On Demand Direct Response, LLC et al v. McCart-Pollak

Filing 362

ORDER ACCEPTING AND ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE NANCY J. KOPPE ECF No. #341 . Clerk directed to enter default judgment in favor of McCart-Pollak on her counterclaims against On Demand. Signed by Judge Miranda M. Du on 6/19/2018. (Copies have been distributed pursuant to the NEF - KW)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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ON DEMAND DIRECT RESPONSE, LLC
et al.,

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Plaintiffs,
v.

ORDER ACCEPTING AND ADOPTING
REPORT AND RECOMMENDATION OF
MAGISTRATE JUDGE
NANCY J. KOPPE

SHANA LEE MCCART-POLLAK D/B/A
LOL BUDDIES ENTERPRISES

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Case No. 2:15-cv-01576-MMD-NJK

Defendant,
And all related actions.

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Before the Court is Magistrate Judge Nancy J. Koppe’s Report and

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Recommendation (“R&R” or “Recommendation) (ECF No. 341), regarding the Court’s

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prior order for On Demand Direct Response, LLC, On Demand Direct Response III, LLC

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(collectively “On Demand”), and attorney Jeffrey Miller to show cause why they should not

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be sanctioned and held in contempt (ECF No. 297) as well as Shana McCart-Pollak’s

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motions to hold Mr. Miller in contempt and for sanctions (ECF Nos. 292, 292). To date,

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no objections have been filed by On Demand or Miller. The R&R set the civil contempt

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hearing for June 18, 2018. Neither Miller nor a corporate representative of On Demand

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appeared at the hearing. Local counsel for On Demand, Tony Abbatangelo, did appear.

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He represented that he informed Miller of the June 18, 2018 hearing but did not receive

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any response from Miller.

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This Court “may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where a party

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timely objects to a magistrate judge’s report and recommendation, then the court is

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required to “make a de novo determination of those portions of the [report and

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recommendation] to which objection is made.” 28 U.S.C. § 636(b)(1). Where a party fails

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to object, however, the court is not required to conduct “any review at all . . . of any issue

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that is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985). Indeed,

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the Ninth Circuit has recognized that a district court is not required to review a magistrate

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judge’s report and recommendation where no objections have been filed. See United

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States v. Reyna-Tapia, 328 F.3d 1114, 1122 (9th Cir. 2003) (disregarding the standard of

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review employed by the district court when reviewing a report and recommendation to

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which no objections were made); see also Schmidt v. Johnstone, 263 F. Supp. 2d 1219,

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1226 (D. Ariz. 2003) (reading the Ninth Circuit’s decision in Reyna-Tapia as adopting the

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view that district courts are not required to review “any issue that is not the subject of an

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objection”). Thus, if there is no objection to a magistrate judge’s recommendation, then

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the court may accept the recommendation without review. See, e.g., Johnstone, 263 F.

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Supp. 2d at 1226 (accepting, without review, a magistrate judge’s recommendation to

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which no objection was filed).

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Nevertheless, this Court finds it appropriate to engage in a de novo review in order

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to determine whether to adopt the R&R. As the Court explained at the June 18, 2018

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hearing, upon review of the R&R and the filings in this case, the Court agrees and accepts

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Judge Koppe’s recommendation to enter default judgment on McCart-Pollak’s

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counterclaims against On Demand. McCart-Pollak has fourteen (14) days to submit an

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affidavit regarding damages.

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The Court also accepts Judge Koppe’s recommendation to find Miller and On

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Demand in civil contempt and to compel On Demand and Mr. Miller to respond to McCart-

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Pollak’s discovery requests. The Court finds that there is clear and convincing evidence

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that On Demand and Mr. Miller violated at least three court orders, including the order

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requiring On Demand to obtain counsel, the order requiring On Demand to produce

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documents, and the order requiring a corporate representative to appear at the show

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cause hearing. (ECF Nos. 99, 289, 316.) On Demand and Miller have failed to take any

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steps, let alone reasonable steps, to comply with these orders.
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As the Ninth Circuit recently reiterated, “A court may wield its civil contempt powers

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for two separate and independent purposes: (1) ‘to coerce the defendant into compliance

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with the court's order’; and (2) ‘to compensate the complainant for losses sustained.’” Shell

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Offshore Inc. v. Greenpeace, Inc., 815 F.3d 623, 629 (9th Cir. 2016) (quoting United States

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v. United Mine Workers of Am., 330 U.S. 258, 303-04 (1947)). Because On Demand’s

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responses to the discovery requests at issue are needed for McCart-Pollak to prosecute

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her third-party claims, the Court will wield its civil contempt power to compel On Demand

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to respond to these discovery requests. Accordingly, the Court finds that find that On

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Demand and Miller are in contempt of the Court’s orders. As sanctions, they must (1)

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respond to McCart-Pollak’s request for production nos. 3, 4, 5, 8, 15, 17, 18, 20 and 21

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within thirty (30) days from June 18, 2018; and (2) reimburse McCart-Pollak for reasonable

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attorneys’ fees incurred in bringing the motions that led to these sanctions. Failure to do

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so will result in further monetary sanctions. McCart-Pollak’s counsel has fourteen (14)

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days to submit an affidavit of fees. On Demand’s local counsel is directed to send the

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minutes of the Court’s June 18, 2018 hearing and this order to Miller and On Demand by

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mail and email. Local counsel must submit certification that he has complied by sending

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the aforementioned documents to Miller and On Demand within three (3) days of this

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order.

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It is hereby ordered that the Magistrate Judge’s Report and Recommendation (ECF
No. 341) is accepted and adopted.
It is further ordered that the Clerk enter default judgment in favor of McCart-Pollak
on her counterclaims against On Demand.
DATED THIS 19th day of June 2018.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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