Jones v. Skolnik et al

Filing 404

ORDER granting 366 Motion for Reconsideration; vacating 363 Order; sustaining 289 Objection, to the extent this order revives it; granting 374 Renewed Motion to Strike; striking 253 Motion to Determine the Sufficiency of Admissions. Signed by Judge Larry R. Hicks on 12/12/2014. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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*****

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CHRISTOPHER A. JONES,

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Plaintiff,

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v.

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HOWARD SKOLNIK, et al.,

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Defendants.

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) 3:10-cv-00162-LRH-VPC
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) ORDER
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Before the Court is Plaintiff Christopher A. Jones’ (“Jones”) Motion for Reconsideration

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of the Court’s Order of September 25, 2014 (Doc. #363). Doc. #366. Defendant Yaqub

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Mustafaa (“Mustafaa”) filed a Response (Doc. #373) and renewed his prior Motion to Strike

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Jones’ Motion to Determine the Sufficiency of Admissions (Doc. #374), to which Jones Replied

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(Doc. #378).

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I.

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Factual Background
Jones’ Motion arises from a discovery dispute that began on December 2, 2013, when

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Jones propounded requests for admissions to Mustafaa. Doc. #280 at 3. Mustafaa responded to

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the requests for admissions in late December, at which point Jones replied, outlining his

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objections to the responses. Id. On February 4, 2014, Mustafaa’s attorney sent a four-page

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single-spaced letter to Jones, explaining the disputed responses. Doc. #253 at 50-53. The letter

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concluded with a request that Jones respond in good faith pursuant to Federal Rule of Civil

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Procedure 37 before filing a motion to compel. Id. at 53. Jones did not meet and confer under

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Rule 37, and instead filed a motion to compel on January 27, 2014. Doc. #239. Jones also filed

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a Motion to Determine Sufficiency of Admissions on February 20, 2014, but did not attach

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Mustafaa’s supplementary responses. Doc. #253. Mustafaa then filed a Motion to Strike

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Plaintiff’s Motion to Determine Sufficiency of Admissions on the ground that Jones failed to

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meet and confer pursuant to Rule 37. Doc. #258.

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In an April 11, 2014 Order, the Magistrate Judge stated that Jones’ refusal to meet and

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confer “alone warrants granting defendant Mustafaa’s motion to strike.” Doc. #280 at 3. The

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Magistrate Judge went further, and ruled on the merits of Jones’ Motion “in the interest of

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managing the court’s already congested docket in this case.” Id. Ultimately, the Magistrate

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Judge denied Jones’ Motion (Doc. #253) because after reviewing “defendant Mustafaa’s

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supplemental responses,” the Magistrate Judge determined that they were sufficient. Id. Jones

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filed an Objection to the Magistrate Judge’s Order on April 18, 2014, arguing that the Order

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constituted clear error because the Magistrate Judge never reviewed Defendants’ Supplemental

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Responses. Doc. #289. The Court overruled Jones’ Objection, noting that “Jones himself

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provided a copy of the supplemental responses,” and finding that the Magistrate Judge’s Order

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“was not clearly erroneous or contrary to law.” Doc. #363 at 2.

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Jones filed a Motion for Reconsideration on October 1, 2014, arguing that the Court’s

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Order, and the underlying Magistrate Judge’s Order, constituted clear error because Jones never

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submitted Mustafaa’s supplemental responses, so the Court could not have reviewed the

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supplemental responses in ruling on Jones’ Motion. Doc. #366 at 2. Specifically, Jones states

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that the document to which the Court referred as the supplemental responses was instead merely

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Mustafaa’s Rule 37(a) notice. Id. at 3. Mustafaa responds that the court never had the

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supplemental responses because Jones “admittedly did not provide them to the Court.” Doc.

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#373 at 3. Mustafaa included in his response a Counter-Motion to Reconsider the Magistrate

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Judge’s decision not to Strike Jones’ Motion to Determine Sufficiency of Admissions. Id. at 4-5.

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II.

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Legal Standard
“A district court has the inherent power to reconsider and modify its interlocutory orders

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prior to the entry of judgment.” Smith v. Massachusetts, 543 U.S. 462, 476 (2005) (quoting

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United States v. LoRusso, 695 F.2d 45, 53 (2d Cir. 1982)). However, “a motion for
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reconsideration should not be granted, absent highly unusual circumstances, unless the district

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court is presented with newly discovered evidence, committed clear error, or if there is an

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intervening change in the controlling law.” 389 Orange Street Partners v. Arnold, 179 F.3d 656,

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665 (9th Cir. 1999).

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A magistrate judge’s orders operate as final determinations of pretrial matters under 28

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U.S.C. § 636(b)(1)(A) and Local Rule IB 1-3. Accordingly, a district judge may reconsider a

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magistrate judge’s order only if it is “clearly erroneous or contrary to law.” 28 U.S.C.

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§ 636(b)(1)(A); Fed. R. Civ. P. 72(a); LR IB 3-1(a).

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III.

Discussion

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As a preliminary matter, the court inadvertently based its merits review of Jones’ Motion

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on the belief that the court had reviewed defendants’ supplemental responses because it appeared

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in the context of Jones’ Motion that he had in fact submitted the supplemental responses.

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Accordingly, the Court grants Jones’ Motion for Reconsideration (Doc. #366), vacates its prior

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Order overruling Jones’ Objection (Doc. #363), and enters this Order to resolve Jones’ initial

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objection (Doc. #289) and Mustafaa’s renewed Motion to Strike (Doc. #374).

