Rockin Artwork, LLC v. Bravado, Inc et al

Filing 121

ORDER by U.S. District Judge John C Coughenour granting Defendant Bravado's 73 Motion for Summary Judgment and 76 Motion for Sanctions. Rockin's claims against Bravado are DISMISSED with prejudice. These claims are also DISMISSED with prejudice as to the Hendrix Defendants to the extent that their liability is based on an agent-principal relationship. (PM)

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THE HONORABLE JOHN C. COUGHENOUR 1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 9 ROCKIN ARTWORK, LLC, 10 Plaintiff, 11 CASE NO. C15-1492-JCC ORDER v. 12 13 14 15 16 BRAVADO INTERNATIONAL GROUP MERCHANDISING SERVICES, INC., a California corporation; AUTHENTIC HENDRIX, LLC, a Washington limited liability company; and EXPERIENCE HENDRIX, a Washington limited liability company, 17 18 19 20 21 22 23 Defendants. This matter comes before the Court on the motion for summary judgment (Dkt. No. 73) and the motion for sanctions (Dkt. No. 76) by Defendant Bravado International Group Merchandising Services, Inc.1 Having thoroughly considered the parties’ briefing and the relevant record, the Court finds oral argument unnecessary and, for the reasons discussed herein, hereby GRANTS the motion for summary judgment (Dkt. No. 73) and the motion for sanctions (Dkt. No. 76). 24 25 1 Defendants Authentic Hendrix, LLC and Experience Hendrix, LLC join Bravado’s 26 motion for summary judgment with respect to the claims upon which their liability is based on an agent-principal relationship with Bravado. (See Dkt. Nos. 90, 118.) ORDER PAGE - 1 1 I. BACKGROUND 2 This case is a dispute over the licensing rights to Jimi Hendrix memorabilia. In its 3 complaint, Plaintiff Rockin Artwork, LLC alleges that it has “various rights to Jimi Hendrix 4 images and likenesses, various items of artwork created by Jimi Hendrix, and Jimi’s brother 5 Leon Hendrix’s exclusive endorsement of Jimi Hendrix products.” (Dkt. No. 1 at 2, 3.) Rockin 6 “licenses [these rights] to other individuals and/or entities who then create Jimi Hendrix 7 memorabilia for sale to the consumer market.” (Id. at 4.) 8 Defendants Authentic Hendrix, LLC and Experience Hendrix, LLC (“the Hendrix 9 Defendants”) also own merchandising rights associated with Jimi Hendrix. (Dkt. No. 73 at 2.) In 10 February 2015, the Hendrix Defendants entered into an exclusive license with Defendant 11 Bravado International Group Merchandising Services, Inc. to manage those merchandising 12 rights. (Id.) On March 17, 2015, Bravado sent a letter to three licensees of the Hendrix 13 Defendants—Hybrid Apparel, C-Life Group, and Liquid Blue—stating: 14 15 16 17 18 19 As you may be aware, we now hold the exclusive worldwide merchandising rights for the late recording artist p/k/a Jimi Hendrix (“Artist”). It’s come to our attention that your agreement you entered into with his estate had expired on December 31, 2014. Therefore, this shall hereby serve as formal notice to you that the Term of the above-referenced agreement (the “Agreement”) has hereby expired. As a result, all rights to Artist merchandise granted to your company under the Agreement shall hereby immediately be deemed terminated and shall revert back to Bravado International Group Merchandising Services, Inc. (“Bravado”) on behalf of Artist’s estate. 20 (Dkt. No. 29-11 at 5, 7, 9.) These letters are hereinafter referred to as the Termination Letters. 