Feldman v. Pokertek, Inc.

Filing 57

ORDER that, within 14 days from the entry of this order, the parties shall file a joint status report regarding defendant's compliance with the court's order relating to plaintiff's motion to compel and for sanctions 50 and 54 . Pl aintiff shall include a statement of what discovery is needed from defendant before the parties are able to file the joint pretrial order. FURTHER ORDERED that a hearing is scheduled for 6/4/12, at 10:00 a.m. in Courtroom 3C. Signed by Magistrate Judge Cam Ferenbach on 5/14/12. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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MARVIN ROY FELDMAN,

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Plaintiff,
v.
POKERTEK, INC.,

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Defendant.

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2:09-cv-01598-JCM-LRL
ORDER

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Before the court is plaintiff Marvin Roy Feldman’s Response to the Court’s Order To Show

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Cause (#55). (#56). Replies were due on May 11, 2012, and defendant PokerTek, Inc. did not file a

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reply.

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Background

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Plaintiff filed his complaint on August 21, 2009, asserting claims against defendant PokerTek

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for (1) breach of contract, (2) quantum meruit, (3) unjust enrichment, and (4) fraud. (#1). On October

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13, 2009, PokerTek filed its answer, asserting thirty-three affirmative defenses. (#8). The deadline for

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filing the discovery plan and scheduling order was November 27, 2009. Id. On February 16, 2010,

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plaintiff filed a discovery plan and scheduling order, stating that defendant agreed upon the deadlines

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therein. (#10). The discovery plan set the close of discovery on June 18, 2010, a dispositive motions

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deadline of July 12, 2010, and a joint pretrial order deadline of August 12, 2010. Id. The court entered

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the discovery plan and scheduling order on February 22, 2010. (#11).

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On March 12, 2010, the plaintiff filed a motion for leave to supplement the complaint. (#14).

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The plaintiff’s proposed amended complaint included additional claims for breach of the covenant of

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good faith and fair dealing, tortious bad faith/ tortious breach of the covenant of good faith and fair

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dealing, and civil conspiracy to suppress evidence/tamper with witnesses. Id. Defendant PokerTek did

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not file an opposition. On April 8, 2010, the court granted the plaintiff’s motion (#15), and the clerk

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filed plaintiff’s amended complaint (#16). On May 4, 2010, plaintiff filed a three day notice of intent

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to take default, asserting that “unless [defendant] answer or otherwise plead in response to [p]laintiff’s

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[f]irst [a]mended [c]omplaint on file herein within three (3) days of the filing of this Notice, [p]laintiff

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will seek entry of default...” (#18).

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On May 6, 2010, defendant filed its answer to plaintiff’s first amended complaint asserting fifty-

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six affirmative defenses. (#19). The deadline to file the discovery plan and scheduling was June 20,

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2010. Id. On May 19, 2010, plaintiff filed a motion to extend discovery deadlines, asserting that the

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extension is necessary, because plaintiff has not had an opportunity to conduct discovery on its

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additional claims for relief and defendant’s affirmative defenses, plaintiff has not received complete

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answers to written discovery, and defendant set a deposition for the day before discovery ends. (#22).

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On July 8, 2010, the court issued an order extending the deadline for conducting fact discovery to

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September 10, 2010, setting a dispositive motions deadline for October 12, 2010, and the joint pretrial

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order deadline for November 15, 2010. (#26).

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On October 8, 2010, the plaintiff filed a motion to compel defendant’s discovery responses, to

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extend plaintiff’s fact discovery, for an order that defendant produce Roberto Correa Mendez for

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deposition, and for sanctions. (#30). On October 12, 2010, defendant filed a motion for summary

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judgment. (#31). On November 15, 2010, the parties filed a stipulation and order to extend time to file

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joint pretrial order, asking the court to extend the deadline in which to file the joint pretrial order to

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thirty days after the latter of the entry of an order on plaintiff’s motion to compel, or entry of an order

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on defendant’s motion for summary judgment. (#35). On November 17, 2010, the court signed the

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stipulation granting the extension. (#36).

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On November 30, 2010, the court entered an order granting in part and denying in part plaintiff’s

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motion to compel (#30), and ordering defendant to respond without objection to plaintiff’s first, second

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and third requests for production of documents no later than December 8, 2010. (#38). The court also

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extended the plaintiff’s fact discovery deadline until January 13, 2011. Id. On February 9, 2011, the
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court denied defendant’s motion for summary judgment (#31) for failure to authenticate the contact in

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dispute pursuant to Orr v. Bank of America NT & SA, 285 F.3D 764 (9th Cir. 2002). (#39). The joint

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pretrial order was due within thirty days from the entry of that order. On March 11, 2011, the parties

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filed a stipulation and order to extend time to file the pretrial order. (#40). The parties asserted that the

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joint pretrial order deadline “should be extended to March 31, 2011, to enable the parties to resolve

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certain discovery issues, including document disclosures that may be designated and discussed as trial

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exhibits, and to thereby provide the [c]ourt with a more complete [p]retrial [o]rder.” Id. The court

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signed the stipulation on March 15, 2011. (#41).

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On March 31, 2011, the date the joint pretrial order was due, the parties filed another stipulation

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to extend the deadline to file the joint pretrial order to April 30, 2011, asserting the same grounds for

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the extension as in the previous stipulation. (#42). The court signed the stipulation on April 4, 2011.

