665, at *1 (D. Colo. Mar. 11, 2010).
However, when reviewing a party’s objection to a magistrate judge’s order on a
non-dispositive matter, the Court “must consider timely objections and modify or set
aside any part of the order that is clearly erroneous or is contrary to law.” Fed. R. Civ.
P. 72(a); Hutchinson v. Pfeil, 105 F.3d 562, 566 (10th Cir. 1997); see Gomez v. Martin
Marietta Corp., 50 F.3d 1511, 1519–20 (10th Cir. 1995) (“Even though a movant
requests a sanction that would be dispositive, if the magistrate judge does not impose a
dispositive sanction the order falls under Rule 72(a) rather than Rule 72(b).”).
Dawgs does not argue that the magistrate judge’s discovery order was
dispositive, and the Court does not find it to be. Thus, the Court will review the order
under the clearly erroneous standard, which “requires that the reviewing court affirm
unless it ‘on the entire evidence is left with the definite and firm conviction that a
mistake has been committed.’” Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458,
1464 (10th Cir. 1988) (quoting United States v. U.S. Gypsum Co., 333 U.S. 365, 395
(1948)). When applying the “clearly erroneous” standard, the Court is not entitled to
reverse the magistrate judge's findings “simply because it is convinced that it would

5

have decided the case differently,” and the Court may not decide factual issues de
novo. Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573 (1985) (citing Zenith
Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 123 (1969)).
III. ANALYSIS
Dawgs objects that there is no basis to award sanctions either under Rule 37 or
the Court’s inherent power. Docket No. 987 at 7. Federal Rule of Civil Procedure
37(a)(5)(A) states that if a motion to compel is granted “the court must, after giving an
opportunity to be heard, require the party or deponent whose conduct necessitated the
motion, the party or attorney advising that conduct, or both to pay the movant’s
reasonable expenses incurred in making the motion, including attorney’s fees.”3 That
is, if a litigant is required to seek court intervention to obtain discovery responses by
prosecuting a successful motion to compel, the offending party will be required to pay
the costs for such unnecessary litigation. See also E. Colo. Seeds, LLC v.
Agrigenetics, Inc., No. 19-cv-01885-LTB-KMT, 2020 WL 8870664, at *4 (D. Colo. Oct.
1, 2020), report and recommendation adopted, No. 19-CV-01885-LTB, 2021 WL
688873 (D. Colo. Jan. 21, 2021). “Determination of the correct sanction for a discovery
violation is a fact-specific inquiry, and in making such a determination trial courts are
accorded broad discretion.” Gates Rubber Co. v. Bando Chem. Indust., Ltd., 167
F.R.D. 90, 102 (D. Colo. 1996) (citing Nat’l Hockey League v. Metro. Hockey Club, Inc.,
427 U.S. 639, 642 (1976) (internal quotation marks and further citation omitted)).
3

Sanctions are not appropriate, however, if the non-response “was substantially
justified”; “the opposing party’s nondisclosure, response, or objection was substantially
justified”; or “other circumstances make an award of expenses unjust.” Fed. R. Civ. P.
37(a)(5)(A)(ii)–(iii). Dawgs does not argue that any of these exceptions applies.
6

Dawgs makes numerous arguments attempting to justify its conduct. However,
these arguments are largely just a repetition of its responses to Crocs’s motions and the
arguments that it made at the hearing. As the Court has previously explained to
Dawgs, “[i]n objecting to the magistrate judge’s recommendation, [a party] must raise
specific arguments addressing purported errors in the recommendation; [the party] may
not reiterate its identical arguments hoping to get a different outcome.” Docket No. 929
at 7 n.2 (quoting Saleh v. Silco Oil Co., No. 19-cv-02973-PAB-NRN, 2020 WL 4915604,
at *3 (D. Colo. Aug. 20, 2020) (citing Vester v. Asset Acceptance, L.L.C., No.
08-cv-01957-MSK-LTM, 2009 WL 2940218, at *8 (D. Colo. Sept. 9, 2009) (“An
‘objection’ that merely reargues the underlying motion is little different than an
‘objection’ that simply refers the District Court back to the original motion papers.”))).
This principle is especially applicable where, as here, the Court is not reviewing the
magistrate judge’s determination de novo. Nevertheless, while the Court need not
consider these repeated arguments, the Court would overrule Dawgs’s objection.
First, Dawgs argues that Rule 37 does not apply in this dispute because the rule
authorizes sanctions only for “specific motions” listed under Section (a)(3), which
include the failure of a deponent to respond to a question, the failure of a party to
designate a witness under Rule 30(b)(6) or 31(a)(4), a party’s failure to answer an
interrogatory, and a party’s failure to produce documents. Docket No. 987 at 7 (citing
Rule 37(a)(3)(B)(i)–(iv). Dawgs provides no authority for its position, however, and its
argument is made more unpersuasive by the fact that Rule 37 includes other instances
where sanctions are permissible. See, e.g., Fed. R. Civ. P. 37(b)–(f). Moreover,
sanctions are permitted, as explained above, where a party prevails on a motion to
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compel. Fed. R. Civ. P. 37(a)(5)(A).
Second, Dawgs admits that it did not respond to the document subpoena
regarding James Mann, but states that his was “inadvertent” and emphasizes that the
error was “cured shortly thereafter.” Docket No. 987 at 7–8. However, the documents
were apparently not produced until after James Mann’s deposition. This prejudiced
Crocs in deposing James Mann.
Third, Dawgs argues that, because the document subpoena was issued to
James Mann in his personal capacity, sanctions for failing to respond should fall under
Federal Rule of Civil Procedure 45(g) concerning contempt, not Rule 37, which applies
to parties. Id. at 8 n.2. This argument is unconvincing because the Court has not
sanctioned James Mann himself, but rather has sanctioned Dawgs, which is a party.
See Docket No. 975 at 2 (awarding costs to Crocs and against Dawgs).
Fourth, Dawgs insists that its post-deposition designation of the Rule 30(b)(6)
designee is not sanctionable because Dawgs was entitled to designate whoever it
wanted as its corporate representative and it offered James Mann for a second
deposition. Id. at 8. The magistrate judge, however, did not dispute that Dawgs was
free to designate whoever it wanted, see Docket No. 980 at 29:9–15, and the
magistrate judge agreed that individual and Rule 30(b)(6) depositions are separate
depositions in terms of counting against the total number of depositions. Id. at
38:21–23. However, by Dawgs “chang[ing] the playing field afterwards,” the magistrate
judge found that Dawgs had engaged in “massive game playing” and acted unfairly. Id.
at 40:13–20. The Court finds no clear error in the magistrate judge’s conclusion.

