Glas-Weld Systems, Inc. v. Boyle
Filing
217
ORDER: Plaintiff's Motion for Show Cause Why Default Judgment Should Not Be Entered 186 is DENIED in part, and defendants' Motion To Dismiss 210 is DENIED. The court does not order default judgment at this time. Rather, defend ants shall pay the attorney fees incurred by plaintiff in seeking to obtain the expert reports during the time period from April 6, 2015 through May 4, 2015; filing the motion for order to show cause 186 and supporting reply 202 ; the motion to co ntinue depositions 199 ; and the response in opposition to defendants' emergency motion to dismiss 214 . Plaintiff shall submit an affidavit of fees and supporting documentation within twenty-one (21) days from the date of this order. See formal ORDER. Copy of ORDER sent to Pro Se Defendant. Signed on 7/30/2015 by Chief Judge Ann L. Aiken. (rh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
GLAS-WELD SYSTEMS, INC., an
Oregon Corporation,
Civ. No.
6:12-cv-02273-AA
ORDER
Plaintiff,
v.
MICHAEL P. BOYLE, dba SURFACE
DYNAMIX and CHRISTOPHER BOYLE,
Defendants.
AIKEN, Chief Judge:
Plaintiff Glas-Weld Systems, Inc., brings patent infringement
and trade secret claims against defendants Michael P.
Boyle,
dba
Surface Dynamix, and Christopher Boyle pursuant to 35 U.S.C. § 271
et seq and Oregon law. Currently before the court are plaintiff's
motion to show cause why default judgment should not be entered, as
well as defendant's motion to dismiss for failure to comply with
federal discovery rules. Plaintiff's motion for default judgment is
1 - ORDER
denied at this time,
though the court orders
defBndants in the form of attorney's fees.
sanctions against
Defendants' motion is
denied.
The lengthy and convoluted procedural history of this case and
the parties'
disputes are well-documented by plaintiff's filings
and the docket of record.
Put simply, defendants repeatedly have
failed to comply with plaintiff's discovery requests,
and
court
orders,
requiring
otherwise
deadlines,
unwarranted
judicial
intervention. See, e.g., docs. 51, 63, 174, 186, 199. For example,
Michael
Boyle
has
represented
that
he
will
provide
certain
documents or information - such as expert reports - by a certain
date,
only
to
renege
at
the
last minute
for
questionable. and
unsubstantiated reasons. See doc. 186-3, Ex. Cat 1; 186-18, Ex. R.
Further, despite repeated warnings and admonishment from the court,
defendants continue to communicate with plaintiff's counsel in an
unnecessarily argumentative and unprofessional manner. See, e.g.,
doc. 186, Exs. I, 0-P, U.
1
Because of their pro se status and the hope that the parties
could move this case toward resolution,
defendants'
conduct to an extent.
increasingly weary of defendants'
1
the court has tolerated
However,
the court has grown
conduct and their
failure
The court notes that such treatment is not reserved for
plaintiff's counsel; Michael Boyle's demanding and demeaning
treatment of ~ppointed pro bono counsel resulted in the
withdrawal of such counsel earlier in this case.
2 - ORDER
to
abide by the relevant deadlines and the court's discovery orders.
Recently,
after defendants
repeatedly failed
to provide
expert
reports requested by plaintiff and ordered by the court, the court
ordered defendants to produce them by May 1, 2015. Doc. 188. The
court warned defendants
sanctions,
that
failure
including default
to do so could result
judgment against them.
in
Defendants,
unsurprisingly,
missed the deadline and apparently provided the
expert
(with
reports
afterward.
notable
Prior to May 1,
deficiencies)
2015,
two
to
defendants made
three
days
no effort to
contact the court or plaintiff's counsel to explain the delay or
otherwise seek leave for the late production.
Instead, on May 4, 2015, Michael Boyle filed a submission in
an
attempt
to
explain
and
excuse
the
delay.
Michael
Boyle
represented that "[e]xtenuating health problems" left him unable to
provide
the
"affect[ed]
expert
reports
by
life
transportation
a
by
by
May
threatening
ambulance
from
a
1,
2015,
illness"
health
in
that
that
clinic
in
he
was
required
Sisters,
Oregon, to St. Charles Medical Center in Bend for hospitalization.
Doc. 191. Michael Boyle also claimed that plaintiff made "false"
accusations about his alleged attempt to harass an employee of
plaintiff, which drove Michael Boyle into a "dangerous depressed
mood."
Doc.
2
191. 2
According
to
Michael
Boyle,
"the
following
The parties vigorously dispute the nature of the alleged
incident between plaintiff and an elder at Randy Mackey's place
of worship. The court has reviewed the relevant declaration. Doc.