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(#43). The April 30, 2011, deadline passed, and the parties did not file a joint pretrial order. On May

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2, 2011, plaintiff filed a motion to compel production of documents and for sanctions. (#44). Plaintiff

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asserted that filing the motion was necessary, because “[f]ollowing prior motions to compel this

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defendant to participate in good faith discovery, all granted by this court, and defendant’s half-hearted

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compliance with such order, plaintiff determined that no useful information concerning defendant’s

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revenues in Mexico...had been disclosed.” Id. Plaintiff also argued that defendant did not comply with

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the court’s previous order requiring responses without objection (#38), and that defendant’s responses

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were, “at best,” “passive aggressive.” Id. Plaintiff asked this court to enter sanctions against defendant

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for its practice of being “pervasively and consistently contemptuous of the adversarial process, the rules

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of such process, and the order of the court governing that process, since the commencement of the

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action.” Id. Defendant filed a counter-motion to strike (#46), and the parties fully briefed the motions

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(#45, #47, #48, and #49).

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On September 29, 2011, the court entered an order holding “that defendant’s documents

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purporting to be responsive to plaintiff’s requests are unresponsive and irrelevant, and amount to a

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“failure to disclose, answer, or respond” under Rule 37(a)(4)(a).” (#50). The court ordered defendant
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to provide documents that are responsive to plaintiff’s requests within ten days from the entry of the

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order. Id. The court also stated that the court “is bewildered by defendant’s production of material that

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is utterly useless and that only serves to force plaintiff’s counsel to spend needless hours attempting to

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weed through them,” and that the court “will not tolerate future such gamesmanship, and will not

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hesitate to recommend that default judgment be entered against defendant if such conduct continues.”

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Id. The court held with regard to sanctions, that “the court at this time concludes that striking

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[defendant’s] answer is too severe a sanction,” but that “in light of the defendant’s disregard for court

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orders and continuous failure to meaningfully participate in discovery, the court finds that significant

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monetary sanctions are in order.” Id.

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The court ordered plaintiff to provide the court with an affidavit demonstrating the “reasonable

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expenses, including attorney’s fees,” that were incurred due to defendant’s failure to disclose the

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requested documents. Fed. R. Civ. P. 37(c)(1)(A).” Id. The court also denied defendant’s motion to

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strike (#46). Id. Plaintiff filed an affidavit pursuant to the court’s order (#51), and defendant filed an

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objection thereto (#53). On December 2, 2011, the court ordered defendant to pay $15,000 within

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fourteen days from the entry of the order. (#54). On April 19, 2012, the court entered an order to show

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cause as to why the complaint should not be dismissed for failure to comply with the court’s order (#43)

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setting the joint pretrial order deadline for April 30, 2011. (#55). The order required that the parties,

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on or before May 1, 2012, must “show cause why this case should not be dismissed for failure to comply

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with the local rules and a court order.” Id. On May 1, 2012, plaintiff filed his response to the court’s

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order to show cause. (#56). Defendant did not file a reply.

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Plaintiff’s Response To The Order To Show Cause (#56)

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Plaintiff asserts that “good cause” exists for the failure to file a pretrial order in accordance with

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the court’s order. (#56). Plaintiff states that it is clear that the purpose of the stipulation to extend

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deadlines (#43) was to “enable the parties to resolve certain discovery issues, including document

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disclosures that may be designated and discussed as trial exhibits, and to thereby provide the [c]ourt

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with a more complete [p]retrial [o]rder,” and that it is also clear that the parties were unable to resolve
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the discovery issues prior to the April 30, 2011, deadline, because plaintiff was forced to file a motion

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to compel and for sanctions on May 2, 2011 (#44). Id. Plaintiff argues that since the defendant’s

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discovery responses were inadequate, the pretrial order “was not possible” on April 30, 2011, and the

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motion to compel was necessary. Id. The court issued an order on the motion to compel on September

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29, 2011 (#50), and the court ordered defendant to pay plaintiff’s reasonable attorney’s fees in the

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amount of $15,000 on December 2, 2011 (#54). Plaintiff explains that the pretrial order was not filed

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because “neither of the orders adjudicating the [m]otion to [c]ompel (Doc. 50 nor Doc. 54) reset the

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time for the pretrial order,” and the plaintiff “interpreted the filing of [p]laintiff’s [m]otion to [c]ompel

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to sufficiently highlight the passing of the date for the pretrial order, and detail[] reasons the pretrial

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order had not been timely completed.” Id.

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Plaintiff asserts that since the time the court issued its order regarding the payment of attorney’s

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fees (#54), the defendant has not “fully complied with its disclosure requirements,” and the parties have

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engaged in protracted settlement discussions. (#56). Plaintiff requests that the court enter a revised

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pretrial order deadline on or around September 2012, and asserts that the pretrial order is not possible

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at this time in light of defendant’s incomplete discovery responses. Id. Plaintiff argues that there “is

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no evidence of lack of diligence of [p]laintiff’s part,” and that plaintiff “anticipated to prompt a resetting

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of the time-lines” when he filed his motion to compel (#44). Id. Plaintiff states that resetting the

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scheduling order will provide an opportunity for the parties to continue settlement negotiations, and,

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in the event settlement negotiations fail, for plaintiff to resolve the outstanding discovery issues,

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enabling a complete pretrial order. Id.

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Accordingly, and for good cause shown,

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IT IS ORDERED that, within fourteen (14) days from the entry of this order, the parties shall

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file a joint status report regarding defendant’s compliance with the court’s orders relating to plaintiff’s

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motion to compel and for sanctions (#50 and #54). Plaintiff shall include a statement of what discovery

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is needed from defendant before the parties are able to file the joint pretrial order.

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IT IS FURTHER ORDERED that a hearing in scheduled for June 4, 2012, at 10:00 a.m. in
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Courtroom 3C.
DATED this 14th day of May, 2012.
CAM FERENBACH
UNITED STATES MAGISTRATE JUDGE

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