8

Fifth, Dawgs argues that there is no evidence of bad faith in any of its actions
and states that it was Crocs that twice cancelled the Rule 30(b)(6) deposition originally
scheduled for Steven Mann but changed to Ms. O’Dell. Docket No. 987 at 9. The most
Dawgs could be faulted for, Dawgs believes, is changing the Rule 30(b)(6) deponent
from Steven Mann to Ms. O’Dell, but it did so 23 days in advance of the deposition. Id.
The Court disagrees. The magistrate judge recounted the many instances of bad faith
and gamesmanship.4
4

Solely with regard to deposing James and Steven Mann, let alone Dawgs’s
conduct concerning the ignored subpoena, the magistrate judge explained,
It looks to me like you are completely and totally playing games here. . . .
You have told the attorneys for Crocs that Steven Mann was going to be a
30(b)(6). He is the only witness that you really have, the only person with
knowledge. He’s the guy that was in the middle of everything.
And you let them take the deposition of his brother without telling him that
“oh, by the way, we’re going to change our mind and put James Mann up
as the 30(b)(6).” And you got everything scheduled, and then said “oh,
no, I think we'll put up Steve Mann’s wife as the 30(b)(6).”
You can do whatever you want as far as designating who your 30(b)(6)
witness is. That’s totally up to you. I can’t make you be rational and
reasonable about that.
We all know, everybody knows, that it should be Steven Mann. But if you
don’t want to do it because you’re playing games, that’s fine.
But the alternative to that is I am going to give them Steve Mann
individually for the same length of time that I would have given him for a
30(b)(6). It’s going to take more time, and I’m going to let them do it in the
order that they want to, because you were the ones playing games and
making these things necessary.
Docket No. 980 at 17:10–18:9. The magistrate judge continued,
So, to me, that’s gamesmanship. That’s trying to get an advantage by
lying to someone and then changing your mind. And knowing that they’re
9

Sixth, Dawgs asserts that parties have no right to demand depositions or
discovery in a certain order. Id. at 9–10. Dawgs, however, fails to cite authority that the
Court cannot order such a sanction, and the Court f inds that, given Dawgs’s behavior
during discovery, such a requirement is appropriate here. Cf. Clark v. C.I.R., 744 F.2d
1447, 1447 (10th Cir. 1984) (“Courts have the inherent power to impose a variety of
sanctions on both litigants and attorneys in order to regulate their docket, promote
judicial efficiency, and deter frivolous filings.”).
Finally, even if Dawgs’s conduct did not directly violate Rule 37, the Court would
affirm the magistrate judge’s order under the Court’s inherent authority to manage its
docket and the litigation before it. See Clark, 744 F.2d at 1447; see also Chambers v.
NASCO, Inc., 501 U.S. 32, 46 (1991) (“[T]he inherent power extends to a full range of
litigation abuses.”). “[W]here a monetary sanction rests in substantial portion on a
court’s inherent authority to punish a party for bad-faith conduct unreachable by statute
or rule . . . a court need not attribute a portion of the assessment to any particular
statute or rule.” Farmer v. Banco Popular of N. Am., 791 F.3d 1246, 1257 (10th Cir.
2015) (“A district court’s inherent power to sanction reaches beyond the multiplication of
court proceedings and authorizes sanctions for wide-ranging conduct constituting an
abuse of process.”); Guarneros v. Deutsche Bank Tr. Co. Americas, No. 08-cv-01094PAB-KLM, 2009 WL 1965491, at *6 (D. Colo. July 7, 2009) (“The Court may impose
sanctions in the exercise of its inherent authority.”). The Court finds that Dawgs’s

pretty helpless, that there’s nothing much they can do.
Id. at 22:22–25.
10

conduct as detailed above is sufficiently “contemptuous” of the discovery process as to
be sanctionable. Farmer, 791 F.3d at 1258.
IV. CONCLUSION
For the foregoing reasons, it is
ORDERED that Dawgs’ Unopposed Motion to File Amended Reply to Crocs’
Opposition to Dawgs’ Objections to Magistrate Judge’s Sanctions Order (Dkt. 998)
[Docket No. 1000] is GRANTED.5 It is further
ORDERED that Counterclaim Plaintiffs’ Objection to Magistrate Judge Kathleen
Tafoya’s Order (Dkt. No. 975) Awarding Sanctions in Connection with Crocs’ Motion to
Compel (Dkt. No. 947) [Docket No. 987] is OVERRULED.

DATED March 28, 2022.

BY THE COURT:

PHILIP A. BRIMMER
Chief United States District Judge

5

The Court considered Dawgs’s amended reply when ruling on Dawgs’s
objections to the magistrate judge’s sanctions order.
11