3 - ORDER
Monday"
Christopher
April
27,
Boyle,
allegedly called 911
he
2015
that
he
and the
was
informed
his
suicidal.
Deschutes
son,
defendant
Christopher
Boyle
County Sheriff's office
conducted a search for Michael Boyle and eventually contacted and
interviewed him. Doc. 191.
Christopher Boyle also filed a submission on May 4, 2011, in
response to plaintiff's mbtion to show cause.
While referencing
Michael Boyle's hospital admittance, he quite notably omitted any
reference to Michael Boyle's threat of suicide,
a 911 call, or a
search by the Sheriff's Office. Doc. 193. Given the discrepancy and
defendants'
defendants
history of behavior in this case,
to
provide
documentation
to
the court ordered
support
their
representations regarding Michael Boyle's medical emergency and the
search by the Sheriff's Office.
Michael Boyle complied with the court's order,
provided a
discharge
summary
from St.
Charles
Michael Boyle did not submit documentation
in part,
and
Health Systems. 3
reg~rding
the ambulance
or his condition upon admittance.
201. given his description of the event in question, Michael
Boyle's conduct, though inappropriate and unprofessional, does
not warrant imposition of default judgment. Defendants are
advised that it is impermissible to contact plaintiff's employees
or representatives, other than through plaintiff's counsel.
3
Michael Boyle submitted this report ex parte; betause of
the personal nature of the report and the fact that such
information is not otherwise relevant to plaintiff's claims, it
was allowed.
4 - ORDER
The discharge report reflects that Michael Boyle was treated
for a bleeding ulcer from April 21 to 23, 2015. Notably, the court
issued the
order
to produce expert
reports
on April
28,
2015,
several days after Michael Boyle was discharged. Neither Michael
Boyle
nor
Boyle's
Christopher
medical
Boyle
condition,
contacted
even
though
to
court
the
about
court
had
Michael
ordered
defendants to do so in a prior order. Regardless, Michael Boyle was
discharged with few restrictions;
even if his medical condition
prevented him from producing the expert reports in a timely manner,
Christopher Boyle certainly could have done so.
More troubling is Michael Boyle's representation to the court
about a search for him by the Sheriff's Office on April 27, 2015,
the
day
before
the
court
issued
its
order.
As
mentioned,
Christopher Boyle did not mention this event in his submission to
the
court.
Doc.
193.
Further,
despite being ordered to do
so,
Michael Boyle never provided the Sheriff's Office report regarding
the alleged incident. Michael Boyle first informed the court that
he was in the process of obtaining it; then, Michael Boyle informed
the court that the report cost twenty dollars and he did not order
the report due to a ten-day delay. Instead, Michael Boyle provided
contact information for the Sheriff's Office. Doc. 197.
However, plaintiff contacted the Deschutes County Sheriff's
Office
and was
informed
that
a
911
incident
report
was
filed
regarding the Boyles on April 20, 2105, contrary to Michael Boyle's
5 - ORDER
assertion that the incident occurred on April 27,
plaintiff was informed that a
2015.
Further,
report for the incident could be
obtained in a week for a five-dollar fee. Doc. 200. When ordered to
explain the failure to provide the Sheriff's report and explain the
discrepancy,
Michael Boyle filed another ex parte
response
and
stated that his depression and anxiety caused him to confuse the
dates
of the event.
The court fails
to understand how that
is
possible, given the very short time frame involved. While the court
empathizes with those who suffer from depression,
court is inexcusable and will not be tolerated.
lying to the
The court thus
finds that sanctions are warranted for defendants' failure to abide
with
a
court
order
and
Michael
Boyle's
untruthfulness.
remaining question is the nature of the sanction -
The
whether the
court should grant plaintiff's motion for default judgment or issue
a lesser sanction.
"A terminating sanction,
whether default judgment against a
defendant or dismissal of a plaintiff's action,
Conn.
General Life Ins.
Co.
v.
is very severe."
New Images of Beverly Hills,
482
F.3d 1091, 1096 (9th Cir. 2007). "Only 'willfulness, bad faith, and
fault'
justify terminating sanctions." Id.
(quoting Jorgensen v.
Cassiday, 320 F. 3d 906, 912 (9th Cir. 2003)). The Ninth Circuit has
developed a five-part test to determine whether a case-dispositive
sanction is warranted:
(1) the public's interest in expeditious resolution of
litigation; ( 2) the court's need to manage· its dockets;
6 - ORDER
(3) the risk of prejudice to the party seeking sanctions;
(4) the public policy favoring disposition of cases on
their merits; and (5) the availability of less drastic
sanctions. The sub-parts of the fifth factor are whether
the cobrt has considered lesser sanctions, whether it
tried them, and whether it warned the recalcitrant party
about the possibility of case-dispositive sanctions. This
ntest" is not mechanical. It provides the district court
with a way to think about what to do, not a set of
conditions precedent for sanctions or a script that the
district court must follow[.]