21 On September 17, 2015, Rockin brought suit against Bravado and the Hendrix 22 Defendants, alleging tortious interference with contract and business expectancy, fraud, 23 negligent misrepresentation, trade libel, consumer protection violations, and false designation of 24 origin under the Lanham Act, 15 U.S.C. § 1051 et seq. (Dkt. No. 1 at 13-18.) Rockin bases these 25 claims on its allegation that Bravado “contacted various prospective licensees and actual 26 licensees of [Rockin] and have incorrectly informed them, either directly or by implication, that ORDER PAGE - 2 1 [Rockin] is not authorized to enter into such agreements and/or that only Defendants are 2 authorized to enter into such agreements or engage in the business of selling Jimi Hendrix 3 memorabilia.” (Id. at 5.) According to Rockin, the Hendrix Defendants also participated in these 4 false communications. (Id.) 5 On August 25, Bravado moved to compel Rockin to produce discovery, arguing that 6 Rockin refused to produce discoverable documents. (Dkt. No. 28 at 2, 6.) Shortly thereafter, the 7 Hendrix Defendants brought a similar motion. (Dkt. No. 33.) The Court granted both motions, 8 reasoning that Rockin had waived its objections by failing to timely raise them and was required 9 to produce the requested discovery.2 (See Dkt. Nos. 42, 58, 59.) The Court commented that 10 “Defendants’ requests were straightforward and clear, and they go to the heart of Rockin’s 11 claims. Rockin’s continued insistence to obfuscate the basis for its claims cannot be condoned.” 12 (Dkt. No. 58 at 7.) 13 On October 20, Rockin sought an extension of time to complete discovery, arguing that 14 Defendants’ unavailability and duplicative discovery requests caused delays. (Dkt. No. 50 at 115 2.) Rockin also moved to compel discovery from the Hendrix Defendants. (See Dkt. No. 52 at 516 7.) A week later—directly after the Court had resolved both of Defendants’ motions to compel 17 and ordered Rockin to produce discovery, (see Dkt. No. 58, 59)—Rockin moved to amend its 18 complaint to strike its Lanham Act claim. (Dkt. No. 62 at 1.) Rockin said it “believe[d] that it 19 will be difficult to prevail on this claim” and noted that, without the sole federal claim, this Court 20 could lose jurisdiction. (Id. at 3.) Rockin also sought to stay all proceedings until the amendment 21 issue was resolved. (Dkt. No. 60 at 1.) 22 The Court granted the stay in part, reasoning that, if the Court would soon lose 23 24 2 The Court also awarded fees to Defendants pursuant to Rule 37. (Dkt. No. 42 at 8; Dkt. No. 59 at 7.) Defendants were later forced to move to compel payment of those fees because 26 Rockin refused to tender payment. (Dkt. Nos. 65, 67.) The Court also granted those motions. (Dkt. No. 89 at 1-2.) 25 ORDER PAGE - 3 1 jurisdiction, it would not be in the interest of judicial economy to rule on pending motions. (Dkt. 2 No. 64 at 1.) The Court otherwise denied the stay, reasoning that the Lanham Act claim was “one 3 of many in this case, and the discovery sought thus far is relevant to Rockin’s claims as a whole. 4 Thus, to proceed ahead would not be futile and would prevent even further delay in this case.” 5 (Id. at 2.) 6 On November 17, Bravado filed a motion for summary judgment and a motion for 7 sanctions, both seeking dismissal of all claims. (Dkt. Nos. 73, 76.) Bravado argued that Rockin 8 had still not complied with the discovery orders and had produced “no admissible evidence on 9 crucial elements of each of its claims.” (Dkt. No. 73 at 1-2; see also Dkt. No. 76 at 1-2.) On December 7, the Court denied Rockin’s motion to strike its Lanham Act claim, 10 11 concluding that the request was “untimely and constitutes a clear effort to engage in 12 impermissible forum shopping.” (Dkt. No. 89 at 1.) The Court lifted the stay and renoted the four 13 pending motions. (Id. at 2.) On January 5, 2017, the Court denied Rockin’s motion to compel, reasoning that its 14 15 discovery requests would not produce relevant and proportional discovery. (Dkt. No. 120 at 2-3.) 16 The Court also denied Rockin’s motion to extend the discovery deadline, concluding that any 17 delays were attributable to Rockin, not to Defendants. (Id. at 3.) The Court stated: “Quite 18 frankly, the Court suspects that this lawsuit is a fishing expedition and sees Rockin’s requests as 19 evidence of that intent.” (Id. at 4.) The Court now considers Bravado’s motion for summary judgment (Dkt. No. 73) and 20 21 motion for sanctions (Dkt. No. 76). 