Buswell v. Wal-mart Stores, Inc

• Court: District Court, D. Nevada
• Decided: October 1, 2019
• Docket: 2:19-cv-00211
• Status: Unknown

Opinion

1 UNITED STATES DISTRICT COURT

2 DISTRICT OF NEVADA

3 * * *

4 ANGELO BUSWELL, Case No. 2:19-CV-00211-RFB-EJY

5 Plaintiff, ORDER 6 v.

7 WAL-MART STORES, INC., and DOES 1 through 100; and ROE CORPORATIONS 101 8 through 200,

9 Defendants.

10 11 Before the Court is Plaintiff Angelo Buswell’s Motion for Sanctions Under FRCP 37(c)(1) 12 Against Defendant Wal-Mart Stores, Inc. (ECF No. 19), Defendant Wal-Mart Stores, Inc.’s 13 Opposition to Plaintiff’s Motion for Sanctions and Countermotion for Fees and Costs (ECF No. 23), 14 and Plaintiff’s Reply to Opposition to Plaintiff Angelo Buswell’s Motion for Sanctions under FRCP 15 37(c)(1) Against Defendant Wal-Mart Stores, Inc. (EFC No. 25). For the reasons stated below 16 Plaintiff’s Motion for Sanctions and Defendant’s Countermotion for Fees and Costs are denied. 17 DISCUSSION 18 I. Plaintiff’s Motion for Sanctions 19 The United States District Court for the District of Nevada, Local Rule IA 1-3(f) states:

20 Meet and Confer. Whenever used in these rules, to “meet and confer” means to communicate directly and discuss in good faith the issues required under the 21 particular rule or court order. This requirement is reciprocal and applies to all participants. Unless these rules or a court order provide otherwise, this requirement 22 may only be satisfied through direct dialogue and discussion in a face-to-face meeting, telephone conference, or video conference. The exchange of written, 23 electronic, or voice-mail communications does not satisfy this requirement. [Emphasis added.] 24 Local Rule IA I-3(f)(2), (3) and (4) respectively state: 25 A party who files a motion to which the meet-and-confer requirement applies must 26 submit a declaration stating all meet-and-confer efforts, including the time, place, manner, and participants. The movant must certify that, despite a sincere effort to 27 resolve or narrow the dispute during the meet-and-confer conference, the parties In addition to any sanction available under the Federal Rules of Civil Procedure, 1 statutes, or case law, the court may impose appropriate sanctions under LR IA 11- 8 for a party’s failure to comply with the meet and-confer requirement. 2 Failure to make a good-faith effort to meet and confer before filing any motion to 3 which the requirement applies may result in denial of the motion. 4 In Plaintiff’s Motion, Plaintiff refers to one meet and confer that occurred on June 26, 2019, 5 at which Plaintiff told Defendant of Plaintiff’s “immediate intention to file a motion seeking 6 sanctions for failure to preserve material evidence.” Plaintiff contends that soon thereafter 7 Defendant was able to produce records, which production occurred on July 16, 2019. Plaintiff’s 8 single meet and confer does not satisfy the requirements of Local Rule IA 1-3(f) and, for this reason 9 alone, Plaintiff’s Motion is denied. Nevertheless, the Court discusses the sanctions sought by 10 Plaintiff under Rule 37. 11 Pursuant to Fed. R. Civ. P. 37, sanctions may be granted against a party that fails to provide 12 discovery as required by Rule 26(a). Rule 37(c) states: “If a party fails to provide information or 13 identify a witness as required by Rule 26(a) or (e) ... the court ... may order payment of the reasonable 14 expenses, including attorney’s fees, caused by the failure ... [and] may impose other appropriate 15 sanctions, including any of the orders listed in Rule 37(b)(2)(A)(i)-(vi).” The Court has broad 16 discretion regarding the type and degree of discovery sanctions it may impose. Von Brimer v. 17 Whirlpool Corp., 536 F.2d 838, 844 (9th Cir.1976). Rule 37 allows for imposition of any remedy 18 the Court determines is “just.” Societe International Pour Participations Industrielles Et 19 Commerciales, S.A. v. Rogers, 357 U.S. 197, 207 (1958); see also Marquis v. Chrysler Corp., 577 20 F.2d 624, 641–642 (9th Cir.1978). 21 There are situations in which the Court may find that a severe sanction is necessary to prevent 22 some benefit to the sanctioned party. National Hockey League v. Metropolitan Hockey Club, Inc., 23 427 U.S. 639, 639 (1976). However, if sanctions are warranted, the Court determines the appropriate 24 level or severity of sanctions based on the circumstances of the case. Generally, a case dispositive 25 sanction will only be imposed as a last resort. Henry v. Gill Industries, 983 F.2d 943, 948 (9th 26 Cir.1993). The Ninth Circuit has constructed a five-part test to determine whether a case dispositive 27 sanction under Rule 37(b)(2) is a just result. This test includes: “(1) the public’s interest in 1 to the defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the 2 availability of less drastic sanctions.” Connecticut General Life Ins. Co. v. New Images of Beverly 3 Hills, 482 F.3d 1091, 1096 (9th Cir.2007). While it is not always necessary for the Court to impose 4 less severe sanctions first, or to give any explicit warning that a case dispositive sanction may be 5 imposed (Valley Engineers Inc. v. Electric Engineering Company, 158 F.3d 1051, 1057 (9th 6 Cir.1998)), the party being sanctioned must have engaged in willfulness, fault, or bad faith before a 7 case dispositive sanction will be appropriate. Henry, 983 F.2d at 947–48 (citing Fjelstad v. American 8 Honda Motor Co., 762 F.2d 1334, 1337 (9th Cir.1990). “[P]ublic policy favoring disposition of 9 cases on their merits strongly counsels against” case-dispositive sanctions. In re 10 Phynylpropanolamine Products Liability Litigation, 460 F.3d at 1228 (citation omitted). 11 Here, even if Plaintiff had met and conferred as required by the Local Rules, there is no basis 12 for issuing a case dispositive sanction. Defendant has not been previously warned and there is no 13 evidence of prior misdeeds in this case. Documents were produced in mid-July before Plaintiff made 14 his motion. And, while Plaintiff claims prejudice, Plaintiff never explains to the Court how that 15 prejudice was actually manifested or why it is uncurable. Plaintiff does not state he was denied the 16 opportunity to conduct discovery or is otherwise now blocked from mounting a full case against 17 Defendant because of Defendant’s belated discovered. There is also no evidence that Defendant 18 failed to promptly produce what it ultimately (albeit belatedly) discovered. In sum, it appears had 19 the parties cooperated just a bit more, as required by the Rules of Civil Procedure, and as anticipated 20 by this Court, the delay in production and the need for a motion for sanctions would have been 21 avoided. 22 For the same reasons stated above, the Court finds Defendant is not entitled to attorney’s fees 23 or costs associated with its countermotion (ECF No. 23). Defendant, a sophisticated, multi-national 24 company, should have been able to locate the information requested by Plaintiff, which was clearly 25 discoverable, without Plaintiff having to provide Defendant with its own claim number. While 26 Defendant apparently made some effort to find the documents ultimately produced in mid-July 2019, 27 1 it is true that given the date, time, and location of the events in question, together with a portion of 2 the name of the individual who claims to be injured, Defendant should have been able to locate the 3 file without relying on Plaintiff to provide Defendant its own claim number. 4 ORDER 5 Accordingly, 6 IT IS HEREBY ORDERED that Plaintiff’s Motion for Sanctions (ECF No. 19) is DENIED. 7 IT IS FURTHER ORDERED that Defendant’s Countermotion for Fees and Costs (ECF No. 8 23) is DENIED. 9 10 DATED: October 1, 2019 11 12

13 ELAYNA J. YOUCHAH 14 UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27