Id.
( citations
omitted) .
I
find
that
the
application of
these
factors generally support the entry of default judgment against the
defendants in this case.
With respect to the first
two factors,
this case has been
pending since 2012; it is now 2015. Much of the delay arises from
defendants'
pro
se
status,
the
hostility
between
plaintiff's
counsel and defendants, and the repeated discovery disputes between
the parties,
provide
most
often as
a
requested information.
result
of defendants'
Given that a motion
failure
for
to
summary
judgment remains pending and is dependent on further discovery and
depositions, it is
unclea~
when and if this case will ever resolve.
Further, this case has required numerous instances of unnecessary
court intervention and will likely require additional intervention
in the future. Therefore, the interests of expeditious resolution
of litigation and the court's need to manage its dockets weigh in
favor of default judgment.
Further,
continue
7 - ORDER
to
as this.case unnecessarily extends, plaintiff will
be
prejudiced
in
terms
of
pursuing
its
claim and
expending additional resources. Thus, this factor also weighs in
favor of default judgment.
The fourth factor necessarily weighs
against default, which leaves the fifth factor.
The cburt has considered lesser sanctions, though it has not
imposed them. The court has also warned defendants that sanctions,
including default may be imposed.
The court's warnings have not
deterred
lack
compliance,
however.
during the pendency of plaintiff's motion for
Indeed,
defendants'
conduct
and
of
default,
defendants have again filed a meritless motion, as discussed below.
Furthermore, after failing
~o
comply with court's order to produce
expert reports, Michael Boyle was untruthful with the court.
~In
most
deciding whether to impose case-dispositive sanctions, the
critical
concerns,
1097.
factor
is
not merely delay or
but truth." Conn.
~what
is
most
General Life Ins.
critical
for
docket management
Co. ,
case-dispositive
regarding risk of prejudice and of less
drastic
4 8 2 F. 3d at
sanctions,
sanctions,
is
whether the discovery violations threaten to interfere with the
rightful decision of the case." Id.
(internal quotation marks and
citation omitted). The same principal should apply to non-discovery
instances of untruthful conduct, particularly when such conduct is
directed at the court. Here,
defendants'
conduct
~threaten[s]
to
interfere with the rightful decision of the case," in that the
court cannot rely on Michael Boyle's representations to this court
or to plaintiff. Id. Further, given Michael Boyle's conduct in this
8 - ORDER
case thus far, it is unlikely that his behavior will change. "It is
appropriate to reject lesser sanctions where the court anticipates
continued
deceptive
misconduct."
Anheuser-Busch,
Reverage Distribs., 69 F.3d 337, 352
Inc.
v.
Nat.
(9th Cir. 1995).
However, the court is faced with a dilemma. The court cannot
find that Christopher Boyle was untruthful in his submission to the
court on May 4, 2015. Further, several court orders addressed and
mailed to Christopher Boyle were returned "undeliverable." See,
docs.
.§__,_Q_,_,
195,
211.
While
Christopher
Boyle
should
provide
updated information about his address, the court cannot be certain
Christopher
Boyle
received
notice
of
several
court
orders. 4
Granted, at some point Christopher Boyle must have been notified of
the court's order on April 28, as he submitted an explanation for
defendants'
failure to comply with that order. At the same time,
the record does not establish that he had notice of additional
orders. As a result,
the court is not inclined to grant default
judgment against Christopher Boyle.
this case,
Further,
given the nature of
it would be inappropriate and unwise to enter default
against only one defendant. Therefore, default judgment will not be
entered at this time.
Nonetheless, the fact remains that defendants failed to comply
4
The address of record of Christopher Boyle has since been
changed to: 66932 Sagebrush Lane, Bend, Oregon 97701. If this
address is not accurate, either Michael Boyle or Christopher
Boyle shall notify the court immediately.
9 - ORDER
with the
for
~ourt's
order of April 28 after being warned of sanctions
non-compliance,
and
Michael
Boyle
submitted
untruthful
information in response to the court's inquiries. 5 Defendants also
continue
to
communicate
plaintiff's
with
unprofessional manner, which includes sarcasm,
calling. See, e.g., doc. 186-21, Ex.
imposition
defendants
of
sanctions
shall
pay
U.
against
plaintiff's
counsel
in
an
insults and name-
These actions warrant the
defendants.
attorney
Specifically,
fees
incurred
in
attempting to obtain defendants' expert reports from April 6, 2015
through May 4,
attorney
fees
2015.