22 II. DISCUSSION 23 A. 24 The Court shall grant summary judgment if the moving party shows that there is no Summary Judgment Standard 25 genuine dispute as to any material fact and that the moving party is entitled to judgment as a 26 matter of law. Fed. R. Civ. P. 56(a). In making such a determination, the Court must view the ORDER PAGE - 4 1 facts and justifiable inferences to be drawn therefrom in the light most favorable to the 2 nonmoving party. Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986). Once a motion for 3 summary judgment is properly made and supported, the opposing party must present specific 4 facts showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(e); Matsushita Elec. Indus. 5 Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Material facts are those that may affect the 6 outcome of the case, and a dispute about a material fact is genuine if there is sufficient evidence 7 for a reasonable jury to return a verdict for the non-moving party. Anderson, 477 U.S. at 248-49. 8 Ultimately, summary judgment is appropriate against a party who “fails to make a showing 9 sufficient to establish the existence of an element essential to that party’s case, and on which that 10 party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). 11 B. Motion for Summary Judgment 12 Bravado seeks dismissal of all claims, arguing that Rockin has failed to produce any 13 supporting evidence. (See generally Dkt. Nos. 73, 76.) Bravado argues that, due to this lack of 14 evidence, summary judgment in its favor is appropriate. (Dkt. No. 73 at 1-2.) Bravado further 15 asserts that the failure to comply with discovery orders warrants dismissal of Rockin’s claims as 16 a sanction. (Dkt. No. 76 at 1-2.) 1. Rockin’s Procedural Arguments 17 18 Rockin raises multiple arguments as to the procedural propriety of Bravado’s motions. 19 One such argument is that Bravado’s act of filing the motions violated the Court’s stay order. 20 (Dkt. No. 87 at 2.) Not so. The Court stated that it would not rule on pending motions, but that 21 the case would otherwise continue. (Dkt. No. 64 at 1-2.) Nowhere did the Court prohibit 22 Defendants from filing motions in an effort to resolve this case. 23 Rockin further asserts that Bravado’s summary judgment motion should be denied under 24 Rule 56(d), which states: “If a nonmovant shows by affidavit or declaration that, for specified 25 reasons, it cannot present facts essential to its opposition, the Court may . . . defer considering 26 the motion or deny it.” (Dkt. No. 87 at 4.) Rockin argues that, because the Court had not resolved ORDER PAGE - 5 1 its motion to compel before its summary judgment response was due, Rockin was “hamstrung 2 with respect to obtaining necessary information.” (Id. at 4-5; Dkt. No. 98 at 10.) However, the 3 Court has since denied Rockin’s motion to compel and motion to extend discovery, meaning 4 Rockin was not entitled to that evidence. (See Dkt. No. 120 at 2-3.) 5 Rockin further challenges the Court’s decision to deny its motion to strike the Lanham 6 Act claim. (See Dkt. No. 98 at 5-8.) This is an improper method of asking the Court to reconsider 7 its order. See W.D. Wash. Local Civ. R. 7(h)(2) (“A motion for reconsideration shall be plainly 8 labeled as such.”). Moreover, it is meritless. 9 Rockin first argues that a motion to amend pleading cannot be denied as untimely. (Dkt. 10 No. 98 at 5.) The Court acknowledges that a party may bring a motion to amend “at any time 11 prior to trial.” Fed. R. Civ. P. 15(a)(2). But the Court’s comment about timeliness was not 12 intended as a standalone basis for denial. Rather, the Court found that Rockin’s dilatory practices 13 negated its argument that amendment served the interests of justice. (See Dkt. No. 89 at 1.) 