Crawford v. Smith's Food and Drug Store Inc

Filing 216

ORDER Denying 203 , 204 , and 205 Motions to Reconsider Order. Denying as moot 209 Motion to Stay and 215 Motion for Status Check. Signed by Chief Judge Gloria M. Navarro on 10/6/2014. (Copies have been distributed pursuant to the NEF - SLR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Milton O. Crawford,
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Plaintiff,

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vs.
Smith’s Food and Drug Centers, Inc., et al.,

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Defendants.

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Case No.: 2:12-cv-0122-GMN-GWF
ORDER

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Pending before the Court are the Motions to Reconsider, (ECF Nos. 203, 204, 205), filed

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by pro se Plaintiff Milton O. Crawford. Defendant Smith’s Food & Drug Centers, Inc.

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(“Smith’s”) has filed Responses, (ECF Nos. 206, 207), and Plaintiff filed Replies. (ECF Nos.

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211, 212).

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I.

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BACKGROUND
Plaintiff filed his original Complaint in this action on January 23, 2012, which set forth

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claims for, inter alia, intentional infliction of emotional distress, harassment, defamation,

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employment discrimination, retaliation, and wrongful termination against Defendant Smith’s.

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(Compl. 3:12-16, ECF No. 1-1). On May 10, 2012, Plaintiff filed an Amended Complaint,

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naming Kroger Company (“Kroger”) as an additional defendant. (Am. Compl., ECF No 16).

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Pursuant to the parties’ stipulated Scheduling Order, discovery in this case was originally

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scheduled to close on January 14, 2013. (Sched. Order 2:12-17, ECF No 51). On September

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23, 2013, the Court ordered that Plaintiff pay attorneys’ fees, in an amount to be determined

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later, for costs incurred by Defendants due to three frivolous motions for default judgment.

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(Order 4:20-24, ECF No 142). On March 31, 2014, Judge Foley ruled that an award of

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$4,093.75 was appropriate to compensate Defendants for Plaintiff’s conduct. (Order, ECF No.

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197).

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On February 28, 2014, after Plaintiff consistently failed to cooperate with discovery

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requests in defiance of direct Orders, Magistrate Judge George Foley issued a Report and

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Recommendation stating that Plaintiff’s Amended Complaint should be dismissed with

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prejudice. (Rep. & Rec., ECF No. 194). On April 9, 2014, the Court adopted Judge Foley’s

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Report and Recommendation and dismissed the Amended Complaint with prejudice. (ECF No.

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201).

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In the instant Motions, Plaintiff argues that (1) the dismissal of his Amended Complaint
was premature, as he was entitled to default judgment against Defendant Kroger, and (2) his six

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motions requesting entry of default against Defendant Kroger were not redundant. (ECF Nos.

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203, 204, 205).

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II.

LEGAL STANDARD

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A. Reconsideration of this Court’s Prior Orders

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Rule 60 of the Federal Rules of Civil Procedure provides a standard by which the Court

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may reconsider its Orders. This rule, governing relief from a judgment or order, provides in

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part:

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On motion and just terms, the court may relieve a party or its legal representative

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from a final judgment, order, or proceeding for the following reasons:

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(1) mistake, inadvertence, surprise, or excusable neglect;

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(2) newly discovered evidence that, with reasonable diligence, could not have

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been discovered in time to move for a new trial under Rule 59(b);

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(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation,

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or misconduct by an opposing party;

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(4) the judgment is void;

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(5) the judgment has been satisfied, released or discharged; it is based on an

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earlier judgment that has been reversed or vacated; or applying it prospectively

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is no longer equitable; or

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(6) any other reason that justifies relief.

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Fed. R. Civ. P. 60(b). The Ninth Circuit has distilled the grounds for reconsideration into three

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primary categories: (1) newly discovered evidence; (2) the need to correct clear error or prevent

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manifest injustice; and (3) an intervening change in controlling law. School Dist. No. 1J v.

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ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993).

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B. Reconsideration of an Order Issued by a United States Magistrate Judge

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A district judge may reconsider any matter that has been properly referred to a

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magistrate judge only upon a showing “that the magistrate judge’s order is clearly erroneous or

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contrary to law.” 28 U.S.C. § 636(b)(1)(A); see also Fed. R. Civ. P. 72(a); D. Nev. R. 3-1(a)

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(“A district judge may reconsider any pretrial matter referred to a magistrate judge in a civil or

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criminal case pursuant to LR IB 1-3, where it has been shown that the magistrate judge’s ruling

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is clearly erroneous or contrary to law.”). “This subsection would also enable the court to

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delegate some of the more administrative functions to a magistrate, such as . . . assistance in the

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preparation of plans to achieve prompt disposition of cases in the court.” Gomez v. United

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States, 490 U.S. 858, 869 (1989).

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A finding is clearly erroneous when, after reviewing all of the pertinent evidence, a court

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is “left with the definite and firm conviction that a mistake has been committed.” Boyd v. Bert

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Bell/Pete Rozelle NFL Players Ret. Plan, 410 F.3d 1173, 1178 (9th Cir. 2005) (internal

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quotation omitted). A magistrate judge’s pretrial order issued under 28 U.S.C. § 636(b)(1)(A)

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is not subject to de novo review, and the reviewing court “may not simply substitute its

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judgment for that of the deciding court.” Grimes v. City & County of San Francisco, 951 F.2d

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236, 241 (9th Cir. 1991).