Further,
defendants
incurred in moving
for
shall pay plaintiff's
default
judgment and
for
continuance of depositions.
Finally, the court considers defendants' nemergency" motion to
dismiss
for
plaintiff's
alleged
failure
to
comply
with
their
,discovery requests. I note that defendants filed this motion after
the court ordered them - again - to show cause why default judgment
should not be entered for repeatedly failing to comply with court
orders. Regardless, defendants' motion is without merit.
5
Plaintiff also contends ·that defendants failed to comply
with the court's order of May 26, 2015, requiring defendants to
produce additional information about their experts and explain
inconsistent responses. Plaintiff contends that the expert
reports remain deficient and the information provided nhighly
suspect." Doc. 213 at 3. Plaintiff may very well be correct that
the information is insufficient; however, I do not find default
judgment warranted on that ground. If defendants' expert reports
are deficient, plaintiff can rely on that fact in support of its
motion for summary judgment. Defendants will be ordered to
provide a resume or CV for Bob Simoni.
10 - ORDER
Defendants complain that plaintiff has failed to comply with
their discovery requests and seeks dismissal as
a sanction.
Of
course, dismissal would be inappropriate for one discovery failure.
Regardless, plaintiff has not failed to provide defendants with the
requested
information.
calculations,
which
Defendants
plaintiff's
plaintiff's
sought
provided
in
an
damages
email
(which,
contrary to defendants' allegations, was attached to its response).
See doc.
190-11.
Defendants nonetheless
contend that
plaintiff
fails to provide "expert analysis" for its damages calculations.
However,
plaintiff
defendants
believe
is
not
that
required
plaintiff's
to
do
damages
so.
If,
analysis
at
trial,
requires
expert opinion or is unsupported by the documents, they can make
that argument.
For purposes of discovery, plaintiff has provided
the information requested by defendants. Further, it is the court's
understanding that plaintiff's damages calculations is based on
information provided by defendants; thus,
defendants possess the
documents relied on by plaintiff. If the court's understanding is
incorrect, plaintiff shall provide any unprivileged documents, to
the extent they exist, that support their damages calculations.
Defendants next argue that plaintiff failed to disclose an
insurance
production
abatement
of
policy
"Documents
in
response
reflecting
or
to
its
requests
evidencing
for
insurance
policies that will or might defend and/or indemnify any party to·
this litigation,
11 - ORDER
for events,
occurrences,
acts and/ or omissions
associated with any allegation set forth in any pleading filed in
this case." Doc. 210-2. However, an insurance abatement policy is
not an indemnity policy. Moreover,
out,
as plaintiff correctly points
defendants have not asserted claims against plaintiff that
would trigger an indemnity insurance policy.
Finally, defendants
did not request a copy of the insurance abatement policy (and even
if they did,
it is not relevant and not subject to production) .
Therefore, this argument is meritless.
In light of the fact that the court denied a previous motion
by defendants asserting similar arguments, defendants are ordered
to pay the attorney fees incurred by plaintiff in responding to
this motion.
CONCLUSION
Plaintiff's Motion for Show Cause Why Default Judgment Should
Not Be Entered (doc. 186) is DENIED in part, and defendants' Motion
to Dismiss (doc. 210) is DENIED. The court does not order default
judgment at this time. Rather, defendants shall pay the attorney
fees incurred by plaintiff in seeking to obtain the
during the time period from April 6,
expert reports
2015 through May 4,
2015;
filing the motion for order to show cause (doc. 186) and supporting
reply (doc. 202); the motion to continue depositions
(doc.
199);
and the response in opposition to defendants' emergency motion to
dismiss (doc. 214). Plaintiff shall submit an affidavit of fees and
supporting documentation within twenty-on (21) days from the date
of this order.
12 - ORDER
Now that plaintiff has received defendants'
expert reports,
the parties shall confer and contact Paul Bruch at 541-431-4111 to
schedule a date and time for previously-noted depositions to occur
at the Eugene Federal Courthouse. The parties may also choose to
forego
depositions
and
proceed
with
supplemental
briefing
on
plaintiff's pending motion for partial summary judgment.
Defendants are advised that plaintiff, its employees, and its
representatives are represented by counsel, and any communication
from
defendants
attempt
by
must
be
defendants
made
to
through
contact
plaintiff's
plaintiff's
counsel.
employees
Any
or
representatives directly - whether in person, by telephone, or by
email - is not permitted.
Defendants are advised that the failure to comply with this
order or any future order shall result in an order to show cause
why default judgment should not be entered against them.
IT IS SO ORDERED..
Dated this
f11..
~
day of July, 2015.
Ann Aiken
United States District Judge
13 - ORDER
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?