14 Second, Rockin argues that denying its motion to amend did not serve the interests of 15 justice, because Defendants opposed the motion and then immediately filed motions to dismiss 16 that claim. (Dkt. No. 98 at 6.) This was within Defendants’ rights. Their behavior has no bearing 17 on Rockin’s conduct that led the Court to deny its motion. (See Dkt. No. 89 at 1.) 18 Third, Rockin asserts that its actions did not constitute forum shopping because it did not 19 seek a different venue or substantive law. (Dkt. No. 98 at 7-8.) While those are examples of 20 common motives for forum shopping, the practice is not so limited. Rather, forum shopping is 21 “choosing the most favorable . . . court in which a claim might be heard.” BLACK’S LAW 22 DICTIONARY (10th ed. 2014). Here, Rockin received multiple unfavorable rulings from this 23 Court—the forum that Rockin itself chose in bringing suit—and then sought a transfer to state 24 court, seemingly in the hopes that it would find a new judge who had not yet seen all of its tricks. 25 It is precisely this type of behavior that the policy against forum shopping is designed to address. 26 Finally, Rockin argues that it has a legal right to move to amend its complaint under ORDER PAGE - 6 1 Federal Rules of Civil Procedure 15 and 41. (Dkt. No. 98 at 8.) This is true. But while Rockin 2 has the right to ask, it does not have the right to a favorable answer. See Fed. R. Civ. P. 15(a)(2) 3 (once 21 days have passed after service, “a party may amend its pleading only with the opposing 4 party’s written consent or the court’s leave”); Fed. R. Civ. P. 41(a)(2) (if the opposing party has 5 filed a responsive pleading and does not stipulate to dismissal, “an action may be dismissed at 6 the plaintiff’s request only by court order, on terms that the court considers proper”). 7 Thus, for all the reasons articulated here and in previous orders, Bravado’s motions are 8 procedurally proper and shall be decided on the basis of the record currently before the Court. 9 10 2. False Designation of Origin Rockin’s complaint alleges that “Defendants’ conduct complained of herein constitutes 11 ‘false designation of origin’ . . . in violation of the Lanham Act.” (Dkt. No. 1 at 19.) Bravado 12 argues that this claim should be dismissed with prejudice because its conduct was not prohibited 13 by the Lanham Act. (See Dkt. No. 73 at 12-13.) 14 Rockin raises no substantive argument in response. (See Dkt. No. 98 at 18.) Instead, 15 Rockin argues that Bravado’s motion should be denied as to this cause of action, because Rockin 16 already moved to strike the claim, rendering Bravado’s request moot. (Id.) But, as discussed 17 above, the Court rejected Rockin’s request to strike its claim and retained jurisdiction to 18 determine this matter on the merits. 19 The Lanham Act establishes liability for “[a]ny person who, on or in connection with any 20 goods or services [uses] any false designation of origin [that] is likely to cause confusion, or to 21 cause mistake.” 15 U.S.C. § 1125(a)(1). The “central concern in a case under the Lanham Act 22 section creating civil liability for false designations of origin is whether the public is likely to be 23 confused as to the manufacturer, attributes, or origin of the product.” 87 C.J.S. Trademarks, Etc. 24 § 274 (2016) (citing Hyman v. Nationwide Mut. Fire Ins. Co., 304 F.3d 1179 (11th Cir. 2002)). 25 Rockin fails to articulate how this provision is applicable to its claim that Defendants 26 misled licensees about who owned particular merchandising rights. Nor can the Court conceive ORDER PAGE - 7 1 of an application to this case. Bravado’s motion for summary judgment is GRANTED as to 2 Rockin’s Lanham Act claim. 3 4 3. Tortious Interference with Contract and Business Expectancy Rockin alleges that, in misleading companies as to Rockin’s licensing rights, Defendants 5 interfered with Rockin’s existing and prospective contracts and business expectancies. (Dkt. No. 6 1 at 13.) Bravado argues that this claim should be dismissed because “Bravado created, rather 7 than interfered, with Rockin’s business opportunities.” (Dkt. No. 73 at 15.) 