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III.

DISCUSSION
For the reasons set forth by the Court in its previous Orders (ECF Nos. 142, 201) and by

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Defendant Smith’s in its Responses (ECF Nos. 206, 207), the Court finds no grounds for

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reconsideration. The arguments set forth by Plaintiff have already been rejected by the Court,

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and provide no grounds to reopen this case. Furthermore, Plaintiff’s vexatious history in this

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case contradicts any notion that reconsideration is necessary to “prevent manifest injustice.”

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A. Dismissal with Prejudice

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In its dismissal Order, the Court recognized that despite the “great lengths to which

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Plaintiff has been accommodated as a pro se litigant, . . . [Plaintiff’s] violations of Court Orders

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have endured even after multiple warnings, instruction as to the governing law, and referral to

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the Legal Aid Center of Southern Nevada’s Ask-A-Lawyer Program.” (Order 2:14-18, ECF No.

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201). Indeed, Plaintiff’s refusal to participate in discovery persisted even after “multiple

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warnings, orders, and sanctions of the Court.” (Id. at 18-21). Thus, in consideration of: (1) the

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public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its

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dockets; (3) the risk of prejudice to the party seeking sanctions; (4) the public policy favoring

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disposition of cases on their merits; and (5) the availability of less drastic sanctions, the Court

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found dismissal with prejudice, as recommended by Judge Foley, to be warranted. (See id. at

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2:9-25); (Rep. & Rec., ECF No. 194) (citing Malone v. United States Postal Service, 833 F.2d

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128, 130 (9th Cir.1987)).

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In the instant Motions, Plaintiff does not address his repeated failures to comply with the

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Court’s discovery orders. Instead, Plaintiff merely argues that dismissal of this action was

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premature, as he was entitled to entry of default judgment against Defendant Kroger. (Pl.’s

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Mot. 4:10-15, ECF No. 204). However, Plaintiff fails to acknowledge that the Court

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definitively held, on May 20, 2013, that default judgment was not warranted as to Defendant

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Kroger, (Order 5:14-23, ECF No. 121), or that the Court denied Plaintiff’s Motion to

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Reconsider this ruling on September 23, 2013, (Order, ECF No. 142). Plaintiff fails to set forth

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any basis, such as error, fraud, or mistake which could warrant reconsideration regarding the

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issue of default judgment. Accordingly, the Court declines to reconsider its dismissal Order.

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B. Attorneys’ Fees

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Plaintiff argues that the Court erred in awarding attorneys’ fees, because his six filings

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requesting entry of default and default judgment against Defendant Kroger were “not

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redundant.” (Pl.’s Mot. at 3:6-9, ECF No. 203). However, Plaintiff fails to set forth any basis

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by which the attorneys’ fee award was clearly erroneous or contrary to law. Instead, Plaintiff

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merely restates arguments that have repeatedly been rejected by the Court. (Pl.’s Mot. 2:20-4:2,

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ECF No. 204).
Upon review, the Court finds no error in its Order granting costs and fees, (ECF No.

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142), or Judge Foley’s Order regarding the amount of the award, (ECF No. 197). The Ninth

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Circuit has consistently held that the court has “inherent power to award attorney’s fees for bad

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faith conduct.” Earthquake Sound Corp. v. Bumper Industries, 352 F.3d 1210, 1220 (9th Cir.

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2003). Recognizing that Plaintiff had, at that time, filed three redundant motions following the

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denial of his request for entry of default judgment, the Court found that Plaintiff had acted in

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bad faith and that an award of attorneys’ fees was warranted. (Order 4:14-24, ECF No. 142);

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see also Lipsig v. Nat'l Student Mktg. Corp., 663 F.2d 178, 181 (D.C. Cir. 1980) (“[A]dvocacy

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simply for the sake of burdening an opponent with unnecessary expenditures of time and effort

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clearly warrants recompense for the extra outlays attributable thereto.”). After thoroughly

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reviewing documentation regarding the costs that were incurred in defending against these

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filings, Judge Foley ordered that Plaintiff pay $4,093.75. (ECF No. 197). Plaintiff’s recitation

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of previously rejected arguments fails to call into question the Court’s finding of bad faith or

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Judge Foley’s calculation of the proper award. Furthermore, the Court’s own examination

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reveals that these decisions are supported by the record and comport with the requirements of

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the law. Accordingly, the Court will decline to reconsider the award of attorneys’ fees.

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IV.

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CONCLUSION
IT IS HEREBY ORDERED that the Motions to Reconsider, (ECF Nos. 203, 204,

205), are DENIED.
IT IS FURTHER ORDERED that the pending Motions for a Stay, (ECF No. 209), and
Status Check, (ECF No. 215), are DENIED AS MOOT.
DATED this 6th day of October, 2014.

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___________________________________
Gloria M. Navarro, Chief Judge
United States District Court

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