Ferretti v. Maui Beach Club, Inc.

Filing 17

ORDER Adopting Findings and Recommendation To Close This Case re: 14 . "Based on the foregoing, the court ADOPTS the F&R to close this case. To be clear, the court is ordering that only this miscellaneous action be closed. This ruling has no effect on the pending civil action in this court, Civ. No. 18-00012 JMS-RLP. The Clerk of Court is directed to close this case." Signed by CHIEF JUDGE J. MICHAEL SEABRIGHT on 6/12/2018. (cib, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
ANTHONY FERRETTI,

Misc. No. 18-00057 JMS-RLP
ORDER ADOPTING FINDINGS
AND RECOMMENDATION TO
CLOSE THIS CASE

Petitioner,

vs.

BEACH CLUB MAUI, INC.,
Respondent.

ORDER ADOPTING FINDINGS AND RECOMMENDATION TO
CLOSE THIS CASE
I. INTRODUCTION
On April 24, 2018, Magistrate Judge Richard L. Puglisi issued a
Finding and Recommendation to close this case (“F&R”). ECF No. 14. Petitioner
Anthony Ferretti (“Petitioner”) then filed an “Apology to District Judge,” ECF No.
15, and an Opposition to dismissal, ECF No. 16, which, together, the court
construes as Petitioner’s Objections to the F&R.
For the reasons discussed below, the court ADOPTS the F&R and
directs the Clerk of Court to close this case.
///
///

II. BACKGROUND
On February 28, 2018, Petitioner initiated this action by filing a
Motion to Compel Respondent Beach Club Maui, Inc. (“Respondent” or “BCM”)
to produce documents in response to a Rule 45 subpoena issued in a separate
action in the United States District Court for the Southern District of Florida —
Ferretti v. NCL (Bahamas) Ltd., Civ. No. 17-20202 (GAYLES). ECF No. 1.
Respondent, not a party to the Florida action, filed an Opposition on March 20,
2018, indicating that it would respond to the subpoena and produce documents,
subject to limited objections. ECF No. 9. Based on this apparent resolution of the
Motion to Compel, on April 9, 2018, Magistrate Judge Puglisi directed Petitioner
to file a reply indicating what, if any, issues remain for the court to resolve. See
ECF No. 11. In reply, Petitioner stated that he would meet and confer with
Respondent’s counsel to “obtain . . . those materials the parties can agree are
relevant and obtainable.” Reply at 2, ECF No. 12.
Thus, on April 10, 2018, Magistrate Judge Puglisi denied without
prejudice the Motion to Compel and directed Petitioner to file a status report by
April 20, 2018. See ECF No. 13. Petitioner was directed to indicate whether the
parties resolved their discovery issues and whether Petitioner intended to file a new
motion to compel or request that the action be closed. See id. Petitioner failed to
file a status report. On April 24, 2018, Magistrate Judge Puglisi found that
2

Petitioner appeared to have abandoned the action and recommended that the case
be closed. See F&R at 2.
III. STANDARD OF REVIEW
When a party objects to a magistrate judge’s findings or
recommendations, the district court must review de novo those portions to which
the objections are made and “may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.” 28 U.S.C.
§ 636(b)(1); see also United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.
2003) (en banc) (“[T]he district judge must review the magistrate judge’s findings
and recommendations de novo if objection is made, but not otherwise.”).
Under a de novo standard, this court reviews “the matter anew, the
same as if it had not been heard before, and as if no decision previously had been
rendered.” Freeman v. DirecTV, Inc., 457 F.3d 1001, 1004 (9th Cir. 2006). The
district court need not hold a de novo hearing; however, it is the court’s obligation
to arrive at its own independent conclusion about those portions of the magistrate
judge’s findings or recommendation to which a party objects. United States v.
Remsing, 874 F.2d 614, 618 (9th Cir. 1989).
IV. DISCUSSION
Petitioner objects to the F&R arguing that there is a “reasonable basis
for this case remaining open,” namely, that he “complied with the Court’s
3

directive.” ECF No. 16 at 2. Petitioner apologized on April 24, 2018, “for not
having recontact[ed] [Magistrate Judge Puglisi] concerning the . . . refiling [of]
additional discovery which complied with the Court’s earlier ruling.” ECF No. 15
at 2. And on April 25, 2018, Petitioner argued that by filing a new discovery
request in a third pending action — Ferretti v. Beach Club Maui, Inc., Civ. No. 1800012 JMS-RLP (D. Haw.) — he “obey[ed] and compl[ied] with the April 20,
2018 deadline to submit a status report. ECF No. 16 at 2. Petitioner contends that
he “inadvertently” filed the new request in the “wrong proceeding.” Id. at 2-3.
Petitioner further contends that even though the new discovery request was filed in
the Hawaii civil action, it “proved . . . that [Petitioner] desired and intended to
pursue the issues presented,” complied with Magistrate Judge Puglisi’s instruction,
and “was not abandoning this case.” Id. at 3.
But the new discovery request filed in Civ. No. 18-00012 JMS-RLP
did not comply with Magistrate Judge Puglisi’s instruction. That is, the new
request neither indicated that Petitioner intends to file a new motion to compel
enforcement of the Rule 45 subpoena nor requested that this miscellaneous action
to enforce the Rule 45 subpoena be closed. Rather, the new discovery request
noticed the deposition of Kevin Hoke and other employees of BCM and requested
that “deponent Kevin Hoke and/or defendant [BCM]” bring documents that appear

4

to be the same or similar to those requested by the Rule 45 subpoena. ECF No. 161.
Petitioner appears to view both civil cases and the instant
miscellaneous case as one action, but this is neither correct nor helpful to the
court’s review. For example, the court cannot discern whether (1) the parties to the
instant miscellaneous case resolved their document production dispute and
therefore, the new discovery request merely sets forth the logistics of production;
or (2) the dispute over production of documents remains unresolved, but that
Petitioner is now seeking production of the same or similar documents through the
new discovery request in the Hawaii civil action.
Regardless, despite Petitioner’s objection to closing the instant
miscellaneous case, he has not articulated a reason to keep it open. That is,
Petitioner has not indicated that he intends to file a renewed motion to compel to
enforce the Rule 45 subpoena. To the contrary, Petitioner appears to be seeking
production of discoverable documents from BCM through the Hawaii civil action.
Thus, the court agrees with Magistrate Judge Puglisi and finds that Petitioner
appears to have abandoned this case.
V. CONCLUSION
Based on the foregoing, the court ADOPTS the F&R to close this
case. To be clear, the court is ordering that only this miscellaneous action be
5

closed. This ruling has no effect on the pending civil action in this court, Civ. No.
18-00012 JMS-RLP. The Clerk of Court is directed to close this case.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, June 12, 2018.

/s/ J. Michael Seabright
J. Michael Seabright
Chief United States District Judge

Ferretti v. Beach Club Maui, Inc., Misc. No. 18-00057 JMS-RLP, Order Adopting Findings and
Recommendation to Close this Case

6