8 In Washington, a claim for tortious interference with a contractual relationship or 9 business expectancy has five elements that must be proved: 10 11 12 (1) the existence of a valid contractual relationship or business expectancy; (2) that defendants had knowledge of that relationship; (3) an intentional interference inducing or causing a breach or termination of the relationship or expectancy; (4) that defendants interfered for an improper purpose or used improper means; and (5) resultant damage. 13 Leingang v. Pierce County Medical Bureau, Inc., 930 P.2d 288, 300 (Wash. 1997). 14 Here, Rockin alleges that Defendants interfered with its relationships with three 15 companies: Hybrid Apparel, Trevco, and Jimi Electronics. (Dkt. No. 98 at 14.) 16 Trevco and Jimi Electronics did not receive a Termination Letter from Bravado. (Dkt. 17 No. 73 at 15.) Bravado argues that Rockin has otherwise “produced no admissible evidence 18 suggesting that Bravado had any other contact with these entities at all, much less contact that 19 somehow interfered with some contract or expectancy.” (Id.) As to Hybrid, Bravado produces 20 evidence that its Termination Letter actually caused Hybrid to seek—not end—a business 21 relationship with Rockin. (See Dkt. No. 75.) According to Hybrid’s Executive Vice President of 22 Licensing, Derrick Baca, Hybrid had no relationship with Rockin prior to receiving the 23 Termination Letter, but the letter made Baca “interested in exploring other avenues.” (Dkt. No. 24 75 at 2.) Baca’s declaration explicitly states: 25 26 Hybrid did not begin negotiating with Rockin Artwork regarding a potential contract until after Bravado informed Hybrid that its agreement with Experience Hendrix would not be renewed. We only became interested in what Rockin ORDER PAGE - 8 Artwork might have to offer because of Bravado’s letter informing us that our license through Authentic would not renew. 1 2 (Id.) 3 In response, Rockin produces two declarations: one from its counsel, Thomas Osinski, 4 and one from its co-owner, Andrew Pitsicalis, both of which state that Rockin had a business 5 relationship with Hybrid before receipt of the Termination Letter.3 (Dkt. No. 98 at 14; Dkt. No. 6 102 at 1-2; Dkt. No. 103 at 6.) However, Rockin submits no other evidence of this relationship or 7 the alleged “agreement [that] was finalized, all but the final signatures, as of February 2014.” 8 (Dkt. No. 103 at 6.) The declarations likewise state, without supporting evidence, that 9 Defendants made misleading communications to Trevco and Jimi Electronics about Rockin’s 10 rights, causing those companies to back out of negotiated deals. (Dkt. No. 103 at 6-7; Dkt. No. 11 102 at 3-4.) Rockin did not produce any of this evidence in response to Defendants’ discovery 12 requests or the Court’s order compelling them to do so. (See Dkt. No. 58 at 3.) 13 Accordingly, Bravado moves to strike this evidence. (Dkt. No. 112 at 3-4.) Under Rule 14 37(c)(1), “[i]f a party fails to provide information . . . as required by Rule 26(a) or (e), the party 15 is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or 16 at a trial, unless the failure was substantially justified or is harmless.” Rockin’s failure to comply 17 with a discovery order was not substantially justified. Nor can the failure to produce the 18 discovery be considered harmless: Rockin’s self-serving declaration attempts to use the withheld 19 evidence to create a dispute of material fact and defeat summary judgment. Bravado’s motion to 20 strike is thus GRANTED. Any allegations in the Osinski and Pitsicalis declarations about 21 Defendants’ contact with licensees are inadmissible if they pertain to or rely upon evidence that 22 was withheld in violation of the Court’s discovery orders. 