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The Court’s mistaken belief that it had reviewed the supplemental responses while ruling

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on the merits of Jones’ Motion warrants sustaining Jones’ objection to the Magistrate Judge’s

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Order (Doc. #289). However, the Magistrate Judge’s determination that Jones’ refusal to meet

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and confer warranted granting Defendants’ Motion to Strike was not “clearly erroneous or

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contrary to law.” The record shows that Jones did not confer, or attempt to confer, with

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Mustafaa under Federal Rule of Civil Procedure 37 before filing his Motion to Compel. The

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Court therefore grants Defendants’ Renewed Motion to Strike Jones’ Motion to Determine

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Sufficiency of Admissions (Doc. #374).

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Defendants argue further that “Plaintiff should be sanctioned in any manner that the

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Court deems fit.” Doc. #373 at 4. The Court finds that sanctions are not appropriate in this case,

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nor is a protective order. Federal Rule of Civil Procedure 37 states that if a motion to compel is

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granted, the court must require the losing party to pay reasonable expenses, including attorney

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fees, unless the movant acted in good faith or was substantially justified. Fed. R. Civ. P.
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37(a)(5)(A). If a motion is denied, the court can issue a protective order under Federal Rule of

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Civil Procedure 26(c) or order the moving party to pay reasonable expenses including attorneys

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fees, unless the motion was substantially justified or ordering payment would otherwise be

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unjust. Fed. R. Civ. P. 37(a)(5)(B). Because granting Mustafaa’s Motion to Strike is most

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similar to denying a motion to compel, the Court now considers a protective order under Rule 26.

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See Wan v. Pulte Mortg., No. 2:13-cv-1362, 2013 WL 6692744, at *2 (D. Nev. Dec. 17, 2013)

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(declining to impose money damages under Rule 37(a)(5)(A) because plaintiff was pro se).

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Rule 26 of the Federal Rules of Civil Procedure states that a party “from whom discovery
is sought may move for a protective order” and seek a number of enumerated protections. Fed.

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R. Civ. P. 26(c). “The motion must include a certification that the movant has in good faith

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conferred or attempted to confer with other affected parties in an effort to resolve the dispute

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without court action.” Id. In order to protect a party “from annoyance, embarrassment,

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oppression, or undue burden or expense,” the court can impose conditions including “(A)

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forbidding the disclosure of discovery” and “(D) forbidding inquiry into certain matters, or

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limiting the scope of disclosure or discovery to certain matters.” Id. “[A] party seeking a stay of

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discovery carries the heavy burden of making a strong showing why discovery should be denied.”

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Ministerio Roca Solida v. U.S. Dep’t of Fish and Wildlife, 288 F.R.D. 500, 503 (D. Nev. 2013).

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Additionally, “a party seeking a protective order must show a particular and specific need for the

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protective order, and broad or conclusory statements concerning the need for protection are

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insufficient.” Id.

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The Court is convinced that before seeking sanctions, Mustafaa made a good faith

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attempt to confer with Jones and resolve this dispute without court action. As the Court has

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previously held, however, the mere fact that many of Jones’ prior motions have been

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unsuccessful “does not render them frivolous.” Doc. #372 at 4. Additionally, the Court finds

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that Mustafaa has not met his heavy burden to show that a protective order is appropriate.

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Mustafaa alleged that with the Motion, Jones “has gone too far by making false accusations of

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fraud” and misleading the Court with his “deliberate failure to produce the relevant,

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supplemental responses in [Jones’] possession at the time he filed his premature[] motion to
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compel.” Doc. #373 at 5. The present Motion cannot be considered frivolous, however, because

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the Court’s Orders regarding Jones’ Motion to Determine Sufficiency of Admissions were based

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at least in part on the underlying belief that the Court had reviewed Mustafaa’s supplemental

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responses.

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Despite the Court’s present decision not to impose a protective order or other sanctions,

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the Court notes that any additional attempt by Jones to challenge the sufficiency of Mustafaa’s

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admissions must be accompanied by the supplemental responses that Jones has thus far withheld.

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If Jones files another motion challenging the sufficiency of Mustafaa’s responses and fails to

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produce these supplemental responses, the Court will at that time consider imposing a protective

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order and/or sanctions. See Wilson v. Republic Servs. of S. Nev., No. 2:10-cv-1156, 2012 WL

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528226, at *3 (D. Nev. Feb. 17, 2012) (citing Jacobsen v. Filler, 790 F.2d 1362, 1364, 65 (9th

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Cir. 1986)) (declining to order pro se litigant to pay fees but noting that “further failures to

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follow the rules” and engage in good faith would “result in the imposition of sanctions”).

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IV.

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Conclusion
IT IS THEREFORE ORDERED that Jones’ Motion for Reconsideration (Doc. #366) is

GRANTED.
IT IS FURTHER ORDERED that the Court’s prior Order overruling Jones’ objection to
the Magistrate Judge’s Order (Doc. #363) is VACATED.
IT IS FURTHER ORDERED that to the extent that this Order revives Jones’ objection to
the Magistrate Judge’s Order (Doc. #289), the objection is SUSTAINED.
IT IS FURTHER ORDERED that Mustafaa’s Renewed Motion to Strike Jones’ Motion
to Compel (Doc. #374) is GRANTED.
IT IS FURTHER ORDERED that Jones’ Motion to Determine the Sufficiency of
Admissions (Doc. #253) is STRICKEN.

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IT IS SO ORDERED.

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DATED this 12th day of December, 2014.

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__________________________________
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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