23 24 3 Rockin also points generally to “the Court Record.” (Dkt. No. 98 at 14.) Such a citation is insufficient. See Fed. R. Civ. P. 56(c)(1)(A) (“A party asserting that a fact cannot be or is 26 genuinely disputed must support the assertion by . . . citing to particular parts of materials in the record.”). 25 ORDER PAGE - 9 1 Without these declarations, Rockin has produced no evidence that Bravado interfered 2 with any contractual relationship or business expectancy. Bravado’s motion for summary 3 judgment is thus GRANTED as to this claim. 4 5 4. Fraud/Negligent Misrepresentation Rockin’s complaint alleges that Defendants committed fraud and negligent 6 misrepresentation by falsely informing prospective licensees that Rockin had no rights to deal in 7 Hendrix memorabilia. (Dkt. No. 1 at 14.) To prevail on a claim of fraud, a plaintiff must show 8 “(1) representation of an existing fact; (2) materiality; (3) falsity; (4) the speaker’s knowledge of 9 its falsity; (5) intent of the speaker that it should be acted upon by the plaintiff; (6) plaintiff’s 10 ignorance of its falsity; (7) plaintiff’s reliance on the truth of the representation; (8) plaintiff’s 11 right to rely upon it; and (9) damages suffered by the plaintiff.” Adams v. King County, 192 P.3d 12 891, 902 (Wash. 2008). 13 Bravado argues that this claim should be dismissed because Rockin has no evidence “that 14 Bravado ever made any statement to Rockin upon which Rockin was entitled to rely, or that 15 Bravado owed Rockin any special duty.” (Dkt. No. 73 at 16.) In response, Rockin states only that 16 these claims are “asserted as alternatives to the trade liable [sic] and consumer protection act 17 claims as Defendant’s fraudulent/misrepresentative communications were directed at third 18 parties and not at” Rockin. (Dkt. No. 98 at 15.) Thus, as Rockin admits, there is no allegation 19 that Bravado made any false statement to Rockin or that Rockin relied upon any such statement. 20 Rockin has not pleaded a proper fraud claim, much less shown that the claim should survive 21 summary judgment. Bravado’s motion is GRANTED as to Rockin’s fraud/negligent 22 misrepresentation claim. 23 24 5. Trade Libel Rockin’s complaint asserts that Defendants’ conduct constitutes trade libel under 25 Washington law “in that it constituted a knowing false or misleading statement about Defendants 26 published to a third party or parties which is the proximate cause of [Rockin’s] damages.” (Dkt. ORDER PAGE - 10 1 No. 1 at 17.) Rockin clarified on summary judgment that its trade libel claim is essentially a 2 “defamation per se” argument.4 (Dkt. No. 98 at 15.) Bravado argues that this claim must fail 3 because Rockin has no evidence to support a trade libel or defamation claim. (Dkt. No. 73 at 17; 4 Dkt. No. 112 at 10-11.) 5 To establish a claim for trade libel, “a plaintiff must allege that the defendant published a 6 knowingly false statement harmful to the interests of another and intended such publication to 7 harm the plaintiff’s pecuniary interests.” Auvil v. CBS 60 Minutes, 67 F.3d 816, 820 (9th 8 Cir.1995). A communication constitutes defamation per se if it “(1) exposes a living person to 9 hatred, contempt, ridicule or obloquy, or to deprive him of the benefit of public confidence or 10 social intercourse, or (2) injures him in his business, trade, profession or office.” Life Designs 11 Ranch, Inc. v. Sommer, 364 P.3d 129, 134 (Wash. Ct. App. 2015). 12 As support for its claims, Rockin again cites its Osinski and Pitsicalis declarations, which 13 allege that Defendants made false statements to licensees about Rockin’s merchandising rights. 14 (Dkt. No. 98 at 16; Dkt. No. 102 at 3-4; Dkt. No. 103 at 4-7.) These allegations pertain to 15 withheld discovery and, as discussed above, are stricken from the record. This leaves the 16 Termination Letters as the only admissible evidence. These letters communicated to the Hendrix 17 Defendants’ licensees that Bravado now exclusively held their merchandising rights and would 18 not be renewing the licensing agreements. (See Dkt. No. 29-11 at 5, 7, 9.) The letters did not 19 communicate a false or harmful statement about Rockin. And, even if they had, there is no 20 evidence that Rockin suffered any harm as a result. In fact, the admissible evidence shows that 21 Rockin actually benefitted from Defendants’ termination of those agreements. (See Dkt. No. 75) 22 (Baca declaration that Termination Letter caused him to reach out to Rockin); (see also Dkt. No. 23 24 4 It is unclear whether trade libel is an actionable claim in Washington, and Rockin has provided no legal authority to support its assertion that these two causes of action are equivalent. 26 The Court does not further explore this issue because Rockin has not provided admissible evidence to support either claim. 25 ORDER PAGE - 11 1 74-15) (merchandising agreement entered into between Rockin and C-Life Group after receipt of 2 Termination Letter). 3 Bravado’s motion for summary judgment is GRANTED as to Rockin’s trade 4 libel/defamation claim. 5 6 6. Consumer Protection Act Finally, Rockin’s complaint alleges that Defendants’ conduct constitutes a consumer 7 protection violation. (Dkt. No. 1 at 17-18.) To prevail under the Washington Consumer 8 Protection Act (WCPA), a plaintiff must establish each of the following elements: “(1) unfair or 9 deceptive act or practice; (2) occurring in trade or commerce; (3) public interest impact; 10 (4) injury to plaintiff in his or her business or property; [and] (5) causation.” Hangman Ridge 11 Training Stables, Inc. v. Safeco Title Ins. Co., 719 P.2d 531, 533–35 (Wash. 1986). 12 Assuming, without deciding, that the conduct alleged could constitute a WCPA violation, 13 Rockin again relies on the stricken evidence to support its claim. (See Dkt. No. 98 at 17-18.) For 14 the reasons articulated above, Rockin fails to submit admissible evidence to support this cause of 15 action. Bravado’s summary judgment motion is GRANTED as to the WCPA claim. 16 C. Motion for Sanctions 17 Bravado also asks the Court to dismiss the claims against it and to grant an award of 18 reasonable expenses as a sanction for Rockin’s contempt in disobeying the Court’s discovery 19 orders. (Dkt. No. 76 at 1.) Because the Court grants summary judgment on all claims against 20 Bravado, the dismissal request is moot. 21 However, the Court deems it appropriate to award expenses and fees pursuant to Rule 37. 22 Under this provision, if a party does not comply with a discovery order, “the court must order the 23 disobedient party, the attorney advising that party, or both to pay the reasonable expenses, 24 including attorney’s fees, caused by the failure, unless the failure was substantially justified or 25 other circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(b)(2)(C). As noted 26 above, Rockin’s failure to comply was not substantially justified. Rule 37 thus mandates an ORDER PAGE - 12 1 award of fees. 2 It is unclear whether the bad behavior here was on the part of counsel or the client. Thus, 3 the Court ORDERS both Rockin and its counsel to pay Bravado’s reasonable expenses, 4 including attorney fees, in bringing the motion for summary judgment and motion for sanctions. 5 Bravado shall submit an accounting of its expenses within 14 days of this order. 6 III. CONCLUSION 7 The Court GRANTS Bravado’s motion for summary judgment (Dkt. No. 73) and motion 8 for sanctions (Dkt. No. 76). Rockin’s claims against Bravado are DISMISSED with prejudice. 9 These claims are also DISMISSED with prejudice as to the Hendrix Defendants to the extent that 10 their liability is based on an agent-principal relationship. 11 DATED this 12th day of January 2017. 12 13 14 15 A 16 17 18 John C. Coughenour UNITED STATES DISTRICT JUDGE 19 20 21 22 23 24 25 26 ORDER PAGE - 13

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